Yes, a military judge has an independent duty to instruct the court-martial panel on any lesser included offenses (LIOs) that are reasonably raised by the evidence, even if neither the prosecution nor the defense requests it. An LIO is a crime whose elements are all contained within the elements of the greater offense charged. This judicial responsibility ensures that the panel has all legally appropriate options and prevents an “all-or-nothing” verdict where a guilty person might be acquitted simply because the panel did not believe the evidence supported the highest charged offense. This upholds the fairness and integrity of the findings process.
The determination is made by the judge after all evidence has been presented. For example, in a desertion trial requiring proof of an “intent to remain away permanently,” if the evidence of that specific intent is weak but the absence itself is undisputed, the LIO of Absence Without Leave (AWOL) is reasonably raised. The judge must provide the panel with instructions on the elements of AWOL. This allows the panel to convict on the lesser offense if they are not convinced beyond a reasonable doubt of the greater one, ensuring a just outcome based on the evidence they believe.
This duty overrides the tactical decisions of both the defense and prosecution. A defense counsel might prefer to risk an all-or-nothing verdict, while a prosecutor might want to avoid giving the panel an easier compromise. However, the judge’s obligation is to the law and to a fair trial. A failure by the judge to instruct on a reasonably raised LIO is a significant legal error that can be grounds for a conviction to be overturned on appeal, as it deprives the panel of the proper legal tools to evaluate the case.