United States v. Patterson

In my opinion, the evidence in a particular record of trial may demonstrate the absence of any risk of prejudice from the erroneous instruction. See my dissent in United States v Schoenberg, 17 USCMA 145, 37 CMR 409; State v Swisher, 364 Mo 157, 260 SW 2d 6 (1953). Appellate defense counsel refer to differences in the testimony of several of the witnesses, but none relate to “a material fact” in the case. Considered in the light of the testimony and the issues of fact to be decided by the court-martial, the instruction presents no fair risk of prejudice. I would, therefore, answer the…