United States v. Thompson--at CAAF

No. 22-0098/AF. U.S. v. Chase M. Thompson. CCA 40019. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
DID THE COURT OF CRIMINAL APPEALS ERR BY REQUIRING THAT APPELLANT INTRODUCE DIRECT EVIDENCE OF HIS SUBJECTIVE BELIEF TO MEET HIS BURDEN FOR A REASONABLE MISTAKE OF FACT DEFENSE?

The Air Force Court of Criminal Appeals decision is at this link.

The CAAF has previously held that an accused is not required to testify in order to establish a mistake of fact defense. United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998).

The AFCCA appeared to approve of Jones in the unpublished decision of United States v. Roblero, No. ACM 38874, 2017 CCA LEXIS 168 (A. F. Ct. Crim. App. Feb. 17, 2017). Or at least no issue was made of the appellant’s decision not to testify.

The Navy-Marine Corps Court of Criminal Appeals seems to have followed a similar path in United States v. Thomas, No. NMCCA 201200203, 2013 CCA LEXIS 49 (N-M Ct. Crim. App. Jan. 31, 2013).

The Army Court of Criminal Appeals in United States v. Clark, ARMY 20160304, 2018 CCA LEXIS 505 (A. Ct. Crim. App. Oct. 12, 2018) had this to say in the footnote.

In any event, we find no error, plain or otherwise. To warrant an instruction on the mistake of fact defense there must be "some evidence of an honest and reasonable mistake to which the members could have attached credit if they had so desired." United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). While there is no per se requirement an accused testify to establish a mistake of fact defense, evidence that the accused honestly and reasonably believed the victim had consented must come from somewhere. See United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 199). In many cases, the only source of admissible evidence about an accused's subjective belief may well be from the accused himself.

If AFCCA is correct in Thompson, that puts the accused between Scylla and Charybdis having to choose between testifying or remaining silent while hoping there is sufficient evidence to warrant the instruction without his testimony?