V.80 2019; Air Force Law Review

V.80 2019; Air Force Law Review
Air Force Law Review, V. 80, 2019
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The Air Force Law Review is a publication of The Judge Advocate General, United States Air Force. It is published semiannually by The Judge Advocate General’s School as a professional legal forum for articles of interest to military and civilian lawyers. The Law Review encourages frank discussion of relevant legislative, administrative, and judicial developments.

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Military Law publications can be found here: https://bookstore.gpo.gov/catalog/laws-regulations/military-law

Table of Contents

I. Introduction 2

II. A Brief Overview of Nullification 5

A. Definition and Background 5

B. Civilian Courts’ Approach to Jury Nullification  12

C. The Military’s Approach to Nullification 17

1. Appellate Cases 17

2. Instructions 22

III. Military vs. Civilian Criminal Justice—Key Differences 24

A. The Role of the Commander 24

B. The Long Arm of Military Law  31

C. The Lack of a Right to a Jury Trial 35

D. Why Differences in the Military Justice System Argue for a Nullification Instruction  44

IV. Nullification and the Military’s Sexual Assault Problem  57

A. The Sexual Assault Problem and the Pressure on Commanders 58

B. Other Changed Conditions 69

1. Broad Array of Offenses  69

2. Mandatory Minimums/Collateral Consequences 72

3. The Contraction of the Article 32 Hearing 74

4. The Demise of the Terminal Element 76

5. Nullification is Already Happening 78

V. Proposed Approach 81

A. When an Instruction is Appropriate 81

B. The Instruction 84

VI. Conclusion 85 


Lawyers, especially those in the Air Force, law students interested in military law, law librarians, members of the military and military leaders would be interested in the legal issues in this publication.

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