76 - United States v. Hirst and the Novel Offenses Doctrine

Today we discuss a NMCCA case that dismisses an illegal drug use charge under Article 112a, UCMJ, for being factually insufficient.  The case provides a great vehicle for discussing the permissive inference instruction and how defenders should push back against its use when there is no actual evidence that would make the inference reasonable.  We then hear from Captain Brusik on the Novel Offenses Doctrine, which is closely related to the pre-emption doctrine for Article 134 offenses.  He does a great job of breaking it down and highlights defense challenges to charging allegations of sexual harassment under Article 92, when there is now an enumerated Article 134 offense for that offense.  

Chapters

• 1:45 United States v. Hirst
• 18:01 The Novel Offenses Doctrine
• 29:34 Outro