(concurring in part and dissenting in part):
Once again our Court is faced with the delicate balance between ensuring a fair trial and allowing counsel to litigate the court-martial in the best interests of his or her client.
I agree with the majority that no instruction on accident was either requested or merited in this case. See RCM 916(f) and 920(f), Manual for Courts-Martial, United States (1995 ed.); United States v. Curry, 38 MJ 77, 80 (CMA 1993).
Contrary to the majority, I find that appellant waived any negligent homicide instruction in this case and find no plain error in the military judge’s failure to give one. See RCM 920(f). We review a military judge’s decision to give or not give an instruction, as well as the substance of that instruction, de novo. United States v. Maxwell, 45 MJ 406, 424 (1996). Even though not requested by a litigant, a military judge may have a sua sponte duty to give some instructions when reasonably raised by the evidence. See RCM 920(e); United States v. Rodwell, 20 MJ 264, 265 (CMA 1985); United States v. Steinruck, 11 MJ 322, 324 (CMA 1981). Military judges have “substantial discretionary power in deciding on the instructions to give.” United States v. Damatta-Olivera, 37 MJ 474, 478 (CMA 1993), cert. denied, 512 U.S. 1244, 114 S.Ct. 2760, 129 L.Ed.2d 875 (1994).
As this court did last term in United States v. Smith, 50 MJ 451 (1999), and United States v. Griffin, 50 MJ 480 (1999), we apply the rules, not in an inflexible fashion, but in a manner that allows us to decide whether the failure to instruct undermines an appellant’s right to have a panel of members provide him the guarantees found both in the Constitution and Uniform Code of Military Justice. See Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); see generally Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
We have previously determined that to establish waiver, an attorney, advocating zealously on behalf of his client, must take some affirmative action to manifest a purposeful rejection of an instruction. See United States v. Strachan, 35 MJ 362, 364 (CMA, 1992) (“An affirmative waiver is not the same as a passive failure to request an instruction or object to its admission.”). There has not been an allegation of ineffective assistance of counsel raised before us.
Any defense counsel has a right to waive a lesser-ineluded offense instruction that would damage, if not totally undermine, defense counsel’s theory of the case. From his opening statement to his closing argument, appellant’s trial defense counsel had but one clear-*207cut strategy: convince the members that appellant’s daughter died as a result of appellant’s having swerved the car to avoid an accident while en route to pick up his wife from work in Yokohama, Japan.
Appellant did not testify at trial. However, he made several statements prior to trial, both written and oral, during the investigation of his daughter’s death. While these statements could easily have been interpreted as showing appellant was negligent in preparing his 9-month-old daughter for travel in a car seat, defense counsel never conceded his client’s negligence at trial. Accordingly, the fourth possibility mentioned by the majority (negligently killing his daughter by failing to properly secure her in the car seat), 53 MJ at 205, was a scenario which defense counsel had to avoid at all costs in his trial of the case. Appellant pled not guilty. By requesting an instruction on the lesser-included offense of negligent homicide by failing to properly secure his daughter in a car seat, appellant would have virtually conceded his guilt to that offense, given his pretrial admissions.
As we have previously held in Griffin, 50 MJ at 481, in reliance on Rodwell, 20 MJ at 265, the military judge does have a duty to instruct sua sponte on all lesser offenses reasonably raised by the evidence. In my judgment, the majority’s third possibility (negligently killing his daughter by shaking her), 53 MJ at 205, was not reasonably raised by the evidence in this case. If such were the ease, I would agree with the majority that the military judge’s failure to instruct on this possibility was error, absent affirmative waiver. The Government’s theory of the case from its opening statement to closing argument was “that the accused shook and struck his child because the medical evidence is incontrovertible.” Trial counsel talked about the differences between murder and involuntary manslaughter, but the Government never failed to maintain that the harm appellant inflicted on his daughter was intentional. The Government never hinted at negligence by shaking as a theory of how the victim died.
Of course, defense counsel never conceded that the victim could have died as a result of shaken baby syndrome. The defense contended that appellant was a good parent, and that the evidence did not show that the victim was ever subjected to any form of the shaken baby syndrome — purposefully or negligently. Defense counsel contended that the young daughter had died of edema caused by moderate to mild trauma, such as would have happened when the victim either fell from her car seat or the car seat toppled over in the car. Defense counsel analogized the victim’s death in this ease to that of a 20-year-old athlete who drops dead after sustaining a minor injury. The counsel refuted the Government’s theory of shaken baby syndrome in both argument and cross-examination by contending that the investigators decided why the child had died and then looked and looked until they found enough coincidences of body trauma to justify a shaken baby syndrome analysis.
Both Government and defense counsel proposed instructions. Neither counsel proposed an instruction on negligent homicide as a lesser-included offense, and logically so, in light of the way each counsel litigated his theory of the case. Defense counsel’s only objection to the judge’s proposed instructions were “to the extent that they differ from the defense’s.” In sum, the lesser-included offense of negligent homicide (by negligently shaking the child) was not raised by the evidence presented. Further, neither counsel asserted that the evidence given to the factfinders would justify such an instruction.
As the court said in United States v. Smith, “An attorney has a duty to be a zealous advocate for his client. No magic words are required to establish a waiver. Statements such as those made here are more than sufficient to show that defense counsel made a purposeful decision to agree to the military judge’s ... instructions.” 50 MJ at 456. In this case, defense counsel made an affirmative, intelligent decision, based upon the Government’s evidence and his client’s pretrial statements, to waive any possibility that his client would be convicted of negligent homicide through the military judge’s instructions. While a defense theory *208of the case may not always be dispositive of an instructional issue, the manner in which this case was defended leads ineluctably to but one conclusion — trial defense counsel affirmatively avoided, not overlooked, and thus waived any negligent homicide instruction. See United States v. Taylor, 26 MJ 127 (CMA 1988).