2016 (October Term)
United States v. Nieto, 76 M.J. 101 (in order for the government to prevail under the good faith or inevitable discovery doctrine, it has the burden of establishing both doctrines by a preponderance of the evidence).
2015 (September Term)
United States v. Cooley, 75 M.J. 247 (it is the government’s burden under Article 10, UCMJ, to show due diligence, and it is the government’s responsibility to provide evidence showing the actions necessitated and executed in a particular case justified delay when an accused was in pretrial confinement).(under Article 10, UCMJ, outside of an explicit delay caused by the defense, the government bears the burden to demonstrate and explain reasonable diligence in moving its case forward in response to a motion to dismiss; this explanation must be a particularized showing of why the circumstances require the delay; unexplained periods of delay will weigh against the Government, but brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive).
United States v. Henning, 75 M.J. 187 (under Daubert (US v. Daubert, 509 US 579 (1993)), the proponent of expert evidence and testimony has the burden of showing that it is admissible).
United States v. Hoffmann, 75 M.J. 120 (to take advantage of the inevitable discovery doctrine, the prosecution must establish, by a preponderance of the evidence, that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence and that the evidence would inevitably have been discovered in a lawful manner had not the illegality occurred).
United States v. Bess, 75 M.J. 70 (the opponent of the admission of records offered under the business record exception bears the burden of establishing sufficient indicia of untrustworthiness).
2014 (September Term)
United States v. Morita, 74 M.J. 116 (when challenged, the government must prove jurisdiction by a preponderance of evidence).
2012 (September Term)
United States v. Lubich, 72 M.J. 170 (at trial, the government bears the burden of establishing an adequate foundation for admission of evidence against an accused; the government may meet its burden of proof with direct or circumstantial evidence).
2011 (September Term)United States v. Morrissette, 70 M.J. 431 (because an accused who has been given testimonial immunity is compelled to relinquish his right against self-incrimination, the government bears the burden to prove that its evidence is not tainted by immunized testimony; the government must affirmatively prove by a preponderance of the evidence that its evidence is derived from a legitimate source wholly independent of the compelled testimony). (if prosecutors are exposed to immunized testimony, the government has the burden to demonstrate that the immunized testimony was not used or derivatively used against an accused and was obtained from wholly independent and legitimate sources). (whether the government has shown, by a preponderance of the evidence, that it has based an accused’s prosecution on sources independent of his immunized statements is a preliminary question of fact).
(factors used to determine whether the government made direct or indirect use of an accused’s immunized statements include (1) whether the statements reveal anything which was not already known to the government by virtue of the accused’s own pretrial statements, (2) whether the investigation against the accused was completed prior to the immunized statement, (3) whether the decision to prosecute the accused had been made prior to the immunized statement, and (4) whether the trial counsel who had been exposed to the immunized testimony participated in the prosecution; however, these factors are not necessarily determinative as to whether the government has or has not met its burden; that is because the ultimate question is whether the government has made any direct or derivative use of immunized evidence, not whether it adhered to a particular timeline or process).
2010 (September Term)
United States v. Prather, 69 M.J. 338 (the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence or to disprove the facts necessary to establish the crime for which he is indicted; it is on the prosecution from the beginning to the end of trial and applies to every element necessary to constitute the crime).2009 (September Term)
United States v. Smith, 68 M.J. 445 (an accused has the burden under MRE 412, the rule governing admission of evidence of the victim’s prior sexual conduct, of establishing his entitlement to any exception to the prohibition on the admission of evidence offered to prove that any alleged victim engaged in other sexual conduct; to establish that the excluded evidence would violate the constitutional rights of the accused, an accused must demonstrate that the evidence is relevant, material, and favorable to his defense, and thus whether it is necessary; the term favorable is synonymous with vital).
United States v. Neal, 68 M.J. 289 (the Due Process Clause of the Constitution protects a defendant from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged).
(the Constitution precludes shifting the burden of proof from the government to the defense with respect to a fact which the State deems so important that it must be either proved or presumed in order to constitute a crime).
United States v. Reed, 65 M.J. 487 (at trial, the burden of raising the issue of unlawful command influence rests with the defense; the defense must: (1) show facts which, if true, constitute unlawful command influence, and (2) show that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings; the threshold for raising the issue at trial is low, but more than mere allegation or speculation; the defense is required to present some evidence of unlawful command influence).
(if the defense meets the burden of raising the issue, the burden shifts to the government; the government must (1) disprove the predicate facts on which the allegation of unlawful command influence is based, (2) persuade the military judge that the facts do not constitute unlawful command influence, or (3) prove at trial that the unlawful command influence will not affect the proceedings; depending on the nature of the alleged unlawful command influence and other pertinent circumstances, the government may demonstrate that unlawful command influence will not affect the proceedings in a particular case as a result of ameliorative actions; whichever tactic the government chooses, the quantum of proof is beyond a reasonable doubt).
(in the course of addressing command influence issues, military judges must consider apparent as well as actual unlawful command influence).
United States v. Flores, 64 M.J. 451 (evidence obtained as a result of an unlawful search is inadmissible against an accused who makes a timely motion or objection establishing a reasonable expectation of privacy in the person, place, or property searched; an accused bears the burden of demonstrating a subjective expectation of privacy which is objectively reasonable).
(the military judge’s finding that appellant voluntarily abandoned his bag by switching bags with another recruit before a search was ordered was not clearly erroneous when the evidence was viewed in the light most favorable to the government; because the military judge properly determined that appellant abandoned his bag voluntarily and not in response to the allegedly illegal police conduct, appellant did not carry his burden at the motion hearing or on appeal of demonstrating that he had a reasonable expectation of privacy in the bag; accordingly, appellant lacked standing to challenge the validity of the search or the admission of derivative evidence, including his confession).
United States v. Davis, 64 M.J. 445 (a military judge errs by requiring a showing of prejudice as a precondition to providing a remedy for a violation of an accused’s rights at an Article 32 proceeding).
(as a general matter, an accused is required to identify and object to any errors in the Article 32 proceeding at the outset of the court-martial, prior to trial on the merits; when an accused makes an objection at that stage, the impact of an Article 32 violation on the trial is likely to be speculative at best; the time for correction of such an error is when the military judge can fashion an appropriate remedy under RCM 906(b)(3) before it infects the trial, not after the members, witnesses, and parties have borne the burden of trial proceedings; in the event that an accused disagrees with the military judge’s ruling, the accused may file a petition for extraordinary relief to address immediately the Article 32 error).
United States v.
Rodriguez-Rivera, 63 M.J. 372 (the burden at
trial is on the government to prove every element of the offenses
charged beyond a reasonable doubt; the testimony of only one witness
may be enough to meet this burden so long as the members find that the
witness’s testimony is relevant and is sufficiently credible).
2013 (September Term)
United States v. Davis, 73 M.J. 268 (RCM 916(a) suggests that the terms “special defense” and “affirmative defense” are interchangeable; however, it is more accurate to refer to defense of property as a “special defense,” and that the prosecution continuously bears the burden of proving beyond a reasonable doubt that the defense did not exist).
2009 (September Term)
United States v. Neal, 68 M.J. 289 (a legislature may redefine the elements of an offense and require the defense to bear the burden of proving an affirmative defense, subject to due process restrictions on impermissible presumptions of guilt).
(a statute may place the burden on the accused to establish an affirmative defense even when the evidence pertinent to an affirmative defense also may raise a reasonable doubt about an element of the offense).
(the Constitution permits a legislature to place the burden on the accused to establish an affirmative defense, even if the evidence necessary to prove the defense also may raise a reasonable doubt about an element of the offense; if such evidence is presented, the judge must ensure that the factfinder is instructed to consider all of the evidence, including the evidence raised by the accused that is pertinent to the affirmative defense, when determining whether the prosecution established guilt beyond a reasonable doubt).
United States v. Rivera, 54 MJ 489 (because appellant put into issue the parental-discipline defense, the Government had the additional burden of refuting appellant’s defense of parental discipline beyond a reasonable doubt).
Appointment of experts:
2016 (October Term)
United States v. Hendrix, 76 M.J. 283 (an accused is entitled to an expert’s assistance before trial to aid in the preparation of his defense upon a demonstration of necessity; to establish necessity, an accused must demonstrate something more than a mere possibility of assistance from a requested expert; instead, the accused must establish a reasonable probability that (1) an expert would be of assistance to the defense, and (2) the denial of expert assistance would result in a fundamentally unfair trial; to establish that an expert would be of assistance, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop).
2013 (September Term)
United States v. Flesher, 73 M.J. 303 (the government, as the proponent of a expert witness’s testimony, has the burden of demonstrating the reliability of that witness’s testimony; to show that an expert’s opinion is connected to existing data by more than the ipse dixit of the expert, the government may rely on the four Daubert (509 US 579 (1993)) reliability factors or on alternative indicia of reliability; the four reliability factors set out in Daubert are: (1) whether a theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error in using a particular scientific technique and the standards controlling the technique’s operation; and (4) whether the theory or technique has been generally accepted in the particular scientific field).
2009 (September Term)
United States v. Lloyd, 69 M.J. 95 (the accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; in order to satisfy the first prong of this test, the defense must show (1) why the expert is necessary, (2) what the expert would accomplish for the accused, and (3) why defense counsel is unable to gather and present the evidence that the expert would be able to develop).
(in a request for expert assistance before trial, the defense has the burden to show that there is more than the mere possibility of assistance from a requested expert; the defense must show a reasonable probability that the expert would assist the defense and that denial of the expert would result in an unfair trial).
United States v. Freeman, 65 M.J. 451 (servicemembers are entitled to investigative or other expert assistance when necessary for an adequate defense; the mere possibility of assistance is not sufficient to prevail on the request; instead, the accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop).
United States v. Ford, 51 MJ 445 (defense is authorized the employment of experts at government expense where the testimony would be “relevant and necessary,” if the government cannot or will not provide an adequate substitute; the test for necessity has three prongs: (1) why is the expert assistance needed; (2) what would the expert assistance accomplish for the accused; and (3) why is the defense counsel unable to gather and present the evidence that the expert assistant would be able to develop).
United States v. Shelton, 64 M.J. 32 (when an accused is attempting to claim the clergy privilege, he has the burden of establishing that his conversation was privileged under MRE 503).
Confessions and admissions:
2008 (September Term)
United States v. Chatfield, 67 M.J. 432 (the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the accused unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination; the safeguards must take the form of specific warnings – prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed).
(when introducing a confession, the government has the burden of showing the confession is the product of an essentially free and unconstrained choice by its maker).
United States v. Freeman, 65 M.J. 451 (the prosecution bears the burden of establishing by a preponderance of the evidence that the confession was voluntary).
(the voluntariness of a confession is a question of law; a court examines the totality of the surrounding circumstances to determine whether the confession is the product of an essentially free and unconstrained choice by its maker; in determining whether an accused’s will was overborne in a particular case, the court assesses both the characteristics of the accused and the details of the interrogation; some of the factors taken into account have included the youth of the accused, his lack of education, his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep; the court determines the factual circumstances surrounding the confession, assesses the psychological impact on the accused, and evaluates the legal significance of how the accused reacted).
United States v. Simpson, 54 MJ 281 (the government has the burden of establishing compliance with rights warning requirements by a preponderance of the evidence).
United States v. Griffin, 50 MJ 278 (in the face of an appropriate motion or objection, the prosecution bears the burden of establishing the admissibility of a confession, and the military judge must find by a preponderance of the evidence that the statement was voluntarily made, considering the totality of the circumstances, including both the characteristics of the accused and the details of the interrogation).
United States v. Muirhead, 51 MJ 94 (military judge applied the wrong test when he placed great weight on the subjective opinions of law enforcement agents as to whether Article 31 warnings were required; the issue must be viewed objectively).
United States v. Ford, 51 MJ 445 (the prosecution has the burden of establishing the admissibility of a confession, establishing by a preponderance of the evidence that the confession was voluntary).
Consent to search:
2015 (September Term)
United States v. Hoffmann, 75 M.J. 120 (a search conducted with the consent of the accused is one of the specifically established exceptions to the requirements of both a warrant and probable cause; property may be seized with consent consistent with the requirements applicable to consensual searches under MRE 314; the government bears the burden of showing the applicability of the exception).
2014 (September Term)
United States v. Olson, 74 M.J. 132 (the prosecution has the burden of proving consent to search by clear and convincing evidence).
United States v. Richter, 51 MJ 213 (consent is a question of fact to be determined from all the circumstances; the prosecution has the burden of proving consent by clear and convincing evidence).
United States v. Vassar, 52 MJ 9 (military judge erred in evaluating issue of consent to search if that judge applied the appellate standard of evaluating conflicts in the evidence in the light most favorable to the government).
2011 (September Term)
United States v. Vela, 71 M.J. 283 (in order to prosecute an immunized witness who has given compelled testimony, the government must affirmatively prove by a preponderance of the evidence that its evidence is derived from a legitimate source wholly independent of the compelled testimony; the grant of immunity must leave the witness and the government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity).
(whether the government has shown by a preponderance of the evidence that it has based appellant’s prosecution on sources independent of the immunized statements is a preliminary question of fact).
United States v. McKeel, 63 M.J. 81 (when a servicemember seeks dismissal of charges based upon a promise of immunity, the servicemember must demonstrate that the promise was made by an officer authorized to grant immunity).
United States v. Mapes, 59 MJ 60 (under Kastigar, the Government has a heavy burden to show non-use of immunized testimony; the Government must do more than negate the taint; it must affirmatively prove that its evidence is derived from a legitimate source wholly independent of the compelled testimony; an appellant is not dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities; prosecution may proceed only if the Government shows, by a preponderance of the evidence, that the decision to prosecute was untainted by immunized testimony).
(the question of whether the Government has shown, by a preponderance of the evidence, that it has based the accused’s prosecution on sources independent of the immunized testimony is a preliminary question of fact).
Lack of mental responsibility:
United States v. Mackie, 66 M.J. 198 (a military judge has the authority to order a sanity board after referral under RCM 706 if it appears there is reason to believe the accused lacked mental responsibility at the time of a charged offense or lacks the capacity to stand trial; a motion for a sanity board should normally be granted if it is made in good faith and is not frivolous).
States v. Collins, 60 MJ 261 (mental capacity is a
fact and will be presumed unless the contrary is established by a
of the evidence; lack of mental responsibility is an affirmative
must be raised and proven by an accused by clear and convincing
accused is presumed to be mentally responsible at the time of the
offenses until the accused establishes by clear and convincing evidence
was not mentally responsible at the time of the alleged offenses; clear
convincing evidence is that weight of proof which produces in the mind
factfinder a firm belief or conviction that the allegations in question
United States v. Martin, 56 MJ 97 (an accused bears the burden of showing both elements of the affirmative defense of lack of mental responsibility by clear and convincing evidence).(clear and convincing evidence with respect to the affirmative defense of lack of mental responsibility is that weight of proof which produces in the mind of the factfinder a "firm belief or conviction" that the allegations in question are true).
Lawfulness of orders/regulations:
United States v. New, 55 MJ 95 (an appellant has the burden to establish that an order is not lawful).
United States v. McDaniels, 50 MJ 407 (1999) (orders requiring the performance of military duties are presumed to be lawful when issued by superiors, but that order must relate to a military duty. See para. 14c(2)(a)(i) and (iii), Part IV, Manual for Courts-Martial, United States (1995 ed.)).
2009 (September Term)
United States v. Durbin, 68 M.J. 271 (the party asserting the marital privilege has the burden of establishing its applicability by a preponderance of the evidence).
2014 (September Term)
United States v. Carter, 74 M.J. 204 (the question of whether an accused was unlawfully punished under Article 13, UCMJ, is one that includes a finding of law, and thus is a question that must be answered by the military judge; if the military judge is convinced by the evidence presented that it is more likely than not the accused suffered from illegal pretrial punishment, then the accused would be entitled to credit against any sentence).
United States v. Harris, 66 M.J. 166 (appellant has the burden of establishing his entitlement to relief for pretrial punishment under Article 13, UCMJ).
United States v. Mosby, 56 MJ 309 (the burden is on appellant to establish entitlement to additional sentence credit because of a violation of Article 13).
United States v. Fulton, 55 MJ 88 (where no other remedy is appropriate, a military judge may, in the interests of justice, dismiss charges because of unlawful pretrial punishment; the fact that illegal pretrial punishment is not listed among the illustrative bases for dismissal in RCM 907(b) does not preclude dismissal where appropriate).
(even though dismissal may be an appropriate remedy for illegal pretrial punishment, it does not follow that dismissal is the appropriate remedy in a given case; dismissal is not necessarily appropriate even where an appellant has been denied a significant constitutional right).
(although illegal pretrial punishment is not condoned, in the context of competing interests, the extraordinary remedy of dismissal of the charges is not required as a matter of law).
United States v. Stringer, 55 MJ 92 (pretrial punishment includes public denunciation and degradation).
(a military judge has broad authority to order administrative credit against adjudged confinement as a remedy for Article 13 violations).
(a newspaper article describing the facts of appellant’s pretrial punishment, summarizing relevant case law on pretrial punishment, and cautioning that pretrial punishment is illegal complied with a military judge’s order to publish such an article in the post paper).
(where the military judge gave appellant significant confinement credit for pretrial punishment and appellant does not assert that this credit is inadequate, and where SJA complied with military judge’s order to publish an article about pretrial punishment in the post newspaper, additional relief is not warranted).
United States v. Scalarone, 54 MJ 114 (failure to request sentence credit for unlawful pretrial punishment or illegal pretrial confinement at trial does not forfeit such a claim in the absence of plain error or waive such a claim forever).
United States v. Yunk, 53 MJ 145 (in a “Judgement of the Court” (two judges agreeing), the action of the Court of Criminal Appeals, which granted appellant relief for 11 days of illegal pretrial confinement by reducing the adjudged and approved forfeitures, was affirmed despite the fact that the reduction in forfeitures provided no “meaningful” relief in light of automatic forfeitures; there was no abuse of discretion in declining to set aside the punitive discharge or otherwise massively reduce the various sentencing components).
United States v. Fricke, 53 MJ 149 (absent affirmative waiver of issue of unlawful pretrial punishment at trial, violations of Article 13, UCMJ, have been considered for the first time on appeal).
(being locked in a cell 23 hours a day for 326 days, being required to sit at a small desk for 15 ½ hours or stand nearby if appellant fell asleep at the desk because he was not allowed to sit or lie on his bunk, not being allowed to talk to other prisoners, and being allowed to read only the Bible or other Christian literature are not de minimus impositions on a pretrial detainee for which the law is not concerned; they are genuine privations and hardships over an extended period of time which might raise serious questions as to whether these conditions amounted to pretrial punishment).
(a factual decision on the intent of detention officials and the conditions actually imposed upon appellant was necessary to decide whether appellant was subjected to illegal pretrial punishment).(appellant’s tactical decision to take issue of conditions of pretrial confinement amounting to pretrial punishment to the members during sentencing rather than asking the military judge for appropriate relief was tantamount to a waiver of this issue).
2017 (October Term)
United States v. Harpole, 77 M.J. 231 (the party claiming the military’s victim advocate-victim privilege (MRE 514) privilege has the burden of establishing by a preponderance of the evidence that the communication is privileged).
2013 (September Term)
United States v. Paul, 73 M.J. 274 (it is a fundamental principle of due process that in order to prove its case, the government must present evidence at trial supporting each element of the charged offenses beyond a reasonable doubt; further, the review of findings, of guilt or innocence, is limited to the evidence presented at trial; a fact essential to a finding of guilty must appear in the evidence presented on the issue of guilt; it cannot be extracted from evidence presented in other proceedings in the case).
United States v. Johnson, 54 MJ 32 (the initial burden of raising evidence of command influence is on the defense; proof of command influence in the air will not suffice).
United States v. Ayers, 54 MJ 85 (when asserting unlawful command influence, the initial burden is on the defense to show facts which, if true, constitute unlawful command influence; at trial, the defense must show that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings).
United States v. Roland, 50 MJ 66 (defense must come forward with initial showing of improper member selection, then the government must demonstrate that no impropriety occurred).
United States v. Biagase, 50 MJ 143 (threshold for raising unlawful command influence at trial is low: the accused must show facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings).
(once unlawful command influence is raised, the burden shifts to the government to show, beyond a reasonable doubt, either that there was no unlawful command influence or that the unlawful command influence will not affect the proceedings, and the government may meet that burden by: (1) disproving the predicate facts upon which the allegation of unlawful command influence is based; (2) persuading the military judge or appellate court that the facts do not constitute unlawful command influence; (3) producing, at trial, evidence proving that the unlawful command influence will not affect the proceedings; or (4) by persuading an appellate court on appeal that the unlawful command influence had no prejudicial impact on the court-martial).
United States v. Campbell, 50 MJ 154 (evidence in support of prosecution for wrongful use of LSD was insufficient where Government did not prove the significance of the concentration levels or frequency of error in gas chromatography tandem mass spectrometry drug testing, and further the Government introduced no evidence to show that it had established cutoff levels which took into account what is necessary to eliminate the reasonable possibility of unknowing ingestion or a false positive).
(with respect to drug testing such as urinalysis, the law does not require a particular cutoff level to establish knowing use beyond a reasonable doubt, but any cutoff level must be sufficiently high as to rationally permit factfinders to find beyond a reasonable doubt that an accused’s use was knowing).
Selection of members:
2017 (October Term)
United States v. Riesbeck, 77 M.J. 154 (Article 25(d)(2), UCMJ, states when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experiences, length of service, and judicial temperament; there is nothing in Article 25, UCMJ, that permits selecting members to maximize the presence of a particular gender (or any other non-Article 25, UCMJ, criteria) serving on a court-martial).
(where selection of members on an impermissible basis is raised by the evidence, the government needs to present affirmative evidence of benign intent beyond a reasonable doubt; if not, the ready inference and legal consequence is that the improper selection was made to affect the result, a form of unlawful command influence).
(gender is not an Article 25, UCMJ, member selection factor, and selection on the basis of gender is generally prohibited).
(even reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system).
(the member selection in this case was based in no small part on gender, which is error).
(courts-martial are not subject to the jury trial requirements of the Sixth Amendment, and, therefore, military members are not afforded a trial in front of a representative cross section of the military community).
(a military defendant has a right both to members who are fair and impartial and the appearance of an impartial panel).
(a convening authority has significant discretion when selecting panel members based on the factors outlined in Article 25(d)(2), UCMJ; however, this discretion is not unfettered, particularly when the convening authority reaches beyond the statutory criteria in making his selection; neither race nor gender is included among Article 25, UCMJ, factors, and, to be sure, there are minefields of constitutional proportion aplenty lurking to upset selections based on gender or race).
(in selecting court members, a convening authority may depart from the factors present in Article 25, UCMJ, in one limited circumstance: when seeking in good faith to make the panel more representative of the accused’s race or gender; Article 25, UCMJ, does not preclude a commander from taking gender into account if he or she was seeking in good faith to assure that the court-martial panel is representative of the military population).
(bare statistical evidence showing over selection of a particular group, without other supporting facts, is generally not sufficient to raise the issue of court stacking).
(a selection process geared to ensure a large number of women were placed on the panel in this case does not fall into the limited representativeness exception to Article 25, UCMJ, constitutes improper member selection, and is error).
(while the government is absolutely prohibited from assigning members to, or excluding members from, a court-martial panel in order to achieve a particular result as to findings or sentence (court stacking), not all improper member selection constitutes court stacking).
(even reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system; where improper selection criteria have been used to select members for a court-martial panel, such doubt must be resolved in favor of the accused).
(court stacking is a form of unlawful command influence, and has the improper motive of seeking to affect the findings or sentence by including or excluding classes of individuals on bases other than those prescribed by statute).
(once an issue of improper member selection has been raised, the burden shifts to the government to demonstrate beyond a reasonable doubt that improper selection methods were not used, or, that the motive behind the use of the selection criteria was benign).
(the government can rebut a claim of court stacking by showing administrative error, or by showing that, in fact, the convening authority included or excluded a certain group from panel membership in an attempt to comply with Article 25, UCMJ).
(the absence of direct evidence in the form of testimony of malintent and impure motive with regard to member selection does not mean that there is no evidence that the convening authorities or their subordinates were motivated by the intent to achieve a particular result as to findings or sentence; rather, as in other instances of asserted unlawful command influence, where the government fails to meet its burden to rebut the allegation of improper member selection, as a matter of law, appellant has established unlawful command influence).
(although there is nothing wrong with placing either women or victim advocates on panels deciding cases involving sexual assault, when the majority of panel members in a sexual assault case are both, it gives the panel the distinct appearance of being hand-picked by and for the government).
(against the backdrop of an atmosphere of external pressure to achieve specific results in sexual assault cases, a convening authority who purposefully selects a panel that is seventy percent female, most of whom are victim advocates, from a roster of officers that was only twenty percent female and a pool of enlisted that was only thirteen percent female, gives the appearance of hand-picking a panel for the government; the specter is raised that the person tasked with choosing appellant’s court-martial panel hoped to select members predisposed to understand the testimony).
United States v. Dowty, 60 MJ 163 (the defense shoulders the burden of establishing the improper exclusion of qualified personnel from the selection process; once the defense establishes such exclusion, the Government must show by competent evidence that no impropriety occurred when selecting appellant’s court-martial members).