CORE CRIMINAL LAW SUBJECTS: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

2018 (October Term)

United States v. Lewis, 78 M.J. 447 (a military judge is allowed to draw reasonable inferences from the evidence presented).

2014 (September Term)

United States v. Norman, 74 M.J. 144 (an unconstitutional presumptive conclusion arises when the military judge instructs members that they must conclude that evidence of the charged conduct also satisfies the terminal element; such an instruction is unconstitutional because it relieves the government of its burden of proof, subverts the presumption of innocence accorded to accused persons, and also invades the truth-finding task assigned solely to juries in criminal cases). 

2013 (September Term)

United States v. Elespuru, 73 M.J. 326 (a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege; there is a presumption against the waiver of constitutional rights, although no magic words are required to establish a waiver; the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case). 

2010 (September Term)

United States v. Phillips, 70 M.J. 161 (the use of conclusive presumptions to establish the elements of an offense is unconstitutional because such presumptions conflict with the presumption of innocence and invade the province of the trier of fact).

(a presumption that possession of child pornography is conclusively service discrediting under clause 2 of Article 134, UCMJ, is constitutionally impermissible). 

2008 (September Term)

United States v. Collier, 67 M.J. 347 (members are presumed to follow a military judge’s instructions to consider evidence for a proper purpose, such as bias or motive to misrepresent, and not let personal beliefs or feelings affect their determinations about witness credibility). 


United States v. Riddle, 67 M.J. 335 (a military judge can presume, in the absence of contrary circumstances, that the accused is sane and, furthermore, that counsel is competent).


2008 (Transition)

United States v. Dacus, 66 M.J. 235 (in the context of the aggravated assault offense, the MCM explains that when the natural and probable consequence of a particular use of any means or force would be death or grievous bodily harm, it may be inferred that the means or force is “likely” to produce that result). 


United States v. Larson, 66 M.J. 212 (under MRE 314(d), a person, under normal circumstances, is presumed not to have a reasonable expectation of privacy in government property that is not issued for personal use; the presumption that there is no reasonable expectation of privacy in government property, however, is rebuttable). 


United States v. Glenn, 66 M.J. 64 (an accused is presumed to be sane and counsel is presumed to be competent).    



United States v. Moran, 65 M.J. 178 (an inference of guilt stemming from the accused shaving all of his body hair after learning that investigators wished to procure a hair sample from him to test for drug use was permissible under the consciousness of guilt doctrine; there exists longstanding precedent that, while such behavior may not give rise to a presumption of guilt, it nonetheless can, within certain constraints, be entered into evidence and commented upon; moreover, the effect of the accused shaving his body in this case was essentially the destruction of evidence; that an inference of consciousness of guilt can be drawn from the destruction of evidence is well-recognized in the law).



United States v. Deisher, 61 M.J. 313 (an order is presumed to be lawful, and the accused bears the burden of rebutting the presumption).



United States v. Kaiser, 58 MJ 146 (in strict legal terms, the presumption of innocence flows from the fundamental right to a fair trial; the right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment; the presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice).

(the presumption of innocence is a longstanding feature of both military and civilian law; it is a critical part of our tradition of justice and deeply imbedded in our culture as well as our systems of justice; as reflected in the language of Article 51(c)(1), UCMJ, the presumption of innocence is directly related to the requirement that guilt be established by legal and competent evidence beyond a reasonable doubt; put another way, the presumption of innocence embodies the principle that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial).

United States v. McCollum, 58 MJ 323 (marital communications are presumptively confidential; therefore, once the party asserting the marital communications privilege establishes the existence of a private communication between spouses who are not separated, the burden of production shifts to the opposing party to overcome the presumption of confidentiality).

(even though marital communications are presumed to be confidential, several factors are relevant in determining whether that presumption has been overcome: (1) the nature of the circumstances; (2) the substance of the communication; (3) the existence or nonexistence of an expressed timeline or particular plan for disclosure; and (4) whether the statement is actually shared with a third party).


United States v. Quintanilla, 56 MJ 37 (there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle; remarks, comments, or rulings of a judge do not constitute bias or partiality unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible).

United States v. Ellis, 57 MJ 375 (an adverse inference instruction is an appropriate curative measure for improper destruction of evidence).

United States v. Washington, 57 MJ 394 (the presumption of innocence is set forth in the statutory requirement that, prior to findings, the members of a court-martial must be instructed that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt; although not literally employing a presumption, the instruction reminds the members of the critical fact that the accused, as a matter of law, is innocent unless the members are satisfied the prosecution has proved each required element of the offense beyond a reasonable doubt; practically, the presumption of innocence serves to underscore the instruction that the members may not presume that the defendant is guilty simply because charges have been referred to trial).


United States v. New, 55 MJ 95 (orders are clothed with an inference of lawfulness).


United States v. Johnson, 54 MJ 32 (once raised by evidence, the appearance or existence of unlawful command influence creates a rebuttable presumption of prejudice).

United States v. Ayers, 54 MJ 85 (a general regulation is entitled to a presumption of regularity if it appears regular on its face).

(a general regulation is entitled to a presumption of regularity if it appears regular on its face).


United States v. Campbell
, 50 MJ 154 (1999) (to sustain a drug prosecution based upon an urinalysis and to support the inferences of knowing and wrongful use, the test results must be supported by expert testimony explaining the underlying scientific methodology and the significance of the test result, so as to provide a rational basis for the inferences of knowing and wrongful use).

(to support the inference of wrongful use of drugs, the prosecution’s expert testimony must show:  (1) that the metabolite is not naturally produced by the body or any substance other than the drug in question; (2) that the cutoff level and reported concentration are high enough to reasonably discount the possibility of unknowing ingestion and to indicate a reasonable likelihood that the user at some time would have experienced the physical and psychological effects of the drug; and (3) that the testing methodology reliably detected the presence and reliably quantified the concentration of the drug or metabolite in the sample).

United States v. McDaniels, 50 MJ 407 (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.)).

United States v. Bertie, 50 MJ 489 (Court of Appeals for the Armed Forces not inclined to recognize presumption that improper considerations of grade and rank were purposefully utilized by convening authority to stack courts based upon the composition of appellant’s court-martial and that of other panels within the command).

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