CORE CRIMINAL LAW SUBJECTS: Motions, Generally: Burden



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). 


United States v. Chapa, 57 MJ 140 (the defense bears the burden of raising an issue of compliance with any of the procedures addressed in RCM 305 by making a motion that specifically focuses the attention of trial participants on the alleged shortcoming).



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. Spriggs, 52 MJ 235 (an accused who either alleges severance of an attorney-client relationship or seeks to invoke such a relationship for purposes of supporting an individual military counsel request must first demonstrate that, at the time of the request, the accused had a viable ongoing attorney-client relationship regarding the substance of the charges at issue; the accused must show a bilateral understanding on the part of both the attorney and the client as to the nature of the services to be provided).


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).

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