Generally:
2023 (October Term) United States v. Armstrong, 85 M.J. 31 (there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle, particularly when the alleged bias involves actions taken in conjunction with judicial proceedings). United States v. Tapp, 85 M.J. 19 (to prove judicial bias, a party must overcome a high hurdle because there exists a strong presumption that a judge is impartial). 2020 (October Term) United States v. Henry, 81 M.J. 91 (the proponent of the excited utterance has the burden to show by a preponderance of the evidence that each element of the excited utterance exception to the hearsay rule is met). 2019 (October Term) United States v. Finch, 79 M.J. 389 (the proponent of evidence has the burden of demonstrating that the evidence is admissible). (the proponent of prior consistent statement evidence under MRE 801(d)(1)(B)(ii) bears the burden of articulating the relevancy link between the prior consistent statement and how it will rehabilitate the witness with respect to the particular type of impeachment that has occurred; this mandate does not require counsel to remove every single inconsistency in a statement, since a prior consistent statement need not be identical in every detail to the declarant’s testimony at trial; rather, the moving party must omit the inconsistent parts of the statement that pertain to facts of central importance to the trial). (under the rule of completeness outlined in MRE 106, a party may seek to admit additional portions of a prior consistent statement on grounds of fairness). 2018 (October Term) United States v. Hale, 78 M.J. 268 (when challenged, the government must prove jurisdiction by a preponderance of evidence). United States v. Criswell, 78 M.J. 136 (under MRE 321(d)(6)(B)(i), when an objection raises the issue of an unreliable identification, the prosecution must prove by a preponderance of the evidence that the identification was reliable under the circumstances; MRE 321(d)(6)(B)(ii) then states that when the military judge determines that an identification is the result of an unreliable identification, a later identification may be admitted if the prosecution proves by clear and convincing evidence that the later identification is not the result of the inadmissible identification). (without producing the photographs used in a suggestive prior identification, the government in some cases will have difficulty proving by clear and convincing evidence that the later identification is not the result of the inadmissible identification as required by M.R.E. 321(d)(6)(B)(ii); however, the government may be able to meet this burden by other means). 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).
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).
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).
2007
(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).
2006
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).
2019 (October Term)
United States v. Hennis, 79 M.J. 370 (to be entitled to expert assistance, an 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).
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).
2008 (Tansition)
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).
1999
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).
2006
2018 (October Term)
United States v. Lewis, 78 M.J. 447 (the prosecution bears the burden of establishing by a preponderance of the evidence that the confession was voluntary; voluntariness turns on whether an accused’s will has been overborne; the necessary inquiry is 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 totality of all the surrounding circumstances are considered, to include both the characteristics of the accused and the details of the interrogation; some of the factors taken into account include the youth of the accused, his lack of education, or 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, the use of physical punishment such as the deprivation of food or sleep, an earlier violation of Article 31(b), UCMJ, whether the admission was made as a result of the questioner’s using earlier, unlawful interrogations, and the presence of a cleansing warning, although the absence of such is not fatal to a finding of voluntariness; the fact that a suspect chooses to speak after being informed of his rights, is of course, highly probative).
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).
2008
(Transition)
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).
2001
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).
1999
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).
1999
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).
2006
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).
2003
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:
2008 (Transition)
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).
2004
United
States v. Collins, 60 MJ 261 (mental capacity is a
question of
fact and will be presumed unless the contrary is established by a
preponderance
of the evidence; lack of mental responsibility is an affirmative
defense that
must be raised and proven by an accused by clear and convincing
evidence; an
accused is presumed to be mentally responsible at the time of the
alleged
offenses until the accused establishes by clear and convincing evidence
that he
was not mentally responsible at the time of the alleged offenses; clear
and
convincing evidence 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)
2002
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).
Lawfulness of orders/regulations:
2001
United States v. New, 55 MJ 95 (an appellant has the
burden to establish that an order is not lawful).
1999
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).
Pretrial Punishment:
2019 (October Term)
United States v. Guardado, 79 M.J. 301 (appellant bears the burden of proof to establish a violation of Article 13, UCMJ).
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).
2008 (Transition)
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).
2002
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).
2001
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).
2000
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).
2019 (October Term)
United States v. Guardado, 79 M.J. 301 (appellant bears the burden of proof to establish a violation of Article 13, UCMJ).
2018 (October Term)
United States v. King, 78 M.J. 218 (the term “reasonable doubt” does not mean that the evidence must be free from any conflict or that the trier of fact may not draw reasonable inferences from the evidence presented).
(the government is free to meet its burden of proof with circumstantial evidence; the government’s ability to rely on circumstantial evidence is especially important in cases where the offense is normally committed in private).
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).
2000
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).
1999
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).
2022 (October Term)
United States v. Jeter, 84 M.J. 68 (whenever an accused makes a prima facie showing that race played a role in the panel selection process at his court-martial, a presumption will arise that the panel was not properly constituted; the government may then seek to rebut that presumption).
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).
2004
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).
1999