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Procedure. UCMJ art. 76b and RCM 909
After referral, military judge may conduct an incompetence determination hearing either sua sponte or on request of either party. RCM 909(d).
- Defense has the burden of proof by a preponderance of the evidence.
- Military judge shall conduct the hearing if sanity board completed IAW RCM 706before or after referral concluded the accused is not competent.
- Military judge determines whether the accused is competent to stand trial. UnitedStates v. Proctor , 37 M.J. 330 (C.M.A. 1993); Short v. Chambers , 33 M.J. 49 (C.M.A. 1991).
- Once a sanity board is requested, the military judge must consider the sanity boardreport before ruling on the accused’s capacity to stand trial. United States v. Collins , 41 M.J. 610 (A. Ct. Crim. App. 1994).