Burden of Proof – R.C.M. 905(c)
Discussion of the burden of proof for motions and writs:
- Who has the burden?
a. The moving party – R.C.M. 905(c)(1),
b. Except, the Government has the burden of proof for:
1) Jurisdiction – R.C.M. 905(c)(2)(B).
2) Speedy trial – R.C.M. 905(c)(2)(B).
3) Statute of limitations – R.C.M. 905(c)(2)(B).
4) Suppression motions: confessions, evidence, identifications – M.R.E. Sect. III.
5) Unlawful command influence.
- What is the standard?
a. Preponderance of evidence.
b. Clear and convincing evidence standard for subterfuge inspections (three triggers for higher standard) (M.R.E. 313(b)); consent searches (M.R.E. 314(e)(5)); and, “unlawful” identifications (M.R.E. 321).
c. Command influence. When defense raises an issue of UCI at trial by some evidence sufficient to render a reasonable conclusion in favor of the allegation, burden shifts to the Government to prove, beyond a reasonable doubt (U.S. v. Biagase 50 M.J. 143 (1999)) that command influence did not occur. If the Government is unable to do so, then the trial court (or the appellate court) must be satisfied beyond a reasonable doubt that the findings and sentence were unaffected. See United States v. Thomas , 22 M.J. 388 (C.M.A. 1986), cert. denied, 479 U.S. 1085 (1987) (reviewing court may not affirm the findings and sentence unless it is persuaded that the findings and sentence have not been affected by the existence of unlawful command influence).