Comments that shift the burden of proof

Comments that shift the burden of proof

Comments that shift the burden of proof

militarylawyersX3292015Sentencing Argument (Art and Law)

  1. An improper implication that the accused carries the burden of proof on an issue of guilt violates due process.
    United States v. Mason, 59 M.J. 416, 424 (C.A.A.F. 2004).
  2. Use of the words “uncontradicted,” “uncontroverted,” and “unrebutted.”
    1. These words can improperly imply that the accused has an obligation to produce evidence and witnesses to contradict the government’s case. These types of comments improperly imply that the burden has shifted to the defense.
      United States v. Carter, 61 M.J. 30, 34 (C.A.A.F. 2005).
  3. Pointing out that the defense did not call witnesses or produce evidence.
    1. Counsel cannot comment on the an accused’s failure to call witnesses.United States v. Mobley , 31 M.J. 273 (C.M.A. 1990); United States v. Swoape , 21 M.J. 414 (C.M.A. 1986).
    2. United States v. Turner , 30 M.J. 1183 (A.F.C.M.R. 1990). During argument trial counsel presented a list of facts court would have to find before the panel could find the accused innocent. This was erroneous statement that shifted the burden of proof to the accused but was not prejudicial.
  4. Counsel may want to look to the framework for commenting on the right not to testify before making these types of comments. If the defense has not presented any evidence (similar to not speaking at trial), then the trial counsel should not make any “unrebutted evidence” comments. If the defense has put on
    some evidence (similar to speaking at trial), then the trial counsel can comment on the failure to present other evidence along with any other weaknesses in the defense case.
    See generally United States v. Paige , 67 M.J. 442 (C.A.A.F. 2009).