U.S. v. Neal, 68 M.J. 289

First Principles: Constitutional Matters: Generally

1. 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
2. Congress has broad authority to define the elements of offenses under the constitutional power to make rules for the government and regulation of the armed forces

First Principles: Constitutional Matters: Due Process

1. the Due Process Clause of the Constitution protects an accused from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged
2. 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

Military Justice Personnel: Military Judge: General Powers

1. in the military justice system, the authority of the military judge in a court-martial does not cease upon the discharge of the members; the military judge retains control over a court-martial until the record is authenticated and forwarded to the convening authority for review; until that point, even after discharge of the members and adjournment of the court-martial, the military judge may take actions such as: reconsidering rulings (RCM 905(f)); reconvening the court-martial to correct an erroneous sentence announcement, (RCM 1007(b)); calling a session to clarify an ambiguous sentence imposed by either the military judge or the members (RCM 1009(c)); and directing post-trial sessions (RCM 1102); these authorities illustrate that a court-martial does not cease to exist upon discharge of the members, and a case remains in an interlocutory posture so long as the military judge has the power to take action under the UCMJ and RCMs

Military Justice Personnel: Military Judge: Instructions

1. if evidence of consent is introduced in aggravated sexual contact prosecution, the military judge must instruct the members to consider all of the evidence, including the evidence of consent, when determining whether the government has proven guilt beyond a reasonable doubt; in doing so, the military judge must be mindful of both the content and sequential structure of the instructions
2. 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

Core Criminal Law Subjects: Crimes: Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct Pre-2019 offenses › (a) Rape

1. the 2006 amendment to Article 120 removed lack of consent as an element of rape and its related offenses; in contrast to prior law, which required the government to prove lack of consent as an element of the offense, the new statute expressly states that consent is “not an issue” in a prosecution for specified offenses under Article 120, including the offense of rape

Core Criminal Law Subjects: Crimes: Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct Pre-2019 offenses › (e) Aggravated Sexual Contact

1. aggravated sexual contact in violation of Article 120(e), UCMJ, makes it an offense to engage in sexual contact by use of force; in contrast to prior law, which required the government to prove lack of consent as an element of the offense, the new statute expressly states that consent is “not an issue” in a prosecution for specified offenses under Article 120, including the offense of aggravated sexual contact
2. by its terms, the offense of aggravated sexual contact incorporates statutory provisions governing the offense of rape under Article 120(a); the definitions in Article 120(t) govern the terms of Article 120(a) and the incorporated provisions of Article 120(e); under the statute, the elements of rape, along with the definitions of force and sexual contact, transform non-criminal sexual contact into a criminal offense - aggravated sexual contact by force; taken as a whole, these provisions require the government to prove the following in a prosecution for aggravated sexual contact by force: (1) the accused engaged in sexual contact with another person by touching the genitalia, anus, groin, breast, inner thigh, or buttocks of the other person; (2) the accused engaged in such contact with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person; (3) the accused caused another person of any age to engage in such contact by using force against that other person; and (4) the use of force consisted of action to compel submission of another or to overcome or prevent another’s resistance, and the use of force involved application of physical strength sufficient that the other person could not avoid or escape the sexual conduct
3. consent and mistake of fact as to consent are affirmative defenses for the sexual conduct in issue in a prosecution for aggravated sexual contact; an affirmative defense is any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly, or partially, criminal responsibility for those acts; the accused has the burden of proving the affirmative defense by a preponderance of the evidence; after the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist
4. under Article 120(e), the prosecution need not prove the absence of consent in order to obtain a conviction; if the court-martial panel, like a civilian jury, is convinced beyond a reasonable doubt by competent evidence - such as the testimony of an eyewitness - that the accused engaged in sexual contact by applying the degree of force described in Article 120(e), then the panel may return a finding of guilty as to aggravated sexual contact; in short, under the structure of the statute, the absence of consent is not a fact necessary to prove the crime of aggravated sexual contact under Article 120(e)
5. under Article 120(e), evidence that the alleged victim consented to the charged sexual contact is relevant to the factfinder’s determination of whether the prosecution has proved the element of force beyond a reasonable doubt
6. in Article 120(r), Congress stated that consent is not “an issue ... in a prosecution under” designated provisions of Article 120, including Article 120(e); this statement that consent is not “an issue” is interpreted narrowly as emphasizing that consent is not an element, thereby underscoring and reinforcing the legislation’s deletion of the prior requirement that the prosecution prove beyond a reasonable doubt that the accused acted “without consent” from the alleged victim; under the narrow interpretation, the provision would not preclude treating evidence of consent as a subsidiary fact pertinent to the prosecution’s burden to prove the element of force beyond a reasonable doubt
7. although the aggravated sexual contact statute describes the degree of force in terms of the relative actions of the accused and the alleged victim, the prosecution is not required to prove whether the alleged victim was, in fact, willing or not willing; if the evidence demonstrates that the degree of force applied by an accused constitutes action to compel another person, the statute does not require further proof that the alleged victim, in fact, did not consent; Congress, in defining force from the perspective of the action taken by the alleged perpetrator, did not reinsert “without consent” as an “implicit element” in Article 120
8. the possibility that evidence pertinent to the affirmative defense of consent could raise a reasonable doubt about the element of force in a particular case does not render the aggravated sexual contact statute unconstitutional; as such, in this case, the military judge erred in treating lack of consent as an element of the offense and in concluding that Congress established an unconstitutional element-based affirmative defense in Article 120
9. if evidence of consent is introduced in aggravated sexual contact prosecution, the military judge must instruct the members to consider all of the evidence, including the evidence of consent, when determining whether the government has proven guilt beyond a reasonable doubt; in doing so, the military judge must be mindful of both the content and sequential structure of the instructions
10. under the aggravated sexual contact statute, the element of force establishes the crime of aggravated sexual contact without including “lack of consent” as an additional element; under the statutory framework set up by Congress, the prosecution may obtain a conviction upon a showing that the accused applied a certain amount of force and need not provide any evidence regarding the victim’s state of mind; if evidence of consent is introduced, it may raise a reasonable doubt about the government’s proof on the element of force; as such, the evidence of consent would be relevant to the determination of whether the government has proven the required elements beyond a reasonable doubt; the statute does not prohibit the consideration of consent evidence for that purpose; the opportunity to consider evidence that may raise a reasonable doubt about an element does not shift the burden to the defense to disprove that element; to the extent that evidence of consent may raise a reasonable doubt as to the element of force, the military judge has the authority to craft an appropriate instruction ensuring that the burden of proof remains with the government; consideration by a properly instructed panel of two different matters - whether evidence of consent raises a reasonable doubt about the element of force, as well as whether evidence of consent establishes an affirmative defense – does not render the statute unconstitutional

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. consent and mistake of fact as to consent are affirmative defenses for the sexual conduct in issue in a prosecution for aggravated sexual contact; an affirmative defense is any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly, or partially, criminal responsibility for those acts; the accused has the burden of proving the affirmative defense by a preponderance of the evidence; after the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist
2. 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
3. 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
4. the possibility that evidence pertinent to the affirmative defense of consent could raise a reasonable doubt about the element of force in a particular case does not render the aggravated sexual contact statute unconstitutional; as such, in this case, the military judge erred in treating lack of consent as an element of the offense and in concluding that Congress established an unconstitutional element-based affirmative defense in Article 120
5. 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

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. 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
2. 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

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Affirmative defenses

1. 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
2. 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
3. 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

Trial Stages: Merits: Instructions › Generally

1. if evidence of consent is introduced in aggravated sexual contact prosecution, the military judge must instruct the members to consider all of the evidence, including the evidence of consent, when determining whether the government has proven guilt beyond a reasonable doubt; in doing so, the military judge must be mindful of both the content and sequential structure of the instructions

Trial Stages: Merits: Instructions › Affirmative defenses

1. 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

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. RCM 908(b)(1), which permits the prosecution to request a delay in trial proceedings during the 72 hour period for filing a notice of an interlocutory appeal from a military judge’s ruling, does not require the government to request a delay as soon as the military judge issues the ruling in order to preserve the 72 hour period; neither Article 62, UCMJ, nor RCM 908 requires the prosecution to take any such action; Article 62 provides the prosecution with an unqualified 72 hour period in which to file a notice of appeal; RCM 908(b)(1) does not diminish that time period or otherwise condition the availability of the full 72 hour period upon filing a request for delay; RCM 908(b)(1) provides that certain aspects of the proceedings will be stayed during the 72 hour period “if” trial counsel requests a delay; in the absence of such a request, the proceedings will continue; as such, the rule offers trial counsel an opportunity to delay the proceedings during the 72 hour period if the prosecution wishes to preserve the status quo with respect to matters affected by the military judge’s ruling or order; and it provides the trial counsel with a mechanism to ensure that further proceedings do not make an issue moot before the government can file notice of appeal
2. a military judge’s discharge of the court members before trial counsel filed a notice of an interlocutory appeal under Article 62, UCMJ, from the judge’s ruling dismissing an aggravated sexual contact charge, did not terminate the proceedings, so as to preclude the government from taking such an appeal
3. in the military justice system, the authority of the military judge in a court-martial does not cease upon the discharge of the members; the military judge retains control over a court-martial until the record is authenticated and forwarded to the convening authority for review; until that point, even after discharge of the members and adjournment of the court-martial, the military judge may take actions such as: reconsidering rulings (RCM 905(f)); reconvening the court-martial to correct an erroneous sentence announcement, (RCM 1007(b)); calling a session to clarify an ambiguous sentence imposed by either the military judge or the members (RCM 1009(c)); and directing post-trial sessions (RCM 1102); these authorities illustrate that a court-martial does not cease to exist upon discharge of the members, and a case remains in an interlocutory posture so long as the military judge has the power to take action under the UCMJ and RCMs
4. excusal of members is a standard procedure in a court-martial, and the possibility of excusal and related concerns does not transform the status of a court-martial from an interlocutory to a final proceeding
5. action of the military judge in excusing the panel members and permitting them to discuss the case with counsel did not preclude the government from taking an interlocutory appeal of the judge’s ruling dismissing an aggravated sexual contact charge, where based on the current undeveloped trial record, it would be inappropriate at this point of the proceedings to conclude that some or all of the members have been disqualified; even assuming that one or all of the members should be disqualified, the military judge would then have the opportunity to consider whether such members may be replaced under RCM 505(c); to the extent that excusal of members might lead to motions raising mistrial or potential former jeopardy concerns, those matters should be considered in light of briefing by the parties before the military judge and any factfinding that the military judge might find necessary; however, at the present time, the military judge has not had the opportunity to engage in factfinding, or to consider any related issues concerning replacement, mistrial, or former jeopardy; there has been no declaration of a mistrial in the present case, this case remains in an interlocutory posture, and discharge of the panel members does not necessarily preclude reassembly

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the constitutionality of a statute is a question of law that an appellate court reviews de novo