U.S. v. Prather, 69 M.J. 338

First Principles: Constitutional Matters: Due Process

1. it is well established that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law

Military Justice Personnel: Military Judge: Instructions

1. the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law

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

1. under Article 120(c)(2), the essential elements of aggravated sexual assault by engaging in sexual intercourse with a person who is substantially incapacitated are (1) that the accused engaged in a sexual act with another person; and (2) that person was substantially incapacitated; Article 120(r), UCMJ, provides that consent is not an element of this offense, but it is an affirmative defense that may be raised by the accused; Article 120(t)(16), UCMJ, provides that if an accused raises an affirmative defense, he must prove it by a preponderance of the evidence; and Article 120(t)(14), UCMJ, defines consent and provides that a person who is substantially incapable of appraising the nature of the sexual conduct due to impairment or unconsciousness resulting from consumption of alcohol cannot consent
2. with respect to the offense of aggravated sexual assault by engaging in sexual intercourse with a person who is substantially incapacitated, an accused’s burden to prove the affirmative defense of consent by a preponderance of the evidence under Article 120(c)(2), Article 120(r), Article 120(t)(14), and Article 120(t)(16), unconstitutionally shifts the burden of disproving an element of the offense to the defense; if an accused proves that the victim consented, he has necessarily proven that the victim had the capacity to consent, which logically results in the accused having disproven an element of the offense of aggravated sexual assault - that the victim was substantially incapacitated; an affirmative defense may not shift the burden of disproving any element of the offense to the defense
3. where the statutory scheme with respect to the offense of aggravated sexual assault by engaging in sexual intercourse with a person who is substantially incapacitated unconstitutionally shifted the burden to the accused to negate or disprove the element of substantial incapacity and the panel was so instructed, the standard ultimate burden instructions were insufficient to resolve the constitutional issue; in addition, the unconstitutional burden shift was not cured by the military judge instructing the members that they may consider any evidence presented on the affirmative defense of consent if they found such evidence was relevant as to whether the prosecution had proven the elements of the offense beyond a reasonable doubt; such a permissive instruction is inconsistent with the CAAF’s decision in US v. Neal, 68 MJ 289, which held that where there was an overlap between the evidence pertinent to an affirmative defense and evidence negating the prosecution’s case, there was no due process violation when instructions conveyed to the members that all of the evidence, including the evidence going to the affirmative defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the government’s proof of the elements of the crime
4. the second burden shift in Article 120(t)(16), UCMJ, which purports to shift the burden to the government once an accused proves an affirmative defense by a preponderance of the evidence, constitutes a legal impossibility; Article 120(t)(16), UCMJ, initially assigns the burden of proof for any affirmative defense to the accused; it then provides that 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; the problem with the provision is structural; if the trier of fact has found that the defense has proven an affirmative defense by a preponderance of the evidence, it is legally impossible for the prosecution to then disprove the affirmative defense beyond a reasonable doubt and there must be a finding of not guilty

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. with respect to the offense of aggravated sexual assault by engaging in sexual intercourse with a person who is substantially incapacitated, an accused’s burden to prove the affirmative defense of consent by a preponderance of the evidence under Article 120(c)(2), Article 120(r), Article 120(t)(14), and Article 120(t)(16), unconstitutionally shifts the burden of disproving an element of the offense to the defense; if an accused proves that the victim consented, he has necessarily proven that the victim had the capacity to consent, which logically results in the accused having disproven an element of the offense of aggravated sexual assault - that the victim was substantially incapacitated; an affirmative defense may not shift the burden of disproving any element of the offense to the defense
2. the second burden shift in Article 120(t)(16), UCMJ, which purports to shift the burden to the government once an accused proves an affirmative defense by a preponderance of the evidence, constitutes a legal impossibility; Article 120(t)(16), UCMJ, initially assigns the burden of proof for any affirmative defense to the accused; it then provides that 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; the problem with the provision is structural; if the trier of fact has found that the defense has proven an affirmative defense by a preponderance of the evidence, it is legally impossible for the prosecution to then disprove the affirmative defense beyond a reasonable doubt and there must be a finding of not guilty

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

1. 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

Trial Stages: Merits: Instructions › Generally

1. the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law
2. where the statutory scheme with respect to the offense of aggravated sexual assault by engaging in sexual intercourse with a person who is substantially incapacitated unconstitutionally shifted the burden to the accused to negate or disprove the element of substantial incapacity and the panel was so instructed, the standard ultimate burden instructions were insufficient to resolve the constitutional issue; in addition, the unconstitutional burden shift was not cured by the military judge instructing the members that they may consider any evidence presented on the affirmative defense of consent if they found such evidence was relevant as to whether the prosecution had proven the elements of the offense beyond a reasonable doubt; such a permissive instruction is inconsistent with the CAAF’s decision in US v. Neal, 68 MJ 289, which held that where there was an overlap between the evidence pertinent to an affirmative defense and evidence negating the prosecution’s case, there was no due process violation when instructions conveyed to the members that all of the evidence, including the evidence going to the affirmative defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the government’s proof of the elements of the crime

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
2. an appellate court must evaluate the instructions given by the military judge in the context of the overall message conveyed to the jury