The Burden of Proof in Non-Judicial Punishment: Why Beyond a Reasonable Doubt Makes Sense
The Army Lawyer 28 (Nov. 2005)
12 Pages Posted: 19 Jul 2013
Date Written: November 1, 2005
The Manual for Courts-Martial (MCM) fails to specify the required burden of proof for a commanding officer to determine guilt when administering nonjudicial punishment. As a result of the MCM’s silence, the military services have been able to apply different burdens of proof when administering nonjudicial punishment. The lack of a uniform burden of proof throughout the military creates a perception of arbitrary justice, is contrary to the intent of the Uniform Code of Military Justice (UCMJ), and presents difficult issues for joint operation commanders. The adoption of a uniform burden of proof would eliminate these problems. A comparison of possible burdens of proof demonstrates that beyond a reasonable doubt offers the greatest individual protections to accused servicemembers while maintaining the efficiency required by the nonjudicial punishment system. This article does this comparison and argues that the services should universally implement beyond a reasonable doubt as the burden of proof when administering nonjudicial punishment.
Keywords: military justice, non-judicial punishment, burden of proof, criminal law, joint operations, Manual for Courts-Martial, MCM
JEL Classification: K10, K14
Suggested Citation: Suggested Citation