Often times a service member facing a court-martial might here attorneys discuss affirmative defenses. Rule for Courts-Martial 916 discusses special defenses which, "although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal responsibility for those acts."
Affirmative defenses are a critical part of any practice. They must be discussed at length if you are facing a court-martial. They are powerful tools in a criminal case. Once the defense raises an affirmative defense, the burden shifts to the prosecution to prove that the defense did not exist.
Generally, affirmative defenses falls into two categories:
-Justification defenses (justifying the act); and,
-Excuse defenses (excusing the actor).
Justification defenses are fairly simple. They include defenses that most people are familiar with:
-Proper performance of a legal duty; and,
-Obedience to orders.
Excuse defenses include:
-Lack of mental responsibility;
-Mistake of fact as to age;
-Mistake of fact as to consent;
-Coercion or duress; and,
-Inability (inability to perform a duty).
Know Your Rights
The Court-Martial Process
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Right to a Speedy Trial
Jury Selection in the Military
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