We often get questions about what constitutes unlawful command influence.
Here are some basics about how UCI functions in a court-martial.
The defense, as the moving party, under
United States v. Biagase, 50 M.J. 143, 150 (1999), bears the initial burden of eliciting “some
evidence” of “facts which, if true, constitute unlawful command
influence, and that the alleged unlawful command influence has a logical
connection to the court-martial, in terms of its potential to cause unfairness
in the proceedings.”
In defining unlawful command influence, the court in
United States v. Jameson, 33 M.J. 669, 673 (NMCMR 1991) stated, “. . . it is our view that,
when an unlawful act of a commander or his staff proximately causes coercion
or other unlawful influence upon a case, that case has been tainted by
unlawful command influence, even if it is not proved that the commander
or staff member concerned specifically intended to perpetrate unlawful
command influence upon that case.”
United States v. Thomas, 22 M.J. 388, 393 (CMA 1986) also tells us, “Command influence is
the mortal enemy of military justice,” and, “A commander who
causes charges to be preferred or referred for trial is closely enough
related to the prosecution of the case that the use of command influence
by him and his staff equates to ‘prosecutorial misconduct.’ ”
See also United States v. Weasler 43 M.J. 15, 16 (CAAF 1995).
United States v. Kitts
,
23 M.J. 105, 108 (CMA 1986) states that while an SJA is not a commander
or a convening authority, his actions may constitute unlawful command
influence because “A staff judge advocate generally acts with the
mantle of command authority.”
In
United States v. Biagase, 50 M.J. 143, 150-51 (1999), the Court of Appeals for the Armed Forces
established burdens. After the defense introduces “some evidence”
that unlawful command influence occurred and that it has a potential to
cause unfairness in the proceedings, the government then has the burden,
to show that the facts introduced by the defense (1) are untrue, or (2)
do not constitute unlawful command influence, or (3) even if they do constitute
unlawful command influence, will not affect the proceedings. The government
must make this showing
beyond a reasonable doubt.
If the government fails to meet this heavy burden, “. . . the military
judge must find that command influence exists and must then take whatever
measures are necessary and appropriate to ensure that the findings and
sentence, if any, are so far unaffected by any command influence . . .”
Jameson, 33 M.J. at 672, quoting
United States v. Jones, 30 M.J. 849, 854 (NMCMR 1990). The court in
United States v. Rodriguez
,
16 M.J. 740, 742 (AFCMR 1983), citing
United States v. Rosser, 6 M.J. 267 (CMA 1979), stated, “The test for prejudice from unlawful
command influence is
not
merely whether such influence
actually
existed but whether there is an appearance of such influence. The appearance
of the evil of command influence is as much to be avoided as the actual
use of such influence.” Citing
United States v. Crawley, 6 M.J. 811 (AFCMR 1978), the
Rodriguez
Court went on to state, “Appearance of unlawful command influence
provides a presumption of prejudice. . . “.
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Categories:
- Court Of Appeals For The Armed Forces