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Burden of Proof in a Court-Martial

Posted by Ernesto Gapasin | Nov 13, 2015 | 0 Comments

In a trial, one party must bear the burden of proof. According to Merriam-Webster, the term burden of proof is defined as “the duty of proving a disputed assertion or charge.” Like a civilian court, the burden of proof in a court-martial rests with the prosecution (i.e., the government). The accused service member is presumed innocent until proven guilty, and the government must prove their guilt through legal and competent evidence. To learn more about this process, please scroll down.

Burden of Proof in a Court-Martial

Burden of Proof in a Court-Martial

The idea that a defendant is innocent until proven guilty is an important and highly respected principle of the American criminal justice system, and this idea extends to the U.S. military as well. The prosecution always has the duty of proving that the defendant is guilty (i.e., the burden of proof). They must prove this fact “beyond a reasonable doubt,” which means that it must be proven to the extent that a “reasonable doubt” could not arise in the mind of a “reasonable person.” So although there may be a doubt, this doubt should not affect the reasonable person's belief regarding the defendant's guilt. The accused is given “the benefit of the doubt,” as they say.

The Arguments

To prove the defendant's guilt, the prosecution will need to provide sufficient evidence. This might include physical evidence and the examination of witnesses. The evidence presented must show probable cause and strengthen the government's argument. Of course, the defense counsel will seek to negate the prosecution's evidence and prove that their argument is invalid. The defense's argument will also include evidence and witnesses. Both the prosecution and the defense counsel can cross-examine witnesses as well.

In the end, the members (i.e., the jurors) of the court-martial will use these two arguments to come to a conclusion regarding the defendant's guilt.

Article 32 Hearings

The prosecution also has the burden of proof in an Article 32 hearing, which occurs before a general court-martial. During the hearing, the prosecutor must present evidence that provides probable cause that the accused committed the offense. If the prosecution fails to present a satisfactory case, a general court-martial will be unmerited and the investigating officer will dismiss the case.

The Charge of Guilt

For the accused to be deemed guilty in a court-martial, at least two-thirds of the court-martial members must vote guilty. However, if the accused is facing the death sentence, all of the members must vote guilty. Finally, if the accused has asked to be tried by a military judge alone, the judge will determine whether or not the accused is guilty.


Although civilian trials and courts-martial differ in many ways, they both adhere to the principle of “innocent until proven guilty”—a fact for which we are all grateful!

If you or someone you know is preparing for a court-martial, contact the top-quality lawyers at Newsom & Gapasin. Whether you're under investigation or facing a court-martial, our experienced and aggressive law firm would be happy to help. We focus on winning tough cases, some of which have been reported on by national media outlets like CNN, Fox News, Time, the Washington Post, and the New York Times. For more information, please give us a call at 1-(888) 919-8265 , send an e-mail to [email protected], or click here to contact us online. We look forward to hearing from you!

About the Author

Ernesto Gapasin



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