Here is an interesting CAAF grant on an Article 120 issue. The most interesting issue is Issue III.
Wednesday, August 10, 2011
ORDERS GRANTING PETITION FOR REVIEW
No. 11-0440/MC. U.S. v. Nicholas S. STEWART. CCA 201000021. Review granted on the following issues:
I. UNDER UNITED STATES v. PRATHER, IS IT LEGALLY POSSIBLE FOR THE PROSECUTION TO DISPROVE AN AFFIRMATIVE DEFENSE BEYOND A REASONABLE DOUBT ONCE THE MILITARY JUDGE HAS DETERMINED THAT THE DEFENSE HAS BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE AND, IF NOT, IS THE MILITARY JUDGE REQUIRED TO ENTER A FINDING OF NOT GUILTY IN SUCH A CASE UNDER RCM 917?
II. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING THE EVIDENCE FACTUALLY SUFFICIENT BEYOND A REASONABLE DOUBT TO SUSTAIN APPELLANT’S CONVICTION UNDER SPECIFICATION 2 BECAUSE IN DOING SO IT (1) VIOLATED THE PRATHER LEGAL-IMPOSSIBILITY PRINCIPLE AND (2) IMPERMISSIBLY FOUND AS FACTS ALLEGATIONS THAT HE WAS FOUND NOT GUILTY OF IN SPECIFICATION 1.
III. WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY REQUIRING THE DEFENSE TO PRESENT EVIDENCE ON THE DEFENSE OF CONSENT AT AN ARTICLE 39(a) SESSION PRIOR TO TRIAL.
Here is a link to the NMCCA opinion.
I didn’t realize the defense was required to present its defense in a 39(a) session before trial. Apparently NMCCA agrees that the defense isn’t, “required  to put on evidence of the affirmative defenses of
consent and mistake of fact as to consent prior to the Government’s presentation of evidence on the merits.”