Let's talk about the burdens of proof in the UCMJ. And what do they even mean? Well, first, what you need to know is, beyond a reasonable doubt, is the highest standard we have in the law. It is a bar that is set for the prosecution (the government), that they must meet. The government must jump over this hurdle and prove the elements of the crime beyond a reasonable doubt before you can be found guilty. If they meet that bar, if they jump that hurdle, the government wins, and you lose.
Beyond a reasonable doubt is the highest standard in the criminal justice system in the UCMJ. It's higher than probable cause and preponderance of the evidence and even higher than "clear and convincing evidence." If you want to assign a number to the different levels and burdens, you can use this as an example for illustrative purposes.
Probable cause. It's super low. It's one of the lowest standards in the legal system. The Supreme Court has actually said that the probable cause standard “is incapable of a precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 (2003). It only requires a fair probability, not a statistical probability. So again, the numbers I'm giving you are examples. Probable Cause is certainly much lower than 50%. It is so low, let's give it a range of 15 to 20%.
Next, we have a Preponderance of the evidence, which equals 51%, more likely than not. It is important to know that it's not 50%, it is not a coin flip, it is not 50/50 . . . it is 51%. Therefore, the government has to prove that it is "more likely than not" that you did it. If they only prove it by 50/50 chance, technically, the government hasn't met the standard, and you should not be found to have committed any violations of the UCMJ at a separation board, which uses the preponderance of the evidence standard, a command investigation or a 15-6 also uses the preponderance of the evidence standard, or at an Article 15 (non-judicial punishment). Remember . . . 51%
Next, we have Clear and Convincing Evidence. This is not normally applied in criminal trials, but it is still applied in the law. It simply means the evidence is "clear and convincing" that you, in fact, did it. This is higher than Preponderance but lower than beyond a reasonable doubt. Clear and Convincing Evidence means there is a 75% chance that you did it.
Next, we have the highest standard known in the law Beyond a Reasonable Doubt. It is higher than clear and convincing evidence! This is one of the ways that the military defines beyond a reasonable doubt.
“A reasonable doubt is an honest, conscientious doubt suggested by the material evidence or lack of it in the case. It is an honest misgiving generated by insufficiency of proof of guilt . . . Proof beyond a reasonable doubt means proof to an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must exclude every fair and reasonable hypothesis of the evidence except that of guilt.”
As you can see from the definition, it's an honest misgiving generated by the insufficiency of the evidence. Proof beyond a reasonable doubt means proof to an evidentiary certainty, not a mathematical certainty. The government doesn't have to prove that there is a 100% certainty that you did it; they have to prove that it is beyond a reasonable doubt that you did it. You can think of it as a 90 to 95% chance or certainty that you did it.
So, what is reasonable doubt? I find this last part really important. “The proof must exclude every fair and reasonable hypothesis of the evidence except guilt.” In other words, if there is another reasonable hypothesis that would explain something other than that you did it, that is reasonable doubt, and you should be found not guilty.
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