United States v. McLendon

PEARSON, Judge,

joined by

The majority’s conclusion that appellant voluntarily consented to provide a urine specimen is wrong as a matter of law, their de novo review notwithstanding. We conclude the military judge abused his discretion by (1) erroneously shifting the burden of proof on the consent issue to appellant and (2) erroneously concluding appellant was not entitled to an explanation of the difference between command-directed and consent testing. See United States v. Middleton, 10 M.J. 123 (C.M.A.1981).

SHIFTING OF BURDEN

When the government relies on consent as a basis for obtaining a…