(concurring in part and dissenting in part):
I agree with the majority as to Issues I and III, and its rationale as to Issue II, but part company as to a remand. The judges on the Court of Criminal Appeals (CCA) cited dicta in Herrera v. Collins, 506 U.S. 390, 399, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), as follows: “Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears____” This correct statement of the law, even though in a habeas corpus case, does not rebut the presumption that the judges below knew and applied the law correctly in this case. See, e.g., United States v. Prevatte, 40 MJ 396, 398 (CMA 1994); United States v. Montgomery, 20 USCMA 35, 39, 42 CMR 227, 231 (1970).
The presumption of innocence is not strictly speaking, a presumption in the sense of an inference deduced from a given premise, “but an assumption of innocence since the prosecution has the burden of persuasion with regard to the defendant’s guilt.” See Harold A. Ashford & D. Michael Risinger, Presumptions, Assumptions and Due Process in Criminal Cases, A Theoretical Overview, 79 Yale L.J. 165,173 (1969). See also 9 John H. Wigmore, Evidence in Trials at Common Law § 2511 at 530 (Chadbourn rev.1981). Professor J. Thayer recognized that the presumption “is not evidence—not even an inference drawn from a fact and evidence—but instead is a way of describing the prosecution’s duty” to prove the guilt of the defendant at trial. Taylor v. Kentucky, 436 U.S. 478, 483 n. 12, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978).
“In contrast to the lay members who serve on courts-martial, the mature, experienced judges who serve” on the CCAs are well-suited to perform their statutorily mandated Article 66(c)1 review without employing a rhetorical “presumption of innocence” reminder. 57 MJ at 399-400. The beyond a reasonable doubt standard assures that the burden does not shift to an appellant, thereby creating a level playing field without further reminder of the burdens of proof and burdens of persuasion to these able judges. Surely we do not require appellate judges to list mechanically in every case the items they did not consider, e.g., arrest, investigation pursuant to Article 32,2 when applying the factual sufficiency test. Presumptions of guilt or innocence are inconsistent with the requirement of both United States v. Turner, 25 MJ 324 (CMA 1987), and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that the Government prove the case beyond a reasonable doubt, and have no place in appellate practice. Accordingly, the court’s rejection of appellant’s request to apply a “presumption of innocence” did not constitute error or create an ambiguity requiring re-examination.
As the majority correctly notes, the CCA applies neither a presumption of innocence nor a presumption of guilt. The dicta from Herrera cited by the CCA correctly reflect the long-standing view that the presumption of innocence is a trial-level device and a means of allocating the burdens of proof. That is, that the Government has the burden of producing evidence of guilt and must persuade the fact finder beyond a reasonable doubt. However, the presumption of innocence disappears following a conviction at trial, without regard to whether that conviction is attacked via a direct appeal or a habeas corpus petition. In Herrera, the Supreme Court held that there was no violation of due process by the state’s reliance on a time limit to refuse to consider newly discovered evidence, even though such evidence would establish “actual innocence” of the offense for which the defendant had been sentenced to death. 506 U.S. at 404, 113 S.Ct. 853. The dicta cited by the CCA from Herrera is consistent with the basic historical fact that the “assumption of innocence” only ap*405plies at the trial level. Further, the dicta cited by the CCA correctly reflect the burdens and the presumptions at the trial level and what happens on appeal, whether a direct appeal or a habeas corpus petition.
Other than noting that Herrera involved a federal habeas corpus issue, the majority offers no explanation as to how the lower court’s citation to dicta in Herrera raise the question of burden shifting to appellant. While the majority cites lack of clarity by the lower court, it certainly can be criticized for its own lack of clarity in ordering a remand. The cite to dicta in Herrera neither undermines the fact that the court correctly applied the Turner and Jackson standard, nor blunts the fact that the CCA found the Government had proven its case beyond a reasonable doubt. A remand will do little more than clarify what review the court performed under Turner and Jackson. The fact that the “presumption of innocence disappears” when there is a habeas corpus petition does not weaken, and is indeed consistent with, the proposition that there is no presumption of innocence after a conviction at the trial level. Thus, the CCA correctly applied Turner and Jackson to both its factual and legal sufficiency reviews. See 54 MJ at 941.
. Uniform Code of Military Justice (UCMJ), 10 USC § 866(c).
. UCMJ, 10 USC § 832.