U.S. v. Campbell, 57 M.J. 134

Trial Stages: Post-Trial Hearings: DuBay / Factfinding Hearings

1. a system through which the military appellate courts address post-trial issues such as unlawful command influence and prosecutorial misconduct is well established within the military judicial process - military appellate courts return cases to the trial level when it becomes necessary to develop facts not contained within the record of trial, and where affidavits do not suffice
2. when faced with a post-trial dispute over discovery relevant to an appeal, an appellate court needs to conduct an analysis similar to the following: (1) it must determine whether the appellant met his threshold burden of demonstrating that some measure of appellate inquiry is warranted; (2) if the court decides inquiry is warranted, it must determine what method of review should be used
3. to determine whether the appellant met his threshold burden of demonstrating that some measure of appellate inquiry into extra-record matters is warranted the appellate court should consider, among other things: (1) whether the defense has made a colorable showing that the evidence or information exists; (2) whether or not the evidence or information sought was previously discoverable with due diligence; (3) whether the putative information is relevant to appellant’s asserted claim or defense; and (4) whether there is a reasonable probability that the result of the proceeding would have been different if the putative information had been disclosed
4. a Court of Criminal Appeals has discretion to determine how additional evidence, when required, will be obtained, e.g., by affidavits, interrogatories, or a factfinding hearing; such determinations are necessarily contextual and not generally conducive to a single solution, and a Court of Criminal Appeals may conclude in some instances, such as where there is the need to discover particular facts, that a DuBay evidentiary hearing may be necessary
5. a DuBay hearing need not be ordered if an appellate court can conclude that the motion and the files and records of the case conclusively show that an appellant is entitled to no relief; a hearing is unnecessary when the post-trial claim: (1) is inadequate on its face, or (2) although facially adequate is conclusively refuted as to the alleged facts by the files and records of the case
6. under the particular facts of this case, including the extensive appellate history involved, Court of Appeals for the Armed Forces concluded that the interests of justice were better served by remand to the Court of Criminal Appeals to determine with certainty whether a report pertaining to prosecutorial misconduct exists, and if it does, to determine in camera whether it is relevant to appellant’s appeal and whether further inquiry is warranted

Trial Stages: Appeals: Generally

1. a system through which the military appellate courts address post-trial issues such as unlawful command influence and prosecutorial misconduct is well established within the military judicial process - military appellate courts return cases to the trial level when it becomes necessary to develop facts not contained within the record of trial, and where affidavits do not suffice

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a Court of Criminal Appeals has discretion to determine how additional evidence, when required, will be obtained, e.g., by affidavits, interrogatories, or a factfinding hearing; such determinations are necessarily contextual and not generally conducive to a single solution, and a Court of Criminal Appeals may conclude in some instances, such as where there is the need to discover particular facts, that a DuBay evidentiary hearing may be necessary