U.S. v. Phillips, 70 M.J. 161

First Principles: Constitutional Matters: Generally

1. conviction of a criminal offense under the Constitution requires proof of every element of the offense beyond a reasonable doubt
2. the use of conclusive presumptions to establish the elements of an offense is unconstitutional because such presumptions conflict with the presumption of innocence and invade the province of the trier of fact

Military Justice Personnel: Military Judge: Generally

1. when sitting as the trier of fact, the military judge is presumed to know the law and apply it correctly

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. in a panel case, the military judge must instruct the members how to evaluate that evidence

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. to establish a violation of clause 2 of Article 134, UCMJ, the government must prove beyond a reasonable doubt that (1) the accused engaged in certain conduct; and (2) that the conduct was of a nature to bring discredit upon the armed forces
2. evidence that the public was actually aware of the accused’s conduct is not necessarily required to prove a violation of clause 2 of Article 134, UCMJ; military law does not require that the public know of the accused’s conduct for an accused to be convicted of a clause 2 offense; furthermore, proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that, under all the circumstances, it was of a nature to bring discredit upon the armed forces
3. a presumption that possession of child pornography is conclusively service discrediting under clause 2 of Article 134, UCMJ, is constitutionally impermissible
4. the terminal element in a clause 1 or 2 Article 134 case is an essential element of the offense as to which members must be instructed, like any other; conduct need not be violative of any other criminal statute to violate clause 1 or 2; the terminal element must be proved beyond a reasonable doubt like any other element; whether any given conduct violates clause 1 or 2 is a question for the trier of fact to determine, based upon all the facts and circumstances; and it cannot be conclusively presumed from any particular course of action
5. clause 2 of Article 134, UCMJ, is not restricted to subjecting noncommissioned officers on the retired list to criminal sanctions; the provision applies to all active-duty personnel
6. the focus of clause 2 of Article 134, UCMJ, is on the nature of the conduct, whether the accused’s conduct would tend to bring discredit on the armed forces if known by the public, not whether it was in fact so known; the statute, which requires proof of the nature of the conduct, does not require the government to introduce testimony regarding views of the public or any segment thereof; the responsibility for evaluation of the nature of the conduct rests with the trier of fact; the degree to which others became aware of the accused’s conduct may bear upon whether the conduct is service discrediting, but the statute does not establish a requirement that the accused’s conduct must in every case be in some respect public knowledge
7. to convict an accused under clause 2 of Article 134, UCMJ, the trier of fact must determine beyond a reasonable doubt that the conduct alleged actually occurred and must also evaluate the nature of the conduct and determine beyond a reasonable doubt that the accused’s conduct would tend to bring the service into disrepute if it were known
8. in general, in a clause 2 prosecution under Article 134, UCMJ, the government is not required to present evidence that anyone witnessed or became aware of the conduct; nor is the government required to specifically articulate how the conduct is service discrediting; rather, the government’s obligation is to introduce sufficient evidence of the accused’s allegedly service discrediting conduct to support a conviction; in a panel case, the military judge must instruct the members how to evaluate that evidence; when sitting as the trier of fact, the military judge is presumed to know the law and apply it correctly
9. whether conduct is of a nature to bring discredit upon the armed forces in a clause 2 prosecution under Article 134, UCMJ, is a question that depends on the facts and circumstances of the conduct, which includes facts regarding the setting as well as the extent to which the accused’s conduct is known to others; the trier of fact must consider all the circumstances, but such facts - including the fact that the conduct may have been wholly private - do not mandate a particular result unless no rational trier of fact could conclude that the conduct was of a nature to bring discredit upon the armed forces; the extent to which conduct is constitutionally protected may impact whether the facts of record are sufficient to support a conviction
10. in this case, the evidence was legally sufficient to sustain appellant’s conviction for possession of child pornography under clause 2 of Article 134, UCMJ, where forensic analysis of appellant’s computer showed that searches had been performed seeking filenames associated with child pornography, and appellant admitted downloading child pornography and viewing the images on several occasions; of the images, five images and two movies matched known child victims engaged in sexually explicit conduct; although the government did not introduce any direct evidence that the public was or would have become aware of appellant’s conduct, or that anyone at all was aware of it before appellant mentioned it to a criminal investigator, the government was not required to do so; regardless of public knowledge, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant’s activity would have tended to bring discredit upon the service had the public known of it

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. the use of conclusive presumptions to establish the elements of an offense is unconstitutional because such presumptions conflict with the presumption of innocence and invade the province of the trier of fact
2. a presumption that possession of child pornography is conclusively service discrediting under clause 2 of Article 134, UCMJ, is constitutionally impermissible

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Presumptions

1. when sitting as the trier of fact, the military judge is presumed to know the law and apply it correctly

Trial Stages: Merits: Instructions › Generally

1. in a panel case, the military judge must instruct the members how to evaluate that evidence

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in deciphering the meaning of a statute, an appellate court normally applies the common and ordinary understanding of the words in the statute
2. in determining legal sufficiency, an appellate court must decide whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt
3. when sitting as the trier of fact, the military judge is presumed to know the law and apply it correctly

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. in deciphering the meaning of a statute, an appellate court normally applies the common and ordinary understanding of the words in the statute

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: State Laws / Statutes

1. in deciphering the meaning of a statute, an appellate court normally applies the common and ordinary understanding of the words in the statute