U.S. v. Paul, 73 M.J. 274

First Principles: Constitutional Matters: Due Process

1. it is a fundamental principle of due process that in order to prove its case, the government must present evidence at trial supporting each element of the charged offenses beyond a reasonable doubt; further, the review of findings, of guilt or innocence, is limited to the evidence presented at trial; a fact essential to a finding of guilty must appear in the evidence presented on the issue of guilt; it cannot be extracted from evidence presented in other proceedings in the case
2. when judicial notice of an element is taken outside the context of the trial itself, an accused is denied his due process right to confront or challenge an essential fact establishing an element, whether or not the fact is indisputable

Core Criminal Law Subjects: Crimes: Art. 112a -- Wrongful Use, Possession, etc, of Controlled Substances Pre-2019 offenses

1. Article 112a, UCMJ, has two related elements: (1) use of a controlled substance, that is (2) wrongful; the term “controlled substance” is defined in Article 112(a), UCMJ, in three ways: (1) by what is listed in the text of the article, (2) through reference to a schedule as prescribed by the President, and (3) through reference to Schedules I through V of the Controlled Substances Act
2. in this case, appellant was charged with wrongfully using 3,4-methylenedioxymethamphetamine, a Schedule I controlled substance, commonly known as ecstasy; the problem in the case, was that the government did not offer evidence at trial that appellant used 3,4-methylenedioxymethamphetamine, that 3,4-methylenedioxymethamphetamine is a controlled substance, or that 3,4-methylenedioxymethamphetamine is commonly referred to as ecstasy; to the contrary, the government offered legally sufficient evidence that Appellant used “ecstasy;” ecstasy is neither a named prohibited substance under Article 112a, nor has it been listed on any schedule prescribed by the President; furthermore, Schedule I does not list ecstasy by name, or link the term to 3,4-methylenedioxymethamphetamine; nowhere did the Government, through expert testimony, through stipulation on the part of appellant, or through requesting that the military judge take judicial notice, establish that ecstasy and 3,4-methylenedioxymethamphetamine are the same thing; nor did the military judge indicate that he was taking judicial notice of this on his own motion; in short, the government’s evidence did not make the essential connections among ecstasy, 3,4-methylenedioxymethamphetamine, and Schedule I; as a result, no rational trier of fact could have found an essential element of the charged offense beyond a reasonable doubt, namely that appellant used a Schedule I controlled substance

Core Criminal Law Subjects: Evidence: Judicial Notice

1. judicial notice is regulated by MREs 201 and 202; MRE 201 governs judicial notice of an adjudicative fact only, not a legislative fact, and MRE 202 governs judicial notice of law; under MRE 201, a military judge may judicially notice a fact that is not subject to reasonable dispute because it (1) is generally known universally, locally, or in the area pertinent to the event, or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned; MRE 202 governs judicial notice of law; under MRE 202, a military judge may take judicial notice of domestic law
2. an appellate court can take judicial notice of law and fact under certain circumstances; MRE 201 mentions only the military judge when outlining the proper procedure for taking judicial notice; however, case law is well settled that both military and civilian appellate courts may take judicial notice of indisputable facts
3. the problem in this case is that the CCA took the extraordinary step of taking judicial notice of an element not proven by the government; the CCA justified this step, in part, by noting that it was taking judicial notice of a question of domestic law and not an adjudicative fact; however, this analysis fails for two reasons; first, whether characterized as a question of fact or law, MRE 201 would require that the appellant first have notice and an opportunity to be heard; on adjudicative facts, this is always the case; however, as MRE 202 states, it is also the case if a domestic law is a fact that is of consequence to the determination of the action; second, and related, the CCA took judicial notice of an element of the offense
4. unless an accused is informed at the trial of the facts of which the court is taking judicial notice, not only does he not know upon what evidence he is being convicted, but, in addition, he is deprived of any opportunity to challenge the deductions drawn from such notice or to dispute the notoriety or truth of the facts allegedly relied upon
5. when judicial notice of an element is taken outside the context of the trial itself, an accused is denied his due process right to confront or challenge an essential fact establishing an element, whether or not the fact is indisputable
6. where the matter to be judicially noticed is essential to the case in order for the act to become criminal, it must be reflected in the record of trial and cannot be later assumed
7. while a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense
8. in this case, the CCA erred in taking judicial notice of the fact that ecstasy was a Schedule I controlled substance; the CCA cannot take judicial notice of a fact necessary to establish an element of the offense that the government failed to establish at trial

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Proof, persuasion

1. it is a fundamental principle of due process that in order to prove its case, the government must present evidence at trial supporting each element of the charged offenses beyond a reasonable doubt; further, the review of findings, of guilt or innocence, is limited to the evidence presented at trial; a fact essential to a finding of guilty must appear in the evidence presented on the issue of guilt; it cannot be extracted from evidence presented in other proceedings in the case

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

1. it is a fundamental principle of due process that in order to prove its case, the government must present evidence at trial supporting each element of the charged offenses beyond a reasonable doubt; further, the review of findings, of guilt or innocence, is limited to the evidence presented at trial; a fact essential to a finding of guilty must appear in the evidence presented on the issue of guilt; it cannot be extracted from evidence presented in other proceedings in the case

Trial Stages: Merits: Findings

1. it is a fundamental principle of due process that in order to prove its case, the government must present evidence at trial supporting each element of the charged offenses beyond a reasonable doubt; further, the review of findings, of guilt or innocence, is limited to the evidence presented at trial; a fact essential to a finding of guilty must appear in the evidence presented on the issue of guilt; it cannot be extracted from evidence presented in other proceedings in the case
2. an accused is entitled to have each element of the charged crime established at trial

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. while a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense
2. in this case, the CCA erred in taking judicial notice of the fact that ecstasy was a Schedule I controlled substance; the CCA cannot take judicial notice of a fact necessary to establish an element of the offense that the government failed to establish at trial

Trial Stages: Appeals: Scope of Review

1. it is a fundamental principle of due process that in order to prove its case, the government must present evidence at trial supporting each element of the charged offenses beyond a reasonable doubt; further, the review of findings, of guilt or innocence, is limited to the evidence presented at trial; a fact essential to a finding of guilty must appear in the evidence presented on the issue of guilt; it cannot be extracted from evidence presented in other proceedings in the case

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

1. the test for legal sufficiency is 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
2. an appellate court reviews questions of law de novo
3. it is a fundamental principle of due process that in order to prove its case, the government must present evidence at trial supporting each element of the charged offenses beyond a reasonable doubt; further, the review of findings, of guilt or innocence, is limited to the evidence presented at trial; a fact essential to a finding of guilty must appear in the evidence presented on the issue of guilt; it cannot be extracted from evidence presented in other proceedings in the case