U.S. v. Swift, 76 M.J. 210

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Corroboration

1. as a rule, an admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence has been admitted into evidence that corroborates the essential facts admitted to justify sufficiently an inference of their truth

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. Article 66(c), UCMJ, requires the service courts to conduct a plenary review of the record and affirm only such findings of guilty and the sentence or such part or amount of the sentence, as they find correct in law and fact and determine, on the basis of the entire record, should be approved; a complete Article 66, UCMJ, review is a substantial right of an accused; the CCAs have an affirmative obligation to ensure that the findings and sentence in each such case are correct in law and fact and should be approved

Trial Stages: Appeals: Courts of Criminal Appeals › Factual sufficiency

1. while a CCA has broad discretion in conducting its Article 66(c) review, a CCA’s factual sufficiency review is confined to findings of guilty approved by the convening authority; an even more fundamental concept, of course, is that an accused may only be found guilty of an offense with which he was charged, as well as any lesser-included offenses thereunder, and it is only those offenses that may be affirmed by a reviewing court; moreover, even where the evidence itself might fit within the technical contours of a specification or indictment, an appellate court may not affirm a conviction based on a theory not presented to the trier of fact
2. where a CCA’s Article 66(c), UCMJ, factual and legal sufficiency review affirms the findings of guilty based solely upon uncharged misconduct, it is legally deficient, and a proper Article 66(c), UCMJ, review must be conducted upon remand; the CCA simply may not substitute uncharged for charged conduct as either the basis for a conviction or the basis for affirming a finding of guilty under Article 66(c)

Trial Stages: Appeals: Remedies › Remand

1. where the underlying validity of the Article 66(c), UCMJ, review is in question, the remedy is to remand the case for a proper factual and legal sufficiency review of the findings of guilty

Trial Stages: Appeals: Waiver

1. where an accused states he has no objection to the admission of a confession at trial, he has waived his right to complain on appeal that the confession lacked sufficient corroboration to be admitted
2. as a general proposition of law, the words “no objection” constitute an affirmative waiver of the right or admission at issue
3. adding rule-based suspenders to the ordinary waiver belt, MRE 304(f)(1) provides that any objection under MRE 304, which broadly governs “Confessions and admissions,” to the admission of a confession shall be made before the submission of a plea, and that failure to so move or object constitutes a waiver of the objection; by its terms, MRE 304(f)(1) applies to objections based on a lack of corroboration under MRE 304(c)