U.S. v. Tovarchavez, 78 M.J. 458

First Principles: Constitutional Matters: Generally

1. Article 59(a), UCMJ, provides that a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; just as a substantial right can be either constitutional or nonconstitutional, material prejudice for purposes of Article 59, UCMJ, must be understood by reference to the nature of the violated right
2. where a forfeited constitutional error was clear or obvious, material prejudice is assessed using the harmless beyond a reasonable doubt standard; that standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction
3. in the context of both preserved and unpreserved nonconstitutional errors, appellate courts consider whether there is a reasonable probability that, but for the error, the outcome of the proceedings would have been different; for constitutional errors, rather than the probability that the outcome would have been different, courts must be confident that there was no reasonable possibility that the error might have contributed to the conviction
4. when an appellate court reviews a constitutional issue for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt
5. whether preserved or forfeited error, a finding or sentence may only be corrected for interference with a substantial right involving an error of law; where the error is constitutional, the government must show that the error was harmless beyond a reasonable doubt to obviate a finding of prejudice
6. an appellate court applies the harmless beyond a reasonable doubt standard when assessing prejudice for a forfeited constitutional error under Article 59, UCMJ
7. there is no legitimate military justification for interpreting material prejudice under Article 59(a), UCMJ, differently for preserved and forfeited constitutional errors

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

1. DuBay hearings are an oft-utilized and well-accepted procedural tool used by appellate courts in the military for addressing a wide range of post-trial collateral issues

Trial Stages: Appeals: Generally

1. an appellant gets the benefit of changes to the law between the time of trial and the time of his appeal; in other words, on direct review, an appellate court applies the clear law at the time of the appeal, not the time of trial

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. it is for the CAAF, not the CCA, to overrule its own precedent

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. it is for the CAAF, not the CCA, to overrule its own precedent
2. absent articulation of a legitimate military necessity or distinction, or a legislative or executive mandate to the contrary, the CAAF has a duty to follow Supreme Court precedent
3. (in cases applying plain error review, the CAAF does not apply the fourth prong of the US v. Olano, 507 U.S. 725 (1993) plain error test (if the three other prongs are satisfied, the appellate court has the discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings; this divergence from federal practice is regularly justified by the differences between Article 59, UCMJ, and Fed. R. Crim. P. 52(b))

Trial Stages: Appeals: Harmless / Prejudicial Error

1. Article 59(a), UCMJ, provides that a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; just as a substantial right can be either constitutional or nonconstitutional, material prejudice for purposes of Article 59, UCMJ, must be understood by reference to the nature of the violated right
2. where a forfeited constitutional error was clear or obvious, material prejudice is assessed using the harmless beyond a reasonable doubt standard; that standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction
3. in the context of both preserved and unpreserved nonconstitutional errors, appellate courts consider whether there is a reasonable probability that, but for the error, the outcome of the proceedings would have been different; for constitutional errors, rather than the probability that the outcome would have been different, courts must be confident that there was no reasonable possibility that the error might have contributed to the conviction
4. when an appellate court reviews a constitutional issue for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt
5. whether preserved or forfeited error, a finding or sentence may only be corrected for interference with a substantial right involving an error of law; where the error is constitutional, the government must show that the error was harmless beyond a reasonable doubt to obviate a finding of prejudice
6. an appellate court applies the harmless beyond a reasonable doubt standard when assessing prejudice for a forfeited constitutional error under Article 59, UCMJ
7. there is no legitimate military justification for interpreting “material prejudice” under Article 59(a), UCMJ, differently for preserved and forfeited constitutional errors
8. in this case, a forfeited constitutional error in issuing an MRE 413 propensity instruction in a court-martial for two specifications of sexual assault that permitted the members to consider evidence that appellant had committed one sexual offense as evidence of his propensity or predisposition to engage in the other sexual offense violated appellant’s constitutional right to be presumed innocent until proven guilty, and that error was not harmless beyond a reasonable doubt where although the evidence against appellant was significant, (1) the presence of appellant’s DNA on the victim did not directly contradict the defense theories of the case that the victim either consented or that appellant acted under a reasonable mistake of fact as to consent, (2) appellant’s text message apologies did not unassailably establish his consciousness of guilt where they could also have been statements from someone who knew he had acted inappropriately, but not criminally, and (3) the fact that appellant was acquitted of one of the two specifications of sexual assault made it less clear that the bootstrapping effect of the instruction did not tip the balance with respect to the members’ ultimate determination regarding the other sexual assault specification

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in this case, where appellant failed to object to an MRE 413 propensity instruction at trial, but between the time of trial and final resolution on appeal, the instruction was held to violate appellant’s constitutional right to be presumed innocent, appellant’s failure to object to that instruction constituted forfeiture rather than waiver
2. consonant with Article 59, UCMJ, for an appellant to prevail under plain error review, there must be an error, that was clear or obvious, and which prejudiced a substantial right of the accused
3. whether an error, constitutional or otherwise, constitutes plain error is a question of law that an appellate court reviews de novo
4. (in cases applying plain error review, the CAAF does not apply the fourth prong of the US v. Olano, 507 U.S. 725 (1993) plain error test (if the three other prongs are satisfied, the appellate court has the discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings; this divergence from federal practice is regularly justified by the differences between Article 59, UCMJ, and Fed. R. Crim. P. 52(b))
5. forfeited errors are subject to plain error review, while preserved errors are not; under Article 59, UCMJ, all errors of law - preserved or not - must have prejudiced an appellant’s rights, and the test employed to determine prejudice depends on the nature of the right

Trial Stages: Appeals: Remedies › DuBay/Factfinding hearing

1. DuBay hearings are an oft-utilized and well-accepted procedural tool used by appellate courts in the military for addressing a wide range of post-trial collateral issues

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

1. Article 59(a), UCMJ, provides that a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; just as a substantial right can be either constitutional or nonconstitutional, material prejudice for purposes of Article 59, UCMJ, must be understood by reference to the nature of the violated right
2. where a forfeited constitutional error was clear or obvious, material prejudice is assessed using the harmless beyond a reasonable doubt standard; that standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction
3. in the context of preserved and unpreserved nonconstitutional errors, appellate courts consider whether there is a reasonable probability that, but for the error, the outcome of the proceedings would have been different; for constitutional errors, rather than the probability that the outcome would have been different, courts must be confident that there was no reasonable possibility that the error might have contributed to the conviction
4. when an appellate court reviews a constitutional issue for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt
5. an appellant gets the benefit of changes to the law between the time of trial and the time of his appeal; in other words, on direct review, an appellate court applies the clear law at the time of the appeal, not the time of trial
6. in this case, where appellant failed to object to an MRE 413 propensity instruction at trial, but between the time of trial and final resolution on appeal, the instruction was held to violate appellant’s constitutional right to be presumed innocent, appellant’s failure to object to that instruction constituted forfeiture rather than waiver
7. consonant with Article 59, UCMJ, for an appellant to prevail under plain error review, there must be an error, that was clear or obvious, and which prejudiced a substantial right of the accused
8. whether preserved or forfeited error, a finding or sentence may only be corrected for interference with a substantial right involving an error of law; where the error is constitutional, the government must show that the error was harmless beyond a reasonable doubt to obviate a finding of prejudice
9. whether an error, constitutional or otherwise, constitutes plain error is a question of law that an appellate court reviews de novo
10. an appellate court applies the harmless beyond a reasonable doubt standard when assessing prejudice for a forfeited constitutional error under Article 59, UCMJ
11. there is no legitimate military justification for interpreting material prejudice under Article 59(a), UCMJ, differently for preserved and forfeited constitutional errors
12. absent articulation of a legitimate military necessity or distinction, or a legislative or executive mandate to the contrary, the CAAF has a duty to follow Supreme Court precedent
13. in cases applying plain error review, the CAAF does not apply the fourth prong of the US v. Olano, 507 U.S. 725 (1993) plain error test [if the three other prongs are satisfied, the appellate court has the discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings]; this divergence from federal practice is regularly justified by the differences between Article 59, UCMJ, and Fed. R. Crim. P. 52(b)

Miscellaneous Matters: Judicial Review: Stare Decisis

1. horizontal stare decisis requires an appellate court to adhere to its own prior decisions, unless it finds compelling reasons to overrule itself
2. overruling by implication is disfavored; lower courts should follow the case which directly controls, leaving to the superior court the prerogative of overruling its own decisions
3. forfeited errors are subject to plain error review, while preserved errors are not; under Article 59, UCMJ, all errors of law - preserved or not - must have prejudiced an appellant’s rights, and the test employed to determine prejudice depends on the nature of the right