U.S. v. Willman, 81 M.J. 355

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. in general, Article 66(c), UCMJ, restricts appellate review performed by the CCAs to consideration of the entire record of the case before them; however, CCAs do have authority to consider evidence entirely outside the record when considering an appellant’s cruel and unusual punishment claims raised under the Eighth Amendment; but the practice of considering material outside the record should not be expanded beyond the context of Article 55, UCMJ, and the Eighth Amendment
2. CCAs are not precluded from considering prison conditions when reviewing a sentence under Article 66(c), UCMJ, if the record contains information about those conditions
3. CCAs are authorized to supplement the record to decide any issues that are raised, but not fully resolved, by evidence in the record
4. consistent with the plain language of Article 66(c), UCMJ, and US v. Jessie (79 MJ 437 (CAAF 2020)), CCAs do not have authority to consider outside-the-record evidence submitted in support of an appellant’s Eighth Amendment or Article 55, UCMJ, claims when performing sentence appropriateness review under Article 66(c), UCMJ; in other words, once a CCA consider an appellant’s outside-the-record declaration to decide his cruel and unusual punishment claims, it may not consider the declaration to perform its Article 66(c), UCMJ, sentence appropriateness review
5. outside-the-record materials considered to resolve an appellant’s cruel and unusual punishment claims are not part of the entire record of trial unless they address a matter in the record of trial

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

1. the scope, applicability, and meaning of Article 66(c), UCMJ, is a matter of statutory interpretation that an appellate court reviews de novo