U.S. v. Thompson, 83 M.J. 1

Core Criminal Law Subjects: Defenses: Mistake of Fact

1. it is a defense in a prosecution for sexual assault of a child charged under Article 120b(b), UCMJ (2018), which the accused must prove by a preponderance of the evidence, that the accused reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years
2. an accused need not testify to establish a mistake of fact defense; the evidence supporting the defense can come from evidence presented by the defense, the prosecution, or the court-martial, and proof of the defense may be based on direct or circumstantial evidence
3. in this case involving a prosecution for sexual assault of a child charged under Article 120b(b), UCMJ (2018), in its opinion affirming the findings, the CCA twice stated that there was no direct evidence to support a mistake of fact defense and then said “and as such, the Defense failed to meet its burden;” the CCA’s use of the phrase “and as such” leaves the impression that the CCA rested its decision on an erroneous view that the mistake of fact defense required direct evidence; even though a CCA is presumed to know the law absent contrary indications, the CCA’s language creates at least “an open question” about whether the court applied the correct rule; accordingly, the CCA’s decision is set aside and remanded for a new Article 66(d)(1), UCMJ, factual sufficiency review

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

1. review of the factual sufficiency of the evidence is a special power and duty that Article 66(d)(1), UCMJ, confers only on the CCAs
2. the test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the CCA are themselves convinced of the accused’s guilt beyond a reasonable doubt
3. the CCAs need not address each issue raised by an appellant and are not required to state their reasoning for their decisions
4. the CCAs are presumed to know the law absent contrary indications

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

1. although the CAAF does not review evidence for factual sufficiency, it retains the authority to review factual sufficiency determinations of the CCAs for the application of correct legal principles, but only as to matters of law
2. in determining whether a CCA has applied correct legal principles, the CAAF starts with the rule that the CCAs are presumed to know the law and follow it
3. when the record reveals that a CCA misunderstood the law, the CAAF remands for another factual sufficiency review under correct legal principles
4. the CAAF also remands when it is an open question whether a CCA’s review under Article 66(d)(1), UCMJ, was consistent with a correct view of the law

Trial Stages: Appeals: Remedies › Remand

1. when the record reveals that a CCA misunderstood the law, the CAAF remands for another factual sufficiency review under correct legal principles
2. the CAAF also remands when it is an open question whether a CCA’s review under Article 66(d)(1), UCMJ, was consistent with a correct view of the law

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

1. a reviewing court must read specific statements in a judicial opinion in context to determine whether the statements are correct