U.S. v. Harvey, 85 M.J. 127

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

1. amended Article 66(d)(1)(B), UCMJ, eliminated a CCA's duty and power to review a conviction for factual sufficiency absent two express trigger conditions: (1) appellant asserting an assignment of error, and (2) appellant showing a specific deficiency in proof; if the two express trigger conditions are not met, then nothing in amended Article 66, UCMJ, either requires or allows a CCA to review the factual sufficiency of the evidence
2. amended Article 66(d)(1)(B)(ii), UCMJ, directs a CCA to weigh the evidence and determine controverted questions of fact; this power is subject, in part, to Article 66(d)(1)(B)(ii)(I), UCMJ, which requires appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence
3. the requirement of appropriate deference when a CCA weighs the evidence and determines controverted questions of fact implies that the degree of deference will depend on the nature of the evidence at issue
4. amended Article 66(d)(1)(B), UCMJ, affords the CCA discretion to determine what level of deference is appropriate, and the CAAF will review a CCA's decision only for an abuse of discretion
5. under amended Article 66(d)(1)(B)(iii), UCMJ, the quantum of proof necessary to sustain a finding of guilty during a factual sufficiency review is proof beyond a reasonable doubt, the same as the quantum of proof necessary to find an accused guilty at trial
6. under amended Article 66(d)(1)(B), UCMJ, factual sufficiency review occurs only after a court-martial has already weighed the evidence at trial and found that the appellant was guilty beyond a reasonable doubt; amended Article 66(d)(1)(B)(ii), UCMJ, directs the CCA to conduct a new weighing of the evidence, giving appropriate deference to the court-martial; because the CCA does not have to give complete deference to the court-martial, the CCA, during a factual sufficiency review in a particular case, might weigh the evidence differently from how the court-martial weighed the evidence; accordingly, when the predicate clause under amended Article 66(d)(1)(B)(iii), UCMJ, refers to the "weight of the evidence," it means the weight of the evidence as the CCA has just weighed it under subsection (B)(ii); the phrase, so read, says nothing about, and therefore does not alter, the quantum of proof necessary to sustain a finding of guilty – proof beyond a reasonable doubt
7. under amended Article 66(d)(1)(B)(iii), UCMJ, for a CCA to be clearly convinced that the finding of guilty was against the weight of the evidence, two requirements must be met: (1) the CCA must decide that the evidence, as the CCA has weighed it, does not prove that the appellant is guilty beyond a reasonable doubt, and (2) the CCA must be clearly convinced of the correctness of this decision
8. amended Article 66(d)(1)(B)(iii), UCMJ, did not create a rebuttable presumption that in reviewing a conviction, a CCA should presume that an appellant was, in fact, guilty

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

1. the CAAF may review whether a CCA applied correct legal principles to a factual sufficiency review
2. the CAAF reviews de novo a CCA's interpretation of a statute
3. when the record reveals that a CCA misunderstood the law, the CAAF remands for another factual sufficiency review under correct legal principles
4. amended Article 66(d)(1)(B) affords the CCA discretion to determine what level of deference is appropriate, and the CAAF will review a CCA's decision only for an abuse of discretion

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

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

1. the CAAF may review whether a CCA applied correct legal principles to a factual sufficiency review
2. the CAAF reviews de novo a CCA's interpretation of a statute