United States v. Kershaw, 86 M.J. 16

First Principles: Constitutional Matters: Due Process

1. it is a fundamental tenet of due process that an appellate court may not affirm a conviction based on a more generalized and generic theory of force not submitted to the trier of fact

Trial Stages: Merits: Findings

1. a variance between pleadings and proof exists when evidence at trial establishes the commission of a criminal offense by the accused, but the proof does not conform strictly with the offense alleged in the charge

Trial Stages: Appeals: Generally

1. testing for prejudice is a traditional role of appellate courts when there are errors or missteps at the trial level

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

1. if at a court-martial there is a discrepancy between any of the facts pleaded by the government and the facts proven at trial, a CCA has the authority under the prior version of Article 66, UCMJ (10 USC § 866(d)(1) (2018)) to find appellant's conviction to be factually insufficient; however, if there is a discrepancy between a fact pleaded by the government and a fact proven at trial, and if that fact is not an integral part of an element of the charged offense, a CCA has the alternative authority to conduct a variance analysis and test that discrepancy for prejudice; this holds true regardless of whether the trier of fact made exceptions and substitutions at trial; if the variance analysis reveals no prejudice to appellant, the CCA may affirm the conviction on factual sufficiency grounds despite the discrepancy
2. when a CCA reviews a conviction resulting from a guilty plea, it applies neither legal nor factual sufficiency review and instead considers the providence of the plea
3. in conducting a variance analysis, a CCA will consider whether appellant was misled by the variance, whether appellant had notice of what he needed to defend against at trial, and whether the variance undermined appellant's ability to protect himself from another trial for the same offense, and then test the discrepancy for prejudice
4. a CCA may engage in a variance analysis even when there are no exceptions and substitutions made by the trier of fact
5. when a CCA conducts a factual sufficiency review, it must engage in an independent determination of the sufficiency of the evidence
6. a CCA's authority to engage in a variance analysis is not derivative of, or dependent upon, a panel's decision to make exceptions and substitutions; the factfinder below cannot serve as a variance gatekeeper, and a CCA has the authority to engage in a variance analysis regardless of what a panel has done in terms of exceptions and substitutions below
7. a CCA may make exceptions if they narrow the scope of an appellant's conviction to that conduct it deems legally sufficient or may affirm a lesser included offense of the convicted offense pursuant to the provisions of Article 59(b), UCMJ
8. there is no authority, statutory or otherwise, that permits a CCA to except language from a specification in such a way that creates a broader or different offense than the offense charged at trial
9. it is a fundamental tenet of due process that an appellate court may not affirm a conviction based on a more generalized and generic theory of force not submitted to the trier of fact
10. nothing prohibits a CCA from conducting a variance analysis in the course of a factual sufficiency review when there is a discrepancy between the facts pleaded by the government and the facts proven at trial if the discrepant facts are not an integral part of an element of the charged offense
11. nothing prevents a CCA from finding a conviction factually sufficient if a variance does not prejudice appellant such as by creating a broader or different offense than the offense charged at trial or by otherwise offending the due process rights of appellant
12. the types of prejudice that a CCA must consider in conducting a variance analysis include whether the discrepancy materially misled the accused regarding what he needed to defend against at trial, failed to protect the accused from another prosecution for the same offense, altered the nature of the offense, changed the applicable maximum punishment, or in any other way materially infringed on the accused's due process rights
13. in those cases where dates are involved, a CCA must first resolve the question of whether the "on or about" language in the specification means that there actually is no variance to address; it is only after a CCA determines that the date proven at trial falls outside of the range created by the use of the "on or about" language in the specification that the CCA should then proceed to the next step of deciding whether to use variance analysis
14. if there is a discrepancy between a fact pleaded by the government and a fact proven at trial, and if that fact is not an integral part of an element of the charged offense, a CCA has the authority to conduct a variance analysis and test the discrepancy for prejudice, and this holds true regardless of whether the trier of fact made exceptions and substitutions at trial; and if the variance analysis reveals no prejudice to the appellant, the CCA may affirm the conviction on factual sufficiency grounds despite the discrepancy
15. in this case, the CCA committed legal error in setting aside the accused's conviction for sexual abuse of a child on a factual discrepancy between the "on or about" date of the alleged offense listed in the specification and the facts proven at trial without first conducing a variance analysis to test such factual discrepancy for prejudice where the date was not an element of the offense and the CCA disclaimed any authority to conduct variance analysis

Trial Stages: Appeals: Harmless / Prejudicial Error

1. testing for prejudice is a traditional role of appellate courts when there are errors or missteps at the trial level
2. the types of prejudice that a CCA must consider in conducting a variance analysis include whether the discrepancy materially misled the accused regarding what he needed to defend against at trial, failed to protect the accused from another prosecution for the same offense, altered the nature of the offense, changed the applicable maximum punishment, or in any other way materially infringed on the accused's due process rights

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

1. testing for prejudice is a traditional role of appellate courts when there are errors or missteps at the trial level