U.S. v. Downum, 86 M.J. 200

Core Criminal Law Subjects: Crimes: Article 112a - Wrongful Use, Possession, etc., of Controlled Substances Offenses on/after 1 Jan 2019

1. when the government seeks to prove that an accused's use of a controlled substance was wrongful based solely on scientific evidence, one way by which the government may establish an inference of wrongfulness is by offering expert testimony interpreting the urinalysis tests that prove the accused's use of the controlled substance; the expert testimony proffered by the government must establish multiple facts about the testing, including that the metabolite is not naturally produced by the body or any substance other than the drug in question, that the cutoff level and reported concentration are high enough to reasonably discount the possibility of unknowing ingestion, and that the testing methodology reliably detected the presence and concentration of the drug or metabolite in the sample

Core Criminal Law Subjects: Evidence: Relevance

1. to be relevant, evidence need only have any tendency to make a fact of consequence more or less probable than it would be without the evidence
2. irrelevant evidence is not admissible

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

1. in this case involving the wrongful use of cocaine, the CCA found that the testimony of an expert witness in forensic toxicology and drug testing who did not personally test the accused's urine sample but who had reviewed the paper urinalysis test results in preparation for trial and stated that the accused's urine sample tested positive for the metabolite of cocaine in excess of the DoD cutoff level provided little probative value in (1) the absence of the underlying paper test results, (2) the expert's failure to explain the cutoff level's significance or explain how the urinalysis test controls for the possibility of innocent ingestion (the very defense raised by the accused), and (3) the expert's failure to offer virtually no information about the test itself, whether it was regarded as scientifically sound, and whether it was conducted in accordance with prescribed procedures; because this finding was within the CCA's Article 66(d) authority, it did not err
2. when Congress originally enacted Article 66, UCMJ, the statute authorized the CCAs to "weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact" but to do so while also "recognizing that the trial court saw and heard the witnesses;" the newly amended version of Article 66, UCMJ, mandates that the CCAs give "appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence"
3. depending on the type of evidence presented at trial, the level of deference owed by a CCA to certain factual determinations by the trial court might be materially more than one would expect under de novo review; because of this, it is no longer appropriate to describe the CCA's standard of review when performing factual sufficiency review simply as de novo; instead, when stating the standard of review and performing factual sufficiency review, a CCA should cite and follow the CAAF's guidance in US v. Harvey, 85 MJ 127 (2024), instead of the CAAF's prior guidance in US v. Washington, 57 MJ 394 (2002); in performing its factual sufficiency review, a CCA must weigh the evidence and determine controverted questions of fact, while according appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence; however, nothing forecloses the possibility that based on the type of evidence presented at trial, a CCA might owe little to no deference to the trial court in performing its factual sufficiency review
4. the new Article 66(d) appropriate deference requirement does not prohibit a CCA from concluding that a finding of guilt is factually insufficient simply because the accused took the stand and denied that he committed the charged offense; to conclude otherwise would be to impose a presumption of guilt similar to the one that this Court rejected in US v. Harvey, 85 MJ 127 (2024)
5. under the new version of Article 66, UCMJ, the CCA is still authorized to weigh the evidence and determine controverted questions of fact
6. in this case, the CCA's factual sufficiency analysis did not turn on the veracity or the credibility of the witnesses who testified at trial or whether the CCA provided appropriate deference to the fact that the trial court heard and saw those witnesses testify; instead, the CCA's decision rested on the simple fact that without the admission of the urinalysis test results into the record, the CCA found the proffered evidence insufficient to prove that the accused wrongfully used cocaine beyond a reasonable doubt; even under the new version of Article 66(d)(1)(B), UCMJ, that conclusion was within the CCA's discretion to reach; nothing in the new version of Article 66(d)(1)(B), UCMJ, requires a CCA to give deference to the trial court about the absence of evidence that the CCA believes is critical for a conviction to be factually sufficient; the CCA did not abuse its discretion in performing its factual sufficiency analysis
7. a conviction cannot stand if either a court-martial (in the first instance) or a CCA (on factual sufficiency review) finds the evidence factually insufficient to support a finding of guilty
8. by declining to enter the paper urinalysis results into the record, the government assumed the risk that either the court-martial or the CCA might find the remaining evidence factually insufficient to establish appellee's guilt beyond a reasonable doubt; although the government cleared the first hurdle and obtained a conviction from the court-martial in this case, Article 66(d)'s appropriate deference requirement did not prevent the CCA from reaching a different conclusion on appeal

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

1. when the CAAF reviews a service court's factual sufficiency analysis, it asks whether the CCA applied correct legal principles in performing its factual sufficiency review
2. the CAAF reviews a CCA's decision as to what level of deference is appropriate for its factual sufficiency review of a court-martial's findings for abuse of discretion

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

1. when the CAAF reviews a service court's factual sufficiency analysis, it asks whether the CCA applied correct legal principles in performing its factual sufficiency review
2. the CAAF reviews a CCA's decision as to what level of deference is appropriate for its factual sufficiency review of a court-martial's findings for abuse of discretion