Generally:
2011 (September Term)
United States v. Humphries, 71 M.J. 209 (in the context of a plain error analysis of defective indictments, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused).
2008 (Transition)
United
States v. Glenn, 66 M.J. 64 (an appellate
court reviews a military judge’s
decision to accept a guilty plea for an abuse of discretion; it will
not set
aside a plea of guilty on appeal unless there is a substantial basis in
law and
fact for questioning the guilty plea).
United
States v. Hall, 66 M.J. 53 (for
nonconstitutional errors, the government
must demonstrate that the error did not have a substantial influence on
the
findings).
2007
United States v. Young, 64 M.J. 404 (in reviewing a
case for legal sufficiency, an appellate court must determine whether,
considering the evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found all the essential
elements beyond a reasonable doubt).
2005
United
States v. Israel, 60 M.J. 485 (trial rulings limiting
cross-examination are
reviewed for abuse of discretion).
(where alleged errors affect an accused’s constitutional right to
confront the
witnesses against him, if this Court finds that the military judge
abused his
discretion, it will reverse unless the error was harmless beyond a
reasonable
doubt).
(where an error constitutes a violation of the defendant’s
constitutional
rights, this Court will reverse unless the error was harmless beyond a
reasonable doubt).
2003
United
States v. Cooper, 58 MJ 54 (the standard of review
on
appeal for speedy trial issues is de novo).
(a military judge’s finding of necessity under M.R.E. 611)(d)(3) is
a
question of fact that will not be reversed on appeal unless such
finding is
clearly erroneous or unsupported by the record; a military judge's
application
of M.R.E. 611(d) and Craig v. Maryland, 497 U.S. 836 (1990), is
a
question
of law that we review de novo).
(a military judge’s decision to admit or exclude evidence is
reviewed for an
abuse of discretion; whether a marital communication is privileged is a
mixed
question of fact and law; we review a lower court’s legal conclusions
de novo,
but we give a lower court’s factual findings more deference, and will
not
reverse such findings unless they are clearly erroneous).
(whether the phrase "child of either" in M.R.E. 504(c)(2)(A)
should be construed to include a de facto child is a question of law
that we
review de novo).
United
States v. Feltham, 58 MJ 470 (when reviewing a
decision of
a Court of Criminal Appeals on a military judge’s discretionary ruling,
we
typically have pierced through that intermediate level and examined the
military judge’s ruling; we then decide whether the Court of Criminal
Appeals
was correct in its examination of the military judge’s ruling).
1999
United
States v. Thompson, 50 MJ 57 (test for legal sufficiency
is
“whether, after viewing the evidence in the light most favorable to the
prosecution,
any rational trier of fact could have found the essential elements of
the crime
beyond a reasonable doubt.” Jackson v.
(rulings on challenges for cause are reviewed for abuse of
discretion,
giving great deference to military judge on issues of actual bias and
less
deference on questions of implied bias).
United
States v. Lacy, 50 MJ 286 (at the Court of Criminal
Appeals,
appellant bears the burden of demonstrating that any cited cases are
closely
related to his or her case and that the sentences are highly disparate;
if that
burden is met, the government must show a rational basis for the
disparity).
United States v. Abrams, 50 MJ 361(an incomplete or non-verbatim record raises a presumption of prejudice which the government may rebut; an insubstantial omission fails to raise the presumption of prejudice; the question of what constitutes a substantial omission is determined on a case-by-case basis).
Admission/suppression of evidence:
United
States v. Freeman, 65 M.J. 451 (an appellate
court reviews a military judge’s
decision to deny a motion to suppress evidence -- like other decisions
to admit
or exclude evidence -- for an abuse of discretion; abuse of discretion
is a
term of art applied to appellate review of the discretionary judgments
of a
trial court; an abuse of discretion occurs when the trial court’s
findings of
fact are clearly erroneous or if the court’s decision is influenced by
an
erroneous view of the law; further, the abuse of discretion standard of
review
recognizes that a judge has a range of choices and will not be reversed
so long
as the decision remains within that range).
United
States v. Reed, 65 M.J. 487 (in the course of
addressing command influence issues, appellate courts must consider
apparent as
well as actual unlawful command influence).
(where
the
issue of unlawful command influence is litigated on the record, the
military
judge’s findings of fact are reviewed under a clearly-erroneous
standard, but
the question of command influence flowing from those facts is a
question of law
that an appellate court reviews de novo).
2010 (September Term)
United States v. Sweeney, 70 M.J. 296 (there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege).
United States v. Phillips, 70 M.J. 161 (when sitting as the trier of fact, the military judge is presumed to know the law and apply it correctly).
2008 (September Term)
United
States v. Sanders, 67 M.J. 344 (as the
sentencing authority, a military judge
is presumed to know the law and apply it correctly, absent clear
evidence to
the contrary).
United
States v. Williams, 50 MJ 397 (the military judge may be
presumed to know about law and precedent, and be presumed to have
afforded an
accused his rights under them).
United
States v. Scott, 51 MJ 326 (an appellant alleging
ineffective
assistance of counsel must show that counsel’s errors were so serious
as to
deprive appellant of a fair trial, a trail whose result is reliable;
but
scrutiny of counsel’s performance is highly deferential and that
performance is
supported by a presumption that counsel provided adequate assistance).
1999
United
States v. Biagase, 50 MJ 143 (on appeal the defense has
the
initial burden of raising unlawful command influence by presenting some
evidence showing: (1) facts which, if true, constitute unlawful
command
influence; (2) that the proceedings were unfair; and (3) that the
unlawful
command influence was the cause of the unfairness)
(once unlawful command influence is raised, the burden shifts to the
government to show, beyond a reasonable doubt, either that there was no
unlawful command influence or that the unlawful command influence will
not affect
the proceedings, and the government may meet that burden by: (1)
disproving the predicate facts upon which the allegation of unlawful
command
influence is based; (2) persuading the military judge or appellate
court that
the facts do not constitute unlawful command influence; (3) producing,
at
trial, evidence proving that the unlawful command influence will not
affect the
proceedings; or (4) by persuading an appellate court on appeal that the
unlawful command influence had no prejudicial impact on the
court-martial).
1999
United States v. Bertie, 50 MJ 489 (Court of Appeals for the Armed Forces not inclined to recognize presumption that improper considerations of grade and rank were purposefully utilized by convening authority to stack courts based upon the composition of appellant’s court-martial and that of other panels within the command).