CORE CRIMINAL LAW SUBJECTS: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc.

Generally:


2013 (September Term)

United States v. Flesher, 73 M.J. 303 (while not required in making a ruling, where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted; however, the reverse is also true; if the military judge fails to place his findings and analysis on the record, less deference will be accorded).

2012 (September Term)

United States v. Lubich, 72 M.J. 170 (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). 

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. Melson, 66 M.J. 346 (when colorable claims of ineffective assistance of counsel are raised on appeal, in those cases where the government can obtain an affidavit from trial defense counsel, the government should continue to endeavor to complete the appellate record promptly by obtaining such an affidavit and avoid any undue delay). 

 

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.Virginia, 443 U.S. 307, 319 (1979)).

(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:

2008 (Transition)

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). 

 

1999

United States v. Muirhead
, 51 MJ 94 (Court of Criminal Appeals applied the wrong test when it placed great weight on the subjective opinions of law enforcement agents as to whether Article 31 warnings were required; the issue must be viewed objectively).


Capital Cases:

1999

United States v. Gray
, 51 MJ 1 (“in favorem vitae” [in favor of life] policy for appellate review of capital cases rejected for the reasons set forth in United States v. Loving, 41 MJ 213, 266 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).


Command influence:

2008 (Transition)

 

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). 

 

1999

United States v. Richter
, 51 MJ 213 (to raise unlawful command influence on appeal, the appellant must show (1) facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that unlawful command influence was the cause of the unfairness).


Continuance:

1999

United States v. Weisbeck
, 50 MJ 461 (the standard of review of a military judge’s decision to deny a continuance is abuse of discretion; there is an abuse of discretion where the reasons or rulings of the military judge are clearly untenable and deprive a party of a substantial right such as to amount to a denial of justice).


Instructions:

1999

United States v. Brown
, 50 MJ 262 (military judge’s decision to instruct is reviewed for an abuse of discretion, with all inferences from the evidence of record to be drawn in the Government’s favor; there must be “some evidence” which permits an inference of the matter to be instructed upon).


Presumptions:

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).

(an appellate court presumes that a military judge follows her own rulings). 


2008 (Transition)


United States v. Custis, 65 M.J. 366 (an appellate court presumes that a court-martial panel follows the instructions given by the military judge). 

1999

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).


Proof, persuasion:

2013 (September Term)

United States v. Paul, 73 M.J. 274 (it is a fundamental principle of due process that in order to prove its case, the government must present evidence at trial supporting each element of the charged offenses beyond a reasonable doubt; further, the review of findings, of guilt or innocence, is limited to the evidence presented at trial; a fact essential to a finding of guilty must appear in the evidence presented on the issue of guilt; it cannot be extracted from evidence presented in other proceedings in the case). 

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).


Selection of court members:

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). 


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