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


Generally:


2019 (October Term)

United States v. Carter, 79 M.J. 478 (to prevail on an ineffective assistance claim, an appellant bears the burden of proving that the performance of his defense counsel was deficient and that he was prejudiced by the error; judicial scrutiny of counsel’s performance must be highly deferential, and an appellate court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; to overcome the presumption, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms). 

2018 (October Term)

United States v. Hutchins, 78 M.J. 437 (an appellant bears the burden to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding; courts examine all the circumstances of the first trial, including the pleadings, evidence, charge, and other relevant matter, to determine whether a rational factfinder could have grounded its verdict upon an issue other than that which appellant seeks to foreclose from consideration). 

2013 (September Term)

United States v. Leahr, 73 M.J. 364 (when challenging a military judge’s impartiality on appeal, the test is objective and considers whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions).

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:

2020 (October Term)

United States v. Upshaw, 81 M.J. 71 (a military judge’s decision to admit evidence is reviewed for an abuse of discretion). 

2019 (October Term)

United States v. Finch, 79 M.J. 389 (when an appellate court finds that a military judge erred in allowing evidence to be admitted, the government bears the burden of demonstrating that the admission of that erroneous evidence was harmless).

2018 (October Term)

United States v. Frost, 79 M.J. 104 (the government that bears the burden of demonstrating that the admission of erroneous evidence is harmless). 

(for preserved nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 

United States v. Lewis, 78 M.J. 447 (a military judge’s decision to exclude evidence is reviewed for an abuse of discretion; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; 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). 

(in determining whether an accused’s will was overborne in a particular case, the totality of all the surrounding circumstances are considered, to include both the characteristics of the accused and the details of the interrogation; some of the factors taken into account include the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, the use of physical punishment such as the deprivation of food or sleep, an earlier violation of Article 31(b), UCMJ, whether the admission was made as a result of the questioner’s using earlier, unlawful interrogations, and the presence of a cleansing warning, although the absence of such is not fatal to a finding of voluntariness; the fact that a suspect chooses to speak after being informed of his rights, is of course, highly probative). 

2016 (October Term)

United States v. Claxton, 76 M.J. 356 (in military practice, where an appellant demonstrates that the government failed to disclose discoverable evidence in response to a specific request or as a result of prosecutorial misconduct, the appellant will be entitled to relief unless the government can show that nondisclosure was harmless beyond a reasonable doubt; failing to disclose requested material favorable to the defense is not harmless beyond a reasonable doubt if the undisclosed evidence might have affected the outcome of the trial). 

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:

2020 (October Term)

United States v. Upshaw, 81 M.J. 71 (where there is instructional error with constitutional dimensions, an appellate court tests for prejudice under the standard of harmless beyond a reasonable doubt; this standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction). 

2019 (October Term)

United States v. Davis, 79 M.J. 329 (failure to object to an instruction or to omission of an instruction before members close to deliberate constitutes forfeiture of the objection; however, where appellant does not just fail to object but rather affirmatively declines to object to the military judge’s instructions, i.e., by expressly and unequivocally acquiescing to the military judge’s instructions, and offers no additional instructions, appellant waives all objections to the instructions, including in regards to the elements of the offense). 

(panel instructions are analyzed for plain error based on the law at the time of appeal; an appellate court generally only reviews the matter for plain error when a new rule of law exists, as an appellant gets the benefit of changes to the law between the time of trial and the time of his appeal). 

2018 (October Term)

United States v. Hale, 78 M.J. 268 (an appellate court presumes that the panel followed the instructions given by the military judge). 

(whether a panel was properly instructed is a question of law reviewed by an appellate court de novo). 

(where there was no objection to the instruction at trial, an appellate court reviews for plain error). 

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:

2018 (October Term)

United States v. Hale, 78 M.J. 268 (an appellate court presumes that the panel followed the instructions given by the military judge). 

2014 (September Term)

United States v. McIntosh, 74 M.J. 294 (there is a strong presumption that defense counsel’s performance was within the wide range of reasonable professional assistance). 

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:

2018 (October Term)

United States v. King, 78 M.J. 218 (an appellate court reviews questions of legal sufficiency de novo, and the 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; the legal sufficiency assessment draws every reasonable inference from the evidence of record in favor of the prosecution; as such, the standard for legal sufficiency involves a very low threshold to sustain a conviction; the criterion thus impinges upon jury discretion only to the extent necessary to guarantee the fundamental protection of due process of law). 

(in determining whether any rational trier of fact could have determined that the evidence at trial established guilt beyond a reasonable doubt, the term “reasonable doubt” does not mean that the evidence must be free from any conflict or that the trier of fact may not draw reasonable inferences from the evidence presented). 

(the government is free to meet its burden of proof with circumstantial evidence; the government’s ability to rely on circumstantial evidence is especially important in cases where the offense is normally committed in private).

2017 (October Term)

United States v. Andrews, 77 M.J. 393 (the burden of proof under plain error review is on the appellant).

United States v. Harpole, 77 M.J. 231 (the party claiming the military’s victim advocate-victim privilege (MRE 514) privilege has the burden of establishing by a preponderance of the evidence that the communication is privileged).

(when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious; the appellant must also demonstrate that there is a reasonable probability that the verdict would have been different absent the excludable evidence). 

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:

2017 (October Term)

United States v. Riesbeck, 77 M.J. 154 (in cases involving the misapplication of Article 25(d), UCMJ, when the error derives from court stacking and unlawful command influence, an appellate court places the burden on the government to prove that the error was harmless beyond a reasonable doubt). 

(in order to prevail on the issue of prejudice when the error derives from court stacking and unlawful command influence, the government must convince an appellate court, beyond a reasonable doubt, that appellant received a fair trial, free from the effects of unlawful command influence; and in the improper member selection context, any doubt must be resolved in favor of the accused). 

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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