TRIAL STAGES: Post-Trial Hearings: Authority for

2010 (September Term)

United States v. Hull, 70 M.J. 145 (a convening authority is authorized to modify the findings and sentence of a court-martial as a matter of command prerogative involving the sole discretion of the convening authority; when taking action on the results of trial, the convening authority may order a rehearing as to some or all offenses of which findings of guilty were entered and the sentence, or as to sentence only). 

(in practical terms, a rehearing in full ordered by a convening authority under Article 60 involves the same trial-stage procedures as a new trial ordered by the Judge Advocate General or appellate courts under Article 73, UCMJ; the convening authority’s power to order a rehearing under Article 60, however, differs in a number of significant respects from the authority to order a new trial under Article 73 by the Judge Advocate General and appellate courts; a petition under Article 73 may be submitted at any time within two years after approval by the convening authority of a court-martial sentence on the grounds of newly discovered evidence or fraud on the court, and is subject to the standards and criteria set forth in RCM 1210; by contrast, the convening authority, who may order a full or partial rehearing when taking post-trial action on the case as a matter of command prerogative, is not limited by the standards and criteria of Article 73 and RCM 1210). 

(in view of the potential impact of newly discovered evidence on appellate consideration of a case, the SJA or the convening authority may find it useful to apply Article 73 and RCM 1210 criteria as a means of addressing such information early in the post-trial process; the convening authority, however, is not obligated to apply those criteria in exercising command prerogative powers under Article 60). 

(in the course of considering action under Article 60 in the face of newly discovered evidence, the convening authority has options other than considering a rehearing on the findings and sentence; the convening authority also has the power to address post-trial developments by returning the record for a limited post-trial hearing before the military judge under Article 39(a)). 

(requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored, and are granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proffered newly discovered evidence). 

(when advising the convening authority on a defense post-trial request for a rehearing based on newly discovered evidence that a witness had been told by the alleged rape victim that her encounter with appellant had been consensual, the SJA was not obligated to inform the convening authority about the possibility of ordering a post-trial Article 39(a) session for the purpose of compelling that witness or any other to appear and give sworn testimony, where there was an absence of a defense request for such a post-trial Article 39(a) session, and in light of the vague nature of the unsworn information provided by the defense).

United States v. Lofton, 69 M.J. 386 (post-trial hearings may be convened, for, among other things, the purpose of inquiring into, and, when appropriate, resolving any matter that arises after trial and that substantially affects the legal sufficiency of any findings of guilty or the sentence; the military judge may direct a post-trial session at any time before authenticating the record, and the convening authority may direct a post-trial hearing at any time before taking initial action). 


(a convening authority is not compelled to grant a post-trial hearing based merely on unsworn, unsubstantiated assertions). 


(where the basis of the defense’s claim for a post-trial session was an unsworn e-mail from a government employee concerning a witness sequestration matter, not from one of the parties or a disgruntled witness, and it was part of an official communication describing the court-martial to other members of the government’s sexual assault prevention and response program, the defense claim was not unsubstantiated, and the convening authority abused his discretion in not ordering a post-trial hearing to determine whether there was reason to inquire into the e-mail’s allegations and their effect, if any, on appellant’s court-martial). 


2008 (Transition)


United States v. Webb, 66 M.J. 89 (Article 39(a), UCMJ, authorizes military judges to take such action after trial and before authenticating the record as may be required in the interest of justice; before authentication of the record, the military judge has the authority to conduct a post-trial session, set aside findings of guilty and the sentence, and order a new trial for a discovery violation).  


(a military judge does not have authority under Article 73, UCMJ, to order a new trial).


(prior to authentication, a military judge has authority under Article 39(a), UCMJ, and RCM 1102(b)(2) to convene a post-trial session to consider newly discovered evidence and to take whatever remedial action is appropriate). 




United States v. Meghdadi, 60 M.J. 438 (if evidence is discovered after trial which would constitute grounds for a new trial under RCM 1210(f), this might be considered a matter which arises after trial and which substantially affects the legal sufficiency of any findings of guilty or the sentence within the meaning of RCM 1102(b)(2); however, even if the drafters of the Manual did not intend such an interpretation of this Rule, we still are persuaded that Article 39(a) of the Code empowers the military judge to convene a post-trial session to consider newly discovered evidence and to take whatever remedial action is appropriate).


(although we have not directly addressed the standard to be applied in examining a military judge’s denial of a request for a post-trial Article 39(a) session, we have held that when an appellant requests the convening authority to order a post-trial Article 39(a) session, it is a matter for the convening authority’s sound discretion whether to grant the request, and that we review a military judge’s ruling on a petition for a new trial for abuse of that discretion).


(in denying a petition for a new trial, a military judge abuses his discretion if the findings of fact upon which he predicates his ruling are not supported by evidence of record; if incorrect legal principles were used by him in deciding this motion; or if his application of the correct legal principles to the facts of a particular case is clearly unreasonable; while this standard is not facially applicable to the military judge’s denial of appellant’s request for an Article 39(a) session, the fact that the request was made in the context of a motion for new trial compels our consideration of this analytical framework in assessing the military judge’s factual and legal conclusions).




United States v. Fagan, 59 MJ 238 (this Court long ago recognized that resolution of collateral post-trial claims requires a procedure by which the Courts of Criminal Appeals, as well as this Court, may expand the record of trial where appropriate through an evidentiary hearing; the origin of that process is found in DuBay, where we remanded that case for a fact-finding hearing on post-trial claims of unlawful command influence; the so-called "DuBay hearing" has since become a well-accepted procedural tool for addressing a wide range of post-trial collateral issues).


(our decision in Ginn simply addresses the threshold aspect of the DuBay process; specifically, it focuses on the circumstances under which a DuBay hearing is required to resolve a post-trial claim that is framed by conflicting affidavits; we recognized in Ginn that Article 66(c) does not authorize a Court of Criminal Appeals to decide disputed questions of material fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by the parties; we also recognized, however, that a post-trial evidentiary hearing is not required in every case simply because an affidavit is submitted by an appellant; in the context in which Ginn was presented, we outlined six principles for determining when a factfinding DuBay hearing is required).


(Ginn’s principles are applicable to a broad range of affidavit-based, post-trial collateral claims).


(there are no problems presented by the Ginn framework that are compounded by our decision in Grostefon; our decision in Grostefon simply prescribed a rule of practice which requires, at a minimum, that when an accused specifies any error in his request for appellate representation or in some other form, the appellate defense counsel will invite the attention of the Court of Criminal Appeals to those issues; that court will review those issues and specifically acknowledge that it has considered and disposed of them; the linchpin of the Ginn framework is the recognition that a Court of Criminal Appeals' factfinding authority under Article 66(c) does not extend to deciding disputed questions of fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by the parties; there is nothing inherent in the Grostefon procedure that amplifies, restricts or even impacts upon Article 66(c) authority in the context of affidavit-based post-trial claims, which is the context in which Ginn arises; the fact that these claims may be assigned as error by counsel or raised by an appellant under Grostefon has no impact on the Ginn analysis).



United States v. Sills, 56 MJ 239 (the intermediate appellate courts are authorized to order sentence-only rehearings; Jackson v. Taylor, 353 U.S. 569 (1957), is not to the contrary. See United States v. Miller, 10 USCMA 296, 27 CMR 370 (1959)).


United States v. Kulathungam, 54 MJ 386 (where there was no doubt among any of the parties at trial that appellant had committed the charged offenses and had pled guilty in order to benefit from a pretrial agreement which again listed each of the offenses to which he was pleading guilty, the military judge could direct a post-trial session to correct his failure to announce findings based upon appellant’s guilty pleas).


United States v. Haagenson, 52 MJ 34 (1999) (where a claim that unlawful command influence pressured a commander to change his discretionary referral decision was supported by affidavit sufficient to raise such issue, and the claim was neither inadequate on its face nor conclusively refuted by the files and records of the case, a factfinding hearing is necessary).

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