2023 (October Term)
United States v. Wheeler, 85 M.J. 70 (the constitutionality of a statute is a question of law reviewed by an appellate court de novo).
(in determining what process is due to a servicemember subject to a court-martial, appellate courts must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces).
(to succeed in a due process challenge to a statutory court-martial procedure, an appellant must demonstrate that the factors militating in favor of a different procedure are so extraordinarily weighty as to overcome the balance struck by Congress).
(in weighing a servicemember's interests in a procedural right against the needs of the military, an appellate court must consider (1) historical practice with respect to the procedure at issue, (2) the effect of the asserted right on the military, and (3) the existence in current practice of other procedural safeguards that satisfy the Due Process Clause of the Fifth Amendment).
(although historical tradition weighs in favor of finding a due process right to a multi-member panel in a special court-martial, historical tradition is not dispositive of the question whether a proceeding violates Fifth Amendment due process; there is nothing in the Constitution that suggests that court-martial usage at a particular time must be frozen in such a way that Congress might not change it; and in determining whether the historical tradition of courts-martial before member panels gives rise to a right to a panel in this case, an appellate court must give particular deference to Congress's determination that an unrefusable military judge-alone special court-martial promotes discipline in the armed forces and enhances a commander's ability to fairly and efficiently deal with minor offenses).
United States v. Strong, 85 M.J. 58 (questions about the meaning of statutes, including the meaning of the UCMJ's punitive articles, are questions of law that an appellate court reviews de novo).
(it is a general rule of statutory construction that if a statute is clear and unambiguous, that is, susceptible to only one interpretation, an appellate court uses its plain meaning and apply it as written).
(the first step in statutory interpretation is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case; the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent; when the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete; and the plain meaning of the words of a statute controls, so long as that meaning does not lead to an absurd result).
(whether statutory language is ambiguous is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole).
(where the statute does not define a relevant phrase, an appellate court must seek to discern its ordinary meaning through an analysis of its constituent words; and words are to be understood in their ordinary, everyday meanings unless the context indicates that they bear a technical sense).
United States v. Guihama, 85 M.J. 48 (an appellate court reviews a military judge's decision to admit a statement under MRE 304(c) requiring corroboration of a confession for an abuse of discretion).
(in determining the voluntariness of a confession, an appellate court examines the totality of the surrounding circumstances by looking to both the personal characteristics of the accused as well as the circumstances of the interrogation).
United States v. Leipart, 85 M.J. 35 (an appellate court reviews de novo allegations of ineffective assistance of counsel).
(to establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel's performance was deficient, and that the deficiency caused prejudice; with respect to the first prong of this test, courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; as to the second prong, a challenger must demonstrate a reasonable probability that, but for counsel's deficient performance the result of the proceeding would have been different).
(an appellate court reviews prosecutorial misconduct and improper argument de novo and where no objection is made, it reviews for plain error; under plain error review, the appellant bears the burden to demonstrate error that is clear or obvious and results in material prejudice to his substantial rights; where a forfeited constitutional error was clear or obvious, material prejudice is assessed using the harmless beyond a reasonable doubt standard, and that standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction).
United States v. Armstrong, 85 M.J. 31 (an appellate court uses an objective standard for identifying an appearance of bias by asking whether a reasonable person knowing all the circumstances would conclude that the military judge's impartiality might reasonably be questioned).
(for an appearance of bias claim, an appellate court reviews a military judge's decision to not recuse under an abuse of discretion standard, considering the facts and circumstances using an objective standard).
(if a military judge erroneously decided to not recuse because of an appearance of bias, an appellate court analyzes three factors to determine whether reversal is warranted: (1) the risk of injustice to the parties in the particular case, (2) the risk that the denial of relief will produce injustice in other cases, and (3) the risk of undermining the public's confidence in the judicial process).
(to determine whether the military judge abused her discretion when she denied defense counsel's motion for her recusal, an appellate court must decide whether a reasonable person knowing all the circumstances would conclude that the military judge's impartiality might reasonably be questioned; if so, it must then determine whether reversal is warranted for such an abuse of discretion).
United States v. Tapp, 85 M.J. 19 (a military judge's ruling on the issue of judicial impartiality is reviewed for an abuse of discretion, and an abuse of discretion occurs when (1) the military judge predicates a ruling on findings of fact that are not supported by the evidence of record, (2) the military judge uses incorrect legal principles, (3) the military judge applies correct legal principles to the facts in a way that is clearly unreasonable, or (4) the military judge fails to consider important facts; an abuse of discretion does not mean that an appellate court merely would reach a different conclusion, but rather that the military judge's ruling was arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
(when a military judge's impartiality is challenged on appeal, the test is 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).
(to prove judicial bias, a party must overcome a high hurdle because there exists a strong presumption that a judge is impartial).
(an appellate court applies an objective standard for identifying an appearance of bias by asking whether a reasonable person knowing all the circumstances would conclude that the military judge's impartiality might reasonably be questioned).
(an appellate court applies the three-part test outlined in Liljeberg (486 US 847 (1988)) to determine whether reversal of a decision should be granted as a remedy when the judge's impartiality might reasonably be questioned; the three factors are: (1) the risk of injustice to the parties in the particular case, (2) the risk that the denial of relief will produce injustice in other cases, and (3) the risk of undermining public confidence in the judicial process).
(the Liljeberg determination by the post-trial military judge regarding an appearance of impartiality by the trial judge may only be reversed if he predicated his ruling on erroneous findings of fact, he used incorrect legal principles or applied correct legal principles in an unreasonable manner, or he failed to consider important facts when reaching his conclusions).
(a military judge's findings of fact will be reversed only if they are clearly erroneous; and in order for a finding of fact to be clearly erroneous, there either must be no evidence to support the finding or, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).
(the confidence in the judicial process factor of the Liljeberg test used to determine whether reversal should be granted as a remedy when a military judge's impartiality might reasonably be questioned employs a totality of the circumstances approach and requires the application of an objective standard to determine whether denying a remedy under the circumstances of a case will risk undermining the public's confidence in the military justice system; this factor differs from the initial RCM 902(a) inquiry into an appearance of bias because it is not limited to facts relevant to recusal, but rather reviews the entire proceedings, to include any post-trial proceeding, the convening authority's action, the action of the CCA, or other facts relevant to the Liljeberg test).
H.V.Z. v. United States and Fewell, 85 M.J. 8 (a petitioner's burden when seeking a writ under Article 6b(e), UCMJ, is a question of law that an appellate court review de novo).
(an appellate court reviews questions of statutory interpretation de novo).
(when interpreting legislation, an appellate court has long presumed two things: that Congress knows the law, and that Congress selected the language that it intended to apply).
(in Article 6b(e), UCMJ, Congress granted victims of UCMJ offenses the opportunity to petition the CCA for a writ of mandamus, but it did not dictate a burden of proof that those victims must establish to obtain a writ; in the absence of a legislative directive establishing otherwise, there is no basis for an appellate court to deviate from the ordinary burden imposed on writ petitioners, which it may be presumed that Congress understood and intended to have apply; accordingly, to prevail on a writ of mandamus, a petitioner generally must show that: (1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances).
(a victim is required to establish a clear and indisputable right to a writ of mandamus).
(the interpretation of provisions of the RCM are questions of law that an appellate court reviews de novo).
(to justify reversal of a discretionary decision by mandamus, the judicial decision must amount to more than even gross error; it must amount to a judicial usurpation of power, or be characteristic of an erroneous practice which is likely to recur).
(whether a victim has standing to litigate a motion to compel her medical and mental health records is a question of law that an appellate court reviews de novo).
United States v. Swisher, 85 M.J. 1 (the CAAF's review of decisions by the CCAs on issues of sentence appropriateness is limited to the narrow question of whether there has been an obvious miscarriage of justice or abuse of discretion; there is an abuse of discretion, in relevant part, when a court's decision is influenced by an erroneous view of the law).
United States v. Parino-Ramcharan, 84 M.J. 445 (an appellate court determines questions of statutory jurisdiction de novo).
(an appellate court reviews a military judge's decision on whether to admit or suppress an admission under MRE 304(c) for an abuse of discretion).
United States v. Grijalva, 84 M.J. 433 (whether Articles 80 through 132, UCMJ, preempt a specification alleging a violation of Article 134, UCMJ, is a question of law that an appellate court reviews de novo).
(an appellate court determines whether a particular article in the UCMJ has covered the entire field, and thus preempts charging similar conduct under Article 134, UCMJ, by considering two questions: the primary question is whether Congress intended to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the Code; the secondary question is whether the offense charged is composed of a residuum of elements of a specific offense; and the intent of Congress may be discerned through direct legislative language or express legislative history).
United States v. Metz, 84 M.J. 421 (an appellate court reviews a military judge's ruling on a motion to suppress 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).
(when there is a motion to suppress a statement on the ground that Article 31(b), UCMJ, rights' warnings were not given, an appellate court reviews the military judge's findings of fact on a clearly erroneous standard, and it reviews conclusions of law de novo).
(reviewing for ineffectiveness of counsel, an appellate court looks at questions of deficient performance and prejudice de novo).
(under the attenuation doctrine, evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained; the critical inquiry is whether appellant's consent to search was sufficiently an act of free will to purge the primary taint of the unlawful act; an appellate court looks at whether the objected-to evidence was obtained by exploitation of the initial illegality or in a manner that is sufficiently distinguishable as to cleanse it of the primary taint; whether consent to a search is valid is measured by whether the consent was freely and voluntarily given as determined by the totality of the circumstances).
(to determine whether an accused's consent was an independent act of free will, breaking the causal chain between the consent and a constitutional violation, three factors are considered: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct; the burden of proving admissibility lies with the prosecution).
United States v. Cole, 84 M.J. 398 (questions of law arising from a guilty plea are reviewed by an appellate court de novo).
(where an issue as to the providence of a plea was not raised at trial and appellant's plea agreement contained a provision waiving all waivable motions, the issue before an appellate court arguably was waived; however, where the CCA specified the issue for review and neither party contends to CAAF that the issue was waived, CAAF will treat the issue as forfeited and review for plain error).
(when a forfeited error is nonconstitutional, the appellant must show that the error results in material prejudice to the substantial rights of the accused; in the context of a sentencing error, the test for prejudice is whether the error substantially influenced the adjudged sentence; if the forfeited error is constitutional in nature, then material prejudice is assessed using the harmless beyond a reasonable doubt standard; for such errors, the burden is on the government to show that the error was harmless beyond a reasonable doubt; structural constitutional errors generally warrant automatic reversal).
United States v. Wilson, 84 M.J. 383 (on appeal, it then is the proper role of an appellate court to focus on the government's compliance with the provisions of the applicable MREs, not a military judge's scheduling order).
(when the defense challenges on appeal a military judge's decision to admit MRE 404(b) uncharged misconduct evidence at trial, an appellate court reviews the military judge's evidentiary ruling for an abuse of discretion; and military judges abuse their discretion (1) if the findings of fact upon which they predicate their ruling are not supported by the evidence of record; (2) if they use incorrect legal principles; or (3) if their application of the correct legal principles to the facts is clearly unreasonable; the abuse of discretion standard of review recognizes that a judge has a wide range of choices and will not be reversed so long as the decision remains within that range).
(an appellate court conducts its assessment of the military judge's decision to admit uncharged misconduct evidence under MRE 404(b) using the three-part test: (1) does the evidence reasonably support a finding that appellant committed a specific act; (2) does evidence of this act make a fact of consequence more or less probable; and (3) is the probative value of the evidence of this act substantially outweighed by the danger of unfair prejudice; the second prong mirrors the relevance concerns reflected under MRE 401 and MRE 402, while the third prong reflects the concerns ordinarily handled under MRE 403).
(if the admitted MRE 404(b) uncharged misconduct evidence fails to meet any of the factors laid out in the three prong test, the military judge will have erred, and an appellate court must then assess the prejudice, if any, resulting from that error; prejudice from erroneous evidentiary rulings is reviewed de novo; and for nonconstitutional evidentiary errors, the government has the burden of demonstrating that the error did not have a substantial influence on the findings).
(where a military judge provides a detailed written analysis with respect to the admission of MRE 404(b) uncharged misconduct evidence, the military judge's ruling is entitled to full deference by an appellate court under the abuse of discretion standard).
(the standard required to meet the first prong (whether the evidence reasonably supports that the appellant committed the acts at issue) of the three prong MRE 404(b) uncharged evidentiary test is low).
(prong two of the three part MRE uncharged misconduct evidentiary test presents a binary question: does MRE 404(b) evidence make a fact of consequence more probable; if the answer is no, the evidence is inadmissible under MRE 404(b); if, however, the answer is yes, then and only then an appellate court move on to prong three of the three part test to assess the probative value and prejudicial effect of that evidence).
(an appellate court must exercise great restraint when it comes to concluding that a military judge abused his or her discretion in the course of balancing the probative value and prejudicial effect of a piece of evidence).
United States v. Stradtmann, 84 M.J. 378 (the mens rea applicable to an offense is an issue of statutory construction that an appellate court reviews de novo).
United States v. Keago, 84 M.J. 367 (an appellate court reviews a military judge's actual bias determinations for an abuse of discretion).
(because the test for implied bias is an objective one that is only partially based on the military judge's credibility determinations and findings of fact, military appellate courts review implied bias challenges pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review).
(while it is not required for a military judge to place his or her implied bias analysis with respect to challenges for cause on the record, doing so is highly favored and warrants increased deference from appellate courts; when a military judge fails to conduct an implied bias analysis, the standard of review shifts toward de novo).
(there is a sliding standard of appellate review for implied bias challenges that falls somewhere on a spectrum between de novo and abuse of discretion based on the specific facts of the case; a military judge who cites the correct law and explains his implied bias reasoning on the record will receive greater deference (closer to the abuse of discretion standard), while a military judge who fails to do so will receive less deference (closer to the de novo standard); accordingly, the more reasoning military judges provide, the more deference they will receive).
United States v. Williams, 84 M.J. 362 (the CAAF will set aside a sentence reassessment by a CCA only when necessary to correct an obvious miscarriage of justice or an abuse of discretion).
United States v. Rocha, 84 M.J. 346 (in this case, the correct standard of review is plain error where the issue of fair notice that appellant's sexual conduct with a child sex doll was criminal was not raised at trial, thus forfeiting the issue on appeal).
(under plain error review, appellant 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 appellant; however, in those instances where a clear or obvious error rises to the level of a constitutional violation, the burden shifts to the government to show that the error was harmless beyond a reasonable doubt).
United States v. Palik, 84 M.J. 284 (allegations of ineffective assistance of counsel are reviewed by an appellate court de novo).
(an appellate court applies a three-part test to determine whether the presumption of competence has been overcome: (1) Are appellant's allegations true; if so, is there a reasonable explanation for counsel's actions?; (2) If the allegations are true, did defense counsel's level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers?; and (3) If defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result?).
United States v. Flores, 84 M.J. 277 (an appellate court reviews matters of statutory interpretation de novo).
(in reviewing the exercise of the CCA's power to review the appropriateness of a sentence, the CAAF asks if the CCA abused its discretion or acted inappropriately, that is, arbitrarily, capriciously, or unreasonably, as a matter of law).
United States v. Driskill, 84 M.J. 248 (a granted double jeopardy issue is a question of law that an appellate court must answer de novo).
United States v. Hasan, 84 M.J. 181 (an appellate court reviews de novo whether an accused voluntarily waived his right to counsel).
(an appellate court reviews whether a military judge properly closed courtroom proceedings for an abuse of discretion).
(a military judge's decision whether or not to excuse a member sua sponte is subsequently reviewed for an abuse of discretion).
(an appellate court must be circumspect in using a cold record to second-guess a military judge's decision not to sua sponte excuse a panel member whom both parties apparently wanted to sit on the case).
(under an abuse of discretion standard, there must be more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
(the constitutionality of an act of Congress is a question of law that an appellate court reviews de novo).
(an appellate court reviews matters of statutory interpretation de novo).
(an appellate court reviews whether there is harmless error de novo).
(an appellate court has the discretion to overrule its own precedent).
(when an appellant challenges trial counsel's sentencing argument for the first time on appeal, an appellate court reviews for plain error; under this standard of review, an appellant ordinarily bears the burden not only of establishing that there is error and that the error is clear or obvious, but also that the error materially prejudices a substantial right; however, in those instances where a clear or obvious error rises to the level of a constitutional violation, the burden shifts to the government to show that the error was harmless beyond a reasonable doubt).
(in the plain error context, an appellate court determines whether the cumulative effect of an improper sentencing argument impacted the accused's substantial rights and the fairness and integrity of his trial; to perform this inquiry, the court examines whether trial counsel's comments, taken as a whole, were so damaging that it cannot be confident that the appellant was sentenced on the basis of the evidence alone).
(in assessing prejudice for improper sentencing argument, an appellate court balances (1) the severity of the improper argument, (2) any measures by the military judge to cure the improper argument, and (3) the evidence supporting the sentence; in cases of improper argument, each case must rest on its own peculiar facts).
(an appellate court will assume that an appellant's decision to proceed pro se during post-trial clemency proceedings was valid only if he knowingly, voluntarily, and intelligently waived the right to counsel).
(whether the right to post-trial counsel was validly waived is a question of law that an appellate court reviews de novo).
(the issue of whether an SJA is disqualified from participating in court-martial proceedings is a question of law which an appellate court reviews de novo).
(when challenging an SJA's authority to provide pretrial advice, an appellant has the initial burden of making a prima facie case that the SJA was disqualified).
(in determining whether an SJA is disqualified, an appellate court will consider the action taken, the position of the person that would normally take that action, and the capacity in which the action is claimed to have been taken).
(even if an appellate court concludes that an SJA was disqualified from providing pretrial advice, that alone is not sufficient for relief; there must be prejudice).
(recommendations prepared by a disqualified officer are tested for prejudice under Article 59(a), UCMJ, which requires material prejudice to the substantial rights of the accused; prejudice is not presumed and such errors are not assessed for harmlessness beyond a reasonable doubt).
(an appellate judge's decision on recusal is reviewed for an abuse of discretion; an appellate judge's ruling constitutes an abuse of discretion if it is arbitrary, fanciful, clearly unreasonable or clearly erroneous, not if a superior appellate court merely would reach a different conclusion).
(the standard for deciding the MCM judicial-disqualification question is whether a reasonable person who knew all the facts might question these appellate military judges' impartiality; this requirement for recusal enhances public confidence in the judicial system by ensuring that judges avoid the appearance of partiality).
(when appellate military judges err in failing to recuse themselves in a case, an appellate court tests for prejudice using the following factors: (1) the risk of injustice to parties in the case; (2) the risk that the denial of relief will result in injustice in other cases; and (3) the risk of undermining public confidence in the judicial process).
(whether an appellant has intentionally waived an issue is a legal question reviewed by an appellate court de novo).
(if an issue is forfeited, an appellate court reviews it for plain error; however, if appellant preserved the issue, an appellate court reviews it de novo).
(the question of whether a special defense applies under the circumstances of a case is a matter of law that an appellate court reviews de novo).
United States v. Ramirez, 84 M.J. 173 (an appellate court reviews a military judge's ruling on voir dire questions for a clear abuse of discretion; abuse of discretion occurs when the military judge: (1) bases a ruling on findings of fact that are not supported by the evidence; (2) uses incorrect legal principles; (3) applies correct legal principles in a clearly unreasonable way; or (4) does not consider important facts; to find abuse of discretion requires more than a mere difference of opinion —the challenged ruling must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous; 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; generally, military judges are, of course, granted a wide degree of deference when making discretionary decisions during trial; however, in a given case, if the military judge does not put his findings and analysis on the record, less deference will be accorded his decision).
United States v. Brown, 84 M.J. 124 (an appellate court reviews questions of legal sufficiency de novo; in reviewing for legal sufficiency, the court considers 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).
(an appellate court reviews questions of statutory construction de novo; it is axiomatic that in determining the scope of a statute, the court looks first to its language; the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent; of note, the court is not bound by the President's interpretation of the elements of substantive offenses; nonetheless, when the President's narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and the court will not normally disturb that construction).
2022 (October Term)
United States v. Warda, 84 M.J. 83 (a military judge's failure to abate proceedings is reviewed by an appellate court for an abuse of discretion; the abuse of discretion standard calls for more than a mere difference of opinion, but instead occurs when the military judge's findings of fact are clearly erroneous, the court's decision is influenced by an erroneous view of the law, or the military judge's decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law; absent clear error, an appellate court are bound by the military judge's findings of fact).
(a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).
United States v. Harrington, 83 M.J. 408 (an appellate court reviews the legal sufficiency of convictions de novo; a conviction is legally sufficient if, 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; and because the appellate court may impinge upon the panel’s discretion only to the extent necessary to guarantee the fundamental protection of due process of law, it imposes a very low threshold to sustain a conviction).
(credibility determinations are uniquely the province of the trier of fact, and an appellate court will not disturb an appellant’s conviction on this ground).
(an appellate court reviews a military judge’s denial of a proposed instruction for an abuse of discretion).
(generally, a military judge has substantial discretionary power in deciding on the instructions to give in response to requests by counsel; in the specific context of a military judge’s denial of a requested instruction, an abuse of discretion will occur if: (1) the requested instruction was correct; (2) the instruction was not substantially covered by the main instruction; and (3) the instruction was on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its presentation; more generally, however, any legal ruling based on an erroneous view of the law also constitutes an abuse of discretion).
(an appellate court reviews a military judge’s interpretation of RCM 1001 (presenting procedure) de novo).
(an appellate court reviews a military judge’s admission of an unsworn victim statement for an abuse of discretion; and a military judge abuses his discretion when his legal findings are erroneous, or when he makes a clearly erroneous finding of fact).
(to determine prejudice when errors occur during sentencing, the fundamental question is ‘whether the error substantially influenced the adjudged sentence).
(to evaluate prejudice when a military judge erroneously denies a requested instruction, an appellate court tests for harmless error).
(in the sentencing context, harmless error analysis requires an appellate court to determine whether the error substantially influenced the sentence proceedings such that it led to the appellant’s sentence being unfairly imposed).
(when an appellate court finds error in the admission of sentencing matters, the test for prejudice is ‘whether the error substantially influenced the adjudged sentence, and the government bears the burden of showing the error was harmless, but need not show harmlessness beyond a reasonable doubt; generally, an appellate court considers the four factors in making this determination: (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; and finally, an appellate court reviews these four factors de novo).
United States v. Gilmet, 83 M.J. 398 (an appellate court reviews allegations of UCI de novo).
(an appellate court accepts as true the military judge’s findings of fact on a motion to dismiss for UCI unless those findings are clearly erroneous).
United States v. Cunningham, 83 M.J. 367 (interpreting RCM 1001A (now RCM 1001(c) – crime victim’s right to be reasonably heard) is a question of law that an appellate court reviews de novo).
(an appellate court reviews a military judge’s decision to accept a victim impact statement offered pursuant to RCM 1001A (now 1001(c)) for an abuse of discretion).
(when an appellate court finds error in the admission of sentencing evidence (or sentencing matters), the test for prejudice is whether the error substantially influenced the adjudged sentence).
(the government bears the burden of demonstrating that the admission of erroneous evidence was harmless)
(an appellate court considers four factors when deciding whether an error substantially influenced an appellant’s sentence: (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; and this analysis is conducted de novo).
( it is highly relevant when analyzing the effect of error on the sentence that the case was tried before a military judge, who is presumed to know the law).
(although matters are material if they have some logical connection with the facts of the case or the legal issues presented, an error is more likely to have prejudiced an appellant if the information conveyed as a result of the error was not already obvious from what was presented at trial).
(the quality of the evidence may be assessed by its tendency, if any, to influence the sentencing authority).
(military judges are presumed to know the law and follow it absent clear evidence to the contrary).
(whether an appellant has waived an issue is a legal question that this Court reviews de novo).
M.W. v. United States, 83 M.J. 361 (an appellate court considers de novo the question of whether it has jurisdiction).
(like all federal courts, a military appellate court has an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party).
United States v. Smith, 83 M.J. 350 (an appellate court reviews a military judge’s ruling admitting or excluding an excited utterance for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact; 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; where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted; on the contrary, if a military judge fails to place his findings and analysis on the record, less deference will be accorded).
(unpreserved evidentiary errors are forfeited in the absence of plain error; under this standard, appellant bears the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights).
(where the defense did not object to the victim’s testimony that she sent a text message to a friend about suspecting that appellant had sexually assault her, the admission of the testimony is reviewed by an appellate court for plain error).
(an appellate court reviews questions of legal sufficiency de novo; 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; in reviewing legal sufficiency, an appellate court 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).
United States v. Anderson, 83 M.J. 291 (to succeed in a due process challenge to a statutory court-martial procedure, an appellant must demonstrate that the factors militating in favor of a different procedure are so extraordinarily weighty as to overcome the balance struck by Congress).
(when Congress acts pursuant to its power to make rules for the government and regulation of the land and naval forces, judicial deference is at its apogee).
(the threshold question in equal protection analysis is whether the groups treated differently by the law are similarly situated; distinctions between similarly situated groups must satisfy the rational basis test unless the distinction implicates either a suspect class or a fundamental right, in which case strict scrutiny applies).
(under the rational basis test in an equal protection analysis of Article 52, UCMJ, an appellate court must presume that Article 52, UCMJ, is constitutional and the burden falls on appellant to rebut every conceivable basis which might support it).
United States v. Witt, 83 M.J. 282 (improper argument involves a question of law that an appellate court reviews de novo).
(the legal test for improper argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused).
(the standard for plain error review requires that: (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights).
(he burden lies with appellant to establish plain error).
(even if an appellate court were to conclude that prosecutorial misconduct occurred, relief is merited only if that misconduct actually impacted on a substantial right of an accused, i.e., resulted in prejudice).
(prosecutorial misconduct by a trial counsel will require reversal when the trial counsel's comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone).
(where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that appellant was sentenced on the basis of the evidence alone).
(in assessing prejudice in cases of prosecutorial misconduct, an appellate court looks at three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; how much weight to give each factor has not been determined, but if the third factor so overwhelmingly favors the government, it is sufficient to establish lack of prejudice).
United States v. Mays, 83 M.J. 277 (questions about the meaning of statutes, including the meaning of the UCMJ’s punitive articles, are questions of law that an appellate court reviews de novo).
(an appellate court reviews de novo the legal sufficiency of the evidence to support a finding that an accused is guilty of an offense, and the evidence is legally sufficient if any rational factfinder could have found all essential elements of the offense beyond a reasonable doubt; and in determining whether the evidence is legally sufficient, the court must draw every reasonable inference from the evidence of record in favor of the prosecution).
(the rule of lenity generally holds that criminal statutes are to be strictly construed, and any ambiguity resolved in favor of the accused; the rule, however, applies only in cases of significant ambiguity; because most statutes are ambiguous to some degree, the simple existence of some statutory ambiguity is not sufficient to warrant application of the rule; to invoke the rule, an appellate court must conclude that there is a grievous ambiguity or uncertainty in the statute).United States v. Kim, 83 M.J. 235 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo).
(an appellate court gives the military judge broad discretion in the decision to accept a guilty plea because the facts are undeveloped in such cases).
(in reviewing a military judge’s decision to accept a guilty plea, an appellate court applies a substantial basis test: Does the record as a whole show a substantial basis in law and fact for questioning the guilty plea?).
United States v. Shields, 83 M.J. 226 (an appellate court reviews a military judge’s ruling on a motion to suppress evidence for an abuse of discretion).
(an abuse of discretion occurs when a military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law).
(an abuse of discretion must be more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
(a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).
(when reviewing a lower court’s decision on a military judge’s ruling, an appellate court typically pierces through that intermediate level and examines the military judge’s ruling, and then decides whether the lower court was right or wrong in its examination of the military judge’s ruling).
(in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the party that prevailed on the motion).
(the manner in which a warrant is executed is subject to later judicial review as to its reasonableness).
(instead of attempting to set out bright line rules for limiting searches of electronic devices, the courts have looked to what is reasonable under the circumstances).
Fink v. Y.B., 83 M.J. 222 (the CAAF must satisfy itself that it has jurisdiction before it can act on a writ-appeal petition, and it decides the question of jurisdiction de novo; if it lacks jurisdiction, it must dismiss the writ-appeal petition; but if it has jurisdiction, it may either grant or deny review of the issues presented in the petition, depending on whether appellant has shown “good cause” for its review).
United States v. Pullings, 83 M.J. 205 (with respect to how appellate courts should address claims that depend on the truth of factual assertions in post-trial affidavits rather than on findings of fact by a military judge, if the facts alleged in the affidavits allege an error that would not result in relief even if any factual dispute were resolved in appellant’s favor, the claim may be rejected on that basis).
United States v. Lattin, 83 M.J. 192 (an appellate court reviews a military judge’s ruling on a motion to suppress evidence under MRE 311(a) for an abuse of discretion).
(an appellate court reviews a military judge’s balancing of relevance against prejudice under MRE 403 for an abuse of discretion).
(an appellate court will not review a military judge’s determinations under MRE 311(d)(5)(A) with respect to the appreciable deterrence test or balancing test merely for clear error; instead, a less deferential standard should apply and that the question is whether the military judge’s assessment of these matters was a clearly unreasonable exercise of discretion).United States v. McAlhaney, 83 M.J. 164 (the scope, applicability, and meaning of Article 66(d), UCMJ, is a matter of statutory interpretation that the CAAF reviews de novo).
(the appropriate standard of review with respect to the wording of an adjudged reprimand is de novo).
United States v. Behunin, 83 M.J. 158 (the CAAF’s review of decisions by the CCA’s on issues of sentence appropriateness is limited to the narrow question of whether there has been an obvious miscarriage of justice or abuse of discretion; an abuse of discretion occurs when a CCA’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the CCA’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law).
(in reviewing a CCA’s decision in a sentence disparity case, the CAAF examines three questions: (1) whether the cases are closely related; (2) whether the cases resulted in highly disparate sentences; and (3) whether there is a rational basis for the differences in the adjudged sentences).
(an appellant bears the burden of demonstrating that any cited cases are closely related to his or her case; cases are closely related if they fit within at least one of the following three categories: (1) the servicemembers were coactors involved in a common crime; (2) the servicemembers were involved in a common or parallel scheme; or (3) there was some other direct nexus between the servicemembers whose sentences are sought to be compared).
United States v. Vargas, 83 M.J. 150 (a military judge’s choice of remedy for discovery violations is reviewed by an appellate court for an abuse of discretion; and a military judge abuses her discretion when the military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law).
(a ruling by a military judge may be affirmed if the ruling reached the correct result for the wrong reason).
United States v. King, 83 M.J. 115 (an appellate court reviews whether an issue is waived de novo).
(an appellate court reviews whether a lower court properly attached documents for an abuse of discretion).
(an appellate court reviews the issue of jurisdiction de novo).
(an appellate court’s review for prejudice is de novo).
(an appellate court typically views court-martial composition issues through a forfeiture lens rather than a waiver lens and are tested for plain error).
(under the plain error standard of review, an appellant bears the burden of establishing (1) there is error, (2) the error is clear or obvious, and (3) the error materially prejudiced a substantial right).
United States v. St. Jean, 83 M.J. 109 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; this abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
(an absence on the record of a military judge’s reasoning does not, by itself, provide a basis for an appellate court finding error; unless there are contrary indications, an appellate court must assume a military judge properly considered an accused’s claim consistent with the law).
(under the abuse of discretion standard, a military judge’s ruling will be reversed only if his or her findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law).
(an appellate court may affirm a military judge’s ruling if he or she arrived at the correct result, even if for the wrong reason).
United States v. Pyron, 83 M.J. 59 (a military judge’s ruling on admissibility of evidence is reviewed for abuse of discretion; in order to be overturned on appeal, a military judge’s ruling must be arbitrary, fanciful, clearly unreasonable or clearly erroneous or influenced by an erroneous view of the law).
United States v. Day, 83 M.J. 53 (whether an appellant has waived an objection is a legal question that an appellate court reviews de novo).
(when an appellant forfeits an argument, an appellate court can review it only for plain error).
(to establish plain error, an appellant has the burden to demonstrate: (1) there was error; (2) the error was clear or obvious; and (3) the error materially prejudiced a substantial right of the accused).
United States v. Thompson, 83 M.J. 1 (a reviewing court must read specific statements in a judicial opinion in context to determine whether the statements are correct).
2021 (October Term)
United States v. Richard, 82 M.J. 473 (an appellate court reviews issues of legal sufficiency de novo, and in determining whether a conviction is legally sufficient, it asks whether, viewed 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).
United States v. Sigrah, 82 M.J. 463 (the Jencks Act (18 USC 3500(b)) requires a district court judge, upon motion by the defendant, to order the government to disclose prior statements of its witnesses that are related to the subject matter of their testimony after each witness testifies on direct examination; RCM 914 tracks the language of the Jencks Act, but it also includes disclosure of prior statements by defense witnesses other than the accused; given the similarities in language and purpose between RCM 914 and the Jencks Act, Jencks Act case law of CAAF and that of the Supreme Court informs the analysis of RCM 914 issues).
(when a military judge errs in denying an RCM 914 motion, an appellate court must determine whether this error prejudiced appellant; the test for prejudice depends on whether the defect amounts to a constitutional error or a nonconstitutional error; an appellate court’s review for prejudice is de novo).
(when there is a preserved nonconstitutional error in the application of RCM 914, an appellate court must determine if the error had a substantial influence on the findings; in conducting the prejudice analysis, the 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. Black, 82 M.J. 447 (an appellate court reviews a military judge’s decision to suppress evidence for an abuse of discretion; an abuse of discretion occurs when the military judge either applied the law erroneously or clearly erred in making findings of fact; and an abuse of discretion must be more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
(the validity of the third party consent to search does not hinge on niceties of property law or on legal technicalities, but is instead determined by whether the third party has joint access or control of the property for most purposes; the burden lies with the government to prove by clear and convincing evidence that a third party has joint access and control to the degree that such control confers a right to consent to search; the degree of control a third party possesses over property is a question of fact, and whether that control is sufficient to establish common authority is a question of law).
(when the government unlawfully obtains evidence, that evidence may still be admissible if the evidence would have been obtained even if such unlawful search or seizure had not been made; to prevail under this doctrine, the government must prove by a preponderance of the evidence that at the time of the unlawful search, government agents were already taking actions or pursuing leads such that their simultaneous actions and investigations would have inevitably led to the discovery of the evidence even absent the unlawful conduct; an appellate court reviews a military judge’s ruling on the application of the doctrine of inevitable discovery for an abuse of discretion).
(to determine whether an accused’s voluntary consent to a search is sufficiently attenuated from an earlier unlawful search, three factors are assessed: (1) the temporal proximity of the unlawful police activity and the subsequent consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct; with respect to the third factor, the misconduct need not be outrageous or demonstrate bad motive or intent by the government official; it is sufficient that the misconduct be unnecessary and unwise).
United States v. Rudometkin, 82 M.J. 396 (the general rule is that a military judge’s determination on a mistrial will not be reversed absent clear evidence of an abuse of discretion).
(an appellate court need not decide a preliminary issue when it can avoid doing so by assuming the answer).
(three factors are considered to determine if a remedy is warranted for a judge’s failure to recuse himself: (1) the risk of injustice to the parties in the case; (2) the risk that the denial of relief will produce injustice in other cases; and (3) the risk of undermining the public’s confidence in the judicial process).
(a military judge abuses his or her discretion when: (1) the military judge predicates a ruling on findings of fact that are not supported by the evidence of record, (2) the military judge uses incorrect legal principles, (3) the military judge applies correct legal principles to the facts in a way that is clearly unreasonable, or (4) the military judge fails to consider important fact).
United States v. Bench, 82 M.J. 388 (when an appellant does not raise an objection to the admission of evidence at trial, an appellate court first must determine whether the appellant waived or forfeited the objection; waiver usually occurs when there is an intentional relinquishment or abandonment of a known right, but waiver can occur by operation of law).
(when an appellant fails to raise a Confrontation Clause objection at trial, an appellate court considers the particular circumstances of the case to determine whether there was waiver, but applies a presumption against finding a waiver of constitutional rights).
United States v. Mellette, 82 M.J. 374 (an appellate court reviews questions regarding the scope of the patient-psychotherapist privilege established by the Military Rules of Evidence de novo).
(when construing the Military Rules of Evidence, an appellate court applies the standard principles of statutory construction; when the language of a rule is susceptible to only one interpretation, it enforces the rule according to its terms; but when a rule’s language is ambiguous, it interprets that language within the broader context of the rule).
United States v. Palacios Cueto, 82 M.J. 323 (an appellate court reviews de novo allegations of ineffective assistance of counsel).
(to establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel’s performance was deficient and that the deficiency caused prejudice; with respect to the first prong of this test, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; and as to the second prong, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different).
(in determining whether an attorney’s conduct was deficient, an appellate court does not simply ask whether the attorney did everything possible that posed little or no risk to the client; instead, the test is whether counsel’s conduct falls within the wide range of reasonable professional assistance).
(appellate judges must exercise care in determining whether a trial counsel’s statement is improper or has improper connotations; a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations; a statement that might appear improper if viewed in isolation may not be improper when viewed in context; and even if a statement is improper, it may not be sufficiently prejudicial, in the context of the entire trial, to violate the accused’s due process rights).
(when a party does not object to comments by the prosecutor during voir dire, opening statement, argument on the findings, or argument on the sentence, an appellate court reviews for plain error; under plain error review, appellant bears the burden of demonstrating that (1) there was error, (2) the error was clear and obvious, and (3) the error materially prejudiced a substantial right of the accused).
(the best approach for assessing the prejudice from prosecutorial misconduct involves a balancing of three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction).
(for nonconstitutional errors, an appellate court may grant relief only if the error materially prejudiced the substantial rights of the accused; however, the prejudice analysis is different if the errors involve constitutional rights; if a constitutional error is structural, then reversal is automatic; but if a constitutional error is nonstructural, then the government must prove that the error was harmless beyond a reasonable doubt even on plain error review).
United States v. Badders, 82 M.J. 299 (an appellate court reviews issues of statutory interpretation and jurisdiction de novo).
United States v. Tate, 82 M.J. 291 (whether a transcript is substantially verbatim is a question of law that this Court reviews de novo).
United States v. Horne, 82 M.J. 283 (an appellate court must accept a military judge’s findings of fact unless the findings are clearly erroneous; a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the appellate court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).
(an appellate court reviews de novo the legal question of whether the facts establish apparent unlawful command influence).
(to make a prima facie case of apparent unlawful command influence, an accused bears the initial burden of presenting some evidence that unlawful command influence occurred; this burden on the defense is low, but the evidence presented must consist of more than mere allegation or speculation; once the accused meets the some evidence threshold, the burden shifts to the government to prove beyond a reasonable doubt that either: (a) the predicate facts proffered by the appellant do not exist, or (b) the facts as presented do not constitute unlawful command influence; if the government cannot succeed at this step, it must prove beyond a reasonable doubt that the unlawful command influence did not place an intolerable strain upon the public’s perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding).
(in applying the apparent unlawful command influence doctrine, an appellate court does not require the parties actually to produce credible evidence that any substantial segment of the general population suffered any loss of confidence in the military justice system; instead, the court simply assesses the aggravating and mitigating facts and circumstances and then decides, in its own estimation, whether the government’s conduct placed an intolerable strain upon the public’s perception of the military justice system).
(an appellate court must consider all the facts and circumstances in determining whether apparent unlawful command influence occurred and whether an appellant is entitled to relief).
(an appellate court can find clear error only when there is no evidence to support a finding by the military judge or when, upon reviewing all the evidence, it is left with the definite and firm conviction that a mistake has been committed).
United States v. Nelson, 82 M.J. 251 (an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion and considers the evidence in the light most favorable to the party that prevailed at trial; a military judge abuses his discretion if ‘his findings of fact are clearly erroneous or his conclusions of law are incorrect).
(the voluntariness of a confession is a question of law that an appellate court reviews de novo).(the voluntariness of a confession turns on whether an accused’s will has been overborne, and in determining the voluntariness of a confession, an appellate court examines the totality of all the surrounding circumstances by applying a two-part test, looking to both the personal characteristics of the accused as well as the circumstances of the interrogation; regarding personal characteristics, some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence; regarding the circumstances of the interrogation, some of the factors taken into account have included the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep; there is no requirement that the prosecution prove as part of its initial burden that the accused knew that he had a right to refuse to answer the questions that were put to him).
United States v. Edwards, 82 M.J. 239 (a military judge’s interpretation of RCM 1001A (2016 ed) (crime victims and presentencing) is a question of law that an appellate court reviews de novo).
(an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; and a military judge abuses his discretion when his legal findings are erroneous or when he makes a clearly erroneous finding of fact).
(abuse of discretion is the proper standard of review for determining whether a military judge erroneously admitted an unsworn victim statement under RCM 1001A (2016 ed) (crime victims and presentencing).
(whether an accused has waived an issue is a question of law that an appellate court reviews de novo).
(when an appellate court finds error in the admission of sentencing evidence or sentencing matters, the test for prejudice is whether the error substantially influenced the adjudged sentence).
(the government bears the burden of demonstrating that the admission of erroneous evidence was harmless).
(an appellate court uses a four-factor test to evaluate prejudice when there is a nonconstitutional presentencing error; in deciding whether an error substantially influenced an appellant’s sentence, an appellate court considers de novo (1) the strength of the government’s case, (2) the strength of the defense’s case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question).
(it is harder for the government to meet its burden of showing that a sentencing error did not have a substantial influence on a sentence than it is to show that an error did not have a substantial influence on the findings where the panel has a binary decision to make with respect to findings (guilty or not guilty), but with respect to sentencing, it has a broad spectrum of lawful punishments that it may adjudge).
United States v. Givens, 82 M.J. 211 (an appellate court reviews whether an appellant has waived an issue, a question of law, de novo.).
(an appellate court reviews a military judge’s determination as to whether there was good cause shown to grant review from waiver for an abuse of discretion, and the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; in an appellate court’s review of good cause shown, it routinely analyzes this exception to waiver as a burden upon the moving party).
United States v. Miller, 82 M.J. 204 (whether a record of trial is complete is a question of law that an appellate court reviews de novo).
(the standard of review for determining whether post-trial processing was properly completed is de novo).
(plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused; to meet this burden in the context of a post-trial recommendation error, whether the error is preserved or is otherwise considered under the plain error doctrine, an accused must make some colorable showing of possible prejudice).
United States v. Whiteeyes, 82 M.J. 168 (an appellate court reviews a military judge’s decision to admit a statement under MRE 304(c) for an abuse of discretion).
United States v. Beauge, 82 M.J. 157 (in deciding the correct interpretation of MRE 513, an appellate courts engages in a de novo review of the issue because it is a question of law, and in conducting this de novo review, the court employs principles of statutory construction).
(one fundamental principle of statutory construction is that the plain language of a rule will control unless it leads to an absurd result).
(in determining whether statutory language is plain, an appellate court must look to the language itself, the specific context in which that language is used, and the broader context of the rule as a whole; where only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law, that meaning will prevail).
(the duty-to-report exception contained in MRE 513(d)(3) is facially ambiguous when viewed in isolation; although MRE 513(d)(3) describes the circumstances in which the privilege is vitiated, it does not expressly state the scope and effect of that vitiation; that is, the exception specifies when it applies, but it does not specify in what manner and to what extent it applies; accordingly, an appellate court must interpret it in light of the broader context of the rule; in doing so, the court must keep in mind that the provisions of MRE 513 were crafted to balance the interest of a victim in having private communications protected, the interest of an accused in having potentially exculpatory material disclosed, and the interest of the military in facilitating access to information that bears on the well-being of its servicemembers and the integrity of its operations).
(an appellate court reviews a military judge’s decision to deny a motion for in camera review of a victim’s psychiatric records under MRE 513(e) for an abuse of discretion).
(claims of ineffective assistance are reviewed by an appellate court de novo).
United States v. Guyton, 82 M.J. 146 (an appellate court conducts a de novo review of speedy trial claims; however, it reviews for an abuse of discretion the decision of a military judge to grant a delay, thereby rendering that period of time excludable for speedy trial purposes).
(an appellate court weighs the following four factors to determine if there is a Sixth Amendment speedy trial violation: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s demand for a speedy trial; and (4) the prejudice to the accused).
United States v. Simmons, 82 M.J. 134 (whether a change made to a specification is major or minor is a matter of statutory interpretation that is reviewed by an appellate court de novo).
United States v. Anderson, 82 M.J. 82 (claims challenging the due process right to a speedy post-trial review and appeal are reviewed by an appellate court de novo).
(in conducting a post-trial review of whether an appellant’s Article 66, UCMJ, and constitutional rights to timely review have been infringed, an appellate court evaluates the four factors set forth by the Supreme Court in Barker v. Wingo (407 US 514 (1972)) for assessing pretrial speedy trial issues: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; an analysis requires determining which factors favor the government or the appellant and then balancing these factors; no single factor is dispositive, and absence of a given factor does not prevent finding a due process violation).
United States v. Schmidt, 82 M.J. 68 (whether an appellant has waived an issue is a legal question that an appellate court reviews de novo).
(while an appellate court reviews forfeited issues for plain error, it cannot review waived issues at all because a valid waiver leaves no error for the court to correct on appeal).
United States v. Hiser, 82 M.J. 60 (where a stipulation of fact has not been withdrawn or stricken, an appellate court accepts the assertions within it as true).
(an appellate court reviews a military judge’s acceptance of a guilty plea for abuse of discretion; and applying this standard, it must uphold a guilty plea unless there is a substantial basis in law and fact for questioning the plea).
(the meaning of terms in a statute is a question of statutory interpretation, and an appellate court reviews matters of statutory interpretation de novo).
(when an accused has pleaded guilty, an appellate court does not review the “evidence” for legal sufficiency for the simple reason that there is no evidence when there is no trial; rather, the appellate court’s task on review is only to determine from any stipulated facts and from the providence inquiry whether the military judge abused his or her discretion in complying with this rule; and in so doing, that court simply must determine whether appellant’s guilty plea has a substantial basis in law and fact).
United States v. Quezada, 82 M.J. 54 (whether a court-martial panel was properly instructed is a question of law reviewed by an appellate court de novo).
(an appellate court reviews objections to instructions preserved at trial directly, but reviews objections not raised only for plain error).
(an appellate court presumes that members follow a military judge’s instructions absent evidence to the contrary).
United States v. Moratalla, 82 M.J. 1 (because a stipulation of fact is binding on the court-martial and may not be contradicted by the parties, an appellate court accepts as true all of the facts, but not necessarily the legal conclusions, contained in the parties’ stipulation).
(an appellate court affords military judges significant deference on obtaining an adequate factual basis for a guilty plea, and it grants them substantial leeway in conducting providence inquiries).
(in determining whether a military judge abused his or her discretion in obtaining an adequate basis for a guilty plea, an appellate court applies the substantial basis test; it asks whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea).
(an appellate court gives broad discretion to military judges in accepting guilty pleas because it recognizes that facts are by definition undeveloped in such cases).
(even if a guilty plea is later determined to be improvident, a reviewing court may grant relief only if it finds that the military judge’s error in accepting the plea materially prejudiced the substantial rights of the accused).
2020 (October Term)
United States v. Becker, 81 M.J. 483 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial).
(a military judge’s decision to exclude evidence is reviewed by an appellate court for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact; these standards also apply to interlocutory appeals under Article 62, UCMJ).
(on matters of fact with respect to appeals under Article 62, UCMJ, an appellate court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous; a reviewing court may not find its own facts or substitute its own interpretation of the facts).
(on an Article 62, UCMJ, appeal, an appellate court is not authorized to make factual determinations to support a simple difference of opinion between it and the military judge).
United States v. Adams, 81 M.J. 475 (deciding whether a statute of limitations has expired is a question of law that an appellate court reviews de novo).
(when a statute of limitations issue is not raised at trial, an appellate court reviews for plain error; to establish plain error, an appellant must demonstrate (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights).
United States v. Brubaker-Escobar, 81 M.J. 471 (CCAs are courts of limited jurisdiction, defined entirely by statute; the scope of that jurisdiction is a legal question that the CAAF reviews de novo).
(the CAAF reviews a CCA’s construction of statutes and executive orders de novo).
United States v. Hernandez, 81 M.J. 432 (an appellate court reviews a military judge’s denial of a motion to suppress evidence for an abuse of discretion; an abuse of discretion occurs when a military judge’s decision is based on clearly erroneous findings of fact or incorrect conclusions of law}.
(in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the party that prevailed on the motion at trial).
(an appellate court reviews a military magistrate’s finding of probable cause for the issuance of a warrant based on whether the magistrate had a substantial basis for concluding that probable cause existed; this review is conducted with great deference to the magistrate’s finding of probable cause because of the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant).
(if a law enforcement affidavit on which a magistrate relied included incorrect information, an appellate court should sever that information from the affidavit and examine the remainder to determine if probable cause still exists; if an important fact is omitted from the affidavit, for an appellate court to find that probable cause did not exist, that fact must do more than potentially affect the probable cause determination; it must be necessary to the finding of probable cause).
(a military judge’s determination that the information in a search authorization application was not false or reckless is a finding of fact that an appellate court may review only for clear error; a finding of fact is clearly erroneous when there is no evidence to support the finding or when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).
(credibility determinations are entitled to great deference on appeal and will not be reversed absent a clear abuse of discretion).
United States v. Navarette, 81 M.J. 400 (the CAAF reviews a CCA’s decision to grant or deny a motion for an RCM 706 inquiry into appellant’s mental status for an abuse of discretion; a court abuses its discretion when its findings of fact are clearly erroneous, its decision is influenced by an erroneous view of the law, or the court’s decision is unreasonable in light of the law and facts).
United States v. Thompson, 81 M.J. 391 (an appellate court reviews a military judge’s ruling on a RCM 914 motion for an abuse of discretion; an abuse of discretion occurs when a military judge’s findings of facts are clearly erroneous or his conclusions of law are incorrect).
(when a military judge errs in denying a RCM 914 motion, an appellate court determines whether this error prejudiced appellant based on the nature of the right violated).
United States v. McPherson, 81 M.J. 372 (the questions of which version of the statute of limitations applies to a case and whether the applicable statute of limitations has run are questions of law that an appellate court reviews de novo).
(where an accused did not raise a statute of limitations defense at trial and the military judge failed, as required by RCM 907(b)(2)(B), to advise the accused that the statute of limitations provided a defense, an appellate court reviews the failure of the military judge to provide the required advice for plain error; to establish plain error, an accused must show (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights).
United States v. Long, 81 M.J. 362 (an appellate court reviews de novo the question of whether the evidence was legally sufficient).
(evidence is sufficient to support a conviction if, 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; this familiar standard of review gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts; in applying this test for legal sufficiency, reviewing courts must remember that findings may be based on direct or circumstantial evidence; and circumstantial evidence is intrinsically no different from testimonial evidence; with both, the jury must use its experience with people and events in weighing the probabilities; if the jury is convinced beyond a reasonable doubt, a reviewing court can require no more).
(where the accused fails to preserve a constitutional instructional error by an adequate objection or request, an appellate court tests for plain error; to establish plain error, an appellant must demonstrate (1) error, (2) that is clear or obvious at the time of appeal, and (3) prejudicial).
(where a forfeited constitutional error is clear or obvious, material prejudice under Article 59(a), UCMJ, is assessed using the harmlessness beyond a reasonable doubt standard; that standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction).
United States v. Willman, 81 M.J. 355 (the scope, applicability, and meaning of Article 66(c), UCMJ, is a matter of statutory interpretation that an appellate court reviews de novo).
United States v. Jacinto, 81 M.J. 350 (an appellate court reviews a military judge’s decision to deny a motion for a continuance, or to deny a motion for in camera review of records, for an abuse of discretion; as part of this review, the reviewing court examines the military judge’s findings of fact for clear error; the military judge clearly errs when there is no evidence to support the finding, or although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).
(when a military judge abuses his discretion denying a continuance or denying in camera review, an appellate court will not grant relief unless the appellant suffers prejudice).
United States v. Begani, 81 M.J. 273 (whether by his guilty pleas appellant waived the issue of whether subjecting members of the Navy’s Fleet Reserve but not members of the Retired Reserve to UCMJ jurisdiction violated the equal protection component of the Fifth Amendment is a matter reviewed by an appellate court de novo).
(the question of jurisdiction is a question of law that an appellate court reviews de novo).
(the constitutionality of a statute is a question of law, and therefore the standard of review of an appellate court is de novo).
United States v. Steen, 81 M.J. 261 (an appellate court reviews de novo the question whether a nonconstitutional error by a military judge in admitting propensity evidence in violation of MRE 404(b) had a substantial influence on the members’ verdict in the context of the entire case).
(in assessing whether a nonconstitutional error by a military judge in admitting propensity evidence in violation of MRE 404(b) had a substantial influence on the members’ verdict in the context of the entire case, an appellate court considers four factors: (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; in this regard, when a fact was already obvious from testimony at trial and the evidence in question would not have provided any new ammunition, an error is likely to be harmless; conversely, where the evidence doesprovide new ammunition, an error is less likely to be harmless).
(the government bears the burden of showing that any nonconstitutional error by a military judge in admitting propensity evidence in violation of MRE 404(b) was harmless).
(an appellate court presumes that court-martial members follow a military judge’s instructions).
United States v. Proctor, 81 M.J. 250 (an appellate court reviews allegations of unlawful command influence, including allegations of the appearance of unlawful command influence, de novo.).
(an appellate court accepts as true the military judge’s findings of fact on a motion to dismiss for unlawful command influence unless those findings are clearly erroneous).
United States v. Castro, 81 M.J. 209 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion; in so doing, the court applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea; and in reviewing a military judge’s decision to accept a guilty plea, the court must accept all of the facts in the parties’ stipulation as true).
United States v. Guinn, 81 M.J. 195 (the CAAF generally reviews a CCA’s actions under Article 66(c), UCMJ, for an abuse of discretion, recognizing that a CCA has broad discretion in conducting its Article 66(c) review, and this includes the review of a CCA’s sentence appropriateness decision; however, the CAAF conducts a de novo review with respect to the scope and meaning of the CCA’s Article 66(c) authority).
United States v. Harrington, 81 M.J. 184 (an appellate court reviews the decision of whether an accused has received a speedy trial de novo as a legal question, giving substantial deference to a military judge’s findings of fact that will be reversed only if they are clearly erroneous; a finding of fact is clearly erroneous when there is no evidence to support the finding or when although there is evidence to support it, the appellate court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).
(an appellate court determines whether an appellant has been denied his right to a speedy trial using the four‑factor test that the Supreme Court established in Barker v. Wingo (407 US 514 (1972)): (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant).
(in the prejudice analysis of the four-factor speedy trial test, there are three interests that an appellate court considers: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired).
(the most serious interest in analyzing the prejudice factor of the four-factor speedy trial test is evaluating the ability of an appellant to assert his or her defense in the event of a retrial or resentencing; this form of prejudice is the most serious because it skews the fairness of the entire system).
United States v. Furth, 81 M.J. 114 (an appellate court conducts a de novo review of ineffective assistance of counsel claims).
(with respect to a claim of ineffective assistance of counsel, an appellant bears the burden of demonstrating that (a) defense counsel’s performance was deficient, and (b) this deficient performance was prejudicial; and this applies in the context of cases involving guilty pleas; however, the prejudice inquiry is modified to focus on whether the ineffective performance affected the outcome of the plea process; that is, the appellant must establish prejudice by showing that there is a reasonable probability that, but for counsel’s errors, the appellant would not have pleaded guilty and would have insisted on going to trial).
(the prejudice test for ineffective assistance of counsel objective, which an appellate court reviews de novo).
(standing alone, an appellant’s post hoc assertions about how he would have pleaded but for his attorney’s deficiencies are not enough to establish prejudice; an appellate court must also look to contemporaneous evidence to substantiate an appellant’s expressed preferences; this is so because the appellant has an incentive to claim, in retrospect, that the result of the plea process would have been different regardless of whether that claim is, in fact, true).
(in order to satisfy the prejudice requirement of the test for ineffective assistance of counsel, an appellant must show that there is a reasonable probability that, but for the counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial).
(in order to satisfy the prejudice requirement of the test for ineffective assistance of counsel, an appellant must show that there is a reasonable probability that, but for the counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial).
United States v. Tyler, 81 M.J. 108 (improper argument involves a question of law that an appellate court reviews de novo.).
(if a military judge arrives at the correct result, even if for the wrong reason, an appellate court may affirm the ruling).
United States v. Mader, 81 M.J. 105 (an appellate court reviews de novo whether consent, or mistake of fact as to consent, is available as a defense).
United States v. Henry, 81 M.J. 91 (an appellate court reviews a military judge’s ruling admitting or excluding an excited utterance for an abuse of discretion and will only reverse if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law).
United States v. Scott, 81 M.J. 79 (the question whether an appellant has received ineffective assistance of counsel at trial is a legal issue that an appellate court reviews de novo).
(when a military judge at a DuBay (17 CMA 147, 37 CMR 411 (1967)), hearing has made findings of fact relevant to the issue of ineffective assistance of counsel, an appellate court accepts the findings as correct unless they are clearly erroneous).
(an appellate court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; the object of an ineffectiveness claim is not to grade counsel’s performance; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which will often be so, that course should be followed).
(in evaluating claims of deficient performance for failing to investigate, an appellate court does not engage in second-guessing tactical decisions that might be characterized as mere Monday-morning quarterbacking).
United States v. Upshaw, 81 M.J. 71 (a military judge’s decision to admit evidence is reviewed for an abuse of discretion).
(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).
(with respect to an erroneous propensity instruction, prejudice occurs where a court cannot be certain that the instruction did not taint the proceedings or otherwise contribute to the defendant’s conviction or sentence; if it is just certainly possible that an accused was convicted based on properly admitted evidence alone, a Hills error cannot be determined harmless; however, there may be circumstances where the evidence is overwhelming, so an appellate court can rest assured that an erroneous propensity instruction did not contribute to the verdict by tipping the balance in the members’ ultimate determination).
United States v. Ozbirn, 81 M.J. 38 (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).
(in resolving questions of legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution).
(an appellate court will not revive a forfeited argument simply because an appellant gestures toward it in his reply brief).
United States v. Simpson, 81 M.J. 33 (an appellate court does not automatically accept legal conclusions in a stipulation of facts as true).
(an appellate court must uphold appellant’s guilty plea unless there is a substantial basis in law and fact for questioning the guilty plea).
(an appellate court reviews an appellant’s legal impossibility argument de novo because the argument concerns an issue of law).
United States v. Ayala, 81 M.J. 25 (a military judge’s decision to admit evidence is reviewed for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law).
(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. Norwood, 81 M.J. 12 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; and a military judge’s decision constitutes an abuse of discretion if his or her findings of fact are clearly erroneous, the decision is influenced by an erroneous view of the law, or the decision is outside the range of choices reasonably arising from the applicable facts and the law).
(if a military judge did improperly admit evidence, an appellate court evaluates whether the error prejudiced the appellant, weighing (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).
(when an accused objects to an improper argument during his court‑martial, an appellate court reviews the issue de novo; in that de novo review, the appellate court determines whether any error materially prejudiced the appellant’s substantial rights under Article 59, UCMJ; in this regard, it weighs three factors to determine whether trial counsel’s improper arguments were prejudicial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction).
(when a trial counsel makes an improper argument during findings, reversal is warranted only when the trial counsel’s comments taken as a whole were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone).
(if an accused failed to object to improper argument during the court‑martial, an appellate court reviews the matter for plain error).
(to prove plain error resulted from a trial counsel’s improper argument during the sentencing proceeding, appellant has the burden of establishing (1) there was error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right; and in this context, material prejudice to the substantial rights of the accused occurs when an error creates an unfair prejudicial impact on the court members’ deliberations; in other words, the appellant must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different).
(an appellate court presumes, absent contrary indications, that the panel followed the military judge’s instructions).
United States v. Brown, 81 M.J. 1 (jurisdiction is a question of law that an appellate court reviews de novo).
(to determine whether a requested writ is in aid of a lower court’s jurisdiction, an appellate court must first determine the scope and authority for the lower court’s statutory jurisdiction; the second determination concerns whether a requested writ implicates a lower court’s subject-matter jurisdiction over the case or controversy; and to establish subject-matter jurisdiction, a lower court must find that the harm alleged have the potential to directly affect the findings and sentence).
(an appellate court reads the statutes governing jurisdiction in the military system as an integrated whole, with the purpose of carrying out the intent of Congress).
United States v. Uribe, 80 M.J. 442 (an appellate court reviews a military judge’s disqualification decision for an abuse of discretion; a military judge’s ruling constitutes an abuse of discretion if it is arbitrary, fanciful, clearly unreasonable, or clearly erroneous, and not if an appellate court merely would reach a different conclusion).
(when a military judge abuses his discretion in denying a recusal motion, an appellate court examines whether, under Liljeberg [486 US 847 (1988)], reversal is warranted; because not every judicial disqualification requires reversal, the Liljeberg standard determines whether a military judge’s conduct warrants that remedy to vindicate public confidence in the military justice system; the first Liljeberg standard examines if there is any specific injustice that the appellant personally suffered; the second factor examines whether granting relief would encourage a judge or litigant to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered; and the third factor uses an objective standard by determining whether the circumstances of a case will risk undermining the public’s confidence in the military justice system; although similar to the standard applied in the initial RCM 902(a) analysis, the third factor differs from the initial RCM 902(a) inquiry because it is not limited to facts relevant to recusal, but rather reviews the entire proceedings, to include any post-trial proceeding, the convening authority action, the action of the CCA, or other facts relevant to the Liljeberg test).
United States v. Bavender, 80 M.J. 433 (an appellate court’s review of a military judge’s suppression ruling is for an abuse of discretion; it reviews the military judge’s factfinding for clear error, and it conducts a de novo review of legal conclusions; the evidence is viewed in a light most favorable to the prevailing party at trial).
United States v. Chandler, 80 M.J. 425 (the issue of whether an SJA is disqualified from participating in the post-trial review of a case is a question of law which an appellate court review de novo.).
(in determining whether an SJA is disqualified, an appellate court will consider the action taken, the position of the person that would normally take that action, and the capacity in which the action is claimed to have been taken).
United States v. Cardenas, 80 M.J. 420 (the scope of an appellate court’s authority is a legal question reviewed de novo).
(when asked to overrule one of its precedents, an appellate court must analyze the matter under the doctrine of stare decisis).
United States v. Garcia, 80 M.J. 379 (in Article 62, UCMJ, cases, an appellate court reviews a trial judge’s suppression ruling directly for an abuse of discretion; moreover, it examines the evidence in a light most favorable to the party which prevailed at trial; and when conducting this discretionary review of the trial judge’s suppression ruling, it reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed; an abuse of discretion occurs when a trial judge makes clearly erroneous factual findings or when the trial judge misapprehends the law).
(in this case, the central question is whether the inclusion of intentionally and recklessly omitted information from the search authorization affidavit would have extinguished probable cause in the search authorization request; and in making this determination, an appellate court must first examine the affidavit and accompanying material as it was presented to the military judge who authorized the search to determine whether probable cause initially existed; it is a fundamental fact that probable cause is not a high bar; an appellate court is simply required to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place; next, the appellate court must consider whether the information that the government deliberately or recklessly omitted from the affidavit served to extinguish probable cause).
United States v. White, 80 M.J. 322 (an appellate court reviews a military judge’s ruling on a motion to suppress evidence for an abuse of discretion).
(in both an Article 62, UCMJ, appeal, and any review of a ruling on a motion to suppress, an appellate court views the evidence in the light most favorable to the party that prevailed on the motion at trial).
2019 (October Term)
United States v. Watkins, 80 M.J. 253 (an appellate court reviews a military judge’s resolution of an accused’s request to excuse and replace his civilian counsel for an abuse of discretion).
United States v. Bergdahl, 80 M.J. 230 (an appellate court reviews allegations of unlawful command influence de novo).
(when employing de novo review, an appellate court uses the trial court’s record but reviews the evidence and law without deference to the trial court’s rulings).
(courts adhere to the plain meaning of any text—statutory, regulatory, or otherwise).
United States v. Reyes, 80 M.J. 218 (whether an accused was denied his right to a speedy trial under Article 10, UCMJ, is a question of law that an appellate court reviews de novo, deferring to the military judge’s findings of fact unless those findings are clearly erroneous).
(in an appellate court’s examination of reasonable diligence in bringing the charges to trial under Article 10, UCMJ, it must remain mindful that it is looking at the proceeding as a whole and not mere speed, and it must give substantial deference to the military judge’s findings of fact unless they are clearly erroneous; however, it is the government’s burden to show due diligence, and it is the government’s responsibility to provide evidence showing the actions necessitated and executed in a particular case justified delay when an accused was in pretrial confinement).
(an appellate court determines whether the prosecution was reasonably diligent in bringing the charges to trial under Article 10, UCMJ, by employing the four-factor test articulated by the Supreme Court in Barker v. Wingo, 407 US 514 (1972): (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant; none of these factors alone are a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial).
United States v. Blackburn, 80 M.J. 205 (an appellate court reviews de novo whether an accused has waived an issue).
(when constitutional rights are at issue, an appellate court applies a presumption against finding waiver).
(an appellate court reviews a military judge’s denial of a motion to suppress evidence for abuse of discretion; an abuse of discretion occurs when a military judge’s findings of fact are clearly erroneous or his conclusions of law are incorrect).
(in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the party that prevailed on the motion).
(the question whether an affiant who authors a search warrant affidavit provided evidence that was intentionally false or with a reckless disregard for the truth is a question of fact, which an appellate court reviews for clear error; this deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant).
United States v. Armendariz, 80 M.J. 130 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion).
United States v. Baas, 80 M.J. 114 (an appellate court reviews de novo whether statements are testimonial for purposes of the Sixth Amendment).
(in determining whether a statement is testimonial, an appellate court asks whether it would be reasonably foreseeable to an objective person that the purpose of any individual statement is evidentiary, considering the formality of the statement as well as the knowledge of the declarant; in the end, the question is whether, in light of all the circumstances, viewed objectively, the primary purpose of the statement was to create an out-of-court substitute for trial testimony).
(under Article 59(a), UCMJ, the finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused).
(for nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; the government bears the burden of demonstrating that the admitted evidence was not prejudicial; 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; and when assessing the materiality and quality of the evidence, the court considers the particular factual circumstances of each case).
United States v. Washington, 80 M.J. 106 (under Article 59(a), UCMJ, the government has the burden to persuade an appellate court that the erroneous admission of evidence did not materially prejudice the substantial rights of appellant; for 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; when assessing the materiality and quality of the evidence, an appellate court considers the particular factual circumstances of each case to determine how much the erroneously admitted evidence may have affected the court-martial; and in evaluating the materiality and quality of the evidence, the following non-exhaustive list factors may be considered: the extent to which the evidence contributed to the government’s case, the extent to which instructions to the panel may have mitigated the error, the extent to which the government referred to the evidence in argument, and the extent to which the members could weigh the evidence using their own layperson knowledge).
United States v. Rice, 80 M.J. 36 (whether a prosecution violates double jeopardy is a question of law that an appellate court reviews de novo).
United States v. Prasad, 80 M.J. 23 (appellate courts apply the clear law at the time of appeal, not the time of trial).
(when issues of constitutional dimension are at play, as they are when charged sexual misconduct is improperly used as MRE 413 propensity evidence, the erroneous admission of that evidence and the corresponding instructions to the panel members must be tested for prejudice under the harmless beyond a reasonable doubt standard).
(an appellate court reviews de novo the issue of whether a constitutional error was harmless beyond a reasonable doubt; and it is the government that bears the burden of proving that a constitutional error is harmless beyond a reasonable doubt).
(the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to the accused’s conviction or sentence; this standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction; on the other hand, where a court cannot be certain that the erroneous propensity instruction did not taint the proceedings or otherwise contribute to the defendant’s conviction or sentence, there is prejudice).
(in analyzing whether a Hills (75 MJ 350 (CAAF 2016)) error was harmless beyond a reasonable doubt, both the strength of the government’s case against the accused and the content of the military judge’s findings instructions are evaluated; with respect to the strength of the government’s case against the accused, where there has been overwhelming evidence of an appellant’s guilt, an appellate court may be convinced beyond a reasonable doubt that the accused was convicted on the strength of the evidence alone and that an erroneous propensity instruction did not contribute to the verdict; however, where the government’s case is weak, an appellate court cannot know whether the instructions may have tipped the balance in the members’ ultimate determination and thus will find that any error was not harmless beyond a reasonable doubt; likewise, where it is merely certainly possible that the accused was convicted solely based on properly admitted evidence, an appellate court will not conclude that a Hills error was harmless; furthermore, with respect to the content of the military judge’s findings instructions, where an instruction clearly tells the members that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity, an appellate court may hold that there is no risk the members would apply an impermissibly low standard of proof; but, where a military judge gives a propensity instruction that explicitly refers to the preponderance of the evidence standard, an appellate court cannot deny that the military judge’s muddled instructions potentially implicated fundamental conceptions of justice under the Due Process Clause and heightened the risk that the members would apply an impermissibly low standard of proof).
United States v. Bess, 80 M.J. 1 (where a CCA’s findings are neither clearly erroneous nor unsupported by the record, the CAAF defers to those factual findings).
(where, at trial, appellant adequately preserved for appeal his Fifth Amendment argument that a racial group was systematically excluded from his court-martial, an appellate court reviews de novo, rather than for plain error, the question of law as to whether the convening authority’s selection of members violated the Fifth Amendment’s implicit guarantee of equal protection of the laws).
(unlawful command influence claims are reviewed by an appellate court de novo).
(an appellate court reviews a military judge’s ruling on a request for production of evidence for an abuse of discretion; a military judge abuses her discretion when her findings of fact are clearly erroneous or her ruling is influenced by an erroneous view of the law; a military judge also abuses her discretion when a decision is outside the range of choices reasonably arising from the applicable facts and the law).
United States v. Carter, 79 M.J. 478 (an appellate court reviews assertions of ineffective assistance of counsel de novo).
(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).
(absent clear evidence of an abuse of discretion, an appellate court will not reverse a military judge’s determination on a motion for mistrial).
United States v. Rich, 79 M.J. 472 (whether an appellant has waived an issue is a legal question that an appellate court reviews de novo).
(while an appellate court reviews forfeited issues for plain error, it cannot review waived issues at all because a valid waiver leaves no error for the court to correct on appeal).
United States v. Wall, 79 M.J. 456 (whether an issue is ripe for review, and (2) whether a CCA is authorized to set aside a sentence and then reassess it before remanding the case to the convening authority are clearly questions of law that an appellate court reviews de novo).
United States v. Clark, 79 M.J. 449 (a military judge’s decision whether to strike testimony under RCM 914 is reviewed for an abuse of discretion; an abuse of discretion occurs when a military judge’s findings of facts are clearly erroneous or his conclusions of law are incorrect).
(an appellate court tests for prejudice based on the nature of the right violated; the standard of review and allocation of burdens depend on whether the defect amounted to a constitutional error or nonconstitutional error; generally, a Jencks Act violation will not rise to a constitutional level; however, this principle is not absolute; it may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right to confrontation; as such, the failure to provide material to which an accused is entitled under the Jencks Act may adversely affect a defendant’s ability to cross-examine government witnesses and thereby infringe upon his constitutional right of confrontation).
(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).
(in this case, despite the erroneous admission of the law enforcement agents’ testimony in violation of RCM 914, appellant was not prejudiced where admissions that appellant made during other portions of his interview that were admissible were damning, where the record revealed that both appellant and the alleged victim had genital herpes and this type of herpes is transmitted by direct sexual contact, where appellant’s participation in the interrogation gave trial defense counsel sufficient information to cross-examine the agents, and where appellant chose to testify and had the opportunity to explain to the members the manner in which the agents conducted the interrogation; accordingly, the military judge’s RCM 914 error did not have a substantial influence on the findings).
United States v. Jessie, 79 M.J. 437 (whether a CCA is authorized to consider materials outside the record that appellant submits in support of constitutional claims when assessing his sentence is question of law that an appellate court reviews de novo).
United States v. Turner, 79 M.J. 401 (the lens through which an appellate court evaluates the sufficiency of a specification differs depending on when counsel first raised the issue; when a charge and specification are first challenged at trial, the wording will be read narrowly and interpretations will only be adopted that hew closely to the plain text; hewing closely to the plain text means that only the language contained in the specification will be considered in deciding whether it properly states the offense in question; however, a flawed specification first challenged after trial is viewed with greater tolerance than one which was attacked before findings and sentence; under the latter scenario, the specification will be viewed with maximum liberality).
(if a specification fails to state an offense, the appropriate remedy is dismissal of that specification unless the government can demonstrate that this constitutional error was harmless beyond a reasonable doubt).
(the question of whether a specification fails to state an offense is a question of law which an appellate court reviews de novo).
(although in order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a specification is not required to expressly allege each element of the predicate offense, sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense).
(a flawed specification first challenged after trial is viewed with greater tolerance than one which was attacked before findings and sentence; although failure of a specification to state an offense is a fundamental defect which can be raised at any time, specifications are liberally construed in favor of validity when they are challenged for the first time on appeal).
(although a claim that a specification fails to state an offense may be made at any time, if the claim is first raised after trial, then the deficient specification will be viewed with greater tolerance and will be liberally construed in favor of validity).
(as soon as the finder of fact announces a guilty verdict regarding a facially deficient specification, the trial has ended, and the liberal construction and greater tolerance standards apply).
(what it means to liberally construe a specification in favor of validity and to view it with greater tolerance is to view the specification with maximum liberality; when a failure to state an offense claim is first raised after trial, the claim will fail absent a clear showing of substantial prejudice to the accused - such as a showing that the specification is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had).
United States v. Finch, 79 M.J. 389 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law).
United States v. Hennis, 79 M.J. 370 (an appellate court reviews questions of jurisdiction de novo).
(an appellate court reviews a military judge’s ruling on the production of witnesses for an abuse of discretion; it will not set aside a judicial denial of a witness request unless it has a definite and firm conviction that the trial court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors).
(an appellate court reviews a military judge’s ruling on requests for expert assistance for an abuse of discretion; the trial court abuses its discretion if its ruling is arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
(an appellate court reviews a military judge’s limitations on voir dire for a clear abuse of discretion).
(a trial court’s resolution of a question of actual bias with respect to a challenge for cause is entitled on direct appeal to special deference; although the CAAF has recognized that the legal question of actual bias approximates a factual question, it reviews actual bias claims for an abuse of discretion).
(the CAAF has taken a broader view of implied bias based on its interpretation of RCM 912(f)(1)(N), which provides that a member shall be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; the question to ask with respect to implied bias is whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; and to answer this question, the totality of the circumstances are reviewed and it is assumed that the public is familiar with the unique structure of the military justice system; implied bias challenges are reviewed pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review).
United States v. Avery, 79 M.J. 363 (whether an Article 134, UCMJ, offense is preempted depends on statutory interpretation, which is a question of law that an appellate court reviews de novo).
United States v. Davis, 79 M.J. 329 (whether an appellant has waived an issue is a legal question that an appellate court reviews de novo; waiver is different from forfeiture; whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; consequently, while an appellate court reviews forfeited issues for plain error, it cannot review waived issues at all because a valid waiver leaves no error for it to correct on appeal).
(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).
(where an appellant has affirmatively waived any objection to the military judge’s findings instructions, there is nothing left for an appellate court to correct on appeal).
(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).
United States v. Easterly, 79 M.J. 325 (the test for when a military judge must instruct on the impact of a punitive discharge on retirement benefits is that there must be (1) an evidentiary predicate and (2) a request for the instruction; this test applies to all forms of retirement benefits, including retirement for disability).
(failure to object to omission of an instruction on sentencing constitutes forfeiture of the objection, and forfeited issues are reviewed by an appellate court for plain error).
(plain error requires showing: (1) error; (2) the error was clear or obvious; (3) the error prejudiced the accused’s substantial rights).
United States v. Guardado, 79 M.J. 301 (the question of whether appellant is entitled to credit for an Article 13, UCMJ, violation is reviewed de novo; it is a mixed question of law and fact, and the military judge’s findings of fact will not be overturned unless they are clearly erroneous; appellant bears the burden of proof to establish a violation of Article 13, UCMJ).
2018 (October Term)
United States v. Hyppolite, 79 M.J. 161 (to reverse for an abuse of discretion involves far more than a difference in opinion; the challenged action must be found to be arbitrary, fanciful, clearly unreasonable, or clearly erroneous in order to be invalidated on appeal).
United States v. Navarette, 79 M.J. 123 (generally, the decision to grant or deny a motion for a sanity board is reviewed by an appellate court for an abuse of discretion; under the abuse of discretion standard, findings of fact are reviewed under a clearly erroneous standard and conclusions of law are reviewed de novo).
United States v. English, 79 M.J. 116 (the scope of an appellate court’s authority is a legal question that a superior appellate court reviews de novo).
United States v. Frost, 79 M.J. 104 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law; findings of fact are clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed).
(an appellate court may not find an abuse of discretion if the court’s conclusion is that the military judge was maybe wrong or probably wrong; rather, instead, an appellate court may only conclude that findings of fact are clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake by the trial judge has been committed).
(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. Coleman, 79 M.J. 100 (where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not; this test is to be applied to the elements of the statutes violated and not to the pleadings or proof of these offenses; the focus is on a strict facial comparison of the elements of the charged offenses).
United States v. Haynes, 79 M.J. 17 (an appellate court considers the issue of waiver as a question of law under a de novo standard of review).
United States v. Voorhees, 79 M.J. 5 (an appellate court reviews prosecutorial misconduct and improper argument de novo, and where no objection is made, it reviews for plain error).
(the burden of proof under plain error review is on the appellant; plain error occurs when (1) there is error, (2) the error is clear or obvious, and (3) the error results in material prejudice to a substantial right of the accused).
(in reviewing whether argument that was not objected to is improper, an appellate court must determine: (1) whether trial counsel’s arguments amounted to clear, obvious error; and (2) if so, whether there was a reasonable probability that, but for the error, the outcome of the proceeding would have been different).(in assessing prejudice with respect to prosecutorial misconduct, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; it weighs three factors to determine whether trial counsel’s improper arguments were prejudicial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; under this test, appellant has the burden to prove that there is a reasonable probability that, but for the error, the outcome of the proceeding would have been different).
(questions pertaining to the substance of a military judge’s instructions, as well as those involving statutory interpretation, are reviewed by an appellate court de novo).
(where an appellant does not object to a military judge’s failure to instruct the members on a mens rea requirement, an appellate court reviews the issue for plain error).
(when a statute is silent as to mens rea, an appellate court only reads into the statute that mens rea which is necessary to separate wrongful conduct from innocent conduct; a statute’s silence can be indicative of a general intent scienter).
United States v. Rodriguez, 79 M.J. 1 (an appellate court reviews questions of legal sufficiency de novo; to determine whether evidence is legally sufficient, an appellate court asks 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; this determination is based on the evidence before the factfinder; this standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts, and preserves the factfinder’s role as weigher of the evidence; as such, the standard for legal sufficiency involves a very low threshold to sustain a conviction).
United States v. Gonzales, 78 M.J. 480 (whether one offense is a lesser included offense of another offense is a question of law).
(when an appellant has preserved an objection to a finding of guilty to a lesser included offense, an appellate court reviews the objection de novo; but when an appellant has forfeited such an objection, and raises it for the first time on appeal, an appellate court reviews the issue only for plain error).
(under plain error review, appellant has the burden of demonstrating that: (1) there was error, (2) the error was clear and obvious, and (3) the error materially prejudiced a substantial right of the accused; for an appellate court to grant relief under this test, all three prongs must be satisfied).
United States v. Gleason, 78 M.J. 473 (whether a specification fails to state an offense is a question of law that an appellate court reviews de novo).
(when defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error).
United States v. Tovarchavez, 78 M.J. 458 (Article 59(a), UCMJ, provides that a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; just as a substantial right can be either constitutional or nonconstitutional, material prejudice for purposes of Article 59, UCMJ, must be understood by reference to the nature of the violated right).
(where a forfeited constitutional error was clear or obvious, material prejudice is assessed using the harmless beyond a reasonable doubt standard; that standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction).
(in the context of preserved and unpreserved nonconstitutional errors, appellate courts consider whether there is a reasonable probability that, but for the error, the outcome of the proceedings would have been different; for constitutional errors, rather than the probability that the outcome would have been different, courts must be confident that there was no reasonable possibility that the error might have contributed to the conviction).
(when an appellate court reviews a constitutional issue for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt).
(an appellant gets the benefit of changes to the law between the time of trial and the time of his appeal; in other words, on direct review, an appellate court applies the clear law at the time of the appeal, not the time of trial).
(in this case, where appellant failed to object to an MRE 413 propensity instruction at trial, but between the time of trial and final resolution on appeal, the instruction was held to violate appellant’s constitutional right to be presumed innocent, appellant’s failure to object to that instruction constituted forfeiture rather than waiver).
(consonant with Article 59, UCMJ, for an appellant to prevail under plain error review, there must be an error, that was clear or obvious, and which prejudiced a substantial right of the accused).
(whether preserved or forfeited error, a finding or sentence may only be corrected for interference with a substantial right involving an error of law; where the error is constitutional, the government must show that the error was harmless beyond a reasonable doubt to obviate a finding of prejudice).
(whether an error, constitutional or otherwise, constitutes plain error is a question of law that an appellate court reviews de novo).
(an appellate court applies the harmless beyond a reasonable doubt standard when assessing prejudice for a forfeited constitutional error under Article 59, UCMJ).
(there is no legitimate military justification for interpreting material prejudice under Article 59(a), UCMJ, differently for preserved and forfeited constitutional errors).
(absent articulation of a legitimate military necessity or distinction, or a legislative or executive mandate to the contrary, the CAAF has a duty to follow Supreme Court precedent).
(in cases applying plain error review, the CAAF does not apply the fourth prong of the US v. Olano, 507 U.S. 725 (1993) plain error test [if the three other prongs are satisfied, the appellate court has the discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings]; this divergence from federal practice is regularly justified by the differences between Article 59, UCMJ, and Fed. R. Crim. P. 52(b)).
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).
(the voluntariness of a confession is a question of law that an appellate court reviews de novo).
(the prosecution bears the burden of establishing by a preponderance of the evidence that the confession was voluntary; voluntariness turns on whether an accused’s will has been overborne; the necessary inquiry is whether the confession is the product of an essentially free and unconstrained choice by its maker).
(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).
United States v. Hutchins, 78 M.J. 437 (an appellate court reviews a military judge’s ruling to admit or suppress evidence for an abuse of discretion; an abuse of discretion occurs when the military judge’s factual findings are clearly erroneous, view of the law is erroneous, or decision is outside of the range of reasonable choices).
(questions of whether a prosecution violates the Double Jeopardy Clause or the doctrine of issue preclusion are issues of law that an appellate court reviews de novo).
(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).
United States v. Harris, 78 M.J. 434 (an appellate court reviews the question whether an appellant is entitled to pretrial confinement credit de novo; the court will not set aside a military judge’s findings of fact unless they are clearly erroneous, but reviews the application of those facts to the law de novo; a military judge’s factual findings are clearly erroneous when there is no evidence in the record to support the finding or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).
(when a term is not statutorily defined, an appellate court accords that term its ordinary meaning).
United States v. Meakin, 78 M.J. 396 (an appellate court reviews questions of legal sufficiency de novo, and the test for legal sufficiency is 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).
United States v. Perkins, 78 M.J. 381 (overruling precedent by implication is disfavored).
(when precedents conflict, an appellate court typically follows the more recent decision).
(an appellate court will not overturn precedent that has been treated as authoritative for a long time unless the most cogent reasons and inescapable logic require it).
United States v. McDonald, 78 M.J. 376 (the mens rea applicable to an offense is an issue of statutory construction that an appellate court reviews de novo).
(when panel instructions are not objected to at trial, they are reviewed by an appellate court for plain error).
(under the plain error standard, relief will only be granted by an appellate court where (1) there was error that was (2) clear or obvious, and that (3) materially prejudiced a substantial right of the accused).
United States v. Hamilton, 78 M.J. 335 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion).
(interpreting the interplay between unsworn victim impact statements under RCM 1001A (now incorporated as RCM 1001(c)) and the MREs is a question of law and reviewed by an appellate court de novo).
(if an error occurs in the admission of evidence at sentencing, the test for prejudice is whether the error substantially influenced the adjudged sentence).
(when determining whether an error substantially influenced a sentence, an appellate court considers the following four factors: (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. Kohlbek, 78 M.J. 326 (for purposes of construing the MREs, it is a well established rule that an appellate court uses principles of statutory construction).
(an appellate court reviews questions of statutory construction de novo).
(where the language of an MRE is susceptible to only a single interpretation, an appellate court applies the rule as written; but where the language is susceptible to more than one interpretation, an appellate court can and may consider whether one interpretation or the other creates potential constitutional or other issues).
(whether a rule promulgated by the President is consistent with his authority under Article 36, UCMJ, is a question of statutory construction, which an appellate court reviews de novo).
(an appellate court reviews a military judge’s decision to exclude evidence is reviewed for an abuse of discretion; and a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).
(an appellate court reviews the prejudicial effect of an erroneous evidentiary ruling de novo).
(Article 59(a), UCMJ, provides that the finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused).
(for 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).
(if excluding evidence was a constitutional error, the test for prejudice would be whether the error was harmless beyond a reasonable doubt).
United States v. Briggs, 78 M.J. 289 (an appellate court generally applies the statute of limitations that was in effect at the time of the offense).
(an appellate court generally presumes that subsequent amendments do not apply because there is both a presumption against retroactive legislation and a presumption in favor of repose).
(congressional enactments will not be construed to have retroactive effect unless their language requires this result).
United States v. Forbes, 78 M.J. 279 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion, and the test for an abuse of discretion in accepting a guilty plea is whether the record shows a substantial basis in law or fact for questioning the plea).
United States v. Hale, 78 M.J. 268 (an appellate court conducts a de novo review of jurisdiction questions).
(when challenged, the government must prove jurisdiction by a preponderance of evidence).
(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 an instruction at trial, an appellate court reviews for plain error).
(under plain error review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; the failure to establish any one of the prongs is fatal to a plain error claim).
United States v. Bodoh, 78 M.J. 231 (where appellant did not object to trial counsel’s misstatements of law or references to the SHARP program at trial, an appellate court reviews for plain error; to prevail, appellant bears the burden of establishing (1) error, (2) that is clear or obvious, and (3) results in material prejudice to a substantial right of the accused; all three prongs must be satisfied; the third prong is satisfied if the appellant shows a reasonable probability that, but for the error claimed, the outcome of the proceeding would have been different).
(in terms of prejudice, while prosecutorial misconduct does not automatically require a new trial or the dismissal of the charges against the accused, relief will be granted if the trial counsel’s misconduct actually impacted on a substantial right of an accused (i.e., resulted in prejudice); in evaluating prejudice, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; it considers: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction).
United States v. Nicola, 78 M.J. 223 (a finding of guilt is legally sufficient if any rational factfinder, when viewing the evidence in the light most favorable to the government, could have found all essential elements of the offense beyond a reasonable doubt; when applying this test for legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution).
(an appellate court cannot affirm a criminal conviction on the basis of a theory of liability not presented to the trier of fact).
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).
United States v. Tucker, 78 M.J. 183 (an appellate court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo).
United States v. Criswell, 78 M.J. 136 (an appellate court reviews a military judge’s ruling on a motion to suppress an eyewitness identification for abuse of discretion, viewing the evidence in the light most favorable to the prevailing party; it does not undertake a de novo analysis of whether the in-court identification should have been admitted; instead, it focuses on appellant’s objections to the military judge’s findings of fact, view of the law, and conclusions in applying the law to the facts).
(a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).
United States v. Eugene, 78 M.J. 132 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion, viewing the evidence in the light most favorable to the prevailing party; a military judge abuses his discretion when his findings of fact are clearly erroneous or he misapprehends the law; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
2017 (October Term)
United States v. Barry, 78 M.J. 70 (an appellate court reviews questions of statutory construction de novo).
(an appellate court reviews an allegation of unlawful influence de novo, assessing findings of fact that inform this legal question under a clearly erroneous standard; in such cases, where a military judge made detailed findings of fact and these findings are clearly supported by the record, an appellate court will adopt them for its analysis).
United States v. Jones, 78 M.J. 37 (an appellate court reviews a military judge’s determination that an appellant’s statement was adequately corroborated by independent admissible evidence under MRE 304(c) for an abuse of discretion).
(when hearsay is admitted in violation of the Military Rules of Evidence, the ordinary rule is that an appellate court can affirm only if it does not find material prejudice; however, if admission of the evidence also violates the Constitution, and the error is not waived, the standard of review is higher).
(when an appellant does not raise an objection to the admission of evidence at trial, an appellate court first must determine whether the appellant waived or forfeited the objection; if the appellant waived the objection, then it may not review it at all; but if the appellant merely forfeited the objection, then it may review the objection for plain error).
(in this case, appellant did not intentionally relinquish or abandon a Confrontation Clause objection to the admission of a statement made by his co-conspirator to a CID agent where, considering the particular circumstances, there was no strategic reason for trial defense counsel to object to the statement as hearsay and not also object to the statement on Confrontation Clause grounds; accordingly, an inference can be made that the failure to make the Confrontation Clause objection was unintentional; thus, appellant forfeited the objection rather than waived it and the issue is reviewed for plain error).
(when a constitutional issue is reviewed for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt).
United States v. Christensen, 78 M.J. 1 (an appellate court reviews issues of personal jurisdiction de novo, accepting the military judge’s findings of historical facts unless they are clearly erroneous or unsupported in the record).
United States v. Armstrong, 77 M.J. 465 (in cases of forfeiture, an appellate court reviews for plain error).
(under plain error review, the appellant has the burden of demonstrating (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; under this standard, even if there was an error, no relief is warranted unless the appellant can show the second and third requirements).
United States v. Williams, 77 M.J. 459 (where constitutional instructional error is preserved, an appellate court tests for harmlessness; however, if the accused fails to preserve the instructional error by an adequate objection or request, the court tests for plain error).
United States v. Hendrix, 77 M.J. 454 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial; the court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous).
(an appellate court reviews de novo the question of whether an accused received a speedy trial).
(when a term is not statutorily defined, a court accords it its ordinary meaning).
United States v. Dinger, 77 M.J. 447 (whether, as a result of a court-martial conviction, appellant is subject to a punitive discharge is a question of law that an appellate court reviews de novo).
United States v. Hardy, 77 M.J. 438 (when an appellant has forfeited an issue, an appellate court may review the issue for plain error, but when an appellant has waived an issue, it cannot review it at all).
United States v. Kelly, 77 M.J. 404 (the construction of a statute is a question of law that an appellate court reviews de novo).
(it is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme; as such, courts typically seek to harmonize independent provisions of a statute).
United States v. Andrews, 77 M.J. 393 (an appellate court reviews prosecutorial misconduct and improper argument de novo; if proper objection is made, an appellate court reviews for prejudicial error; if no objection is made, the appellant has forfeited his right to appeal and an appellate court reviews for plain error; the burden of proof under plain error review is on the appellant).
(deviation from a legal rule is error unless the rule has been waived; while an appellate court reviews forfeited issues for plain error, it does not review waived issues because a valid waiver leaves no error to correct on appeal).(notwithstanding the RCM 919(c) language that the failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection, an appellate court reviews unobjected to prosecutorial misconduct and improper argument for plain error, upholding US v. Fletcher, 62 MJ 175 (CAAF 2005)).
United States v. Barker, 77 M.J. 377 (interpreting RCM 1001A is a question of law that is reviewed de novo).
(an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; a military judge abuses his discretion when he admits evidence based on an erroneous view of the law).
(when there is error in the admission of sentencing evidence, the test for prejudice is whether the error substantially influenced the adjudged sentence; when determining whether an error had a substantial influence on a sentence, an appellate court considers the following four factors: (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; an error is more likely to be prejudicial if the fact was not already obvious from the other evidence presented at trial and would have provided new ammunition against an appellant).
United States v. Eppes, 77 M.J. 339 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion; in reviewing such a ruling, it considers the evidence in the light most favorable to the prevailing party; it reverses for an abuse of discretion if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law).
(probable cause determinations made by a neutral and detached search authority are entitled to substantial deference; resolution of doubtful or marginal cases should be largely determined by the preference for warrants, and close calls will be resolved in favor of sustaining the search authority’s decision; courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense manner; a grudging or negative attitude by reviewing courts towards warrants is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant).
(appellate courts may read an affidavit and warrant to include inferences the issuing magistrate reasonably could have made in authorizing a probable cause search).
(in evaluating the issuing search authority’s probable cause finding, an appellate court examines: 1) the facts known to the authority when he issued the warrant, and 2) the manner in which he came to know these facts).
United States v. Robinson, 77 M.J. 294 (an appellate court reviews questions of legal sufficiency de novo).
(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).
(this legal sufficiency assessment draws every reasonable inference from the evidence of record in favor of the prosecution).
(with respect to an appellate issue of whether evidence should have been admitted at trial under the constitutionally required exception of MRE 412(b)(1)(C), the government bears the burden of establishing harmlessness beyond a reasonable doubt; and in assessing harmlessness, an appellate court evaluates the entire record to determine whether there is a reasonable possibility that this evidentiary error contributed to appellant’s conviction).
(where appellant did not object to the military judge’s instructions at trial, any error in the instructions is reviewed by an appellate court for plain error based on the law at the time of appeal).
(an appellant bears the burden of establishing plain error, and he establish the following three prongs: (1) there is error, (2) the error is clear or obvious, and (3) the error materially prejudiced a substantial right; the third prong is satisfied if the appellant shows a reasonable probability that, but for the error claimed, the outcome of the proceeding would have been different).
United States v. Wheeler, 77 M.J. 289 (whether an offense is preempted depends on statutory interpretation, which is a question of law that an appellate court reviewsde novo).
United States v. Carpenter, 77 M.J. 285 (when reviewing a military judge’s ruling on whether to exclude evidence pursuant to MRE 412 for an abuse of discretion, the CAAF pierces the CCA’s opinion and examine the military judge’s ruling directly).
(an appellate court reviews a military judge’s ruling on whether to exclude evidence pursuant to MRE 412 for an abuse of discretion, and this is a stringent standard of review).
(an appellate court’s review of a military judge’s ruling on whether to exclude evidence pursuant to MRE 412 is properly based on a military judge’s disposition of the motion submitted to him or her and not on the motion that appellate defense counsel later wishes trial defense counsel had submitted).
United States v. Simpson, 77 M.J. 279 (an appellate court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo).
(an appellate court affords significant deference to a military judge in determining whether he obtained an adequate factual basis from an accused to support a guilty plea).
(an appellate court will not set aside an accused’s guilty plea on appeal unless there is a substantial basis in law or fact for questioning the plea).
United States v. Mooney, 77 M.J. 252 (an appellate court reviews questions of statutory construction de novo.).
United States v. Katso, 77 M.J. 247 (whether the government has a sua sponte duty to hold a continued confinement hearing within seven days of a certification to the CAAF under Article 67(a)(2), UCMJ, is a question of law, that the CAAF reviews de novo).
United States v. Condon, 77 M.J. 244 (an appellate court reviews claims of an improper reference to an accused’s invocation of his constitutional rights de novo).
(a finding or sentence of court-martial may not be held incorrect by an appellate court on the ground of an error of law unless the error materially prejudiced the substantial rights of the accused; where the alleged error is of constitutional dimensions, an appellate court must conclude beyond a reasonable doubt that it was harmless before it can affirm; to conclude that such an error was harmless beyond a reasonable doubt, an appellate court must be convinced that the error did not contribute to the verdict; that an error did not contribute to the verdict is not of course to say that the members were totally unaware of that feature of the trial later held to have been erroneous; it is, rather, to find that error unimportant in relation to everything else the members considered on the issue in question as revealed in the record).
United States v. Blanks, 77 M.J. 239 (where appellant did not object at trial to the military judge’s negligent dereliction of duty instruction on the basis that negligence is not an authorized level of mens rea for an Article 92(3), UCMJ, dereliction of duty offense, an appellate court reviews the instruction for plain error).
(when an appellate court considers a request to overrule a prior decision of the court, it analyzes the matter under the doctrine of stare decisis).
(the doctrine of stare decisis is not an inexorable command; an appellate court considers the following factors in evaluating the application of stare decisis: whether the prior decision is unworkable or poorly reasoned; any intervening events; the reasonable expectations of servicemembers; and the risk of undermining public confidence in the law; a party must present a special justification for us to overrule prior precedent).
United States v. Harpole, 77 M.J. 231 (the question of whether a communication is privileged is a mixed question of fact and law; factual findings are reviewed for clear error and legal questions, including the interpretation of a rule’s language, are reviewed de novo).
(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).
(an appellate court uses principles of statutory construction when interpreting MRE privileges; these privileges are construed narrowly because they run contrary to a court’s truth-seeking function).
(an appellate court reviews claims of ineffective assistance of counsel de novo).
(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).
United States v. Jerkins, 77 M.J. 225 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion; a military judge abuses her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect).
(an appellate court review questions of unlawful influence de novo).
(the standard for determining prejudice in cases in which the military judge has abused her discretion by admitting or excluding sentencing evidence appears to be linked to whether the evidence has constitutional implications; the harmless error standard is applied for nonconstitutional issues and the appellate court must determine whether the excluded evidence may have substantially influenced the adjudged sentence; for constitutional issues, the harmless beyond a reasonable doubt standard is applied).
(in this case, application of the harmless beyond a reasonable doubt standard is consistent with the position that unlawfully influencing a court-martial raises constitutional due process concerns where it undermines an accused’s right to a fair trial).
(before a federal constitutional error can be held harmless, an appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt; to conclude that such an error is harmless beyond a reasonable doubt, the court must be convinced that the error did not contribute to the sentence).
United States v. Mangahas, 77 M.J. 220 (the applicable statute of limitations is a question of law that an appellate court reviews de novo).
(criminal statutes of limitations are to be liberally interpreted in favor of repose).
United States v. Acevedo, 77 M.J. 185 (an appellate court reviews challenges to the legal sufficiency of the evidence de novo; the standard for determining the legal sufficiency of evidence supporting a guilty verdict 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; in applying this test, all inferences and credibility determinations must be drawn in favor of the prosecution).
United States v. Chisum, 77 M.J. 176 (a constitutional error is harmless when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; to say that an error did not contribute to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous, but rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record).
(when an error constitutes a constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, an appellate court’s harmless beyond a reasonable doubt review includes weighing the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case).
United States v. Riesbeck, 77 M.J. 154 (an appellate court reviews the selection of court-martial members for error de novo).
(an appellate court applies a case-specific analysis when deciding issues of improper member selection).
(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).
United States v. Short, 77 M.J. 148 (absent clear evidence of an abuse of discretion, an appellate court will not reverse a military judge’s determination on a motion for mistrial; in determining whether the military judge abused his discretion by not granting a mistrial, an appellate court looks to the actual grounds litigated at trial; the challenge is to assess the probable impact of the inadmissible evidence upon the court members; that judgment is rooted in a simple tolerable risk assessment that the members would be able to put aside the inadmissible evidence).
United States v. Guardado, 77 M.J. 90 (instructional errors are reviewed by an appellate court de novo).
(when an accused fails to object to a military judge’s propensity instruction at trial, an appellate court reviews for plain error).
(the burden lies with an appellant to establish plain error).
(an appellate court tests unobjected-to instructions for plain error based on the law at the time of appeal).
United States v. Jacobsen, 77 M.J. 81 (an appellate court reviews issues of statutory interpretation and jurisdiction de novo).
(in interpreting a statute, an appellate court first looks to the text of the statute, and when statutory language is unambiguous, the statute’s plain language will control).
(it is a fundamental rule of statutory interpretation that a court afford all parts of a statute the same construction).
United States v. Bailey, 77 M.J. 11 (when deciding whether the military judge properly instructed a panel, an appellate court uses a de novo standard of review).
(in reviewing whether a military judge erred by not providing a requested instruction in a specific case, an appellate court uses a three-pronged test to determine whether: (1) the requested instruction is correct; (2) the main instruction given does not substantially cover the requested material; and (3) the instruction is on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its effective presentation; all three prongs must be satisfied for there to be error).
United States v. Hennis, 77 M.J. 7 (a claim of ineffective assistance of counsel is not ripe for review until after there is a record of counsel’s performance).
United States v. Pugh, 77 M.J. 1 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial; on matters of fact with respect to appeals under Article 62, UCMJ, the appellate court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous).
(the legality of a military order is a question of law that an appellate court reviews de novo).
(an appellate court determines whether an order is overbroad by examining the specific conduct at issue rather than the theoretical limits of the order).
2016 (October Term)
United States v. Mitchell, 76 M.J. 413 (an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion and consider the evidence in the light most favorable to the party that prevailed at trial).
(a military judge abuses her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect).
(two discrete inquiries are essential to the determination of whether an accused is in custody for the purposes of Miranda (384 US 436 (1966)), and Edwards (451 US 477 (1981)): first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave; the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest; courts evaluate: (1) whether the person appeared for questioning voluntarily; (2) the location and atmosphere of the place in which questioning occurred; (3) the length of the questioning; (4) the number of law enforcement officers present at the scene; and (5) the degree of physical restraint placed upon the suspect).
(for the inevitable discovery exception to apply to warrant the admission of unlawfully obtained evidence, the government must demonstrate by a preponderance of the evidence that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence in a lawful manner).
United States v. Forrester, 76 M.J. 479 (an appellate court reviews multiplicity claims de novo).
United States v. Gurczynski, 76 M.J. 381 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews the judge’s factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard).
(when an appeal presents a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).
United States v. Ramos, 76 M.J. 372 (on a motion to suppress, an appellate court reviews a military judge’s ruling for an abuse of discretion).
(the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion).
(in deciding whether a judge abused his discretion in denying a motion to suppress a statement on the ground that rights’ warnings were not given, an appellate court reviews the military judge’s findings of fact on a clearly-erroneous standard, and it reviews conclusions of law de novo).
(on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).
(when an Article 31(b), UCMJ, violation occurs in a particular case, the appropriate test for prejudice depends upon the facts and circumstances presented).
United States v. Richards, 76 M.J. 365 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; an abuse of discretion occurs when that court determines that the military judge’s findings of fact are clearly erroneous or that he misapprehended the law).
(when an appellate court reviews a decision on a motion to suppress, it considers the evidence in the light most favorable to the prevailing party)
(an appellate court reviews de novo questions regarding whether a search authorization is overly broad).
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).
United States v. Darnall, 76 M.J. 326 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion; an abuse of discretion occurs when the military judge’s findings of fact are clearly erroneous or he misapprehended the law; the court reviews the legal question of sufficiency for finding probable cause de novo using a totality of the circumstances test, and it considers the evidence in the light most favorable to the prevailing party; however, when there are misstatements or improperly obtained information, the court severs that information and examines the remainder to determine if probable cause still exists).
United States v. Commisso, 76 M.J. 315 (failure to grant a motion for a mistrial is an abuse of discretion if, had the members answered material questions honestly at voir dire, defense counsel would have had a valid basis to challenge them for cause).
United States v. Chikaka, 76 M.J. 310 (an appellate court reviews allegations of unlawful command influence de novo; in conducting this review, the court first must determine whether an appellant has met his or her initial burden of presenting some evidence of unlawful command influence; this some evidence standard is low, although an appellant must allege more than mere allegation or speculation; once an appellant has met this initial evidentiary burden, the burden shifts to the government to rebut the allegation of UCI beyond a reasonable doubt).
United States v. Herrmann, 76 M.J. 304 (an appellate court review questions of legal sufficiency de novo; in conducting this legal sufficiency review, the relevant question an appellate court must answer 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).
United States v. Reese, 76 M.J. 297 (whether a change made to a specification is minor is a matter of statutory interpretation and is reviewed by an appellate court de novo).
(an appellate court applies ordinary rules of statutory construction in interpreting the RCM).
(courts must presume that a legislature says in a statute what it means and means in a statute what it says there; when the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete).
United States v. Carter, 76 M.J. 293 (an appellate court reviews questions of jurisdiction and statutory interpretation de novo).
United States v. Hendrix, 76 M.J. 283 (an appellate court reviews a military judge’s decision denying a request for an expert consultant for an abuse of discretion; it also reviews a military judge’s admission of evidence for an abuse of discretion; this abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous; where a military judge provides no explanation for his decision to deny an expert consultant or to admit evidence, the judge’s decision is entitled to less deference).
United States v. Oliver, 76 M.J. 271 (when an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews for plain error).
(under the plain error standard of review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; failure to establish any one of the prongs is fatal to a plain error claim).
(an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; an appellant must show that under the totality of the circumstances in his case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice).
United States v. Tucker, 76 M.J. 257 (as a first step in statutory construction, an appellate court is obligated to engage in a plain language analysis of the relevant statute).
United States v. Boyce, 76 M.J. 242 (an appellate court reviews allegations of unlawful command influence de novo).
(an appellate court applies a harmless beyond a reasonable doubt standard for both actual and apparent unlawful command influence because in the military justice system both the right to a trial that is fair, and the right to a trial that is objectively seen to be fair, have constitutional dimensions sounding in due process).
United States v. Feliciano, 76 M.J. 237 (where appellant failed to object at trial to the military judge’s failure to instruct panel members on the affirmative defense of voluntary abandonment, the issue was forfeited and an appellate court reviews the matter for plain error).
United States v. Erikson, 76 M.J. 231 (an appellate court reviews a military judge’s decision to admit or exclude evidence 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 is strict, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
United States v. Davis, 76 M.J. 224 (where appellant failed to object to the omission of a required instruction on a special defense, an appellate court reviews the military judge’s instructions for plain error).
(forfeiture is the passive abandonment of a right by neglecting to preserve an objection, whereas waiver is the affirmative, intentional relinquishment or abandonment of a known right; forfeiture results in plain error review, but waiver leaves no error for an appellate court to correct on appeal).
(whether a required instruction on findings contained within RCM 920(e) is reasonably raised by the evidence is a question of law that an appellate court reviews de novo).
(where required instructional error is preserved, an appellate court tests for harmlessness; however, if an accused fails to preserve the instructional error by an adequate objection or request, an appellate court tests for plain error).
(the accused may choose to affirmatively waive certain required instructions, extinguishing the claim of error and leaving nothing for an appellate court to correct on appeal).
(the threshold question in determining whether a military judge erred in failing to give a mistake-of-fact instruction is whether that defense was reasonably raised by the evidence — in other words, was there error at all — a question of law that an appellate court reviews de novo).
(under a plain error analysis, 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).
United States v. Hukill, 76 M.J. 219 (a military judge’s decision to admit evidence is reviewed for an abuse of discretion).
(the meaning and scope of MRE 413 is a question of law that is reviewed de novo).
(constitutional concerns exist if, in a military judge-alone trial, a military judge uses charged sexual misconduct as propensity evidence under MRE 413; as there are constitutional dimensions at play, the erroneous admittance of evidence must be tested for prejudice under the harmless beyond a reasonable doubt standard; the government must prove there was no reasonable possibility that the error contributed to a conviction).
United States v. Haverty, 76 M.J. 199 (because appellant did not object to the military judge’s failure to instruct the members on a mens rea requirement for the offense of hazing under Article 92, UCMJ, the issue is reviewed by an appellate court for plain error; furthermore, panel instructions are analyzed for plain error based on the law at the time of the appeal).
(with respect to the third prong of the plain error analysis, appellant has the burden of showing that the error had an unfair prejudicial impact on the members’ deliberations).
(an appellate court presumes that the panel followed the instructions given by the military judge).
United States v. Ahern, 76 M.J. 194 (whether an accused has waived an issue is a question of law that an appellate court review de novo).
United States v. Ortiz, 76 M.J. 189 (an appellate court decides questions of statutory construction de novo).
United States v. Fetrow, 76 M.J. 181 (the standard of review for a military judge’s decision to admit evidence is abuse of discretion).
(whether admitted testimony constitutes evidence that the accused committed another offense of child molestation under MRE 414 is one of law, reviewed de novo.).
(questions involving the construction of statutes and rules are reviewed de novo).
(under Article 59(a), UCMJ, a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; the test for nonconstitutional evidentiary error is whether the error had a substantial influence on the findings; it is the government that bears the burden of demonstrating that the admission of erroneous evidence was harmless; in evaluating whether an erroneous admission of evidence was harmless, an appellate court uses a four-part analysis, weighing (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).
(an appellate court reviews de novo whether an accused was prejudiced by a nonconstitutional evidentiary error).
United States v. Sager, 76 M.J. 158 (an appellate court reviews questions of statutory interpretation de novo).
(the ordinary meaning canon of statutory construction provides that the words of a statute are to be taken in their natural and ordinary signification and import; the surplusage canon of statutory construction provides that, if possible, every word and every provision is to be given effect and that no word should be ignored or needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence).
(courts must presume that a legislature says in a statute what it means and means in a statute what it says there; when the words of a statute are unambiguous, then, the first canon of statutory construction is also the last, and judicial inquiry is complete).
(words and phrases used in the UCMJ are interpreted by examining the ordinary meaning of the language, the context in which the language is used, and the broader statutory context; in any such analysis, a court should give meaning to each word of the statute; only where the statute remains unclear does the court look next to the legislative history).
United States v. Lopez, 76 M.J. 151 (when an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews for plain error; appellant thus has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; failure to establish any one of the prongs is fatal to a plain error claim).
(material prejudice to the substantial rights of the accused occurs when an error creates an unfair prejudicial impact on the court members’ deliberations; in other words, the accused must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different).
(an evidentiary issue that has been preserved with a timely objection is reviewed by an appellate court not for plain error, but for abuse of discretion).
(an appellate court evaluates prejudice from an erroneous evidentiary ruling by weighing (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. Bartee, 76 M.J. 141 (whether a court-martial panel was selected free from systematic exclusion is a question of law reviewed de novo).
(the burden is on the defense to establish the improper exclusion of qualified personnel from the selection process; once the defense establishes such exclusion, the government must show by competent evidence that the member selection process was free from impropriety).
United States v. Price, 76 M.J. 136 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion, and the appellant bears the burden of establishing that the military judge abused that discretion).
(an appellate court affords military judges substantial deference when they decide which facts to elicit during a providence inquiry in order to establish a factual basis for a guilty plea).
United States v. Rosario, 76 M.J. 114 (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 appellate question for this legal sufficiency test is whether a reasonable factfinder reading the evidence one way could have found all the elements of the offense beyond a reasonable doubt).
(the test for a factual sufficiency review by the lower courts is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the service court are themselves convinced of appellant’s guilt beyond a reasonable doubt).
United States v. Nieto, 76 M.J. 101 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion).
(when reviewing a military magistrate’s issuance of a search authorization, an appellate court does not review the military magistrate’s probable cause determination de novo; instead, it examines whether a military magistrate had a substantial basis for concluding that probable cause existed; a substantial basis exists when, based on the totality of the circumstances, a common-sense judgment would lead to the conclusion that there is a fair probability that evidence of a crime will be found at the identified location).
(an appellate court gives great deference to a magistrate’s probable cause determination because of the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; however, this deference is not boundless, and a reviewing court may conclude that the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances; however, if a military magistrate has a substantial basis to find probable cause, a military judge does not abuse his discretion in denying a motion to suppress).
(an appellate court is ordinarily bound by the MREs).
United States v. Dockery, 76 M.J. 91 (an appellate court reviews implied bias challenges pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review; an abuse of discretion has occurred if the military judge’s findings of fact are clearly erroneous or if the decision is influenced by an erroneous view of the law).
(a military judge’s ruling on a challenge for cause is given great deference; although it is not required for a military judge to place his or her implied bias analysis on the record, doing so is highly favored and warrants increased deference from appellate courts; although record dissertations from the military judge’s decision on implied bias are not expected, there should be a clear signal that the military judge applied the right law; however, a mere incantation of the legal test for implied bias without analysis is rarely sufficient in a close case; in cases where less deference is accorded, the analysis logically moves more towards a de novo standard of review).
(if a military judge does not put any analysis on the record in granting a challenge of a court member for implied bias, an appellate court need not afford his ruling much deference).
(whether a lower court utilized the appropriate standard to test for prejudice is a question of law reviewed de novo).
(where a military judge erroneously granted the government’s actual bias challenge on the basis of implied bias, and the error is nonconstitutional, the error is subject to harmless error analysis, and appellant is entitled to relief only if he or she can demonstrate prejudice).
United States v. Bowen, 76 M.J. 83 (a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact).
(whether an error, constitutional or otherwise, was harmless is a question of law that an appellate court reviews de novo; and for nonconstitutional errors, the government must demonstrate that the error did not have a substantial influence on the findings).
(a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; an appellate court evaluates the harmlessness of an evidentiary ruling by weighing: (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).
Randolph v. HV, 76 M.J. 27 (jurisdiction is a question of law that an appellate court reviews de novo).
(the burden to establish jurisdiction rests with the party invoking the court’s jurisdiction, and in making this determination, a federal court reads the statutes governing its jurisdiction as an integrated whole, with the purpose of carrying out the intent of Congress in enacting them).
United States v. Sewell, 76 M.J. 14 (an appellate court reviews questions of improper argument and prosecutorial misconduct de novo).
(when preserved by objection, allegations of improper argument are reviewed by an appellate court de novo to determine whether the military judge’s ruling constitutes an abuse of discretion; on the other hand, if there is no objection at trial, appellant has the burden of establishing the prejudice; in either case, reversal is warranted only when the trial counsel’s comments, taken as a whole, were so damaging that the appellate court cannot be confident that the members convicted appellant on the basis of the evidence alone).
United States v. Pabelona, 76 M.J. 9 (improper argument involves a question of law that this Court reviews de novo; the legal test for improper argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused).
(where a defense counsel fails to object to the arguments of trial counsel at the time of trial, an appellate court reviews for any error for plain error; and the standard for plain error review requires that: (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights; the burden lies with appellant to establish plain error).
(even were an appellate court to conclude that prosecutorial misconduct occurred, relief is merited only if that misconduct actually impacted on a substantial right of an accused, that is, resulted in prejudice).
(prosecutorial misconduct by a trial counsel will require reversal when the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone).
(where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that the appellant was sentenced on the basis of the evidence alone).
(in assessing prejudice in cases of prosecutorial misconduct, an appellate court looks at three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; no determination has been made regarding how much weight to give each factor; however, if the third factor overwhelmingly favors the government, that may be sufficient to establish lack of prejudice).
United States v. Gomez, 76 M.J. 76 (where appellant did not object to the testimony of sentencing witnesses, an appellate court applies a plain error framework in addressing the admissibility of that evidence).
(for an appellant to establish plain error, he bears the burden of establishing the following three prongs: (1) there was error; (2) the error was clear or obvious; and (3) the error materially prejudiced a substantial right; as all three prongs must be satisfied, the failure to establish any one of the prongs is fatal to a plain error claim).
United States v. McClour, 76 M.J. 23 (whether a panel was properly instructed is a question of law reviewed de novo).
(where there was no objection to an instruction at trial, an appellate court reviews that instruction for plain error).
(with respect to plain error, an appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; the failure to establish any one of the prongs is fatal to a plain error claim; and in determining whether an error is clear or obvious, an appellate court looks to law at the time of the appeal).
United States v. Wilson, 76 M.J. 4 (an appellate court reviews questions of legal sufficiency de novo; when reviewing for legal sufficiency, it considers 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).
(an appellate court reviews questions of statutory construction de novo).
(it is axiomatic that in determining the scope of a statute, an appellate court looks first to its language).
(the President has the power to prescribe regulations for trial procedures, including modes of proof, for cases arising under the UCMJ; however, this power does not extend to Part IV of the MCM, and an appellate court is not bound by the President’s interpretation of the elements of substantive offenses; still, when the President’s narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and an appellate court will not normally disturb that construction).
2015 (September Term)
United States v. Sterling, 75 M.J. 407 (the legality of an order is a question of law that an appellate court reviews de novo).
(appellate review of the requirements of the RFRA, although largely factual in nature, presents mixed questions of fact and law; an appellate court reviews legal questions, including the application of RFRA, de novo; factual findings are reviewed for clear error).
Howell v. United States, 75 M.J. 386 (jurisdiction is a question of law that an appellate court reviews de novo).
(under the facts of this case, where appellant’s conviction and sentence, including a reduction from E-6 to E-1 were set aside and he was pending a rehearing, there was no intent to punish the accused by paying him as an E-1 while he was performing duties as and wearing the uniform of an E-6; thus, no violation of Article 13, UCMJ, occurred and the military judge abused his discretion in awarding confinement credit).
United States v. Witt, 75 M.J. 380 (the disqualification of an appellate judge may be evaluated for harmlessness by examining three factors: the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process).
United States v. Harrell, 75 M.J. 359 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion, considering the evidence in the light most favorable to the prevailing party; while a military judge’s findings of fact are reviewed for clear error, conclusions of law are reviewed de novo).
United States v. Hills, 75 M.J. 350 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion).(the meaning and scope of MRE 413 is a question of law that an appellate court reviews de novo).
(in this case, an appellate court must first review de novo the meaning and scope of MRE 413 to determine whether the military judge’s admission of charged conduct under MRE 413 was guided by erroneous legal conclusions, before determining whether the military judge abused his discretion in admitting the MRE 413 evidence as propensity evidence).
(instructional errors are reviewed by an appellate court de novo, and that court evaluates a military judge’s instructions in the context of the overall message conveyed to the members).
(if instructional error is found when there are constitutional dimensions at play, an appellate court tests an appellant’s claims for prejudice under the standard of harmless beyond a reasonable doubt; the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to appellant’s conviction or sentence; an error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction).
EV v. United States, 75 M.J. 331 (an appellate court reviews questions of jurisdiction de novo).
(in construing statutes, jurisdictional and otherwise, an appellate court applies the accepted rules of statutory construction, and one is that an unambiguous statute is to be enforced according to its terms; when a statute’s language is plain, the sole function of the courts, at least where the disposition required by the text is not absurd, is to enforce it according to its terms).
United States v. Martin, 75 M.J. 321 (the question of whether trial defense counsel invited an error at trial is a question of law, which an appellate court reviews de novo).
United States v. Evans, 75 M.J. 302 (the protections afforded to servicemembers under Article 31(b), UCMJ, are in many respects broader than the rights afforded to those servicemembers under the Fifth Amendment of the Constitution; accordingly, when an Article 31(b), UCMJ, violation occurs in a particular case, the appropriate test for prejudice depends upon the facts and circumstances presented; if the Article 31(b), UCMJ, violation also implicates the constitutional rights of the accused, then the harmless beyond a reasonable doubt test applies; but if the Article 31(b), UCMJ, violation stands alone as a statutory violation (that is, if the violation does not also present a constitutional violation), then the nonconstitutional test for prejudice spelled out in US v. Kerr, 51 MJ 401, 405 (CAAF 1999) applies).
(what standard of review to apply is a question of law that is reviewed by an appellate court de novo).
(the mere fact that Article 31(b), UCMJ, rights have a constitutional analog does not change the means by which those rights are ultimately conferred, i.e., by statute, nor does it otherwise convert those statutory rights into constitutional rights; indeed, Article 31(b), UCMJ, derives primarily from statutory enactment, not constitutional adjudication; and Article 31(b), UCMJ, rights are in certain respects more extensive than those provided under the Fifth Amendment; therefore, when it comes to such rights, the Constitution prescribes a floor, not a ceiling; in light of these circumstances, violations of Article 31(b), UCMJ, must be viewed as falling into one of two distinct categories: either (a) purely statutory violations; or (b) statutory violations that also present a constitutional violation; this dichotomy leads to the following determination about the appropriate prejudice test that must be applied in each instance: (a) purely statutory violations must be tested for prejudice under the factors provided in US v. Kerr, 51 MJ 401, 405 (CAAF 1999); and (b) statutory violations that also present a constitutional violation must be tested for prejudice under the harmless beyond a reasonable doubt standard).
United States v. Caldwell, 75 M.J. 276 (questions pertaining to the substance of a military judge’s instructions, as well as those involving statutory interpretation, are reviewed by an appellate court de novo).
United States v. Rogers, 75 M.J. 270 (an appellate court’s standard of review on a challenge for cause premised on implied bias is less deferential than abuse of discretion, but more deferential than de novo review; under this standard, an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; indeed, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted; however, an appellate court will afford a military judge less deference if an analysis of the implied bias challenge on the record is not provided; in cases where less deference is accorded, the analysis logically moves more towards a de novo standard of review).
United States v. Gay, 75 M.J. 264 (CAAF reviews a CCA’s sentence appropriateness determination for abuse of discretion).
(the scope and meaning of Article 66(c), UCMJ, is a matter of statutory interpretation, which, as a question of law, is reviewed de novo).
United States v. Cooley, 75 M.J. 247 (an appellate court reviews questions of statutory interpretation de novo).
(an appellate court reviews de novo the question of whether the accused was denied his right to a speedy trial under Article 10, UCMJ, as a matter of law; it is similarly bound by the facts as found by the military judge unless those facts are clearly erroneous; when speedy trial allegations involve several specifications, each specification must be considered separately).
(in examining reasonable diligence under Article 10, UCMJ, an appellate court must remain mindful that it is looking at the proceeding as a whole and not mere speed, and it gives substantial deference to the military judge’s findings of fact unless they are clearly erroneous).United States v. Chin, 75 M.J. 220 (the scope and meaning of both Article 66(c), UCMJ, and Article 61, UCMJ, are matters of statutory interpretation, questions of law reviewed de novo).
United States v. Killion, 75 M.J. 209 (where the defense has preserved an instructional error for appeal, an appellate court reviews the adequacy of the military judge’s panel instruction de novo; and if instructional error is found, an appellant’s claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt; it is also clear that it is solely the government’s burden to persuade the court that constitutional error is harmless beyond a reasonable doubt).
United States v. Atchak, 75 M.J. 193 (an appellate court reviews questions of statutory interpretation de novo).
(CAAF generally reviews a CCA’s action under Article 66, UCMJ, for an abuse of discretion).
United States v. Henning, 75 M.J. 187 (in an Article 62, UCMJ, appeal, an appellate court reviews a military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial).
(an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews the judge’s factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; thus, on a mixed question of law and fact, 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 calls for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
(an appellate court reviews de novo whether the Daubert (US v. Daubert, 509 US 579 (1993)) framework for the admissibility of expert testimony was correctly followed; as long as the Daubert framework is properly followed, an appellate court will not overturn the ruling unless it is manifestly erroneous).
(where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted).
United States v. Rapert, 75 M.J. 164 (an appellate court reviews an issue of statutory construction de novo).
(if the speech involved in wrongfully communicating a threat under Article 134, UCMJ, is protected under the First Amendment, and the government has successfully carried its burden of proving the elements the offense, then a court may undertake to determine whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger; this is a question of proximity and degree).
(in conducting a legal sufficiency review, an appellate court approaches this question in the light most favorable to the prosecution).
(there is a fundamental difference between suggesting that the constitutionally protected status of speech may affect legal sufficiency and suggesting that legal sufficiency review can be used to determine whether an appellant’s speech is constitutionally protected; only the former assertion is correct; the constitutionally protected status of conduct may affect legal sufficiency, but not vice versa).
(because the military is, by necessity, a specialized society separate from civilian society, the right of free speech in the armed services is not unlimited and must be brought into balance with the paramount consideration of providing an effective fighting force for the defense of the country; to achieve this balance, a court must first weigh the gravity of the evil posed by the speech at issue against the probability of this evil’s manifestation; if the resulting danger justifies the invasion of free speech necessary to avoid it, the rights of individual servicemembers must yield to the needs of the nation, and this is a question of law that an appellate court reviews de novo).
United States v. Pease, 75 M.J. 180 (CAAF reviews questions of law de novo).
United States v. Gifford, 75 M.J. 140 (whether a mens rea requirement applies to a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption is a question of law that an appellate court reviews de novo).
United States v. Wilder, 75 M.J. 135 (the conclusion whether an accused received a speedy trial is a legal question that is reviewed de novo).
United States v. Williams, 75 M.J. 129 (the test for legal sufficiency is 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).
United States v. Hoffmann, 75 M.J. 120 (an appellate court reviews a military judge’s ruling on a motion to suppress evidence for an abuse of discretion, viewing the evidence in the light most favorable to the party prevailing below; that means that an appellate court reviews the military judge’s findings of fact for clear error but her conclusions of law de novo).
(an appellate court does not review a probable cause determination de novo; instead, its duty is to make sure that the authorizing official had a substantial basis for concluding that probable cause existed; sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others).
United States v. Captain, 75 M.J. 99 (an appellate court reviews claims of ineffective assistance of counsel de novo, giving substantial deference to a military judge’s findings of fact unless they are clearly erroneous).
(to prevail on an ineffective assistance claim, appellant bears the burden of proving that the performance of defense counsel was deficient and that he was prejudiced by the error; with respect to deficiency prong, courts indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; as to the prejudice prong, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different; in this case, the prejudice analysis requires that the appellate court determine whether there was a reasonable probability that, but for the alleged errors, the adjudged sentence would have been less than that provided in the pretrial agreement).
(an appellate court need not apply the two pronged ineffective assistance of counsel test in any particular order; rather, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed).
(whether a convening authority has met the requirements of RCM 1107 in taking his action, as a question of law, is reviewed de novo).
United States v. Busch, 75 M.J. 87 (an appellate court reviews questions of constitutional law de novo; if a constitutional error is found, whether it is harmless beyond a reasonable doubt is also reviewed de novo).
(the maximum punishment authorized for an offense is a question of law, which an appellate court reviews de novo; while the court reviews a military judge’s sentencing determination under an abuse of discretion standard, where a military judge’s decision was influenced by an erroneous view of the law, that decision constitutes an abuse of discretion).
United States v. Riggins, 75 M.J. 78 (an appellate court conducts a de novo review to determine whether one offense is a lesser included of another).
(where a conviction violated appellant’s constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged, such a constitutional error does not require automatic reversal, but instead is tested for prejudice).
(a constitutional error is harmless when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; for preserved constitutional errors, the government bears the burden of establishing that the error is harmless beyond a reasonable doubt).
United States v. Bess, 75 M.J. 70 (an appellate court reviews a military judge’s decision to admit or exclude evidence for abuse of discretion; this standard requires more than just our disagreement with the military judge’s decision; instead, an abuse of discretion occurs when the military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law).
(for constitutional errors, the government must persuade an appellate court that the error was harmless beyond a reasonable doubt; this is a question of law which an appellate court reviews de novo; and in this review, an appellate court will not look at some hypothetical reasonable panel, but at whether the guilty verdict actually rendered in the trial was surely unattributable to the error).
United States v. LaBella, 75 M.J. 52 (the burden to establish jurisdiction rests with the party invoking the court’s jurisdiction).
2014 (September Term)
United States v. Stellato, 74 M.J. 473 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s rulings directly).
(a military judge’s discovery rulings and remedies for discovery violations are reviewed for an abuse of discretion).
(the abuse of discretion standard calls for more than a mere difference of opinion; instead, an abuse of discretion occurs when the military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law).
(in an Article 62, UCMJ, appeal, an appellate court is bound by the facts as found by the military judge unless those facts are clearly erroneous).
(in determining whether discovery violations have prejudiced an accused’s right to a fair trial, a military judge may examine (1) whether the delayed disclosure hampered or foreclosed a strategic option, (2) whether the belated disclosure hampered the ability to prepare a defense, (3) whether the delay substantially influenced the factfinder, and (4) whether the nondisclosure would have allowed the defense to rebut evidence more effectively; in essence, prejudice can arise from discovery violations when those violations interfere with an accused’s ability to mount a defense).
(in this case, the military judge did not abuse his discretion in finding prejudice from the discovery violations where the violations resulted in the inability of the defense to call a key witness and the violations resulted in lost evidence, unaccounted for evidence, and evidence left in the hands of an interested party, thus compromising the ability of the accused to mount a defense; furthermore, the military judge, after considering all possible lesser, alternative remedies, did not abuse his discretion in concluding that no remedy short of dismissal with prejudice would adequately address the prejudice).
United States v. Sullivan, 74 M.J. 448 (an appellate court reviews claims of error in the selection of members of courts-martial de novo as questions of law; it also conducts a de novo review to determine whether an error in member selection is harmless).
(an appellate court reviews a military judge’s disqualification decision for an abuse of discretion; a military judge’s ruling constitutes an abuse of discretion if it is arbitrary, fanciful, clearly unreasonable or clearly erroneous, not if an appellate court merely would reach a different conclusion).
(an appellate court applies an objective standard for identifying an appearance of bias with respect to a military judge by asking whether a reasonable person knowing all the circumstances would conclude that the military judge’s impartiality might reasonably be questioned).
United States v. Akbar, 74 M.J. 364 (an appellate court reviews ineffective assistance of counsel claims de novo; to prevail, appellant must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense; an attorney is deficient when his representation falls below an objective standard of reasonableness).
(to prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) his counsel’s performance fell below an objective standard of reasonableness, and (2) the counsel’s deficient performance gives rise to a reasonable probability that the result of the proceeding would have been different without counsel’s unprofessional errors).
(an appellate court is required to be highly deferential in its review of counsel’s performance, and it must presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment; further, it is constrained by the principle that strategic choices made by trial defense counsel are virtually unchallengeable after thorough investigation of the law and the facts relevant to the plausible options).
(an appellate court does not measure deficiency based on the success of a trial defense counsel’s strategy, but instead examines whether counsel made an objectively reasonable choice in strategy from the available alternatives; similarly, an appellate court must remain mindful that counsel have wide latitude in making tactical decisions; thus, an appellate court’s scrutiny of a trial defense counsel’s performance is highly deferential, and it makes every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate conduct from counsel’s perspective at the time).
(an appellant is prejudiced by counsel’s deficient performance where there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome; in the capital sentencing context, an appellate court reweighs the evidence in aggravation against the totality of available mitigating evidence to determine if there is a reasonable probability that the panel would have returned a different sentence).
(trial defense counsel have a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary; strategic choices made by counsel after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; in considering whether an investigation was thorough, an appellate court addresses not what is prudent or appropriate, but only what is constitutionally compelled; the notion that the same type and breadth of investigation will be required in every case has been rejected).
(in determining whether there was ineffective assistance of counsel, an appellate court does not assess trial defense counsels’ performance through the prism of appellate hindsight and then apply its own subjective view of how it thinks defense counsel should have conducted the trial; rather, it is obligated to determine whether trial defense counsels’ performance fell below an objective standard of reasonableness and, if so, whether there was a reasonable probability that the result of the proceeding would have been different absent counsels’ deficient performance).
(an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel).
(in a capital case, if trial defense counsels’ mitigation presentation was deficient, in order to determine if prejudice has been established, an appellate court asks whether if the members had been able to place the additional evidence on the mitigating side of the scale, there is a reasonable probability that at least one member would have struck a different balance; the new mitigating evidence must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing).
(to prevail under the plain error standard, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights).
(assuming that trial counsel’s arguments were improper, in the plain error context, an appellate court determines whether the cumulative effect of an improper sentencing argument impacted the accused’s substantial rights and the fairness and integrity of his trial; this inquiry examines whether trial counsel’s comments, taken as a whole, were so damaging that the court cannot be confident that the appellant was sentenced on the basis of the evidence alone).
(the fact that trial defense counsel did not see fit to object to trial counsel’s sentencing argument is some measure that the argument had minimal impact).
(a challenge for change of venue based on pervasive pretrial publicity is reviewed by an appellate court for an abuse of discretion).
(servicemembers are entitled to have their cases adjudged by fair and impartial court-martial panels whose evaluation is based solely upon the evidence, not pretrial publicity; pretrial publicity by itself is not enough, however, for a change of venue; instead, an accused is entitled to a change of venue if the pretrial publicity creates so great a prejudice against the accused that the accused cannot obtain a fair and impartial trial).
(the CAAF does not adopt the ABA Guidelines in analyzing capital defense counsels’ performance; instead it adheres to the Supreme Court’s guidance that no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant; it examines whether counsel made objectively reasonable choices based on all the circumstances of a case).
(a denial by the CCA of an appellant’s request for appellate assistance by mental health experts is reviewed for an abuse of discretion by the CAAF; an abuse of discretion arises if the CCA’s factual findings are clearly erroneous or if its decision is based on a misapplication of the law).
(ordinarily, an appellate court reviews the adequacy of a military judge’s instructions de novo; however, if an appellant fails to object to the instruction at trial, the appellate court reviews for plain error).
(when evaluating the voluntariness of a statement, an appellate court reviews the totality of the circumstances to determine whether appellant’s will was overborne and his capacity for self-determination was critically impaired; this inquiry examines the accused’s age, education, experience and intelligence).
(in a capital case, failing to charge aggravating factors regarded as elements is an Apprendi error subject to harmless error review to determine whether the constitutional error was harmless beyond a reasonable doubt; where appellant preserved the charging issue at trial, the government bears the burden of establishing the error was harmless beyond a reasonable doubt; a specification’s failure to allege an element is not harmless if this error frustrated an accused’s right to notice and opportunity to zealously defend himself).
United States v. Quick, 74 M.J. 332 (when considering whether to overrule a precedent, an appellate court is guided by the doctrine of stare decisis; under this fundamental principle, adherence to precedent is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process; stare decisis is a principle of decision making, not a rule, and need not be applied when the precedent at issue is unworkable or badly reasoned; as a general matter, however, adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right).
(under the doctrine of stare decisis, a decision should not be overruled without examining intervening events, reasonable expectations of servicemembers, and the risk of undermining public confidence in the law).
(for purposes of an appellate court’s analysis under the doctrine of stare decisis, the court does not limit its review to whether the prior precedent was wrongly decided, but rather it examines whether the prior decision is unworkable or poorly reasoned, any intervening events, the reasonable expectations of servicemembers, and the risk of undermining public confidence in the law).
United States v. Schloff, 74 M.J. 312 (an appellate court reviews de novo questions of statutory interpretation and whether a specification states an offense).
(in the absence of any specific statutory definition of a word in a statute, a court looks to the ordinary meaning of the word).
(canons of statutory construction are tools designed to help courts better determine what Congress intended, not to lead courts to interpret the law contrary to that intent; however, these rules of thumb give way when the words of a statute are unambiguous).
United States v. Plant, 74 M.J. 297 (an appellate court reviews the legal sufficiency of an offense de novo; to determine whether evidence is legally sufficient, the court asks 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; this determination is based on the evidence before the factfinder).
United States v. Murphy, 74 M.J. 302 (an appellate court will not disturb a guilty plea unless appellant has demonstrated that there is a substantial basis in law or fact for questioning the plea).
(an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo).
(it is axiomatic that in determining the scope of a statute, an appellate court looks first to its language; it further looks to provisions of related statutes; the same interpretive process is applied when analyzing a rule promulgated by the President in the MCM).
United States v. McIntosh, 74 M.J. 294 (in reviewing for ineffectiveness of counsel, an appellate court looks at the questions of deficient performance and prejudice de novo).
(there is a strong presumption that defense counsel’s performance was within the wide range of reasonable professional assistance).
United States v. Nettles, 74 M.J. 289 (personal jurisdiction claims are reviewed by an appellate court de novo).
(the law of discharges for the purposes of criminal jurisdiction is judicially created, and therefore an appellate court is free to modify it).
(because of the duties imposed by military status, an appellate court reviews the laws and regulations governing enlistment and separation with sensitivity; this is especially salient in the context of most reserve personnel, who inherently occupy a gray area and are therefore most in need of clear rules so as to guide their conduct).
United States v. Katso, 74 M.J. 273 (whether evidence is testimonial hearsay is a question of law reviewed by an appellate court de novo).
(an appellate court reviews a military judge’s ruling on a motion to exclude evidence for an abuse of discretion, considering the evidence in the light most favorable to the prevailing party; also, an appellate court will not overturn factual findings unless they are clearly erroneous or unsupported by the record).
(determining whether an expert witness’s testimony has violated the Confrontation Clause requires asking two questions: first, did the expert’s testimony rely in some way on out-of-court statements that were themselves testimonial; second, if so, was the expert’s testimony nonetheless admissible because he reached his own conclusions based on knowledge of the underlying data and facts, such that the expert himself, not the out-of-court declarant, was the witness against the accused under the Sixth Amendment).
(for the purposes of the Confrontation Clause, a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; in making this determination, a court asks whether it would be reasonably foreseeable to an objective person that the purpose of any individual statement is evidentiary, considering the formality of the statement as well as the knowledge of the declarant).
United States v. Blouin, 74 M.J. 247 (an appellate court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion; if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; in reviewing a military judge’s decision to accept a guilty plea, an appellate court applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea; additionally, any ruling based on an erroneous view of the law also constitutes an abuse of discretion).
United States v. Woods, 74 M.J. 238 (a military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion; military judges are afforded a high degree of deference on rulings involving actual bias; this reflects, among other things, the importance of demeanor in evaluating the credibility of a member’s answers during voir dire; by contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion, but more deferential than de novo).
(the test for implied bias is, ultimately in the military context, one of public perception: unlike the test for actual bias, an appellate court looks to an objective standard in determining whether implied bias exists; the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel; in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered; the test takes into account, among other distinct military factors, the confidence appellate courts have that military members will follow the instructions of military judges and thus, while it will often be possible to rehabilitate a member on a possible question of actual bias, questions regarding the appearance of fairness may nonetheless remain; the question before an appellate court is whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; to answer this question, an appellate court reviews the totality of the circumstances, and assumes the public to be familiar with the unique structure of the military justice system).
United States v. Keefauver, 74 M.J. 230 (when reviewing a decision of a CCA on a military judge’s ruling, the CAAF typically pierces through that intermediate level and examines the military judge’s ruling, and then decides whether the CCA was right or wrong in its examination of the military judge's ruling).
(an appellate court reviews a military judge’s decision to suppress evidence for an abuse of discretion; factfinding is reviewed under the clearly erroneous standard while conclusions of law are reviewed de novo; evidence is considered in the light most favorable to the prevailing party).
(whether facts in toto justify a protective sweep is a question of law).
United States v. Ward, 74 M.J. 225 (where there is a nonconstitutional error in the application of Article 25, UCMJ, an appellate court must determine if the error materially prejudiced the substantial rights of the accused under Article 59(a), UCMJ).
(an appellate court reviews prejudice determinations under a de novo standard of review).
United States v. Carter, 74 M.J. 204 (a military judge's decision to admit or exclude evidence at sentencing is reviewed for an abuse of discretion).
(with respect to a military judge's decision to admit or exclude evidence at sentencing, a military judge is given wide discretion and more deference if he or she properly conducts a MRE 403 balancing test and articulates his or her reasoning on the record).
United States v. Simmermacher, 74 M.J. 196 (when evidence is lost or destroyed, a military judge’s failure to abate proceedings is reviewed for an abuse of discretion).
(an abuse of discretion occurs when a court’s findings of fact are clearly erroneous or the decision is influenced by an erroneous view of the law).
United States v. Muwwakkil, 74 M.J. 187 (an appellate court reviews a military judge’s decision to strike testimony under the Jencks Act and RCM 914 using an abuse of discretion standard).
United States v. Castillo, 74 M.J. 160 (to successfully advance a facial challenge to the constitutional validity of a statute or regulation, the challenger must establish that no set of circumstances exists under which the regulation would be valid).
(interpretation of a service instruction is a question of law that is reviewed by an appellate court de novo).
(questions of constitutional law are reviewed by an appellate court de novo, including a question of whether a self-reporting requirement of civilian arrests conflicts with the Fifth Amendment privilege against self-incrimination).
United States v. Torres, 74 M.J. 154 (an appellate court reviews de novo the instructions given by a military judge).
(in determining whether appellant was prejudiced by a military judge’s instructional error on findings, an appellate court applies a harmlessness analysis: whether it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error).
United States v. Norman, 74 M.J. 144 (an appellate court reviews a military judge’s application of MRE 701 for an abuse of discretion).
(an appellate court conducts de novo review of whether an error, constitutional or otherwise, was harmless; for nonconstitutional errors, the government must demonstrate that the error did not have a substantial influence on the findings; an appellate court determines whether prejudice resulted from an erroneous evidentiary ruling by weighing four factors: (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).
(an appellate court reviews the issue of legal sufficiency de novo).
(in reviewing for legal sufficiency of the evidence, the relevant question an appellate court must answer 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 standard does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, rather it requires that a reviewing court examine only whether any rational trier of fact could have made that determination; this standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts, and preserves the factfinder’s role as weigher of the evidence; in other words, an appellate court’s decision does not hinge on whether or how the parties’ lists of circumstantial evidence or negating factors stack up against each other; rather, it hinges on whether reasonable factfinders could have drawn inferences one way or the other under a given set of circumstances; an appellate court evaluates whether there is an avenue through which a rational factfinder could find the essential elements of the crime).
United States v. Adams, 74 M.J. 137 (an appellate court reviews a military judge’s admission of evidence for an abuse of discretion).
United States v. Olson, 74 M.J. 132 (a military judge’s decision to admit or 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).
(in reviewing a military judge’s finding that a consent to search was voluntary, an appellate court reviews the evidence in the light most favorable to the prevailing party at trial; and it will not overturn a military judge’s finding that a consent to search was voluntary unless it was unsupported by the evidence or clearly erroneous).
(although recognizing that voluntariness of a consent to search is determined from the totality of the circumstances, an appellate court focuses on six nonexclusive Wallace factors (US v. Wallace, 66 MJ 5 (CAAF 2008)) to assist in analyzing the voluntariness of a consent to search: (1) the degree to which the suspect’s liberty was restricted, (2) the presence of coercion or intimidation, (3) the suspect’s awareness of her right to refuse to consent based on inferences of the suspect’s age, intelligence, and other factors, (4) the suspect’s mental state at the time, (5) the suspect’s consultation, or lack thereof, with counsel, and (6) the coercive effects of any prior violations of the suspect’s rights).
United States v. Piolunek, 74 M.J. 107 (while members are not presumed to be suited to make legal determinations of constitutional law, they are presumed to be competent to make factual determinations as to guilt; when jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error; the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, because jurors are well equipped to analyze the evidence; moreover, in the absence of evidence indicating otherwise, a jury is presumed to have complied with the instructions given them by the judge).
United States v. Buford, 74 M.J. 98 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed below).
(in reviewing a military judge’s ruling on a motion to suppress, an appellate court reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard).
(when an appeal presents a mixed question of law and fact, an appellate court will find that a military judge abused her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect; a finding by an appellate court that a military judge abused her discretion requires more than a mere difference of opinion).
United States v. Morita, 74 M.J. 116 (an appellate court reviews questions of jurisdiction de novo).
United States v. McFadden, 74 M.J. 87 (an appellate court will not reverse a military judge’s determination on a mistrial absent clear evidence of an abuse of discretion).
(absent evidence to the contrary, court members are presumed to comply with the military judge’s instructions).
United States v. Newton, 74 M.J. 69 (when faced with the task of distinguishing between a substantive and an interpretative agency rule, appellate courts use some variation of the legal effects test; the critical question under the legal effects test is whether the rule imposes a duty on affected parties; if it does, the rule is substantive; this inquiry looks primarily at the language of the statute to determine the substance of the congressional enactment and the scope of the agency’s delegated authority, and then compares this to the language of the rule).
(an appellate court reviews de novo the question whether an agency’s rule is substantive or interpretative as a matter of law).
United States v. Gutierrez, 74 M.J. 61 (in reviewing for legal sufficiency of the evidence, the relevant question an appellate court must answer 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; further, in resolving questions of legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution).
United States v. Castillo, 74 M.J. 39 (an appellate court reviews implied bias challenges pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review).
(RCM 912(f)(1)(N) sets the basis for an implied bias challenge, which stems from the historic concerns about the real and perceived potential for command influence in courts-martial; unlike the test for actual bias, an appellate court looks to an objective standard in determining whether implied bias exists; the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel; in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered; while cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well).
United States v. Peters, 74 M.J. 31 (an appellate court reviews implied bias challenges pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review; whereas a military judge can observe the demeanor of the court members in order to determine credibility in the case of actual bias, cases of implied bias are based upon an objective test and therefore the military judge is given less deference in such cases).
(although an appellate court does not expect record dissertations from the military judge’s decision on implied bias, it does require a clear signal that the military judge applied the right law; incantation of the legal test without analysis is rarely sufficient in a close case).
(where a military judge determines not to grant the challenge, additional analysis on the record will better inform appellate courts in their review and determination as to whether there was an abuse of discretion; a military judge is afforded less deference if an analysis of the implied bias challenge on the record is not provided).
(RCM 912(f)(1)(N) sets the basis for an implied bias challenge, which stems from the historic concerns about the real and perceived potential for command influence in courts-martial; unlike the test for actual bias, an appellate court looks to an objective standard in determining whether implied bias exists; the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel).
(in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered; while cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well).
(at times, appellate courts have cast the test for implied bias as one asking whether most people in the same position would be prejudiced; that may well inform the implied bias analysis, but this question is better oriented to objectively evaluate actual bias than to serve as the test for implied bias).
(an appellate court tests for implied bias not on the subjective qualities of the panel member, but on the effect that panel member’s presence will have on the public’s perception of whether the appellant’s trial was fair; thus, although a panel member’s good character can contribute to a perception of fairness, it is but one factor that must be considered in the context of the other issues raised concerning that individual’s panel membership).
United States v. Piren, 74 M.J. 24 (an appellate court reviews a military judge’s admission of the evidence for an abuse of discretion; under that analysis, findings of fact are reviewed for clear error and conclusions of law are reviewed de novo; the abuse of discretion standard is strict, calling for the challenged action to be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
(a search may be conducted with lawful consent; consent is a factual determination, and a military judge’s findings will not be disturbed on appeal unless unsupported by the evidence or clearly erroneous; courts evaluate voluntariness with regard to consent based on the totality of circumstances; where the government has prevailed on a motion to suppress, an appellate court reviews the evidence in the light most favorable to the government).
United States v. Phillips, 74 M.J. 20 (a military judge has significant discretion in deciding whether to accept an accused’s guilty pleas, and appellant bears the burden of establishing that the military judge abused that discretion, i.e., that the record shows a substantial basis in law or fact to question the plea).
United States v. Gilbreath, 74 M.J. 11 (the question of whether Article 31(b), UCMJ, applies in the circumstance of an active duty servicemember questioning a member of the IRR, as a question of law, is reviewed de novo).
(when there is a motion to suppress a statement on the ground that rights’ warnings were not given, an appellate court reviews a military judge’s findings of fact on a clearly-erroneous standard, and it reviews conclusions of law de novo; under these standards, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).
United States v. Vargas, 74 M.J. 1 (an appellate court reviews issues of jurisdiction and statutory interpretation de novo).
2013 (September Term)
United States v. MacDonald, 73 M.J. 426 (the adequacy of a military judge’s instructions is reviewed by an appellate court de novo).
(where an instructional error raises constitutional implications, an appellate court tests the error for prejudice using a harmless beyond a reasonable doubt standard; the test for determining if the constitutional error is harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; whether the error is harmless beyond a reasonable doubt is a question of law that an appellate court reviews de novo).
United States v. McPherson, 73 M.J. 393 (interpreting Article 12, UCMJ, is an issue of statutory interpretation, which an appellate court reviews de novo).
(as in all statutory construction cases, a court begins with the language of the statute; the first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case; the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent; whether the statutory language is ambiguous is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole).
(a court must presume that a legislature says in a statute what it means and means in a statute what it says there).
(when the words of a statute are unambiguous, judicial inquiry is complete).
(when a statute is a part of a larger Act, the starting point for ascertaining legislative intent is to look to other sections of the Act in pari materia with the statute under review).
(one rule of statutory interpretation is that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, Congress intentionally and purposely intended the disparate inclusion or exclusion).
(a court has no license to generate a statutory conflict where none exists or to construe statutes in a way that undercuts the clearly expressed intent of Congress).
United States v. Moon, 73 M.J. 382 (an appellate court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion; the test for an abuse of discretion in accepting a guilty plea is whether the record shows a substantial basis in law or fact for questioning the plea; an appellate court must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty plea; the mere possibility of a conflict is not sufficient).
United States v. Davenport, 73 M.J. 373 (whether a record is complete and a transcript is verbatim are questions of law that an appellate court reviews de novo).
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).
(the conclusion whether an accused received a speedy trial is a legal question that is reviewed de novo).
(an appellate court reviews interpretations of RCM provisions de novo).
United States v. Jones, 73 M.J. 357 (an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion).
(when there is a motion to suppress a statement on the ground that rights’ warnings were not given, an appellate court reviews the military judge’s findings of fact on a clearly-erroneous standard, and it reviews conclusions of law de novo; on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).
(whether a questioner was acting or could reasonably be considered to be acting in either an official law enforcement or disciplinary capacity is a question of law that is reviewed by an appellate court de novo).
United States v. Treat, 73 M.J. 331 (whether there was a fatal variance in a charged offense is a question of law reviewed de novo).
(when counsel fails to object at trial, an appellate court reviews a military judge’s findings by exceptions and substitutions for plain error; under plain error review, appellant 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).
(in order to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby).
(the test for whether a variance in a charged offense is material is whether it substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense).
(a variance from the charged offense can prejudice an appellant by (1) putting him at risk of another prosecution for the same conduct, (2) misleading him to the extent that he has been unable adequately to prepare for trial, or (3) denying him the opportunity to defend against the charge).
(an appellate court looks closely at the specifics of the defense’s trial strategy when determining whether a material variance denied an accused the opportunity to defend against a charge; in so doing, it considers how the defense channeled its efforts and what defense counsel focused on or highlighted).
United States v. Elespuru, 73 M.J. 326 (a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege; there is a presumption against the waiver of constitutional rights, although no magic words are required to establish a waiver; the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case).
United States v. Flesher, 73 M.J. 303 (an appellate court reviews de novo the question of whether the military judge properly performed the required gatekeeping function of MRE 702 (the rule governing the testimony by expert witnesses), i.e. whether the military judge properly followed the Daubert (509 US 579 (1993)) framework; however, it reviews for abuse of discretion the decision by the military judge to permit a person to testify as an expert witness, the limitations he placed on the scope of her permitted testimony, and his enforcement of those limitations).
(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).
(when the standard of review is abuse of discretion, and an appellate court does not have the benefit of a military judge’s analysis of the facts before him, that court cannot grant the great deference it generally accords to a trial judge’s factual findings because it has no factual findings to review; nor does it have the benefit of the military judge’s legal reasoning in determining whether he abused his discretion).
(when a military judge does not hold a Daubert (509 US 579 (1993)) hearing and does not address the Houser (36 MJ 392 (1993)) factors in some manner, an appellate court will generally show less deference to that military judge’s decisions on the admissibility of the testimony of expert witnesses).
(under Article 59(a), UCMJ, a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; the test for nonconstitutional evidentiary error is whether the error had a substantial influence on the findings; importantly, it is the government that bears the burden of demonstrating that the admission of erroneous evidence is harmless; to determine whether the government has carried its burden, an appellate court weighs four factors: (1) the strength of the government’s case; (2) the strength of the defense’s case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question).
United States v. Cimball Sharpton, 73 M.J. 299 (questions of law, including questions of legal sufficiency, are reviewed by an appellate court de novo).
(the appellate standard 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).
United States v. Paul, 73 M.J. 274 (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).
(an appellate court reviews questions of law de novo).
(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).
United States v. Davis, 73 M.J. 268 (an appellate court reviews the adequacy of a military judge’s instruction de novo; where an instructional error raises constitutional implications, the error is tested for prejudice using a harmless beyond a reasonable doubt standard; in assessing prejudice under this standard, the government must prove beyond a reasonable doubt that the error did not contribute to the accused’s conviction or sentence; in applying the harmless beyond a reasonable doubt standard, an appellate court asks whether a rational panel could have found appellant not guilty if it had been instructed properly).
United States v. Frey, 73 M.J. 245 (improper argument involves a question of law that an appellate court reviews de novo; the legal test for improper argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused; where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that the accused was sentenced on the basis of the evidence alone).
(three factors are balanced to assess whether misconduct, including improper sentencing argument, impacted the accused’s substantial rights and the integrity of his trial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction).
United States v. Janssen, 73 M.J. 221 (whether Congress has “by law” vested the Secretary of Defense, the head of a department, with the authority to appoint a civilian as an appellate military judge under the Appointments Clause is a question of law that an appellate court reviews de novo).
United States v. Talkington, 73 M.J. 212 (an appellate court reviews a military judge’s sentencing instructions for an abuse of discretion, and a military judge abuses his discretion when the instructions are based on an erroneous view of the law or are not tailored to the case’s facts and circumstances).
United States v. Danylo, 73 M.J. 183 (an appellate court reviews de novo Sixth Amendment speedy trial issues).
(in analyzing an appellant’s speedy trial right, an appellate court gives substantial deference to the military judge’s findings of fact unless they are clearly erroneous).
(in determining whether an appellant has been denied his right to a speedy trial under the Sixth Amendment, an appellate court considers the following factors: (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant).
United States v. Kearns, 73 M.J. 177 (an appellate court reviews challenges to the legal sufficiency of the evidence de novo).
(the standard for determining the legal sufficiency of evidence supporting a guilty verdict 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).
(when reviewing evidence for legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution).
United States v. Gutierrez, 73 M.J. 172 (an appellate court reviews questions of legal sufficiency de novo; 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; in performing its legal review, the appellate court is not limited to appellant’s narrow view of the record; further, the appellate question is not whether the evidence is better read one way or the other, but whether under Jackson v. Virginia, 443 US 307, 319 (1979), a reasonable factfinder reading the evidence one way could have found all the elements of the offense beyond a reasonable doubt).
(a criminal defendant is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts; this review should not be confused with the problems caused by inconsistent verdicts; sufficiency-of-the evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt; this review should be independent of the jury’s determination that evidence on another count was insufficient; the government must convince the jury with its proof, and must also satisfy the courts that given this proof the jury could rationally have reached a verdict of guilty beyond a reasonable doubt; further safeguards against jury irrationality are unnecessary).
United States v. Hornback, 73 M.J. 155 (where proper objection is entered at trial, an appellate court reviews alleged prosecutorial misconduct for prejudicial error).
(in determining whether prejudice resulted from prosecutorial misconduct, an appellate court will look at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; the best approach to the prejudice inquiry requires the balancing of three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction).
(prosecutorial misconduct by a trial counsel will require reversal when the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone).
United States v. Finch, 73 M.J. 144 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion).
(an error by the military judge in failing to advise an accused of the nature of the offense and the correct definition of its legal concepts does not always render a guilty plea improvident; where the record contains factual circumstances that objectively support the guilty plea to a more narrowly construed statute or legal principle, the guilty plea may be accepted).
(to prevail on a claim that a guilty plea was improvident, an appellant has the burden to demonstrate a substantial basis in law and fact for questioning the plea; the mere possibility of a conflict between an appellant’s plea and statements or other evidence in the record is not a sufficient basis to overturn the trial results).
United States v. Hines, 73 M.J. 119 (the question whether wrongful receipt of money on a recurring basis constitutes one crime for the total amount, or multiple offenses for the amount received in each instance, is a question of law, which an appellate court reviews de novo).
(an appellate court must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty plea; the mere possibility of a conflict is not sufficient).
United States v. Wicks, 73 M.J. 93 (in an Article 62, UCMJ, interlocutory appeal, an appellate court reviews a military judge’s decision directly and reviews evidence in the light most favorable to the prevailing party at trial; in reviewing a military judge’s ruling on a motion to suppress, the court reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; the same standard is applied when reviewing evidentiary rulings; on mixed questions of law and fact, 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 calls for more than a mere difference of opinion; the challenged action must be arbitrary, clearly unreasonable, or clearly erroneous).
(where the government obtains evidence in a search conducted pursuant to one of the exceptions to the warrant requirement, it bears the burden of establishing that the exception applies).
United States v. Moss, 73 M.J. 64 (whether the personal authorization of an appellant is required to appeal to an appellate court is a legal issue which the appellate court reviews de novo).
(where all of the evidence relating to whether appellant personally authorized an appeal is in the record and is not disputed, the issue before the court necessarily reduces to a question of law).
United States v. Knapp, 73 M.J. 33 (where an appellant has not preserved an objection to evidence by making a timely objection, that error will be forfeited in the absence of plain error; a timely and specific objection is required so that the court is notified of a possible error, and so has an opportunity to correct the error and obviate the need for appeal; to be timely, an objection must normally be made before the answer is given, although some courts permit objections or motions to strike immediately after the answer).
(with respect to plain error standard of review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights).
(under the plain error standard of review, in determining whether an error was clear or obvious, appellate court looks to law at the time of the appeal).
(under the plain error standard of review, an obvious error materially prejudices the substantial rights of the accused when it has an unfair prejudicial impact on the court members’ deliberations).
United Statesv. Passut, 73 M.J. 27 (a military judge’s acceptance of a guilty plea is reviewed for an abuse of discretion; a ruling based on an erroneous view of the law constitutes an abuse of discretion; the test for an abuse of discretion is whether the record shows a substantial basis in law or fact for questioning the plea).
United States v. Payne, 73 M.J. 19 (the question of whether the members were properly instructed is a question of law and thus review by an appellate court is de novo).
(where there is no objection to an instruction at trial, an appellate court reviews for plain error).
(under a plain error analysis, 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).
(the failure to instruct on an element does not constitute structural error and can be tested for harmlessness, overruling US v. Mance, 26 MJ 244 (CMA 1988)).
United States v. Winckelmann, 73 M.J. 11 (in light of the experience, training, and independence of military judges, CCAs act with broad discretion when reassessing sentences; a CCA’s reassessment will only be disturbed in order to prevent obvious miscarriages of justice or abuses of discretion).
(when determining whether to reassess a sentence or to order a sentence rehearing, CCAs should consider the totality of the circumstances presented; the following factors are illustrative, rather than exhaustive or dispositive, points of analysis that CCAs should consider when determining whether to reassess a sentence or order a rehearing: (1) dramatic changes in the penalty landscape and exposure; (2) whether an appellant chose sentencing by members or a military judge alone; in this regard, as a matter of logic, judges of the CCAs are more likely to be certain of what a military judge would have done as opposed to members, and this factor could become more relevant where charges address service custom, service discrediting conduct, or conduct unbecoming; (3) whether the nature of the remaining offenses capture the gravamen of criminal conduct included within the original offenses and, in related manner, whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses; and (4) whether the remaining offenses are of the type that judges of the CCAs should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial).
(when determining whether to reassess a sentence or to order a sentence rehearing, where a CCA conducts a reasoned and thorough analysis of the totality of the circumstances presented, greater deference is warranted on review before the CAAF).
United States v. Warner, 73 M.J. 1 (when not objected to at trial, defects in an indictment are reviewed for plain error).
(under plain error review, appellant 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).
(the test for constitutional notice that conduct is subject to criminal sanction is one of law; it does not turn on whether an appellate court approves or disapproves of the conduct in question).
United States v. Merritt, 72 M.J. 483 (whether a military judge correctly understood and applied the proper legal principle in denying a motion to dismiss is a question that an appellate court reviews de novo).
(a four-factor test is employed to review claims of unreasonable post-trial delay, evaluating (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation).
2012 (September Term)
United States v. Salyer, 72 M.J. 415 (allegations of unlawful command influence are reviewed by an appellate court de novo).
(on appeal, the accused bears the initial burden of raising unlawful command influence; appellant must show: (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; thus, the initial burden of showing potential unlawful command influence is low, but is more than mere allegation or speculation; the quantum of evidence required to raise unlawful command influence is some evidence).
(once an issue of unlawful command influence is raised by some evidence, the burden shifts to the government to rebut an allegation of unlawful command influence by persuading the court beyond a reasonable doubt that (1) the predicate facts do not exist, (2) the facts do not constitute unlawful command influence, or (3) the unlawful command influence did not affect the findings or sentence).
(allegations of unlawful command influence are reviewed for actual unlawful command influence as well the appearance of unlawful command influence; even if there was no actual unlawful command influence, there may be a question whether the influence of command placed an intolerable strain on public perception of the military justice system; the test for the appearance of unlawful influence is objective, focusing upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; an appearance of unlawful command influence arises where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding).
(an appellate court’s review of unlawful influence in a given case is not limited to actual influence; an appellate court is concerned not only with eliminating actual unlawful influence, but also with eliminating even the appearance of unlawful command influence at courts-martial).
LRM v. Kastenberg, 72 M.J. 364 (jurisdiction is a question of law that an appellate court reviews de novo).
(construction of a military rule of evidence, as well as the interpretation of statutes, the UCMJ, and the RCM, are questions of law reviewed by an appellate court de novo).
United States v. Brown, 72 M.J. 359 (an appellate court reviews a military judge’s control of the mode of witness interrogation pursuant to MRE 611 for abuse of discretion; similarly, an appellate court reviews a military judge’s exercise of reasonable control over the proceedings pursuant to RCM 801 for abuse of discretion; for a ruling to be an abuse of discretion, it must be more than a mere difference of opinion; rather it must be arbitrary, fanciful, clearly unreasonable or clearly erroneous).
United States v. Wilson, 72 M.J. 347 (an appellate court reviews de novo the question of whether an accused was denied his right to a speedy trial under Article 10, UCMJ, as a matter of law; however, it is bound by the facts as found by the military judge unless those facts are clearly erroneous).
(the standard of diligence under which an appellate court reviews claims of a denial of speedy trial under Article 10 is not constant motion, but reasonable diligence in bringing the charges to trial; short periods of inactivity are not fatal to an otherwise active prosecution).
(an appellate court’s framework to determine for Article 10 purposes whether the government proceeded with reasonable diligence in bringing an accused to trial includes balancing the four Barker v. Wingo (407 US 514, 530 (1972)) factors: (1) the length of the delay; (2) the reasons for the delay; (3) whether appellant made a demand for a speedy trial; and (4) prejudice to appellant; none of the four factors has any talismanic power; rather, a court must weigh all the factors collectively before deciding whether appellant’s right to a speedy trial has been violated).
United States v. Schell, 72 M.J. 339 (an appellate court reviews questions of law arising from a guilty plea de novo).
(a military judge’s acceptance of an accused’s guilty plea is reviewed by an appellate court for an abuse of discretion; the test for an abuse of discretion is whether the record shows a substantial basis in law or fact for questioning the plea; for an appellate court to find a plea of guilty to be knowing and voluntary, the record of trial must reflect that the elements of each offense charged have been explained to the accused by the military judge; if the military judge fails to explain the elements to an accused, it is reversible error unless it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty; rather than focusing on a technical listing of the elements of an offense, an appellate court looks at the context of the entire record to determine whether an accused is aware of the elements, either explicitly or inferentially).
United States v. Porter, 72 M.J. 335 (given that the error in the admission of testimonial evidence in violation of the confrontation clause is constitutional, the question is not whether the evidence was legally sufficient without the testimonial evidence, but whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction; this determination is made on the basis of the entire record).
United States v. Mott, 72 M.J. 319 (whether a panel was properly instructed is a question of law that an appellate court reviews de novo).
(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; 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; 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 certain cases, even when the evidence in the record may well have supported the military judge’s decision, the military judge may nonetheless have abused his discretion where the military judge’s ruling was based on a misapprehension of the applicable law and the military judge’s findings failed to address the relevant considerations).
(constitutional errors are reviewed by an appellate court for harmlessness beyond a reasonable doubt; constitutional error is not harmless beyond a reasonable doubt if there is a reasonable possibility that the evidence complained of might have contributed to the conviction; this determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case; erroneous admission of a confession requires an appellate court to exercise extreme caution before determining that the admission of the confession at trial was harmless).
United States v. Hutchins, 72 M.J. 294 (for an error in admitting a statement obtained in violation of the Fifth Amendment right to have counsel present during a custodial interrogation to be harmless beyond a reasonable doubt, an appellate court must be convinced that there was no reasonable likelihood that its erroneous admission contributed to the verdict).
United States v. Squire, 72 M.J. 285 (whether a statement is inadmissible testimonial hearsay under the Confrontation Clause as interpreted in Crawford v. Washington (541 US 36 (2004)), is a question of law that an appellate court reviews de novo).
United States v. Jasper, 72 M.J. 276 (a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; to find an abuse of discretion requires more than a mere difference of opinion; the challenged ruling must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
(where an appellate court finds constitutional error, the question remains whether that error was harmless beyond a reasonable doubt; whether a constitutional error was harmless beyond a reasonable doubt is a question of law reviewed de novo).
(where a constitutional error improperly limits an accused’s opportunity to present exculpatory evidence through direct testimony and cross-examination, the burden is on the government to show that there is no reasonable possibility that the error contributed to the contested findings of guilty).
(to find that a constitutional error limiting an accused’s opportunity to present exculpatory evidence through direct testimony and cross-examination warrants relief, an appellate court need not conclude that appellant’s defense would have succeeded; instead the inquiry focuses on whether the military judge’s ruling essentially deprived appellant of his best defense that may have tipped the credibility balance in appellant’s favor).
(where a constitutional error violates the accused’s right to be confronted with the witnesses against him, an appellate court applies a balancing test, weighing the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case).
United States v. Bennitt, 72 M.J. 266 (an appellate court reviews questions of legal sufficiency de novo).
(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).
(an appellate court reviews questions of law, such as the interpretation and statutory construction of Article 119(b)(2), UCMJ, de novo).
United States v. Kelly, 72 M.J. 237 (an appellate court reviews a military judge’s decision to suppress or admit evidence for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law).
(in order to determine whether a search is reasonable, a court must balance its intrusion against its promotion of legitimate governmental interests; the test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts).
United States v. Gaskins, 72 M.J. 225 (where a defective specification: (1) was tried prior to the decision in Fosler (70 MJ 225 (CAAF 2011)) and (2) was raised for the first time on appeal, an appellate court tests that error for prejudice, which turns on whether that error frustrated an accused’s right to notice and opportunity to zealously defend himself, which depends in turn on whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted).
(an appellate court applies the elements test to determine whether one offense is an LIO of another; applying normal rules of statutory interpretation and construction, an appellate court will determine whether the elements of the LIO would necessarily be proven by proving the elements of the greater offense).
United States v. Goings, 72 M.J. 202 (an appellate court reviews whether a statute is unconstitutional as applied de novo).
(to determine if a statute is unconstitutional as applied, an appellate court conducts a fact-specific inquiry).
(upon plain error review, to prove that Article 134, UCMJ - a facially constitutional criminal statute - is unconstitutional as applied to him, appellant must point to particular facts in the record that plainly demonstrate why his interests should overcome Congress’ and the President’s determinations that his conduct be proscribed; put another way, to show that a facially constitutional statute is unconstitutional as applied to a particular individual, the individual must develop facts at trial that show why his interest should overcome the determination of Congress and the President that the conduct be proscribed).
(when the sexual conduct being charged does not fall directly within the focal point of Lawrence (539 US 558 (2003)) - sexual conduct between two individuals in a wholly private setting that was criminal for no other reason than the act of the sexual conduct itself – and where, as here, the predicate sexual conduct is criminal because of some additional factor (in this case, the violation of clauses 1 and 2 of Article 134, UCMJ), the burden of demonstrating that such conduct should nonetheless be constitutionally protected rests with the defense at trial).
(having found plain and obvious error that was forfeited rather than waived where the government failed to allege the terminal element in an Article 134, UCMJ, specification charged before Fosler (70 MJ 225 (CAAF 2011)), an appellate court must then determine whether there is a remedy for the error, which will depend on whether the error has prejudiced the substantial rights of the accused; in the context of a defective specification, the prejudice analysis demands close review of the trial record; the court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted).
United States v. Tunstall, 72 M.J. 191 (whether an offense is a lesser included offense is a question of law that is reviewed de novo).
(where there was no objection to an instruction at trial, an appellate court reviews for plain error; under a plain error analysis, 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).
(an appellate court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO of Y; offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements).
(failure to allege the terminal element in an Article 134 adultery specification constitutes plain and obvious error, and resolution of the case will depend upon whether the error has prejudiced the substantial rights of the accused; an appellate court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted; in making this inquiry, the court is limited to considering evidence contained in the trial record).
United States v. Coleman, 72 M.J. 184 (an appellate court will not reverse a military judge’s determination on a mistrial absent clear evidence of an abuse of discretion).
(an appellate court reviews all cases in which the trial counsel failed to disclose evidence that is favorable to the defense on the issue of guilt or sentencing for harmless error - whether there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different).
(there are two categories of disclosure error: (1) cases in which the defense either did not make a discovery request or made only a general request for discovery; and (2) cases in which the defense made a specific request for the undisclosed information; for cases in the first category, an appellate court applies the harmless error standard; and for cases in the second category, an appellate court applies the heightened constitutional harmless beyond a reasonable doubt standard; 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).
(an appellate court’s review of discovery/disclosure issues utilizes a two-step analysis: first, it determines whether the information or evidence at issue was subject to disclosure or discovery; second, if there was nondisclosure of such information, it tests the effect of that nondisclosure on the appellant’s trial).
United States v. Solomon, 72 M.J. 176 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
(when a military judge articulates his properly conducted MRE 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion).
(a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; when a military judge abuses his discretion in the MRE 403 balancing analysis, the error is nonconstitutional; for a nonconstitutional error such as this one, the government has the burden of demonstrating that the error did not have a substantial influence on the findings).
United States v. Lubich, 72 M.J. 170 (on appeal, an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; 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. Caldwell, 72 M.J. 137 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion; it will not reject the plea unless there is a substantial basis in law and fact for questioning the guilty plea).
United States v. Riley, 72 M.J. 115 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion; an abuse of discretion occurs when there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea).
(in order to determine whether a guilty plea is knowing and voluntary, an appellate court looks to the record of trial and the documents considered by the court below).
United States v. Irizarry, 72 M.J. 100 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion).
United States v. Tearman, 72 M.J. 54 (whether admitted evidence constitutes testimonial hearsay is a question of law reviewed de novo).
(relief for Confrontation Clause errors will be granted only where they are harmless beyond a reasonable doubt; whether a constitutional error was harmless beyond a reasonable doubt is a question of law reviewed de novo; in the context of the erroneous admission of testimonial hearsay, the harmless beyond a reasonable doubt inquiry of an appellate court focuses on whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction).
(to determine whether a Confrontation Clause error is harmless beyond a reasonable doubt, an appellate court balances factors such as: (1) the importance of the unconfronted testimony in the prosecution’s case, (2) whether that testimony was cumulative, (3) the existence of corroborating evidence, (4) the extent of confrontation permitted, and (5) the strength of the prosecution’s case; this list of factors is not exhaustive, and the determination is made on the basis of the entire record; to conclude that a Confrontation Clause error was harmless beyond a reasonable doubt, an appellate court must be convinced that the testimonial hearsay was unimportant in light of everything else the court members considered on the issue in question).
United States v. Cote, 72 M.J. 41 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews findings of fact under the clearly erroneous standard and conclusions of law de novo).
(on direct review of an issue which was previously the subject of an Article 62, UCMJ, interlocutory appeal, CAAF reviews whether the military judge’s initial decision was an abuse of discretion).
United States v. Vazquez, 72 M.J. 13 (the constitutionality of an act of Congress is a question of law that an appellate court reviews de novo; to determine if a statute is unconstitutional as applied, an appellate court conducts a fact-specific inquiry).
(the accused has the burden to demonstrate that a statute is unconstitutional).
(given the plenary authority of Congress, itself subject to the requirements of the Due Process Clause, to legislate in the area of rules relating to the rights of servicemembers at courts-martial, an appellate court must recognize that the choices made by Congress and the President in establishing the procedures for courts-martial under Article 29(b), UCMJ, and RCM 805(d) are entitled to a high degree of deference; while it is axiomatic that an accused is entitled to a fair trial, absent an argument that the statutory scheme is facially unconstitutional, or an accused demonstrating that it is unconstitutional as applied to him, an appellate court presume that the statutory scheme established by Congress and implemented by the President constitutes both the parameters of what process is due and a fair trial in the military context).
(to determine whether Article 29(b), UCMJ, and the procedures to implement it set forth in RCM 805(d)(1) are unconstitutional as applied to the accused, the accused has the burden to demonstrate that the factors militating in favor of the accused’s interest are so extraordinarily weighty as to overcome the balance struck by Congress).
United States v. Clifton, 71 M.J. 489 (under a plain error analysis, this Court will grant relief in a case of nonconstitutional error only if an appellant can demonstrate that (1) there was error; (2) the error was plain and obvious; and (3) the error materially prejudiced a substantial right of the accused).
(an appellate court reviews a military judge’s denial of a panel member’s request to recall a witness for abuse of discretion).
(appellant bears the burden to show prejudice in the absence of an objection at trial and in the context of a nonconstitutional error).
United States v. Halpin, 71 M.J. 477 (because appellant did not object to trial counsel’s sentencing arguments at trial, an appellate court reviews the propriety of the arguments for plain error; to prevail under a plain error analysis, appellant has the burden of showing, inter alia, that the alleged errors materially prejudiced a substantial right).
(in assessing prejudice under the plain error test where prosecutorial misconduct has been alleged, an appellate court looks at the cumulative impact of any prosecutorial misconduct on appellant’s substantial rights and the fairness and integrity of his trial; the best approach to the prejudice determination with respect to findings involves balancing three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; in the context of an allegedly improper sentencing argument, an appellate court considers whether trial counsel’s comments, taken as a whole, were so damaging that it cannot be confident that appellant was sentenced on the basis of the evidence alone).
United States v. Spicer, 71 M.J. 470 (an appellate court reviews questions of legal sufficiency de novo; the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, any reasonable fact-finder could have found all the essential elements beyond a reasonable doubt).
United States v. Garner, 71 M.J. 430 (whether a court-martial panel was properly instructed is a question of law reviewed by an appellate court de novo).
(under plain error review, an appellate court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused).
United States v. Datavs, 71 M.J. 420 (to establish ineffective assistance of counsel, an accused must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice).
(in reviewing for ineffectiveness of counsel, an appellate court looks at the questions of deficient performance and prejudice de novo).
(with respect to the first prong of establishing ineffective assistance of counsel, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance).
(with respect to the second prong of establishing ineffective assistance of counsel, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different; the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt; it is not enough to show that the errors had some conceivable effect on the outcome; instead, a reasonable probability is a probability sufficient to undermine confidence in the outcome).
(defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so).
(when reviewing ineffectiveness claims, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the accused; rather, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed).
Hasan v. Gross, 71 M.J. 416 (to prevail on a writ of mandamus, appellant must show that: (1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances).
(the standard for identifying the appearance of bias requiring the recusal of a military judge is objective: any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned).
United States v. Wilkins, 71 M.J. 410 (whether an offense is a lesser included offense is a question of law that an appellate court reviews de novo).
(where there was no objection to a lesser included offense instruction at trial, an appellate court reviews for plain error).
(under a plain error analysis, appellant 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).
(an appellate court applies the elements test to determine whether one offense is an LIO of another; the test does not require that the offenses at issue employ identical statutory language; rather, after applying normal rules of statutory interpretation and construction, an appellate court will determine whether the elements of the LIO would necessarily be proven by proving the elements of the greater offense).
(an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; rather, an appellate court tests for prejudice).
(where appellant failed to object at trial to a lesser included offense instruction, he bears the burden of proving prejudice; he must show that under the totality of the circumstances in this case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice).
2011 (September Term)
United States v. Vela, 71 M.J. 283 (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; this familiar standard gives full play to the responsibility of the trier of fact to draw reasonable inferences from basic facts to ultimate facts; the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution).
(whether the government has shown by a preponderance of the evidence that it has based appellant’s prosecution on sources independent of the immunized statements is a preliminary question of fact; an appellate court will not overturn a military judge’s resolution of this question unless it is clearly erroneous or is unsupported by the evidence).
(in reviewing for clear error, an appellate court asks whether, on the entire evidence, it is left with the definite and firm conviction that a mistake has been committed).
United States v. Ali, 71 M.J. 256 (jurisdiction is a legal question which an appellate court reviews de novo).
(the constitutionality of an act of Congress is a question of law that an appellate court reviews de novo).
(where an appellant argues that a statute is unconstitutional as applied, an appellate court must conduct a fact-specific inquiry).
(to succeed in an as-applied challenge that the exercise of court-martial jurisdiction violated his rights under the Fifth and Sixth Amendments, appellant must show that he was entitled to Fifth and Sixth Amendment protections and that, under the facts of this case, these protections were violated when he was subjected to military jurisdiction).
United States v. Barnett, 71 M.J. 248 (an appellate court reviews issues concerning non-mandatory instructions for an abuse of discretion).
United States v. Behenna, 71 M.J. 228 (an allegation that the members were improperly instructed is an issue that an appellate court reviews de novo).
(in reviewing the propriety of an instruction, appellate courts must read each instruction in the context of the entire charge and determine whether the instruction completed its purpose).
(when instructional errors have constitutional implications, as instructions involving self-defense do, then the error is tested for prejudice under a harmless beyond a reasonable doubt standard; only when the reviewing authority is convinced beyond a reasonable doubt that the error did not contribute to appellant’s conviction or sentence is a constitutional error harmless).
(generally, a superfluous, exculpatory instruction that does not shift the burden of proof is harmless, even if the instruction is otherwise erroneous).
(once a Brady v. Maryland, 373 US 83 (1963), discovery violation is established, courts need not test for harmlessness; this makes sense; if there is a reasonable probability that the evidence would have changed the result at trial, then, by definition, the failure to disclose cannot be harmless; there is no need to conduct a redundant test).
United States v. Rauscher, 71 M.J. 225 (whether a specification states an offense is a question of law that an appellate court reviews de novo).
United States v. Humphries, 71 M.J. 209 (whether a specification is defective and the remedy for such error are questions of law, which an appellate court reviews de novo).
(where the law was settled at the time of trial and has subsequently changed, an appellate court applies the law as it exists today).
(a defective specification does not constitute structural error or warrant automatic dismissal; an accused’s claim that a charge fails to allege all elements of an offense can be raised at any time during court-martial or appellate proceedings under RCM 907(b)(1)(B); however, where defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error, which, in most cases, will turn on the question of prejudice).
(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).
(in contested cases where the error in a defective specification that failed to allege the terminal element was preserved, each case must be reviewed for harmless error to determine whether the constitutional error to the accused’s right to notice under the Fifth and Sixth Amendments was harmless beyond a reasonable doubt).
(in the plain error context, a defective specification alone is insufficient to constitute substantial prejudice to a material right; an appellate court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted).
United States v. Norwood, 71 M.J. 204 (whether a specification is defective and the remedy for such error are questions of law, which an appellate court reviews de novo).
United States v. Easton, 71 M.J. 168 (the constitutionality of a statute is a question of law that an appellate court reviews de novo).
(an appellate court reviews a military judge’s findings of fact under a clearly erroneous standard).
United States v. Rose, 71 M.J. 138 (to establish ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice).
(the Strickland ineffective assistance of counsel test applies in the context of guilty pleas where an appellant challenges the plea based on ineffective assistance of counsel).
(ineffective assistance of counsel claims involve mixed questions of law and fact; an appellate court reviews factual findings under a clearly erroneous standard, but looks at the questions of deficient performance and prejudice de novo).
(in determining whether a counsel’s performance was deficient in a claim of ineffective assistance of counsel, appellate courts must indulge a strong presumption that the counsel’s conduct falls within the wide range of reasonable professional assistance).
(in determining whether there was prejudice in a claim of ineffective assistance of counsel, an appellant in a guilty plea case establishes prejudice by showing that, but for counsel’s deficient performance, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial).
(in order to establish deficient performance in a claim of ineffective assistance of counsel, an appellant must establish that counsel’s representation amounted to incompetence under prevailing professional norms).
(while an appellate court indulges a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, there are nevertheless important guides by which it must measure that conduct, one of which is the Rules of Professional Conduct).
(when defects in a specification are raised for the first time on appeal because of intervening changes in the law, an appellate court tests for plain error and will only dismiss the specification if there is prejudice).
United States v. Barberi, 71 M.J. 127 (where a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside).
(the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; however, an exception to the general verdict rule is where one of the grounds of the conviction is found to be unconstitutional; if a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision).
(if, under the instructions to the members, one way of committing the offense charged is to perform an act protected by the Constitution, the rule requires that a general verdict of guilt be set aside even if appellant’s unprotected conduct, considered separately, would support the verdict).
(most constitutional errors, i.e., non-structural ones, constitute trial errors and are subject to harmless error review).
(a constitutional trial error is not harmless beyond a reasonable doubt where there is a reasonable possibility that the evidence complained of might have contributed to the conviction; to say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the members considered on the issue in question, as revealed in the record; an error in admitting plainly relevant evidence which possibly influenced the members adversely to a litigant cannot be conceived of as harmless).
United States v. Ignacio, 71 M.J. 125 (whether a panel was properly instructed is a question of law reviewed de novo).
United States v. Dease, 71 M.J. 116 (an appellate court reviews a military judge’s evidentiary ruling on a motion to suppress for an abuse of discretion).
(in order to find an abuse of discretion in a military judge’s evidentiary ruling, an appellate court must find that the judge committed a clear error in his conclusions).
United States v. Hayes, 71 M.J. 112 (the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all of the essential elements beyond a reasonable doubt).
United States v. Nash, 71 M.J. 83 (appellate courts will review a military judge’s ruling on a challenge for cause for actual bias for abuse of discretion).
(because a challenge based on actual bias involves judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire, a military judge’s ruling on actual bias is afforded great deference).
(great deference that is afforded a military judge’s ruling on actual bias of a panel member is not a separate standard; rather, it is a recognition by appellate courts that the legal question of actual bias rests heavily on the sincerity of an individual’s statement that he or she can remain impartial, an issue approximating a factual question on which the military judge is given greater latitude of judgment; the standard, however, remains an abuse of discretion).
United States v. McClain, 71 M.J. 80 (an appellate court reviews issues of legal sufficiency of the evidence de novo).
(evidence is legally sufficient if, viewed in the light most favorable to the government, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt; in applying this test, an appellate court draws every reasonable inference from the evidence of record in favor of the prosecution).
United States v. Nealy, 71 M.J. 73 (jurisdiction is a legal question that an appellate court reviews de novo).
United States v. Stanley, 71 M.J. 60 (whether a panel was properly instructed is a question of law reviewed by an appellate court de novo).
United States v. Watson, 71 M.J. 54 (while an appellate court generally examines a military judge’s decision to accept a guilty plea for abuse of discretion, where the issue appealed involves pure questions of law, it utilizes a de novo review).
(when a statute’s language is plain, the sole function of the courts, at least where the disposition required by the text is not absurd, is to enforce it according to its terms).
(a court must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty plea; the mere possibility of a conflict is not sufficient).
United States v. King, 71 M.J. 50 (whether a specification states an offense is a question of law that is reviewed de novo).
(in reviewing the adequacy of a specification, the analysis is limited to the language as it appears in the specification, which must expressly allege the elements of the offense, or do so by necessary implication).
United States v. Weeks, 71 M.J. 44 (an appellate court reviews a military judge’s decision to accept a plea of guilty for abuse of discretion).
(an appellate court reviews questions of law, such as whether appellant falsely made a check or whether something constitutes a signature or writing, de novo).
(if an accused’s admissions in the plea inquiry do not establish each of the elements of the charged offense, the guilty plea must be set aside).
United States v. Stewart, 71 M.J. 38 (absent evidence to the contrary, an appellate court may presume that members follow a military judge’s instructions).
United States v. Ballan, 71 M.J. 28 (while it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication, in the context of a guilty plea, where the error is alleged for the first time on appeal, whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused).
(an appellate court reviews jurisdictional questions de novo).
(a jurisdictional defect goes to the underlying authority of a court to hear a case; however, where an error is procedural rather than jurisdictional in nature, an appellate court tests for material prejudice to a substantial right to determine whether relief is warranted).
(whether a specification is defective and the remedy for such error are questions of law, which an appellate court reviews de novo).
(while in the case of a guilty plea where the appellant raises the validity of a specification for the first time on appeal, an appellate court views the specification with maximum liberality; such construction still does not permit the court to necessarily imply a separate and distinct element from nothing beyond allegations of the act or failure to act itself).
(while the rules state that a charge or specification that fails to state an offense should be dismissed, a charge that is defective because it fails to allege an element of an offense, if not raised at trial, is tested for plain error).
(in the context of a plain error analysis, appellant has the burden of demonstrating: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of appellant).
United States v. Campbell, 71 M.J. 19 (a military judge’s decision to deny relief for unreasonable multiplication of charges is reviewed for an abuse of discretion).
United States v. Bradley, 71 M.J. 13 (an appellate court reviews assertions of ineffective assistance of counsel de novo).
(in the guilty plea context, the first part of the Strickland ineffective assistance of counsel test remains the same - whether counsel’s performance fell below a standard of objective reasonableness expected of all attorneys; the second prong is modified to focus on whether the ineffective performance affected the outcome of the plea process).
(in determining whether appellant was denied effective assistance of counsel, it is not necessary to decide the issue of deficient performance when it is apparent that the alleged deficiency has not caused prejudice).
(to satisfy the prejudice requirement for ineffective assistance of counsel, appellant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial; a reasonable probability is a probability sufficient to undermine confidence in the outcome; that requires a substantial, not just conceivable, likelihood of a different result).
(when an appellant argues that counsel was ineffective for erroneously waiving a motion, it makes sense to deny the claim if the appellant would not be entitled to relief on the erroneously waived motion, because appellant cannot show he was harmed by not preserving the issue).
(merely being entitled to relief on an erroneously waived motion does not by itself satisfy the prejudice analysis for an ineffective assistance of counsel claim in the guilty plea context; appellant also must satisfy a separate, objective inquiry - he must show that if he had been advised properly, then it would have been rational for him not to plead guilty).
United States v. Fry, 70 M.J. 465 (when an accused contests personal jurisdiction on appeal, an appellate court reviews that question of law de novo, accepting the military judge’s findings of historical facts unless they are clearly erroneous or unsupported in the record; whether appellant is mentally competent is a question of fact, and an appellate court will only set aside findings of fact if they are clearly erroneous).
United States v. Hayes, 70 M.J. 454 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo; an abuse of discretion occurs when there exists something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea).
United States v. Morrissette, 70 M.J. 431 (whether the government has shown, by a preponderance of the evidence, that it has based an accused’s prosecution on sources independent of his immunized statements is a preliminary question of fact; an appellate court will not overturn a military judge’s resolution of that question unless it is clearly erroneous or is unsupported by the evidence).
(factors used to determine whether the government made direct or indirect use of an accused’s immunized statements include (1) whether the statements reveal anything which was not already known to the government by virtue of the accused’s own pretrial statements, (2) whether the investigation against the accused was completed prior to the immunized statement, (3) whether the decision to prosecute the accused had been made prior to the immunized statement, and (4) whether the trial counsel who had been exposed to the immunized testimony participated in the prosecution; however, these factors are not necessarily determinative as to whether the government has or has not met its burden; that is because the ultimate question is whether the government has made any direct or derivative use of immunized evidence, not whether it adhered to a particular timeline or process).
United States v. St. Blanc, 70 M.J. 424 (the interpretation of UCMJ and RCM provisions and the military judge’s compliance with them are questions of law, which an appellate court reviews de novo).
(the maximum punishment authorized for an offense is a question of law, which an appellate court reviews de novo).
United States v. Winckelmann, 70 M.J. 403 (an appellate court reviews issues of legal sufficiency de novo).
(evidence is legally sufficient if, viewed in the light most favorable to the government, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; in applying this test, an appellate court must draw every reasonable inference from the evidence of record in favor of the prosecution).
(if a servicemember on appeal alleges error in the application of a sentence that involves forfeitures, the servicemember must demonstrate that the alleged error was prejudicial; to establish prejudice, an appellant bears the burden of demonstrating that he or she was entitled to pay and allowances at the time of the alleged error).
United States v. Goodman, 70 M.J. 396 (once a military judge has accepted an accused’s guilty pleas and entered findings of guilty, an appellate court will not set them aside unless it finds a substantial basis in law or fact for questioning the plea).
(in determining on appeal whether there is a substantial inconsistency in a guilty plea, an appellate court considers the full context of the plea inquiry, including appellant’s stipulation of fact).
United States v. Pierce, 70 M.J. 391 (whether a specification alleged all elements of an offense and whether instructions were proper are questions of law, which an appellate court reviews de novo).
United States v. Schumacher, 70 M.J. 387 (an allegation of error in regard to a failure to give a mandatory instruction is reviewed de novo).
2010 (September Term)
United States v. Ellerbrock, 70 M.J. 314 (an appellate court reviews a military judge’s ruling on whether to exclude evidence pursuant to MRE 412 for an abuse of discretion; findings of fact are reviewed under a clearly erroneous standard, and conclusions of law are reviewed de novo).
(an appellate court tests constitutional evidentiary error to see if it was harmless beyond a reasonable doubt - whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction).
(to determine whether an error affecting an accused’s right to cross-examination was harmless beyond a reasonable doubt, an appellate court considers the following nonexclusive, five factors: the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case).
United States v. Sweeney, 70 M.J. 296 (where appellant forfeited rather than waived his right to object to the admission of a drug testing report on Confrontation Clause grounds, an appellate court reviews for plain error).
(under plain error review, an appellate court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused; where the alleged error is constitutional, the prejudice prong is fulfilled where the government cannot show that the error was harmless beyond a reasonable doubt).
(an appellate court grants relief for Confrontation Clause errors only where they are not harmless beyond a reasonable doubt; among other factors, the court considers the importance of the unconfronted testimony in the prosecution’s case, whether that testimony was cumulative, the existence of corroborating evidence, the extent of confrontation permitted, and the strength of the prosecution’s case).
(in assessing harmlessness in the constitutional context, the question is not whether the evidence was legally sufficient to uphold a conviction without the erroneously admitted evidence; rather, the question is whether there is a reasonable probability that the evidence complained of might have contributed the conviction; this determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case).
United States v. Baker, 70 M.J. 283 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews the judge’s factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; thus on a mixed question of law and fact, 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 calls for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).
(when reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the prevailing party).
(where a military judge provides a detailed ruling on pretrial eyewitness identification evidencing an accurate understanding of the Biggers reliability factors (Neil v. Biggers, 409 US 188 (1973)) and their application to the facts on the record, an appellate court gives deference to his ruling in its analysis).
(with respect to pretrial identification, reviewing courts must determine whether under the totality of the circumstances the pretrial identification procedure was reliable even though the confrontation procedure itself was unnecessarily suggestive).
United States v. Gaddis, 70 M.J. 248 (in determining whether the exclusion of evidence of a witness’s bias or motive to fabricate deprived an accused of a fair trial or an opportunity for cross-examination is whether a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination).
United States v. Eslinger, 70 M.J. 193 (a military judge’s decisions to admit or exclude evidence are reviewed for an abuse of discretion).
(under the plain error test, after finding plain or obvious error, an appellate court tests for prejudice).
(to test the erroneous admission or exclusion of evidence during the sentencing portion of a court-martial for prejudice, an appellate court determines if the error substantially influenced the adjudged sentence).
United States v. Schuber, 70 M.J. 180 (an appellate court reviews de novo the question of whether appellant was denied his rights to a speedy trial under Article 10, UCMJ, as a matter of law, and it is bound by the facts as found by the military judge unless those facts are clearly erroneous; under Article 10, UCMJ, when any person subject to the UCMJ is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him; in reviewing claims of a denial of a speedy trial under Article 10, UCMJ, the term “immediate steps” has been interpreted to mean not constant motion, but reasonable diligence in bringing the charges to trial; thus, the government must demonstrate reasonable diligence in proceeding toward trial during appellant’s pretrial confinement; however, brief inactivity is not fatal to an otherwise active, diligent prosecution; the test is reasonable diligence, not textbook prosecution).
(although Article 10, UCMJ, creates a more stringent speedy trial standard than a Sixth Amendment analysis, alleged Article 10, UCMJ, violations are analyzed using the same Barker v. Wingo [407 US 514 (1972)] four-factor structure: (1) the length of the delay, (2) the reasons for the delay, (3) whether appellant made a demand for speedy trial, and (4) prejudice to appellant; the first factor is to some extent a triggering mechanism, and unless there is a period of delay that appears, on its face, to be unreasonable under the circumstances, there is no necessity for inquiry into the other factors that go into the balance).
(whether the amount of time is facially unreasonable in an Article 10, UCMJ, context depends on the seriousness of the offense, the complexity of the case, and the availability of proof, and it also depends on other factors specific to the purposes of Article 10, UCMJ, which is to prevent an accused from languishing in prison without notice of the charges and without an opportunity for bail; these additional circumstances include whether appellant was informed of the accusations against him, whether the government complied with procedures relating to pretrial confinement, and whether the government was responsive to requests for reconsideration of pretrial confinement).
United States v. Zarbatany, 70 M.J. 169 (the proper application of credit for illegal pretrial punishment is a question of law, reviewed de novo by an appellate court).
(whether action taken by the CCA provided meaningful relief for an Article 13, UCMJ, violation is a question of law that the CAAF considers under a de novo standard of review).
United States v. Phillips, 70 M.J. 161 (in deciphering the meaning of a statute, an appellate court normally applies the common and ordinary understanding of the words in the statute).
(in determining legal sufficiency, an appellate court must decide 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).
(when sitting as the trier of fact, the military judge is presumed to know the law and apply it correctly).
United States v. Martinez, 70 M.J. 154 (when an appellant does not raise an issue of disqualification of the military judge until appeal, an appellate court examines the claim under the plain error standard of review; plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice).
(when a military judge’s impartiality is challenged on appeal, the test is 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; the appearance of impartiality is reviewed on appeal objectively and is tested under the following standard: any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification; because not every judicial disqualification requires reversal, the standards announced by the Supreme Court in Liljeberg [486 US 847 (1988)] are used to determine whether a military judge’s conduct warrants that remedy to vindicate public confidence in the military justice system).
(in a plain error context with respect to a military judge’s impartiality, an appellate court looks to see if the error materially prejudiced the substantial rights of appellant and whether, under Liljeberg [486 US 847 (1988)], reversal is warranted; both inquiries are conducted even if the court concludes that there is no Article 59(a) prejudice as it is possible that appellant may not have suffered any material prejudice to a substantial right, but that reversal would still be warranted under Liljeberg).
(in the context of judicial disqualification, the Supreme Court’s Liljeberg [486 US 847 (1988)] test provides that in determining whether a judgment should be vacated, it is appropriate for an appellate court to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process).
(with respect to the third part of the Liljeberg test in the context of judicial disqualification, an appellate court considers whether denying a remedy to appellant under the circumstances of the case will risk undermining the public’s confidence in the military justice system; this risk is considered by applying an objective standard similar to the standard applied in the initial RCM 902(a) analysis; this analysis, however, differs from the initial RCM 902(a) inquiry in which appellate courts determine whether the military judge should have recused himself or herself; in the remedy analysis, an appellate court does not limit its review to facts relevant to recusal, but rather reviews the entire proceedings, to include any post-trial proceeding, the convening authority’s action, the action of the Court of Criminal Appeals, and other facts relevant to the Liljeberg [486 US 847 (1988)] test; this remedy analysis involves the public confidence in the military justice system in the context of how that system responds once it has been determined that a military judge was disqualified under RCM 902(a) and should have been recused; that analysis must necessarily include a review of all post-trial actions to evaluate how the public would perceive that response; for example, if further proceedings provided an explanation for a situation that occurred at trial, that may be sufficient to minimize the risk that the conduct would undermine the public’s confidence in the military justice system; if a remedy is granted after further proceedings, that too would impact the risk of undermining the public’s confidence; on the other hand, if the appearance is created and is not explained at trial, or if no remedy is granted, or if there was a remedy that appears inadequate from the perspective of a reasonable person, those facts would increase the risk that the conduct (creating the appearance) would undermine the public’s confidence in the military justice system).
United States v. Hull, 70 M.J. 145 (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).
United States v. Sullivan, 70 M.J. 110 (an appellate court reviews a military judge’s evidentiary decisions for an abuse of discretion).
United States v. Marsh, 70 M.J. 101 (improper argument is a question of law that an appellate court reviews de novo).
(in determining whether an improper sentencing argument prejudiced appellant, an appellate court balances the severity of the improper argument, any measures by the military judge to cure the improper argument, and the evidence supporting the sentence to determine whether the trial counsel’s comments, taken as a whole, were so damaging that it cannot be confident that appellant was sentenced on the basis of the evidence alone).
United States v. Hohman, 70 M.J. 98 (an appellate court tests for prejudice a military judge’s error in failing to place any of the approved reasons for severing the attorney-client relationship on the record prior to the departure of the detailed trial defense counsel from active duty).
United States v. Savala, 70 M.J. 70 (an appellate court reviews the prejudicial effect of an erroneous evidentiary ruling de novo).
(for constitutional errors at trial, the government must persuade an appellate court that the error was harmless beyond a reasonable doubt).
(where the constitutional trial error is a violation of the Confrontation Clause, whether such an error is harmless in a particular case depends upon a host of factors that may include the importance of the witness’s testimony to the government’s case, whether the testimony was cumulative, the presence of contradictory or corroborating evidence, the extent of other cross-examination allowed, and the strength of the government case; an appellate court applies a four-part test in assessing prejudice in the event of an evidentiary error, balancing (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the excluded evidence; and (4) the quality of the evidence in question; regardless of factors employed, the balancing test involves consideration of whether, assuming that the damaging potential of the cross-examination were fully realized, an appellate court might nonetheless say that the error was harmless beyond a reasonable doubt).
United States v. Oliver, 70 M.J. 64 (in reviewing for legal sufficiency of the evidence, the relevant question an appellate court must answer 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; it does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, rather it requires that a reviewing court examine only whether any rational trier of fact could have made that determination; this standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts; and it requires courts to review the evidence in a light most favorable to the prosecution, which preserves the factfinder’s role as weigher of evidence and impinges upon the factfinder’s discretion only to the extent necessary to guarantee the fundamental protection of due process).
(an appellate court reviews the issue of legal sufficiency de novo).
United States v. Arriaga, 70 M.J. 51 (whether an offense is a lesser included offense is a question of law that an appellate court reviews de novo).
(where there is no objection to an instruction at trial, an appellate court reviews it for plain error).
(plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice).
(a court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of one offense are also elements of the charged offense, then the offense is a lesser included offense of the charged offense; the two offenses need not have identical statutory language; instead, the meaning of the offenses is ascertained by applying the normal principles of statutory construction).
United States v. Beaty, 70 M.J. 39 (the maximum punishment authorized for an offense is a question of law, which an appellate court reviews de novo).
(while an appellate court reviews a military judge’s sentencing determination under an abuse of discretion standard, where a military judge’s decision was influenced by an erroneous view of the law, that decision constitutes an abuse of discretion).
United
States v. McMurrin, 70 M.J. 15 (plain error requires
(1) that there be error, (2) that the error be plain or obvious, and
(3) that
the error materially prejudices a substantial right of the accused).
(whether
there was
plain error is a question of law that an appellate court reviews de
novo).
(the
Court of Appeals for the Armed Forces has indulged a strong presumption
against
structural error, and has declined to find it unless the error was of
such a
nature that its effect was difficult to assess or harmlessness was
irrelevant; whenever
an accused has been convicted of an offense on the mistaken assumption
that it was
an LIO of the charged offense, the CAAF cannot say that prejudice was
always
irrelevant, and it cannot say that the effect of such an error was
necessarily
difficult to assess; thus, rather than assume structural error, it
determines
whether the constitutional error was
prejudicial).
United
States v. Girouard, 70 M.J. 5 (whether an offense is
an LIO is a question of law that is reviewed de novo; in
determining
whether an offense is an LIO, a court applies the elements test).
(deviation from a legal rule
is error unless the
rule has been waived).
(where there is no waiver, and
in the absence of
an objection, an appellate court tests the instructions provided by the
military judge for plain error based on the law at the time of appeal).
United
States v. Bonner, 70 M.J. 1 (the elements test
to determine whether one
offense is an LIO of a charged offense does not require that the two
offenses
at issue employ identical statutory language; instead, after applying
the
normal principles of statutory construction, a court asks whether the
elements
of the alleged LIO are a subset of the elements for the charged
offense; thus,
it first determines the elements of the charged offense and the alleged
LIO by
applying the principles of statutory construction; then, it compares
the
elements of the two offenses to see if the latter is a subset of the
former).
United
States v. Daly, 69 M.J. 485 (jurisdiction is
a question of law that an
appellate court reviews de novo).
United
States v. Medina, 69 M.J. 462 (the
constitutionality of a statute is a
question of law that an appellate court reviews de novo).
(whether a court-martial panel
was properly
instructed is a question of law reviewed by an appellate court de novo).
(if instructional error is
found, because
there are constitutional dimensions at play, the error must be tested
for
prejudice under the standard of harmless beyond a reasonable doubt).
United
States v. Clark, 69 M.J. 438 (whether there
has been improper reference to an accused’s exercise of his
constitutional
rights is a question of law that an appellate court reviews de novo).
(where the
asserted errors regarding trial counsel’s references during the opening
statement, direct examination of appellant, and closing argument to
appellant’s
exercise of his right to silence were not preserved at trial, an
appellate
court reviews them for plain error).
(whether there was plain error
is a question
reviewed de novo).
(to find plain error,
appellant must show that
there is error, that the error was plain or obvious, and that the error
materially prejudiced his substantial rights).
(when assessing the
admissibility of the
evidence of an accused’s demeanor, an appellate court must identify the
demeanor at issue and ask whether the demeanor is itself testimonial or
not
testimonial in nature, or whether evidence of the demeanor at issue
includes
improper commentary on the accused’s silence; if evidence of an
accused’s demeanor
is testimonial or includes an improper comment on silence, the court
analyzes
the evidence under the Fifth Amendment or applicable statutory and
regulatory
safeguards; where the evidence is neither testimonial nor an improper
comment
on silence, the court then considers whether the accused’s demeanor is
relevant
under MRE 404(b) or other evidentiary rules relating to relevance).
(in order to determine whether
trial counsel’s
comments in his rebuttal closing argument to claims made by defense
counsel in
his closing argument were fair, an appellate court must examine them in
context, given the defense theory of the case).
United
States v. Watson, 69 M.J. 415 (an appellate
court reviews the laws and
regulations governing enlistment and separation with sensitivity to the
distinction between military and civilian status).
(an appellate court interprets regulations
under a de novo standard of review).
United
States v. Lofton, 69 M.J. 386 (an appellate
court reviews questions of legal
sufficiency de novo).
(the test for determining
legal sufficiency is
whether, after reviewing 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; this test requires that an
appellate
court draw every reasonable inference from the evidence of record in
favor of
the prosecution).
(an appellate court reviews a
convening
authority’s decision not to grant a post-trial hearing for an abuse of
discretion).
United
States v. Lewis, 69 M.J. 379 (the issue
whether trial counsel’s
cross-examination of a defense witness and his comments in closing
argument constituted
a due process violation by suggesting that the defense bore the burden
of proof
to demonstrate that appellant was not guilty involves a question of law
that an
appellate court reviews de novo).
(in the absence of defense
objection to
questions in cross-examination and to comments in closing argument, an
appellate court reviews for plain error).
(under the plain error
standard, an appellant
must show that (1) an error was committed, (2) the error was plain, or
clear,
or obvious, and (3) the error resulted in material prejudice to
substantial
rights; an error is not plain and obvious if, in the context of the
entire
trial, the accused fails to show the military judge should be faulted
for taking
no action even without an objection).
(when determining whether
prosecutorial
comment was improper, the statement must be examined in light of its
context
within the entire court-martial; in the course of reviewing whether an
appellant was deprived of a fair trial by such comments, the question
an
appellate court must resolve is whether, viewed within the context of
the
entire trial, defense counsel’s comments clearly invited the reply).
United
States v. Edwards, 69 M.J. 375 (an appellate
court reviews a military judge’s
decision to accept a guilty plea for an abuse of discretion and
questions of
law arising from the guilty plea de novo; in doing so, it applies the
substantial basis test, looking at whether there is something in the
record of
trial, with regard to the factual basis or the law, that would raise a
substantial question regarding appellant’s guilty plea).
United
States v. Flores, 69 M.J. 366 (whether a trial
counsel’s comments improperly
reference an accused’s invocation of an accused’s constitutional right
to
remain silent is a question of law that an appellate court reviews de
novo).
(when an objection is made to
a
nonconstitutional error, appellate courts determine whether the error
materially prejudiced the substantial rights of the accused).
(when no objection is made to
a
nonconstitutional error during the court-martial, a trial counsel’s
arguments
are reviewed for plain error; plain error occurs when (1) there is
error, (2)
the error is plain or obvious, and (3) the error results in material
prejudice).
(regardless of whether there
was an objection
or not to a nonconstitutional error, in the context of a constitutional
error,
the burden is on the government to establish that the comments were
harmless
beyond a reasonable doubt).
(comments made by trial
counsel in argument
that are challenged as being an improper reference to an accused’s
right to
remain silent are reviewed in context rather than in isolation).
(the test for determining whether an indirect remark by trial counsel during closing argument on the merits constitutes improper comment on an accused’s failure to testify is whether the language used was manifestly intended to be, or was of such character that the factfinder would naturally and necessarily take it to be a comment on the failure of the accused to testify).
United
States v. Gooch, 69 M.J. 353 (whether a panel
has been properly selected is
a question of law reviewed by an appellate court de novo; the reviewing
court
is bound by the military judge’s findings of fact unless they are
clearly
erroneous).
(having found
nonconstitutional error in the
application of Article 25, UCMJ, an appellate court must determine if
the error
materially prejudiced the substantial rights of the accused).
(with respect to
nonconstitutional error, the
burden of persuasion depends on the nature of the error; first, in the
case of
administrative mistake, the appellant must demonstrate prejudice;
second, where
the government has intentionally included or excluded a class of
eligible
members, the government must demonstrate lack of harm; and third, in
the case
of unlawful command influence, the government must prove beyond a
reasonable
doubt that the error was harmless).
(where there was a
nonconstitutional error in
the categorical exclusion of a class of potential members from
appellant’s
court-martial based on dates of service at his base, the burden of
persuasion
rests with the government to show lack of harm).
(in assessing the
effectiveness of counsel, an
appellate court applies the standard set forth in Strickland v.
Washington,
466 US 668, 687 (1984), and begins with the presumption of competence
announced
in United States v. Cronic, 466 US 648, 658 (1984); the court
applies a
three-part test to determine whether the presumption of competence has
been
overcome: (1) are appellant’s allegations true; if so, is there a
reasonable
explanation for counsel’s actions; (2) if the allegations are true, did
defense
counsel’s level of advocacy fall measurably below the performance
ordinarily
expected of fallible lawyers; and (3) if defense counsel was
ineffective, is
there a reasonable probability that, absent the errors, there would
have been a
different result).
(an appellate court will not
second-guess the
strategic or tactical decisions made at trial by defense counsel; where
an
appellant attacks the trial strategy or tactics of the defense counsel,
the
appellant must show specific defects in counsel’s performance that were
unreasonable under prevailing professional norms).
(claims of ineffective
assistance of counsel
are reviewed by an appellate court de novo).
United
States v. Prather, 69 M.J. 338 (the
constitutionality of a statute is a
question of law that an appellate court reviews de novo).
(an appellate court must
evaluate the
instructions given by the military judge in the context of the overall
message
conveyed to the jury).
United
States v. Pope, 69 M.J. 328 (the CAAF will
not reverse a conviction for an
error of law unless that error materially prejudiced an accused’s
substantial
rights; it reviews de novo whether the government has met its burden of
establishing that the error did not have a substantial influence on the
findings in the context of the entire case).
(an appellate court affords
substantial
discretion to a military judge’s evidentiary rulings; however, where an
objection invokes the MRE 403 balancing test but the military judge
fails to
conduct the test on the record, less deference is due).
(whether a jury was properly
instructed is a
question of law reviewed by an appellate court de novo).
(whether there has been
improper reference to
an accused’s invocation of her constitutional right to remain silent -
in
testimony or argument - is a question of law that an appellate court
reviews de
novo; where there are no objections at trial, the court reviews for
plain
error).
(the cumulative effect of all
plain errors and preserved errors is reviewed de
novo).
(under the cumulative-error
doctrine, a number
of errors, no one perhaps sufficient to merit reversal, in combination
necessitate the disapproval of a finding; an appellate court will
reverse only
if it finds the cumulative errors denied appellant a fair trial).
United
States v. Luke, 69 M.J. 309 (with respect to
whether a new trial should be
granted based on newly discovered evidence, the reviewing court must
make a
credibility determination, insofar as it must determine whether the
newly
discovered evidence, if considered by a court-martial in the light of
all other
pertinent evidence, would probably produce a substantially more
favorable
result for the accused; the reviewing court does not determine whether
the
proffered evidence is true; nor does it determine historical facts; it
merely
decides if the evidence is sufficiently believable to make a more
favorable
result probable).
(an appellate court may
resolve a discovery
issue without determining whether there has been a discovery violation
if the
court concludes that the alleged error would not have been prejudicial).
(the CAAF’s methodology for
reviewing issues
of post-trial and appellate delay is to first determine whether the
delay is
facially unreasonable and, if so, it examines the four factors set
forth by the
Supreme Court in Barker v. Wingo, 407 US 514; those four
factors
are: (1) the length of the delay, (2)
the reasons for the delay, (3) the appellant’s assertion of the right
to timely
review and appeal, and (4) prejudice; if this analysis leads it to
conclude
that the appellant has been denied the due process right to speedy
post-trial
review and appeal, it grants relief unless it is convinced beyond a
reasonable
doubt that the constitutional error is harmless).
(issues of due process and
whether
constitutional error is harmless beyond a reasonable doubt are reviewed
de
novo).
United
States v. Jones, 69 M.J. 294 (an appellate
court reviews a military judge’s
ruling on a discovery request for an abuse of discretion).
(an appellate court reviews a
military judge’s
decision to accept a guilty plea for an abuse of discretion).
United
States v. Hutchins, 69 M.J. 282 (in this case,
the procedural deficiencies
concerning the termination and replacement of the first detailed
military assistant
defense counsel present trial errors that can be evaluated under the
standard
formula for assessing prejudice against the defense, in which the
defense must
establish that the error produced material prejudice to the substantial
rights
of the accused; Article 59(a), UCMJ, requires that a case not be
reversed for
error unless the error materially prejudices the substantial rights of
the
accused).
United
States v. Stefan, 69 M.J. 256 (whether Article
6(c), UCMJ, and RCM 1106(b)
disqualify an individual from acting as the SJA is a question of law,
which an
appellate court reviews de novo).
(SJA recommendations prepared
by a
disqualified officer are not void; rather an appellate court tests for
prejudice under Article 59(a), UCMJ, which requires material prejudice
to the
substantial rights of the accused; to find reversible error, an
appellant must,
inter alia, make some colorable showing of possible prejudice).
United
States v. Staton, 69 M.J. 228 (an appellate
court reviews the military
judge’s evidentiary rulings for an abuse of discretion).
(an appellate court reviews
the admissibility
of uncharged misconduct under MRE 404(b) using a three-part test: (1)
Does the
evidence reasonably support a finding by the court members that
appellant
committed prior crimes, wrongs or acts; (2) What fact of consequence is
made
more or less probable by the existence of this evidence - a question of
logical
relevance; and, (3) Is the probative value substantially outweighed by
the
danger of unfair prejudice).
United States v. Blazier, 69 M.J. 218 (for most constitutional errors at trial, an
appellate court
applies the harmless error test set forth in Chapman v. California,
386
US 18 (1967), to determine whether the error is harmless beyond a
reasonable
doubt; evidence admitted in violation of the Confrontation Clause of
the Sixth
Amendment is subject to that standard; in assessing harmlessness in the
constitutional context, the question is not whether the evidence is
legally
sufficient to uphold a conviction without the erroneously admitted
evidence; rather,
the question is whether there is a reasonable possibility that the
evidence
complained of might have contributed to the conviction; this
determination is
made on the basis of the entire record, and its resolution will vary
depending
on the facts and particulars of the individual case).
United
States v. White, 69 M.J. 236 (an appellate
court reviews a military judge’s
decision to admit or exclude evidence for an abuse of discretion; the
abuse of
discretion standard is a strict one, calling for more than a mere
difference of
opinion; the challenged action must be arbitrary, fanciful, clearly
unreasonable, or clearly erroneous; the military judge’s findings of
fact are
reviewed under a clearly erroneous standard and conclusions of law, de
novo; if
the court finds the military judge abused his discretion, it then
reviews the
prejudicial effect of the ruling de novo).
United
States v. Savard, 69 M.J. 211 (if a military
judge errs by declining to
grant an Article 39(a) session under RCM 905(h), an appellant’s
convictions may
not be held incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused).
(with respect to a nonconstitutional
error, the government has the burden of establishing that the error did
not
have a substantial influence on the findings).
(in evaluating errors to see
if they are
harmless, the following test is employed:
if, when all is said and done, the conviction is sure that the
error did
not influence the jury, or had but very slight effect, the verdict and
the
judgment should stand).
United
States v. Nerad, 69 M.J. 138 (the scope and
meaning of Article 66(c), UCMJ,
is a matter of statutory interpretation, a question of law reviewed by
an
appellate court de novo).
(a CCA may approve only that
part of a
sentence that it finds should be approved; in reviewing the exercise of
this
power, the CAAF asks if the CCA abused its discretion or acted
inappropriately
- that is, arbitrarily, capriciously, or unreasonably - as a matter of
law).
United
States v. Diaz, 69 M.J. 127 (an appellate
court reviews a military judge’s
decision to exclude evidence 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).
(a question of statutory
interpretation is a
question of law subject to de novo review).
(an appellate court reviews a
military judge’s
decision to accept or reject a guilty plea as irregular for an abuse of
discretion, and military judges are afforded broad discretion in
deciding
whether or not to accept a guilty plea).
(an appellate court reviews
nonconstitutional
errors for prejudice under Article 59(a), UCMJ, and the burden is on
the
government to demonstrate that the error did not have a substantial
influence
on the findings; when evaluating claims of prejudice from an
evidentiary
ruling, an appellate court weighs four factors: (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. Contreras, 69 M.J. 120 (whether a
particular Article 130,
UCMJ, criminal offense is a purely military offense is a question of
law, which
an appellate court reviews de novo).
(an appellate court reviews
de novo claims
that an appellant has been denied the due process right to a speedy
post-trial
review and appeal; when considering appellate delay, a court must
balance four
factors: (1) the length of the delay; (2) the reasons for the delay;
(3) the
appellant’s assertion of the right to timely review and appeal; and (4)
prejudice; no single factor is required for finding a due process
violation,
and the absence of a given factor will not prevent such a finding;
where an
appellant meets his burden in demonstrating unreasonable appellate
delay, the
burden shifts to the government to show that the due process violation
was
harmless beyond a reasonable doubt).
United
States v. Graner, 69 M.J. 104 (an appellate
court reviews a military judge’s
ruling on a request for the production of evidence under the strict
standard of
an abuse of discretion; a military judge abuses his discretion when his
findings of fact are clearly erroneous, the court’s decision is
influenced by
an erroneous view of the law, or the military judge’s decision on the
issue at
hand is outside the range of choices reasonably arising from the
applicable
facts and the law).
(an appellate court reviews a
military judge’s
decision on whether to admit evidence for an abuse of discretion).
United
States v. Lloyd, 69 M.J. 95 (a military
judge’s ruling on a request for
expert assistance is reviewed for an abuse of discretion; 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; the
abuse of discretion standard is a strict one, calling for more than a
mere
difference of opinion; the challenged action must be arbitrary,
fanciful,
clearly unreasonable, or clearly erroneous).
(in reviewing for abuse of
discretion a
military judge’s ruling on a defense motion for expert assistance in
the form
of a blood spatter expert, an appellate court reviews the record
material
before the military judge at the time of the motion; although on
appeal, more
compelling theories may be made to demonstrate that a blood spatter
expert was
necessary, the military judge did not abuse her discretion by failing
to adopt
a theory that was not presented in the motion at the trial level; this
is
consistent with the general rule that a legal theory not presented at
trial may
not be raised for the first time on appeal absent exigent
circumstances).
United
States v. Yammine, 69 M.J. 70 (an appellate
court reviews a military judge’s
decision to admit evidence for an abuse of discretion).
(the threshold question under
MRE 414 whether
the proffered evidence is evidence of the accused’s commission of
another
offense of child molestation as defined by the rule is one of law,
reviewed by
an appellate court de novo).
(when an appellate court
finds a
nonconstitutional error, it tests for prejudice; the question, which it
reviews
de novo, is whether the error had a substantial influence on the
members’
verdict in the context of the entire case; in answering this question,
it
considers four factors: (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; when a fact was
already
obvious from testimony at trial and the evidence in question would not
have
provided any new ammunition, an error is likely to be harmless;
conversely,
where the evidence does provide new ammunition, an error is less likely
to be
harmless).
United
States v. Ayala, 69 M.J. 63 (the military
judge’s finding regarding the
primary purpose of an inspection is a matter of fact and the issue of
whether
the examination is an inspection is a matter of law that an appellate
court
will review de novo; purpose and intent are themselves classic
questions
of fact).
United States v. Estrada, 69 M.J. 45 (construction
of regulations is a question of law, which an appellate court reviews
de novo;
similarly, an appellate court reviews a challenge to the lawfulness of
a
regulation de novo).
(in interpreting regulations,
an appellate
court applies the general rules of statutory construction).
United
States v. Garner, 69 M.J. 31 (when considering
a conviction pursuant to a
guilty plea, an appellate court reviews a military judge’s decision to
accept a
guilty plea for an abuse of discretion; in doing so, the court applies
the
substantial basis test, looking at whether there is something in the
record of
trial, with regard to the factual basis or the law, that would raise a
substantial question regarding appellant’s guilty plea).
United
States v. Roberts, 69 M.J. 23 (an appellate
court reviews a military judge’s
decision to admit or exclude evidence for an abuse of discretion; in
doing so,
it reviews findings of fact under a clearly erroneous standard and
conclusions
of law under a de novo standard).
(to determine whether an error
was harmless
beyond a reasonable doubt, an appellate court applies the five-part
balancing
test articulated by the Supreme Court in Delaware v. Van Arsdall,
475 US
673 (1986): (1) the importance of the witness’s testimony in the
prosecution’s
case, (2) whether the testimony was cumulative, (3) the presence or
absence of
evidence corroborating or contradicting the testimony of the witness on
material points, (4) the extent of cross-examination otherwise
permitted, and,
(5) of course, the overall strength of the prosecution’s case).
United
States v. Roach, 69 M.J. 17 (the question of
whether a judge has acted
consistent with a recusal, as a mixed question of law and fact, is
reviewed de
novo).
(a structural error in a
judge’s recusal is
inherently prejudicial; with respect to a nonstructural error in a
judge’s
recusal, it is tested for prejudice and an appellate court must
determine if
the error was harmless under the three factors set forth in Liljeberg
v.
Health Services Acquisition Corp, 486 US 847 (1988): the risk of
injustice
to the parties in the particular case, the risk that the denial of
relief will
produce injustice in other cases, and the risk of undermining the
public’s
confidence in the judicial process).
(whether an appellant’s due
process right to a
speedy post-trial review has been violated is reviewed de novo).
United
States v. Serianne, 69 M.J. 8 (an appellate
court reviews both the
constitutionality and interpretation of a service instruction under a
de novo
standard of review).
United
States v. Huntzinger, 69 M.J. 1 (an appellate
court reviews a
military judge’s denial of a motion to suppress for an abuse of
discretion; an
abuse of discretion occurs when the military judge’s findings of fact
are
clearly erroneous or based upon a misapprehension of the law).
(an appellate court reviews
the
legal question of sufficiency for finding probable cause de novo, using
a
totality of the circumstances test).
(in determining whether a
search was
supported by probable cause, the duty of a reviewing court is simply to
ensure
that the magistrate had a substantial basis for concluding that
probable cause
existed).
(reviewing court applies four
key
principles in reviewing probable cause determinations for a search
authorization under MRE 315: (1) the
court views the facts in the light most favorable to the prevailing
party; (2)
the court gives substantial deference to the probable cause
determination made
by a neutral and detached magistrate; (3) the court resolves close
cases in
favor of the magistrate’s decision; and (4) the court views the facts
in a
commonsense manner).
United
States v. Jones, 68 M.J. 465 (in determining
what constitutes a
lesser-included offense in the military justice system, an appellate
court
applies the elements test and looks to whether the elements of the
purported
LIO are a subset of the elements of the charged offense; under the
elements
test, one compares the elements of each offense; if all of the elements
of
offense X are also elements of offense Y, then X is an LIO of Y;
offense Y is
called the greater offense because it contains all of the elements of
offense X
along with one or more additional elements).
United
States v. Bagstad, 68 M.J. 460 (in carrying out
the objective test for
implied bias, an appellate court determines whether the risk that the
public
will perceive that the accused received something less than a court of
fair,
impartial members is too high; challenges for actual or implied bias
are
evaluated based on the totality of the factual circumstances).
(an appellate court’s standard
of review on a
challenge for cause premised on implied bias is less deferential than
abuse of
discretion, but more deferential than de novo review; it applies less
deference
in a case such as this one where the military judge did not place his
analysis
concerning the senior-subordinate relationship portion of the challenge
on the
record).
United
States v. Sutton, 68 M.J. 455 (the question of
whether a specification
states an offense is a question of law that an appellate court reviews
de novo).
United
States v. Smith, 68 M.J. 445 (an appellate
court reviews a military judge’s
decision to admit or exclude evidence for an abuse of discretion; this
abuse of
discretion standard is also applied to alleged violations of the Sixth
Amendment’s Confrontation Clause).
(testimony is material if it
is of consequence
to the determination of an accused’s guilt; in determining whether
evidence is
of consequence to the determination of an accused’s guilt, an appellate
court
considers the importance of the issue for which the evidence was
offered in
relation to the other issues in the case, the extent to which this
issue is in
dispute, and the nature of other evidence in the case pertaining to
this
issue).
United
States v. Blazier, 68 M.J. 439 (an appellate
court reviews a military judge’s
decision to admit or exclude evidence for an abuse of discretion).
(whether evidence that was admitted constitutes
testimonial hearsay is a question of law reviewed by an appellate court
de novo).
United
States v. Ferguson, 68 M.J. 431 (an appellate
court reviews a military judge’s
decision to accept a guilty plea for an abuse of discretion and
questions of
law arising from the guilty plea de novo; in doing so, it applies the
substantial basis test, looking at whether there is something in the
record of
trial, with regard to the factual basis or the law, that would raise a
substantial question regarding appellant’s guilty plea).
(an appellate court will not
overturn a
military judge’s acceptance of a guilty plea based on a mere
possibility of a
defense; nor will it speculate post-trial as to the existence of facts
which
might invalidate an appellant’s guilty pleas).
United
States v. Clayton, 68 M.J. 419 (an appellate
court reviews a military judge’s
denial of a motion to suppress for an abuse of discretion; an abuse of
discretion occurs when an appellate court determines that the military
judge’s
findings of fact are clearly erroneous or that he misapprehended the
law).
(in addressing whether a
military judge erred
in denying a motion to suppress evidence of a search authorized by a
magistrate, an appellate court considers whether the military judge
abused his
discretion when he ruled as a matter of law that there was a
substantial basis
for finding that probable cause existed under MRE 315(f)(2)); an
appellate
court reviews the legal question of sufficiency for finding probable
cause de
novo using a totality of the circumstance test).
(the framework for reviewing
probable cause
determinations under MRE 315 focuses on four key principles: (1)
determinations
of probable cause made by a neutral and detached magistrate are
entitled to
substantial deference; (2) resolution of doubtful or marginal cases
should be
largely determined by the preference for warrants, and close calls will
be
resolved in favor of sustaining the magistrate’s decision; (3) courts
should
not invalidate warrants by interpreting affidavits in a hypertechnical,
rather
than a commonsense, manner; and (4) the evidence must be considered in
the
light most favorable to the prevailing party).
(where an affidavit submitted
in support of a
search warrant application included erroneous information, an appellate
court,
on review of the trial judge’s motion to suppress, would set aside the
erroneous information in the affidavit and determine whether there
remained
sufficient content in the warrant affidavit to support a finding of
probable
cause).
United
States v. Ross, 68 M.J. 415 (whether
a verdict is ambiguous and thus precludes a CCA from performing a
factual-sufficiency review is a question of law reviewed by the Court
of
Appeals for the Armed Forces de novo).
United
States v. Cowgill, 68 M.J. 388 (a military
judge’s decision to find that probable
cause existed to support a search authorization as well as to admit or
exclude
evidence is reviewed for an abuse of discretion; an abuse of discretion
occurs
if the military judge’s findings of fact are clearly erroneous or if
the
decision is influenced by an erroneous view of the law; in reviewing a
ruling
on a motion to suppress, an appellate court considers the evidence in
the light
most favorable to the prevailing party).
United
States v. Anderson, 68 M.J. 378 (a military
judge’s ruling regarding the
appointment of a government-funded expert is reviewed for an abuse of
discretion and will only be overturned if the findings of fact are
clearly
erroneous or the decision is influenced by an erroneous view of the
law).
(where appellant raises a due
process
argument, an appellate court’s test for prejudice must be whether the
challenged action was harmless beyond a reasonable doubt).
(an appellate court reviews
multiplicity claims de novo).
United
States v. Maynulet, 68 M.J. 374 (the question of
whether a jury was properly
instructed is a question of law, and thus, review is de novo).
United
States v. Green, 68 M.J. 360 (in order to
prevail on a claim of ineffective
assistance of counsel, an appellant must demonstrate both (1) that his
counsel’s performance was deficient, and (2) that this deficiency
resulted in
prejudice; an appellate court may address these prongs in any order it
chooses,
because appellant must meet both in order to prevail).
(an appellate court reviews
ineffective
assistance of counsel claims de novo).
(in order to show prejudice on
a claim of
ineffective assistance of counsel, the defendant must show that there
is a
reasonable probability that, but for counsel’s unprofessional errors,
the
result of the proceeding would have been different; a reasonable
probability is
a probability sufficient to undermine confidence in the outcome).
United
States v. Douglas, 68 M.J. 349 (once unlawful
command influence is raised at
the trial level, a presumption of prejudice is created; to affirm in
such a
situation, an appellate court must be convinced beyond a reasonable
doubt that
the unlawful command influence had no prejudicial impact on the
court-martial).
(in a case involving unlawful
command
influence, an appellate court reviews issues involving a military
judge’s
decision not to dismiss for abuse of discretion; under this standard,
when
judicial action is taken in a discretionary matter, such action cannot
be set
aside by a reviewing court unless it has a definite and firm conviction
that
the court below committed a clear error of judgment in the conclusion
it
reached upon a weighing of the relevant factors).
(an appellate court grants a
military judge
broad discretion in crafting a remedy to remove the taint of unlawful
command
influence, and it will not reverse so long as the decision remains
within that
range).
(when a military judge crafts
a reasonable and
tailored remedy to remove unlawful command influence, and if the record
reflects that the remedy has been implemented fully and no further
objections
or requests were made by the defense, then rather than requiring the
government
to prove a negative, an appellate court would be satisfied that the
presumptive
prejudice had been eliminated; however, when the record fails to
include
evidence that key components of the remedy were implemented, the
presumption of
prejudice flowing from the unlawful command influence has not been
overcome;
the government must then find an alternative way to meet its burden).
United
States v. Ellis, 68 M.J. 341 (an appellate
court reviews a military judge’s
decision to admit or exclude expert testimony over a defense objection
for an abuse
of discretion).
(when judicial action is taken
in a
discretionary matter, such action cannot be set aside by a reviewing
court
unless it has a definite and firm conviction that the court below
committed a
clear error of judgment in the conclusion it reached upon weighing of
the
relevant factors).
United
States v. Harmon, 68 M.J. 325 (an appellate
court reviews questions of legal
sufficiency de novo as a matter of law).
prosecution,
any rational trier of fact could have found the essential elements of
the crime
beyond a reasonable doubt).
United
States v. Smith, 68 M.J. 316 (the question of
whether a jury was properly
instructed is a question of law, and thus, review is de
novo).
United
States v. Thompson, 68 M.J. 308 (an appellate
court conducts its analysis of
an Article 10 claim review de novo, giving substantial deference to the
military
judge’s findings of fact unless they are clearly erroneous).
United
States v. Neal, 68 M.J. 289 (the
constitutionality of a statute is a
question of law that an appellate court reviews de novo).
United
States v. Durbin, 68 M.J. 271 (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; an
appellate
court reviews a trial court’s legal conclusions de novo, but gives its
factual
findings more deference, and will not reverse such findings unless they
are
clearly erroneous; the party asserting the marital privilege has the
burden of
establishing its applicability by a preponderance of the evidence).
United
States v. Green, 68 M.J. 266 (an appellate
court reviews the issue of legal
sufficiency de novo; in reviewing for legal sufficiency of evidence,
this court
must determine, whether, considering the evidence in the light most
favorable
to the prosecution, a reasonable fact-finder could have found all the
essential
elements beyond a reasonable doubt).
United
States v. Lubasky, 68 M.J. 260 (the test for
legal sufficiency is 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.).
United
States v. Williams, 68 M.J. 252 (an appellate
court defers to a military
judge’s findings of fact unless they are clearly erroneous).
(an appellate court reviews de
novo the legal
question as to whether the established facts and the violation of an
Air Force regulation
entitled appellant to additional confinement credit under RCM 305(k)).
United
States v. Ediger,
68 M.J. 243 (a military judge’s decision to admit or exclude evidence
is reviewed
for an abuse of discretion).
(where a
military judge properly conducts the balancing test under
MRE 403, an appellate court will not overturn his decision unless there
is a
clear abuse of discretion; however, where the military judge is
required to do
a balancing test under MRE 403 and does not sufficiently articulate his
balancing on the record, his evidentiary ruling will receive less
deference
from that court).
United
States v. Ashby, 68 M.J. 108 (in reviewing
for the legal sufficiency of
evidence, an appellate court takes the facts in the light most
favorable to the
government and asks whether those facts would permit a reasonable
factfinder to
find all the elements of the charged offenses beyond a reasonable
doubt; an
appellate court reviews questions of legal sufficiency de novo).
(where
the government chooses to incorporate separate offenses into a Article
133,
UCMJ, charge and where the military judge has instructed on the
elements of
those offenses, an appellate court will analyze the legal sufficiency
of the
Article 133, UCMJ, offense by determining whether there was legally
sufficient
evidence supporting all of the elements instructed upon by the military
judge).
(an appellate court reviews a
military judge’s
decision on the admission of evidence in aggravation at sentencing for
an abuse
of discretion).
(where the
military judge conducts a proper MRE 403 balancing on the record, an
appellate
court will not overturn his ruling unless it finds a clear abuse of
discretion).
(an appellate court will not
reverse a
military judge’s determination on a mistrial absent clear evidence of
an abuse
of discretion).
(when a trial error
is of constitutional dimension, an appellate court must determine
whether the
error and the military judge’s curative efforts rendered it harmless
beyond a
reasonable doubt; in analyzing this question, an appellate court asks
whether
there is a reasonable possibility that the error complained of might
have
contributed to the conviction; the question is not whether the members
were
totally unaware of the error; rather, the essence of a harmless error
is that
it was unimportant in relation to everything else the members
considered on the
issue in question; the error is analyzed in the context of the entire
court-martial).
(in assessing whether a
facially unreasonable
delay has resulted in a due process violation, an appellate court
weighs the
following four factors: (1) the length of the delay; (2) the reasons
for the
delay; (3) the appellant’s assertion of the right to timely review and
appeal;
and (4) prejudice).
(having found a due process
violation in
unreasonable post-trial delay, an appellate court will grant relief
unless it
finds, under the totality of the circumstances, that the government has
met its
burden of showing that the constitutional error was harmless beyond a
reasonable doubt; determining whether a due process error was harmless
beyond a
reasonable doubt necessarily involves analyzing the case for
“prejudice,” but
that analysis for “prejudice” is separate and distinct from the
consideration
of prejudice as one of the four Barker [407 US 514 (1972)]
factors).
(an appellate
court reviews de novo the question of whether a constitutional error is
harmless beyond a reasonable doubt).
(in addressing whether the
appearance of
unlawful command influence has been created in a particular situation,
an
appellate court considers, objectively, the perception of fairness in
the
military justice system as viewed through the eyes of a reasonable
member of
the public; it will find the appearance of unlawful command influence
where an
objective, disinterested observer, fully informed of all the facts and
circumstances, would harbor a significant doubt about the fairness of
the
proceeding).
(the question of whether a
convening authority
is an accuser under Article 1(9), UCMJ, is a question of law that an
appellate
court reviews de novo).
(the test for determining
whether a convening
authority is an accuser is whether he was so closely connected to the
offense
that a reasonable person would conclude that he had a personal interest
in the
matter; personal interests relate to matters affecting the convening
authority’s ego, family, and personal property, and a convening
authority’s
dramatic expression of anger towards an accused might also disqualify
the
commander if it demonstrates personal animosity; a personal interest
has been
found to exist where, for example, the convening authority is the
victim in the
case, where the accused attempted to blackmail the convening authority,
and
where the accused had potentially inappropriate personal contacts with
the
convening authority’s fiancée).
United
States v. Burton, 67 M.J. 150 (when no
objection is made during the trial, a counsel’s arguments are reviewed
for
plain error).
United
States v. Schweitzer, 68 M.J. 133 (once a military
judge has
accepted an accused’s guilty pleas and entered findings of guilty, an
appellate
court will not set them aside unless it finds a substantial basis in
law or
fact for questioning the pleas).
(convicted servicemembers have
a
due process right to timely review and appeal of courts-martial
convictions; to
rebut a due process violation, the government must show that the error
was
harmless beyond a reasonable doubt under the totality of the
circumstances;
where appellant has not suffered any prejudice under the fourth prong
of the Moreno
[63 MJ 129 (CAAF 2006)] speedy review and appeal test - ongoing
prejudice in
the form of oppressive incarceration, undue anxiety, or the impairment
of the
ability to prevail in a retrial - the government may more readily
demonstrate
that any error is harmless beyond a reasonable doubt).
United
States v. Bush, 68 M.J. 96 (aside from
structural errors which are not
susceptible of analysis for harm, a constitutional error, such as a
post-trial
due process violation, must be harmless beyond a reasonable doubt
before an
appellate court can affirm the resultant conviction or sentence).
(it is solely the government’s
burden to
persuade an appellate court that constitutional error is harmless
beyond a
reasonable doubt).
(an appellate court reviews de
novo both the
determination of a post-trial delay due process violation and the
question of
whether such a violation is harmless beyond a reasonable doubt).
(the determination of
harmlessness for
post-trial delay is different than that applied to constitutional trial
errors;
in the trial error arena, a determination of harmless beyond a
reasonable doubt
tests whether, beyond a reasonable doubt, the error did not contribute
to the
defendant’s conviction or sentence; in contrast, post-trial delays do
not
necessarily impact directly the findings or sentence; instead, an
appellate
court must review the record de novo to determine whether other
prejudicial
impact is present from the delay; unless the court concludes beyond a
reasonable doubt that the delay generated no prejudicial impact, the
government
will have failed to attain its burden).
(where there is a post-trial
delay due process
violation, the burden to show harmlessness beyond a reasonable doubt
remains
upon the government).
(an appellate court reviews
the totality of the
circumstances to determine whether a post-trial delay due process
violation is
harmless beyond a reasonable doubt).
(where an appellant alleges a
due process
violation in a post-trial delay context, and where a due process
violation is
found, the analysis performed by an appellate court necessarily
involves two
separate prejudice determinations; the initial prejudice review occurs
in
evaluating the fourth Barker [407 US 514 (1972)] factor, which
defines
prejudice to include oppressive incarceration, undue anxiety, and
limitation of
the possibility that a convicted person’s grounds for appeal, and his
defenses
in case of reversal and retrial, might be impaired; if a due process
violation
is found after balancing the Barker factors, an appellate court
determines whether, under the totality of the circumstances, the error
is
harmless beyond a reasonable doubt; that harmless beyond a reasonable
doubt
review necessarily involves a prejudice analysis, and although it
involves a
review of the same record, the scope and burden differ from the Barker
prejudice analysis).
(no single factor is required
for finding a due
process violation as a result of post-trial delay, and the absence of a
given
factor will not prevent such a finding).
(in a post-trial delay due
process analysis, Barker
[407 US 514 (1972)] factor four addresses specific prejudice to an
appellant,
not public perception; the public perception analysis is utilized in
quantifying the appropriate weight that is to be given to Barker
factors
one (length of delay) and two (reasons for delay) when balancing all of
the
factors).
(post-trial submissions have
no automatic value
as evidence where they are not relevant or where they are not based
upon
personal knowledge of the declarant).
(with respect to determining
whether an
appellant meets his burden of demonstrating fourth-prong, Barker
[407 US
514 (1972)] prejudice or with respect to reviewing the entire record to
determine if a post-trial delay due process violation is harmless
beyond a
reasonable doubt, a reviewing court must first determine whether
post-trial
submissions merit consideration).
(in circumstances where a
record establishes
that an appellant has suffered Barker [407
(in those cases where the
record does not
reflect Barker [407
(at the
totality-of-the-circumstances,
harmless-error prejudice determination stage, there is no presumption
of
prejudice in cases where an appellate court has found a due process
violation
as a result of unreasonable post-trial delay in the absence of Barker
[407
US 514 (1972)] prejudice; an appellate court does not presume prejudice
based
on the length of the delay alone).
United
States v. Smead, 68 M.J. 44 (when an
appellate issue concerns the meaning
and effect of a PTA, interpretation of the agreement is a question of
law,
subject to review under a de novo standard; when appellant contends
that the
government has not complied with a term of the agreement, the issue of
noncompliance is a mixed question of fact and law).
(appellant bears the burden of
establishing
that a PTA term is material and that the circumstances establish
governmental
noncompliance; in the event of noncompliance with a material term, an
appellate
court considers whether the error is susceptible to remedy in the form
of
specific performance or in the form of alternative relief agreeable to
appellant; if such a remedy does not cure the defect in a material
term, the
plea must be withdrawn and the findings and sentence set aside).
(an appellate court reviews a
military judge’s
acceptance of a plea for abuse of discretion, and it applies the
substantial
basis test, looking at whether there is something in the record of
trial, with
regard to the factual basis or the law, that would raise a substantial
question
regarding the appellant’s guilty plea).
United
States v. Matthews, 68 M.J. 29 (CAAF reviews de
novo a CCA’s conclusion that
MRE 509 [Privileges - Deliberations of courts and juries] is
inapplicable to
military judges).
Loving
v. United States, 68 M.J. 1 (an appellate
court considers claims of
ineffective assistance of counsel under the two-prong test of Strickland;
first, an appellant must show that counsel’s performance was deficient;
this
requires showing that counsel made errors so serious that counsel was
not
functioning as the counsel guaranteed the defendant by the Sixth
Amendment;
second, appellant must show that the deficient performance prejudiced
the
defense; this requires showing that counsel’s errors were so serious as
to
deprive appellant of a fair trial, a trial whose result is reliable;
the court
need not analyze the Strickland prongs in any particular order).
(to establish prejudice under Strickland,
appellant must show that there is a reasonable probability that, but
for
counsel’s unprofessional errors, the result of the proceeding would
have been
different; a reasonable probability is a probability sufficient to
undermine
confidence in the outcome; in the context of a capital case challenging
the
death sentence, an appellate court reweighs the evidence in aggravation
against
the totality of available mitigating evidence; the question is whether
if the
members had been able to place the additional evidence on the
mitigating side
of the scale, there is a reasonable probability that at least one
member would
have struck a different balance).
(in
considering claims of ineffective assistance of counsel, an appellate
court
undertakes review of the prejudice prong de novo).
(under the standards of 28 USC
§ 2254(d), a
habeas review of a constitutional claim would normally employ a
deferential
review of the challenged decision.).
(to establish prejudice for an
ineffective
assistance of counsel claim with respect to sentencing in a capital
case, the
new evidence that a habeas petitioner presents must differ in a
substantial way
- in strength and subject matter - from the evidence actually presented
at
sentencing).
United
States v. Mazza, 67 M.J. 470 (to prevail on a
claim of ineffective
assistance of counsel, an appellant must show both that the counsel’s
performance was deficient and that the deficiency resulted in
prejudice;
ultimately, the benchmark for judging any claim of ineffectiveness must
be
whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a
just result; a successful ineffectiveness claim requires a finding of
both
deficient performance and prejudice; there is no requirement that an
appellate
court address both components of the inquiry if appellant makes an
insufficient
showing on one; an appellate court reviews both prongs of the Strickland
analysis de novo).
(an appellate court’s analysis
of counsel’s
performance is highly deferential; it is not to assess counsel’s
actions
through the distortion of hindsight; rather it is to consider counsel’s
actions
in light of the circumstances of the trial and under the strong
presumption
that counsel’s conduct falls within the wide range of reasonable
professional
assistance; that is, the defendant must overcome the presumption that,
under
the circumstances, the challenged action might be considered sound
trial
strategy).
(as a general matter, an
appellate court will
not second-guess the strategic or tactical decisions made at trial by
defense
counsel; where an appellant attacks the trial strategy or tactics of
the
defense counsel, the appellant must show specific defects in counsel’s
performance that were unreasonable under prevailing professional norms).
United
States v. Paige, 67 M.J. 442 (in determining
whether a trial counsel
violated an accused’s right not to testify at his court-martial, an
appellate
court examines a prosecutorial comment within the context of the entire
court-martial).
(whether a trial counsel’s
comments improperly
invoked appellant’s constitutional right not to testify is a question
of law
that an appellate court reviews de novo; where defense counsel did not
object
to any of trial counsel’s comments, an appellate court reviews for
plain
error).
(an appellant meets the plain
error standard
if he establishes that (1) an error was committed; (2) the error was
plain, or
clear, or obvious; and (3) the error resulted in material prejudice to
substantial rights; once appellant meets his burden of establishing
plain error
and if the error is of constitutional dimension, the burden shifts to
the
government to convince the appellate court that this constitutional
error was
harmless beyond a reasonable doubt).
United
States v. Chatfield, 67 M.J. 432 (a military
judge’s denial of a
motion to suppress a confession is reviewed for an abuse of discretion).
(an appellate court will not
disturb a military judge’s findings of fact unless they are clearly
erroneous
or unsupported by the record).
(an appellate court reviews de
novo any conclusions of law supporting the suppression ruling on a
confession,
including: (1) whether someone is in
custody for the purposes of Miranda warnings; or (2) whether a
confession is involuntary).
(in determining whether a
confession was voluntary, an appellate court reviews the totality of
the
circumstances to determine whether appellant’s will was overborne and
his
capacity for self-determination was critically impaired; the factors to
consider include both the characteristics of the accused and the
details of the
interrogation).
(an appellate court grants
deference to a military judge’s determination that appellant’s
testimony was
not believable because the judge is in a unique position to decide the
appropriate weight to give that testimony).
United
States v. Marshall, 67 M.J. 418 (to prevail on a
fatal variance claim, an
appellant must show both that the variance was material and that he was
substantially prejudiced thereby).
(a variance that is material
is one that
substantially changes the nature of the offense, increases the
seriousness of
the offense, or increases the punishment of the offense).
(a variance can prejudice an
appellant by (1)
putting him at risk of another prosecution for the same conduct, (2)
misleading
him to the extent that he has been unable adequately to prepare for
trial, or
(3) denying him the opportunity to defend against the charge).
United
States v. Weston, 67 M.J. 390 (an appellate
court reviews a military judge’s
decision to admit evidence for an abuse of discretion, and it reviews
the
judge’s findings of fact for clear error and the judge’s conclusions of
law de
novo).
United
States v. Miller, 67 M.J. 385 (whether an
offense is a lesser included
offense is a question of law that an appellate court reviews de novo).
United States v. Nance, 67 M.J. 362 (a
military judge’s decision to accept a guilty plea is reviewed for an
abuse of
discretion; a military judge abuses this discretion if he fails to
obtain from
the accused an adequate factual basis to support the plea - an area in
which an
appellate court affords significant deference).
(although the use of leading
questions that do
no more than elicit “yes” and “no” responses during the providence
inquiry is
disfavored, a military judge’s use of leading questions does not
automatically
result in an improvident plea; rather, the totality of the
circumstances of the
providence inquiry are examined, including the stipulation of fact, as
well as
the relationship between the accused’s responses to leading questions
and the
full range of the accused’s responses during the plea inquiry).
United
States v. Collier, 67 M.J. 347 (a military
judge’s ruling that bias evidence
is inadmissible is reviewed for an abuse of discretion; for the ruling
to be an
abuse of discretion, it must be more than a mere difference of opinion;
rather,
it must be arbitrary, fanciful, clearly unreasonable or clearly
erroneous).
(although a military judge
enjoys wide
discretion in applying MRE 403 balancing, an appellate court gives
military
judges less deference if they fail to articulate their balancing
analysis on
the record).
(members are presumed to
follow a military
judge’s instructions to consider evidence for a proper purpose, such as
bias or
motive to misrepresent, and not let personal beliefs or feelings affect
their
determinations about witness credibility).
(in the case of
limitation of cross-examination, the correct inquiry is whether,
assuming that
the damaging potential of the cross-examination were fully realized, a
reviewing court might nonetheless say that the error was harmless
beyond a
reasonable doubt; the burden is on the government to show that there is
no
reasonable possibility that the error contributed to the contested
findings of
guilty; an error has not contributed to the verdict when it was
unimportant in
relation to everything else the jury considered on the issue in
question, as
revealed in the record; to find that the error warrants relief, an
appellate
court need not conclude that appellant’s defense would have succeeded;
instead
the inquiry should focus on whether the military judge’s ruling
essentially
deprived appellant of her best defense that may have tipped the
credibility
balance in appellant’s favor; in this regard, an appellate court
balances the
importance of the witness’s testimony in the prosecution’s case,
whether the
testimony was cumulative, the presence or absence of evidence
corroborating or
contradicting the testimony of the witness on material points, the
extent of
cross-examination otherwise permitted, and, of course, the overall
strength of
the prosecution’s case).
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. Riddle, 67 M.J. 335 (an appellate
court reviews a military judge’s
decision to accept a guilty plea for an abuse of discretion and
questions of
law arising from the guilty plea de novo).
(once the military judge has
accepted the
pleas and entered findings based upon them, an appellate court will not
set
them aside unless it finds a substantial conflict between the pleas and
the
accused’s statements or other evidence of record; more than a mere
possibility
of conflict is required; instead, an appellate court must find
something in the
record of trial, with regard to the factual basis or the law, that
would raise
a substantial question regarding the appellant’s guilty plea).
United
States v. Campos, 67 M.J. 330 (a forfeiture is
basically an oversight; a
waiver is a deliberate decision not to present a ground for relief that
might
be available in the law; while an appellate court reviews forfeited
issues for
plain error, it cannot review waived issues at all because a valid
waiver
leaves no error for the court to correct on appeal; in determining
whether a
particular circumstance constitutes a waiver or a forfeiture, an
appellate
court considers whether the failure to raise the objection at the trial
level
constituted an intentional relinquishment of a known right).
(if this were simply a case
where testimony
came into evidence without any objection or comment from defense
counsel, an
appellate court would review for plain error).
United
States v. Delarosa, 67 M.J. 318 (on appeal of a
motion to suppress
incriminating statements, an appellate court accepts the military
judge’s
findings of historical fact unless they are clearly erroneous, and it
reviews
the military judge’s conclusions of law de novo).
United
States v. Gladue, 67 M.J. 311 (waiver is
different from forfeiture; whereas
forfeiture is the failure to make the timely assertion of a right,
waiver is
the intentional relinquishment or abandonment of a known right; the
distinction
between the terms is important; if an appellant has forfeited a right
by failing
to raise it at trial, an appellate court reviews it for plain error;
when, on
the other hand, an appellant intentionally waives a known right at
trial, it is
extinguished and may not be raised on appeal).
United
States v. Gardinier, 67 M.J. 304 (for most
constitutional errors at
trial, an appellate court applies the harmless error test set forth in Chapman v.
California, 386 U.S. 18 (1967), to
determine whether the error is harmless
beyond a reasonable doubt; evidence admitted in violation of Article
31, UCMJ,
or the Confrontation Clause of the Sixth Amendment is subject to that
standard;
whether a constitutional error in admitting evidence is harmless beyond
a
reasonable doubt is a question of law that an appellate court reviews
de novo).
(an appellate court considers
the legality of
an order de novo).
United
States v. Von Bergen, 67 M.J. 290 (an appellate
court reviews a
military judge’s decision whether to order relief from a waiver of an
Article
32, UCMJ, investigation for an abuse of discretion).
(an appellate court reviews a
military judge’s conclusions of law under the de
novo standard; if a military judge’s ruling is based on
an
erroneous view of the law, he has abused his discretion).
(Article 32, UCMJ, errors are
tested on direct review for prejudice as defined by Article 59(a),
UCMJ).
(an appellate court reviews
factfinding under
the clearly-erroneous standard and conclusions of law under the de novo
standard).
(whether evidence constitutes
testimonial
hearsay is a question of law reviewed de novo).
(the government bears the
burden of
establishing that a constitutional error has no causal effect upon the
findings; to carry its burden in this case, the government had to
demonstrate
that there was no reasonable possibility that the testimonial German
civilian
police report contributed to the contested finding of guilty to
possession of
marijuana with the intent to distribute).
United
States v. Stephens, 67 M.J. 233 (an appellate
court tests a military judge’s
admission or exclusion of evidence, including sentencing evidence, for
an abuse
of discretion).
(when the
military judge conducts a proper balancing test under MRE 403 on the
record,
that ruling will not be overturned by an appellate court absent a clear
abuse
of discretion; the ruling of a military judge who fails to do so will
receive
correspondingly less deference).
(where a military judge fails
to conduct an
MRE 403 balancing test on the record, an appellate court will examine
the
record itself).
United
States v. Dean, 67 M.J. 224 (interpretation
of a pretrial agreement and
interpretation of provisions of the RCM are questions of law that an
appellate
court reviews de novo).
United
States v. Macomber, 67 M.J. 214 (an appellate
court reviews a military judge’s
denial of a motion to suppress for an abuse of discretion; an abuse of
discretion occurs if the military judge finds clearly erroneous facts
or
misapprehends the law).
(the task of a reviewing court
is not to
conduct a de novo determination of probable cause, but only to
determine
whether there is substantial evidence in the record supporting the
magistrate’s
decision to issue the warrant; this standard reflects the law’s
preference for
warrants and for independent review by magistrates).
(in reviewing a decision that
there was
probable cause for a search, an appellate court must keep in mind that
a
determination of probable cause by a neutral and detached magistrate is
entitled to substantial deference; a deferential standard of review is
appropriate to further the Fourth Amendment’s strong preference for
searches
conducted pursuant to a warrant; resolution of doubtful or marginal
cases
should be largely determined by the preference for warrants, and close
calls
will be resolved in favor of sustaining the magistrate’s decision; a grudging or negative attitude by reviewing
courts towards
warrants, is inconsistent with the Fourth Amendment’s strong preference
for
searches conducted pursuant to a warrant; courts should not invalidate
warrants
by interpreting affidavits in a hypertechnical, rather than a
commonsense,
manner).
(the
duty of the
reviewing court is simply to make a practical, common-sense decision
whether,
given all the circumstances set forth in the affidavit, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place).
(in
reviewing a
ruling on a motion to suppress, an appellate court considers the
evidence in
the light most favorable to the prevailing party).
United
States v. Rogers, 67 M.J. 162 (an appellate
court reviews a military judge’s
ruling on a motion to suppress for an abuse of discretion; an abuse of
discretion exists if the military judge found clearly erroneous facts
or
misapprehended the law; further, it reviews the facts in the light most
favorable to the prevailing party below).
United
States v. Goodin, 67 M.J. 158 (an appellate
court reviews a military judge’s
decision to admit evidence for an abuse of discretion).
United
States v. Kuemmerle, 67 M.J. 141 (an appellate
court reviews
questions of jurisdiction de novo).
United
States v. Conliffe, 67 M.J. 127 (a
military judge’s decision to accept a guilty plea is
reviewed for an abuse of
discretion).
(it
is an abuse of discretion if a military judge fails to obtain from the
accused
an adequate factual basis to support the plea; in addition, it is an
abuse of
discretion if a military judge’s ruling is based on an erroneous view
of the
law).
(while
an appellate court reviews questions of law de novo, military judges
are
afforded broad discretion in whether or not to accept a plea; this
discretion
is reflected in appellate application of the substantial basis test: does the record as a whole show a substantial
basis in law or fact for questioning the guilty plea).
United
States v. Thompson, 67 M.J. 106 (an appellate
court reviews de novo whether a
constitutional error in admitting evidence at trial was harmless).
(before a federal
constitutional error can be
held harmless, an appellate court must be able to declare a belief that
it was
harmless beyond a reasonable doubt; if there is a reasonable
possibility that
the evidence or error complained of might have contributed to the
conviction,
then the constitutional error was not harmless beyond a reasonable
doubt).
(when determining whether a
constitutional
error is harmless, an appellate court should review the entire record).
United
States v. DiPaola, 67 M.J. 98 (once it is
determined that a specific
instruction is required but not given, the test for determining whether
this
constitutional error was harmless is whether it appears beyond a
reasonable
doubt that the error complained of did not contribute to the verdict
obtained;
stated differently, the test is: is it
clear beyond a reasonable doubt that a rational jury would have found
the
defendant guilty absent the error).
United
States v. Crudup, 67 M.J. 92 (the denial of an
accused’s Sixth Amendment
right to cross-examine a witness may be tested for harmlessness).
(appellant court will not set
aside a
conviction as the result of a constitutional error if it may
confidently say,
on the whole record, that the constitutional error was harmless beyond
a
reasonable doubt).
(whether a constitutional
error is harmless in
a particular case depends upon a host of factors, all readily
accessible to
reviewing courts; these factors include the importance of the witness’s
testimony in the prosecution’s case, whether the testimony was
cumulative, the
presence or absence of evidence corroborating or contradicting the
testimony of
the witness on material points, the extent of cross-examination
otherwise
permitted, and, of course, the overall strength of the prosecution’s
case; it
is a better practice to review and balance all of these factors rather
than
rely on only one of them).
(whether a constitutional
error in admitting
evidence is harmless beyond a reasonable doubt is a question of law
that an
appellate court reviews de novo).
United
States v. Wuterich, 67 M.J. 32 (a military
judge’s decision to quash a
subpoena is reviewed under an abuse of discretion standard).
United
States v. Yanger, 67 M.J. 56 (rejection of a
guilty plea requires that the
record of trial show a substantial basis in law or fact for questioning
the
plea).
Denedo
v. United States, 66 M.J. 114 (on direct
appeal in courts-martial in which
the sentence extends to a punitive discharge, the CCA conducts a de
novo review
of the findings and sentence approved by the convening authority).
(the
burden of establishing the truth of
factual matters relevant to the claim of ineffective assistance rests
with the
accused; if there is a factual dispute on a matter pertinent to the
claim, the
determination as to whether further factfinding will be ordered is
resolved
under United States v. Ginn, 47 MJ 236 (CAAF 1997)).
United
States v. Wilcox, 66 M.J. 442 (an appellate
court reviews questions of legal
sufficiency de novo as a matter of law; the test for legal sufficiency
is
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).
(the CAAF’s jurisprudence on
charged
violations of Article 134, UCMJ, involving speech recognizes the
importance of
the context of that speech; consistent with the focus on context
necessary to
establish a violation of Article 134, UCMJ, while speech that would be
impervious to criminal sanction in the civilian world may be proscribed
in the
military, the CAAF has long recognized that when assessing a criminal
violation
implicating the First Amendment, the proper balance must be struck
between the
essential needs of the armed services and the right to speak out as a
free
American; necessarily, the CAAF must be sensitive to protection of the
principle of free thought; prior to applying this balancing test to a
charged
violation of Article 134, UCMJ, involving speech, two threshold
determinations
must be made: first, the speech involved
must be examined to determine whether it is otherwise protected under
the First
Amendment, and second, the government must have proved the elements of
an
Article 134, UCMJ, offense).
United
States v. Czachorowski, 66 M.J. 432
(an appellate court reviews an evidentiary
ruling with regard to the residual hearsay exception of MRE 807 for an
abuse of
discretion; findings of fact are affirmed unless they are clearly
erroneous;
conclusions of law are reviewed de novo).
United
States v. Bartlett, 66 M.J. 426 (an appellate
court reviews claims of error in
the selection of members of courts-martial de novo as questions of law).
(there is a strong presumption
that an error
is not structural).
(in deciding issues of
improper court member
selection, an appellate court employs a case-specific rather than a
structural-error analysis).
(the burden of demonstrating
prejudice, or the
lack thereof, from nonconstitutional error in the detailing of court
members
depends on the manner in which the error occurred; in those cases where
an
appellate court concludes that the error resulted from unlawful command
influence -- attempts to affect the outcome of the trial through the
selection
of particular members – it will not affirm unless the government
establishes
beyond a reasonable doubt that the error was harmless; where a
convening
authority has intentionally included or excluded certain classes of
individuals
from membership, in an attempt to comply with the requirements of
Article 25,
UCMJ - such as exclusion of junior officers and enlisted members
because senior
officers possess better maturity and judgment – an appellate court will
place
the burden on the government to demonstrate lack of harm; on the other
hand,
when there is a simple administrative error, the burden in on appellant
to show
prejudice).
(where an error in exempting
certain classes
of officers from court-martial service was not a simple administrative
mistake
but mandated by an Army regulation, the government has the burden of
showing
the error was harmless).
United
States v. Ober, 66 M.J. 393 (an appellate
court reviews de novo the
question whether the evidence is legally sufficient to support a
finding of
guilty for transporting child pornography in interstate commerce; the
test for
legal sufficiency of the evidence is 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).
(whether a court-martial panel
was properly
instructed is a question of law that an appellate court reviews de
novo).
United
States v. Bright, 66 M.J. 359 (legal
sufficiency is a question of law that
an appellate court reviews de novo; the test for legal sufficiency is
whether,
considering the evidence in the light most favorable to the
prosecution, any
reasonable factfinder could have found all the essential elements of
the offense
beyond a reasonable doubt).
(in resolving questions of
legal sufficiency,
an appellate court is bound to draw every reasonable inference from the
evidence of record in favor of the prosecution).
United States
v. Elfayoumi,
66 M.J. 354 (to test whether there is substantial doubt about the
fairness of
the trial, an appellate court evaluates implied bias objectively,
through the
eyes of the public, reviewing the perception or appearance of fairness
of the
military justice system; this review is based on the totality of the
circumstances;
although an appellate court reviews issues of implied bias for an abuse
of
discretion, because it applies an objective test, it applies a less
deferential
standard than it would when reviewing a claim of actual bias).
United
States v. Webb, 66 M.J. 89 (in cases where
the defense has requested any
undisclosed impeachment evidence, an appellate court requires the
government to
show that nondisclosure is harmless beyond a reasonable doubt).
(an appellate court reviews a
military judge’s
decision to order a new trial for an abuse of discretion; a military
judge
abuses her discretion when her findings of fact are clearly erroneous,
the
court’s decision is influenced by an erroneous view of the law, or the
military
judge’s decision on the issue at hand is outside the range of choices
reasonably arising from the applicable facts and the law).
United
States v. Upham, 66 M.J. 83 (Article 59(a),
UCMJ, states that a finding or
sentence of a court-martial may not be held incorrect on the ground of
an error
of law unless the error materially prejudices the substantial rights of
the
accused; for most constitutional errors at trial, an appellate court
applies
the harmless error test set forth in Chapman v. California, 386
US 18
(1967), to determine whether the error is harmless beyond a reasonable
doubt;
an appellate court applies the Supreme Court’s structural error
analysis,
requiring mandatory reversal, when the error affects the framework
within which
the trial proceeds, rather than simply an error in the trial process
itself).
(an instructional error as to the elements of
an offense should be tested for harmlessness, and should not be treated
as a
structural error; harmless error analysis can be applied not only to
omitted
instructions, but also to instructions that are defective because they
incorrectly describe elements or presume elements).
(when an erroneous instruction
raises
constitutional error, an appellate court assesses two factors: whether the matter was contested, and whether
the element at issue was established by overwhelming evidence; where an
appellate court concludes beyond a reasonable doubt that the omitted
element
was uncontested and supported by overwhelming evidence, such that the
jury
verdict would have been the same absent the error, the erroneous
instruction is
properly found to be harmless).
(an instructional error
on the offense of
aggravated assault that improperly directed the members to presume the
element
of offensive touching if they found proof of certain predicate facts,
but did
not remove the burden on the government to prove the predicate facts
beyond a
reasonable doubt, was not so intrinsically harmful as to require
automatic
reversal of appellant’s conviction on the lesser included offense of
assault
consummated by battery; as such, the erroneous instruction was subject
to a
harmlessness test).
(an instructional error on the offense of
aggravated assault that improperly directed the members to presume the
element
of offensive touching if they found proof of certain predicate facts,
but did
not remove the burden on the government to prove the predicate facts
beyond a
reasonable doubt, was harmless, and thus did not preclude affirming
appellant’s
conviction on the lesser included offense of assault consummated by
battery,
where appellant did not contest the element of offensive touching at
trial, but
acknowledged that he had no justification for engaging in unprotected
sex with the
victim without informing her of his HIV status, and that his actions
caused her
great mental anguish).
United
States v. Michael, 66 M.J. 78 (a military
judge’s decision to admit or exclude
evidence is reviewed under an abuse of discretion standard; a military
judge
abuses his discretion if his findings of fact are clearly erroneous or
his
conclusions of law are incorrect).
United
States v. Lopez de Victoria, 66 M.J. 67 (a question of
statutory
construction is a question of law to be decided de novo).
United
States v. Cucuzzella, 66 M.J. 57 (an appellate
court reviews a
military judge’s decision to admit evidence for an abuse of discretion;
an
abuse of discretion occurs when a military judge either erroneously
applies the
law or clearly errs in making his or her findings of fact).
(in determining whether a
statement
was made with some expectation of receiving medical benefit or
treatment, a
military judge’s finding as to the declarant’s state of mind in making
a
statement is a preliminary question of fact under MRE 104(a); as such,
it will
be set aside only if clearly erroneous; in making this determination,
the
military judge should look to the circumstances surrounding the
proffered
testimony to determine that the appropriate indicia of reliability are
present).
United
States v. Wilson, 66 M.J. 39 (an appellate
court rejects a guilty plea only
where the record shows a substantial basis in law and fact for
questioning a
plea, and it reviews a military judge’s decision to accept a guilty
plea for an
abuse of discretion).
(in considering whether the
evidence is legally sufficient to support an essential element of an
offense,
an appellate court views the evidence in the light most favorable to
the
prosecution and decides whether any rational trier of fact could have
found the
element beyond a reasonable doubt).
United
States v. Stevenson, 66 M.J. 15 (an appellate
court reviews the
denial of a motion to suppress for an abuse of discretion; findings of
fact are
affirmed unless they are clearly erroneous; conclusions of law are
reviewed de
novo).
(an erroneous deprivation of
the right to a
public trial is structural error, which requires an appellate court to
overturn
appellant’s conviction without a harmlessness analysis).
United
States v. Gutierrez, 66 M.J. 329 (issues
involving ineffective
assistance of counsel involve mixed questions of law and fact; an
appellate
court reviews factual findings under a clearly erroneous standard, but
looks at
the questions of deficient performance and prejudice de novo).
(claims of ineffective
assistance
of counsel are analyzed by an appellate court under the test outlined
by the
Supreme Court in Strickland v. Washington, 466 US 668 (1984),
and
considers (1) whether counsel’s performance fell below an objective
standard of
reasonableness, and (2) if so, whether, but for the deficiency, the
result
would have been different; the accused has the burden of demonstrating
both
deficient performance and prejudice; an appellate court is not required
to
apply these tests in any particular order; if it is easier to dispose
of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
that
course should be followed).
(to show prejudice under the Strickland
test, an accused must show that there is a reasonable probability that,
but for
counsel’s unprofessional errors, the result of the proceeding would
have been
different; in demonstrating this reasonable probability, the accused
must show a
probability sufficient to undermine confidence in the outcome; in other
words,
when an accused challenges his conviction based on ineffective
assistance of
counsel, the question is whether there is a reasonable probability
that, absent
the errors, the factfinder would have had a reasonable doubt respecting
guilt).
(the test for prejudice
flowing
from ineffective assistance of counsel, and the burden for proving the
existence of prejudice, is substantially different from the harmless
beyond a
reasonable doubt test applied to constitutional errors where the burden
is on
the government to prove that the error did not contribute to the guilty
finding; the proper test for assessing prejudice flowing from
ineffective assistance
of counsel is to look at all the evidence before the factfinder to
determine if
the accused has met his burden to demonstrate a reasonable probability
that the
factfinder’s decision would have been different).
United
States v. Bragg, 66 M.J. 325 (an appellate
court gives a military judge
great deference when deciding whether actual bias exists because it is
a
question of fact, and the judge has observed the demeanor of the
challenged
member; a military judge is afforded less deference when an appellate
court
reviews a challenge for cause based on implied bias because the issue
is
objectively viewed through the eyes of the public, focusing on the
appearance
of fairness; thus, issues of implied bias are reviewed under a standard
less
deferential than abuse of discretion but more deferential than de novo;
however, a military judge who addresses implied bias by applying the
liberal
grant mandate on the record will receive more deference on review than
one that
does not; an appellate court does not expect record dissertations but,
rather,
a clear signal that the military judge applied the right law; while not
required, where the military judge places on the record his analysis
and
application of the law to the facts, deference is surely warranted).
(in making judgments regarding
implied bias,
an appellate court looks at the totality of the factual circumstances;
implied
bias exists when, regardless of an individual member’s disclaimer of
bias, most
people in the same position would be prejudiced [i.e., biased]).
United
States v. Inabinette, 66 M.J. 320 (the standard
for reviewing a
military judge’s decision to accept a plea of guilty is an abuse of
discretion;
a military judge abuses his discretion if he accepts a guilty plea
without an
adequate factual basis to support the plea - an area in which an
appellate
court affords the judge significant deference; additionally, any ruling
based
on an erroneous view of the law also constitutes an abuse of
discretion; the
military judge’s determinations of questions of law arising during or
after the
plea inquiry are reviewed de novo).
(in reviewing a military
judge’s
acceptance of a plea for an abuse of discretion, appellate courts apply
a
substantial basis test: does the record
as a whole show a substantial basis in law and fact for questioning the
guilty
plea; traditionally, this test is presented in the conjunctive (i.e.,
law and
fact); however, the test is better considered in the disjunctive (i.e.,
law or
fact)).
(in summary, an appellate
court
reviews a military judge’s decision to accept a guilty plea for an
abuse of
discretion and questions of law arising from the guilty plea de novo;
in doing
so, it applies the substantial basis test, looking at whether there is
something in the record of trial, with regard to the factual basis or
the law,
that would raise a substantial question regarding appellant’s guilty
plea).
United
States v. McIlwain, 66 M.J. 312 (whether a
military judge should disqualify
himself or herself is viewed objectively, and is assessed not in the
mind of
the military judge himself or herself, but rather in the mind of a
reasonable
man who has knowledge of all the facts; military judges should broadly
construe
possible reasons for disqualification, but also should not recuse
themselves
unnecessarily).
(an appellate court will
reverse a military
judge’s decision on the issue of recusal only for an abuse of
discretion).
(not every judicial
disqualification error
requires reversal; in determining whether a judge’s disqualification
warrants a
remedy, an appellate court will follow the three-part test announced by
the
Supreme Court in Liljeberg v. Health Services Acquisition Corp.,
486 US
847(1988): (1) the risk of injustice to
the parties, (2) the risk that the denial of relief will produce
injustice in
other cases, and (3) the risk of undermining public confidence in the
judicial
process).
United
States v. Miller, 66 M.J. 306 (an appellate
court reviews a military judge’s
decision to suppress or admit evidence for an abuse of discretion; a
military
judge abuses his discretion when his findings of fact are clearly
erroneous,
the court’s decision is influenced by an erroneous view of the law, or
the
military judge’s decision on the issue at hand is outside the range of
choices
reasonably arising from the applicable facts and the law).
United
States v. Travis, 66 M.J. 301 (whether an
error, constitutional or
otherwise, was harmless, is a question of law that an appellate court
reviews
de novo).
United
States v. Hart, 66 M.J. 273 (when an accused
contests personal
jurisdiction on appeal, an appellate court reviews that question of law
de
novo, accepting the military judge’s findings of historical facts
unless they
are clearly erroneous or unsupported in the record).
United
States v. Navrestad, 66 M.J. 262 (an appellate
court review
questions of legal sufficiency de novo as questions of law; legal
sufficiency
is determined by asking 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).
United
States v. Adams, 66 M.J. 255 (administrative
errors in the drafting of a
convening order are not necessarily fatal to jurisdiction, and may be
tested
for prejudice under Article 59(a), UCMJ).
United
States v. Gallagher, 66 M.J. 250 (an appellate
court reviews a
military judge’s ruling on a motion to suppress evidence for an abuse
of
discretion; it reviews findings of fact for clear error and conclusions
of law
de novo).
United
States v. Maynard, 66 M.J. 242 (the plain error
standard is met when (1) an
error was committed; (2) the error was plain, or clear, or obvious; and
(3) the
error resulted in material prejudice to substantial rights; appellant
bears the
burden of demonstrating that the three prongs of the test are met).
(once a military judge has
accepted a plea as
provident and has entered findings based on it, an appellate court will
not
reverse that finding and reject the plea unless it finds a substantial
conflict
between the plea and the accused’s statements or other evidence of
record; the
mere possibility of such a conflict is
not enough to overturn the plea on appeal).
United
States v. Greatting, 66 M.J. 226 (a military
judge’s decision not
to recuse himself is reviewed for an abuse of discretion).
(in
reviewing a military judge’s
ruling on a recusal motion, an appellate court considers the facts and
circumstances under an objective standard; the test is whether there
was any
conduct that would lead a reasonable man knowing all the circumstances
to the
conclusion that the judge’s impartiality might reasonably be
questioned).
(in
determining whether relief is
warranted when a military judge abused his discretion by denying a
recusal
motion, an appellate court considers the following three factors: (1) the risk of injustice to the parties in
the particular case; (2) the risk that the denial of relief will
produce
injustice in other cases; and (3) the risk of undermining the public’s
confidence in the judicial process).
United
States v. Larson, 66 M.J. 212 (an appellate
court reviews the denial of a
motion to suppress for an abuse of discretion; findings of fact are
affirmed
unless they are clearly erroneous; conclusions of law are reviewed de
novo;
evidence is considered in the light most favorable to the prevailing
party).
(whether there is prejudice
with respect to a
claim of ineffective assistance of counsel depends on whether there is
a
reasonable probability that, absent the errors, the factfinder would
have had a
reasonable doubt respecting guilt; the
appellant
bears the burden of demonstrating that there is a reasonable
probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would
have been different).
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 (whether an
error, constitutional or otherwise,
was harmless, is a question of law that an appellate court reviews de
novo; for
nonconstitutional errors, the government must demonstrate that the
error did
not have a substantial influence on the findings).
United
States v. Holbrook, 66 M.J. 31 (to reject a
guilty plea, the trial record must
show a substantial basis in law and fact for questioning the guilty
plea;
review of the statutory elements required to establish an offense is a
question
of law that an appellate court undertakes de novo; if appellant’s
providence
inquiry established the facts necessary to support the elements of the
UCMJ
offense charged, the plea to that charge is provident).
(not every fact regarding a
qualification for
enlistment may be material; the President’s addition of the adjective
“material” to the second element of the fraudulent enlistment offense
in the
United
States v. Rodriguez, 66 M.J. 201 (whether a CCA
can affirm a
conviction for a single act after determining that the evidence is
factually
insufficient to support the “on divers occasions” general verdict
returned by
the factfinder at trial is a question of law that the CAAF reviews de
novo).
United
States v. Mackie, 66 M.J. 198 (an
appellate court reviews a military judge’s decision to grant or deny a
motion
for a sanity board for an abuse of discretion; a military judge abuses
his
discretion when the findings of fact upon which he predicates his
ruling are
not supported by the evidence of record, if incorrect legal principles
were
used, or if his application of the correct legal principles to the
facts is clearly
unreasonable).
United
States v. Mitchell, 66 M.J. 176 (an appellate
court reviews a military judge’s
decision to accept a guilty plea for an abuse of discretion).
(once a military judge accepts
an accused’s
plea as provident and enters findings based on the plea, an appellate
court
will not reject the plea unless there is a substantial basis in law and
fact
for questioning the guilty plea; the mere possibility of a conflict is
not
sufficient to overturn a military judge’s acceptance of a guilty plea).
United
States v. Day, 66 M.J. 172 (the test for
legal sufficiency of the
evidence is whether, considering the evidence in the light most
favorable to
the prosecution, any reasonable fact-finder could have found all the
essential
elements beyond a reasonable doubt).
(an appellate court’s
assessment of an
appellant’s guilt or innocence for legal sufficiency is limited to the
evidence
presented at trial).
United
States v. Harris, 66 M.J. 166 (appellant has
the burden of establishing his
entitlement to relief for pretrial punishment under Article 13, UCMJ).
(in
reviewing pretrial confinement issues, an appellate court reviews de
novo the
application of the facts to the law and whether appellant is entitled
to credit
for violations of the law).
United
States v. Harcrow, 66 M.J. 154 (considering whether
the laboratory reports in this case constitute inadmissible hearsay
under Crawford v. Washington is a question of law that an appellate
court reviews de novo).
United
States v. Nieto, 66 M.J. 146 (where there was
no objection by the defense
to hypothetical questions asked by the trial counsel during the voir
dire of
panel members, an appellate court applies a plain error standard of
review to
the defense allegation that the prosecution improperly sought to obtain
from
the panel members a commitment to convict appellant based upon a
hypothetical
set of facts).
(to establish plain error,
appellant bears the
burden of demonstrating that (1) an error was committed, (2) the error
was
plain, clear, or obvious, and (3) the error resulted in material
prejudice to
appellant’s substantial rights).
United
States v. Allende, 66 M.J. 142 (substantial
omissions from the record of
trial create a presumption of prejudice that may be rebutted by the
government).
(any deficiency with respect
to explaining the
need for substitute authentication of the record of trial is tested for
prejudice under a harmless error standard of review).
(a ruling by a court of
criminal appeals that
appellant was not prejudiced by an erroneous substitute authentication
of the
record of trial is a question of law that CAAF reviews de novo).
(where the error in the
substitute
authentication of the record of trial by trial counsel, an official
designated
by Article 54(a), UCMJ, as eligible to authenticate the record in a
substitute
capacity, involved the adequacy of the explanation for use of a
substitute
authority, the burden is on appellant to demonstrate prejudice).
United
States v. Scott, 66 M.J. 1 (whether matters
contained in an addendum to the
SJAR constitute new matter that must be served upon an accused is a
question of
law that is reviewed de novo).
United
States v. Wallace, 66 M.J. 5 (an appellate
court reviews a military judge’s
ruling on a defense motion to suppress the results of a search of
appellant’s
computer for an abuse of discretion; findings of fact and conclusions
of law
are reviewed under the clearly erroneous and de novo standards,
respectively).
(an appellate court determines
the voluntariness
of a consent to seizure from the totality of all the circumstances).
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).
(with respect to an appellant’s contention
that a case was tainted by the appearance of unlawful command
influence, an appellate
court’s evaluation is highly case-specific; in addition to considering
the
specific words at issue in the context of the charged offenses, it also
takes
into account factors such as the means and scope of dissemination,
remedial
action within the command in general and with respect to potential
court
members in particular, the degree to which the record itself
demonstrates that
the defense has had a full opportunity to explore the issue, whether
the
government has been forthcoming in its response, and whether the
military judge
has taken any necessary corrective action).
United
States v. Townsend, 65 M.J. 460 (to test whether
there is substantial doubt
about the fairness of the trial, one evaluates implied bias
objectively,
through the eyes of the public, reviewing the perception or appearance
of
fairness of the military justice system; the inquiry is to determine
whether
the risk that the public will perceive that the accused received
something less
than a court of fair, impartial members is too high).
(an appellate court reviews
issues of implied
bias for abuse of discretion).
(although an appellate court
reviews issues of
implied bias for abuse of discretion, the objective nature of the
inquiry
dictates that it accord a somewhat less deferential standard to implied
bias
determinations of a military judge).
(where a military judge does not indicate on
the record that he has considered the liberal grant mandate in ruling
on a
challenge for implied bias, an appellate court will accord that
decision less
deference during its review of the ruling; consequently, it will
overturn a
military judge’s ruling on an accused’s challenge where he clearly
abuses his
discretion in applying the liberal grant mandate; in this case, where
the
military judge assessed the credibility and demeanor of a potential
member on
the record, but the judge’s ruling denying the challenge for cause of
the
member did not reflect whether he considered either implied bias or the
liberal
grant rule, less deference is accorded to his ruling than to one which
reflected consideration of implied bias in the context of the liberal
grant
mandate).
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).
(the voluntariness of a
confession is a
question of law that an appellate court reviews de novo; an appellate
court
examines the totality of the surrounding circumstances to determine
whether the
confession is the product of an essentially free and unconstrained
choice by
its maker; in determining whether an accused’s will was overborne in a
particular case, the court assesses both the characteristics of the
accused and
the details of the interrogation; some of the factors taken into
account have
included the youth of the accused, his lack of education, 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, and
the use
of physical punishment such as the deprivation of food or sleep; the
court
determines the factual circumstances surrounding the confession,
assesses the
psychological impact on the accused, and evaluates the legal
significance of
how the accused reacted).
(to prevail on a
servicemember’s request for
investigative or other expert assistance, the mere possibility of
assistance is
not sufficient; instead, the accused has the burden of establishing
that a
reasonable probability exists that (1) an expert would be of assistance
to the
defense, and (2) that denial of expert assistance would result in a
fundamentally unfair trial; to establish the first prong, the accused
must show
(1) why the expert assistance is needed, (2) what the expert assistance
would
accomplish for the accused, and (3) why the defense counsel were unable
to
gather and present the evidence that the expert assistance would be
able to
develop).
(an appellate court reviews a military judge’s
decision on a defense request for investigative or other expert
assistance for
an abuse of discretion).
United
States v. Hunter, 65 M.J. 399 (the
interpretation of provisions of the RCM,
and whether a term in a PTA violates the RCM, are questions of law that
an
appellate court reviews de novo; ordinary rules of statutory
construction apply
in interpreting the RCM).
(when an appellate court
finds an error in the
providence of a plea, it will reject the plea only where the appellant
demonstrates a material prejudice to a substantial right).
United
States v. Rhoades, 65 M.J. 393 (an appellate
court reviews a military judge’s
decision on a motion to disqualify counsel for an abuse of discretion;
the
military judge’s ruling will be overturned only if the findings of fact
are
clearly erroneous or the decision is influenced by an erroneous
interpretation
of the law).
(an appellate court reviews de
novo the
military judge’s legal conclusion that an appellant’s pleas were
provident).
United
States v. Pack, 65 M.J. 381 (the question of
what law controls resolution
of a claimed constitutional violation is one of law, which an appellate
court
reviews de novo).
(overruling case law by
implication is
disfavored).
United
States v. Othuru, 65 M.J. 375 (although some
constitutional errors may be so
fundamental as to be prejudicial in any event, not all constitutional
errors
require per se reversal; in the context of a particular case, certain
constitutional errors, no less than other errors, may have been
harmless in
terms of their effect on the factfinding process at trial; the denial
of the
opportunity to cross-examine an adverse witness does not fit within the
limited
category of constitutional errors that are deemed prejudicial in every
case; as
the error in this case involves appellant’s Sixth Amendment right to
cross-examine the witnesses, an appellate court may test this
Confrontation
Clause error for its effect upon the trial to determine whether the
error was
harmless beyond a reasonable doubt).
(the government bears the
burden of
establishing that a constitutional error had no causal effect upon the
findings; to meet this burden in this case, the government had to
demonstrate
that there was no reasonable possibility that the erroneous presence of
two
testimonial statements contributed to the contested findings of guilty;
to say
that an error did not contribute to the ensuing verdict is not, of
course, to
say that the factfinder was totally unaware of that feature of the
trial later
held to have been erroneous; to say that an error did not contribute to
the
verdict is, rather, to find that error unimportant in relation to
everything
else the factfinder considered on the issue in question, as revealed in
the
record).
(an appellate court will not
affirm an
accused’s conviction where a constitutional error occurred at trial
unless it
is convinced beyond a reasonable doubt that the constitutional error
was not a
factor in obtaining that conviction).
(the determination of whether
an error of
constitutional dimension is harmless beyond a reasonable doubt is a
question of
law that an appellate court reviews de novo).
(to determine whether a
constitutional error
involving the erroneous admission of two testimonial hearsay statements
was
harmless beyond a reasonable doubt, an appellate court considers the
whole
record; in reviewing the record, an appellate court applies a balancing
test
that considers a host of factors; these factors include the importance
of the
witnesses’ testimony in the prosecution’s case, whether the testimony
was
cumulative, the presence or absence of evidence corroborating or
contradicting
the testimony of the witnesses on material points, the extent of
cross-examination otherwise permitted, and, of course, the overall
strength of
the prosecution’s case).
(an appellate court reviews de
novo whether
appellant was denied due process due to post-trial and appellate delay;
the
methodology for reviewing such issues requires an appellate court to
ask first
whether the particular delay is facially unreasonable; if it concludes
that the
delay is facially unreasonable, then it examines the four factors set
forth in Barker
v. Wingo, 407 US 514, 530 (1972):
(1) the length of the delay; (2) the reasons for the delay; (3)
appellant’s assertion of the right to timely review and appeal; and (4)
prejudice).
United
States v. Custis, 65 M.J. 366 (where the error
in admitting privileged marital
communications was not constitutional in nature, an appellate court, in
testing
for nonconstitutional harmless error, conducts a de novo review to
determine
whether this error had a substantial influence on the members’ verdict
in the context
of the entire case).
United
States v. Brown, 65 M.J. 356 (whether a
military judge properly instructed
court members is a question of law, which an appellate court reviews de
novo).
United
States v. Parrish, 65 M.J. 361 (whether the
court of criminal appeals
correctly resolved appellant’s post-trial claim without a factfinding
hearing
is a legal issue that CAAF reviews de novo).
United States v.
Cabrera-Frattini, 65 M.J. 241 (a military
judge’s determination of a witness’s unavailability and the antecedent
question of the government’s good-faith efforts are reviewed for abuse
of discretion; findings of fact are affirmed unless they are clearly
erroneous; conclusions of law are reviewed de novo; so long as the
military judge understood and applied the correct law, and the factual
findings are not clearly erroneous, neither the military judge’s
decision to admit evidence, nor his unavailability ruling, should be
overturned).
(in order for a witness to be
unavailable for Sixth Amendment purposes, the government must first
make a good faith effort to secure the witness’s presence at trial; the
lengths to which the prosecution must go to produce a witness is
determined under a reasonableness standard; evaluation of
reasonableness or good-faith effort requires an appellate court to
consider all the circumstances rather than to apply a per se rule; the
test for unavailability focuses on whether the witness is not present
in court in spite of good-faith efforts by the government to locate and
present the witness).
(when reviewing a decision of
a CCA on a military judge’s ruling, CAAF typically pierces through that
intermediate level and examines the military judge’s ruling and then
decides whether the CCA was right or wrong in its examination of the
military judge’s ruling).
United States v. Brown, 65 M.J. 227 (the critical
inquiry of an appellate court on review of the legal sufficiency of the
evidence to support a criminal conviction must be not simply to
determine whether the members were properly instructed, but to
determine whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt; but this inquiry does not
require a court to ask itself whether it believes that the evidence at
the trial established guilt beyond a reasonable doubt; instead, the
relevant question 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).
(in order to prevail under
a plain error analysis, appellant must demonstrate that: (1)
there was an error; (2) it was plain or obvious; and (3) the error
materially prejudiced a substantial right).
(where neither party appeals
a ruling of the court below, that ruling will normally be regarded as
law of the case and binding upon the parties; where there is no appeal,
a superior court will not review the lower court’s ruling unless the
lower court’s decision is clearly erroneous and would work a manifest
injustice if the parties were bound by it).
(in assessing prejudice under
the plain error test where prosecutorial misconduct has been alleged,
an appellate court looks at the cumulative impact of any prosecutorial
misconduct on the accused’s substantial rights and the fairness and
integrity of his trial; the best approach involves a balancing of the
following three Fletcher factors: (1) the
severity of the misconduct, (2) the measures adopted to cure the
misconduct, and (3) the weight of the evidence supporting the
conviction).
United States v. Erickson, 65 M.J. 221 (in assessing
prejudice in a judge alone trial in which prosecutorial misconduct
during the trial counsel’s sentencing argument was alleged to have
resulted in plain error, an appellate court considers the Fletcher
factors to determine whether the trial counsel’s comments, taken as a
whole, were so damaging that the court cannot be confident that
appellant was sentenced on the basis of the evidence alone).
United States v. Leedy, 65 M.J. 208 (the denial of a
motion to suppress is a decision reviewed by an appellate court for an
abuse of discretion).
(an appellate court reviews de
novo the legal question of the sufficiency of the evidence to support a
magistrate’s finding of probable cause, using a totality of the
circumstances test).
(the determination of the
legal question of the sufficiency of the evidence to support a
magistrate’s finding of probable cause is based in large part on the
facts found by the military judge, the review of which an appellate
court conducts under a clearly erroneous standard; findings of fact
will not be overturned unless they are clearly erroneous or unsupported
by the record).
(the clearly erroneous
standard is a very high one to meet; appellant does not meet the burden
by suggesting that the findings are maybe or probably wrong; if there
is some evidence supporting the military judge’s findings, an appellate
court will not hold them arbitrary, fanciful, or clearly erroneous).
(in reviewing a ruling on a
motion to suppress, an appellate court considers the evidence in the
light most favorable to the prevailing party).
(the duty of the reviewing
court, in its de novo review of the sufficiency of the evidence to
support a magistrate’s finding of probable cause, is simply to make a
practical, common-sense decision whether, given all the circumstances
set forth in the affidavit, there is a fair probability that contraband
or evidence of a crime will be found in a particular place).
(there are no specific tests
that must be satisfied to find that a magistrate’s decision to
authorize a search had a substantial basis for probable cause; the
review of a magistrate’s determination is bifurcated into two closely
intertwined analyses: first, an appellate court
examines the facts known to the magistrate at the time of his decision,
and second, it analyzes the manner in which the facts became known to
the magistrate; thus, while an appellate court’s initial inquiry
rightly centers on the evidence as set out in the four corners of the
requesting affidavit, this evidence may then be usefully illuminated by
factors such as the veracity, reliability, and basis of knowledge of
the individual presenting the evidence; the magistrate then relies on
these and other factors in determining the commonsense, practical
question whether there was probable cause to believe that contraband is
located in a particular place).
United States v. Harrow, 65 M.J. 190 (a decision to
admit or exclude evidence is reviewed for an abuse of discretion).
(in applying nonconstitutional
harmless error analysis, an appellate court conducts a de novo review
to determine whether the error had a substantial influence on the
members’ verdict in the context of the entire case).
(the correct test for the
admissibility of uncharged misconduct under MRE 404(b) is: first,
does the evidence reasonably support a finding by the court members
that appellant committed prior crimes, wrongs or acts; second, what
fact of consequence is made more or less probable by the existence of
this evidence; and last, is the probative value substantially
outweighed by the danger of unfair prejudice).
(an appellate court rejects a
guilty plea only where the record shows a substantial basis in law and
fact for questioning a plea).
(an appellate court reviews a
military judge’s decision to accept a guilty plea for an abuse of
discretion).
(CAAF reviews a sentence
reassessment by a CCA for obvious miscarriages of justice or abuses of
discretion).
United States v. Moran, 65 M.J. 178 (whether there
has been improper reference to an accused’s invocation of his
constitutional rights is a question of law that an appellate court
reviews de novo).
(whether there was plain
error is a determination reviewed by an appellate court de novo.).
(appellant has the burden of
persuading an appellate court that the three elements of the plain
error test are satisfied).
(statements made by witnesses
concerning the invocation of an accused’s rights must be reviewed
closely; this is especially so when such comments are reiterated by
trial counsel and when the trial is before members rather than a
military judge alone).
(an appellate court examines
prosecutorial comment within the context of the entire court-martial).
(the test for implied bias is
objective, and asks whether, in the eyes of the public, the challenged
member’s circumstances do injury to the perception of appearance of
fairness in the military justice system; in making this objective
evaluation, an appellate court asks whether most members in the same
position as the challenged member would be prejudiced or biased;
because of this objective test and the nature of the inquiries, issues
of implied bias are reviewed under a standard less deferential than
abuse of discretion but more deferential than de novo).
(in order to prove
ineffective assistance of counsel, appellant must show that his trial
counsel’s performance was deficient and that the deficiency deprived
him of a fair trial; with regard to allegations of ineffective
assistance of counsel, the burden rests on the accused to demonstrate a
constitutional violation; consistent with this principle, 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; in determining whether appellant has a reasonable
probability of success on the motion to suppress the results of
appellant’s consent to a blood draw, an appellate court considers the
totality of the circumstances surrounding the consent).
United States v. Sanchez, 65 M.J. 145 (an appellate
court reviews a military judge’s decision to admit or exclude expert
testimony over defense objection for an abuse of discretion).
(when judicial action is
taken in a discretionary matter, such action cannot be set aside by a
reviewing court unless it has a definite and firm conviction that the
court below committed a clear error of judgment in the conclusion it
reached upon a weighing of the relevant factors; furthermore, 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; as long as a military judge properly follows the
appropriate legal framework, a reviewing court will not overturn a
ruling for an abuse of discretion unless it was manifestly erroneous;
this standard applies as much to the trial court’s decisions about how
to determine reliability as to its ultimate conclusion).
(a military judge’s decision
to accept a guilty plea is reviewed for an abuse of discretion).
(an appellate court reviews
de novo the military judge’s exposition of the elements of the offense
to which the accused is pleading guilty).
(appellate courts have long
adhered to the principle that criminal statutes are to be strictly
construed, and any ambiguity resolved in favor of the accused; where
the legislative intent is ambiguous, the ambiguity is resolved in favor
of the accused).
United States v. Foerster, 65 M.J. 120 (whether a
document constitutes testimonial hearsay is a legal question that an
appellate court reviews de novo).
(an appellate court accepts a
military judge’s findings of fact unless they are clearly erroneous or
unsupported by the record).
(a military judge’s
evidentiary ruling that a forgery affidavit was admissible as a
business record under MRE 803(6) is reviewed by an appellate court for
an abuse of discretion).
(if the military judge
erroneously submits the issue of legality of an order to the members,
an appellate court considers on appeal whether a record has been
established that permits it to resolve the question of legality without
further proceedings).
(the standard for determining
the legal sufficiency of evidence supporting a guilty verdict 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).
(an appellate court reviews
de novo appellant’s claim that he was denied his due process right to a
speedy post-trial review and appeal).
(with respect to the overall
post-trial and appellate period, an appellate court reviews a claim of
a due process violation under the test set forth in United States
v. Moreno, 63 MJ 129, 135 (CAAF 2006).
United States v. Lewis, 65 M.J. 85 (if an
instruction is mandatory, an appellate court will review allegations of
error under a de novo standard of review).
(when the instructional error
raises constitutional implications, the error is tested for prejudice
using a harmless beyond a reasonable doubt standard; the inquiry for
determining whether constitutional error is harmless beyond a
reasonable doubt is whether, beyond a reasonable doubt, the error did
not contribute to the accused’s conviction or sentence).
(an appellate court uses
well-established principles of statutory construction to construe
provisions in the MCM; statutory construction begins with a look at the
plain language of a rule; the plain language will control, unless use
of the plain language would lead to an absurd result).
(to
overcome the presumption of counsel’s competence, appellant must
demonstrate: (1) a deficiency in counsel’s
performance that is so serious that counsel was not functioning as the
counsel guaranteed the defendant by the Sixth Amendment;
and (2) that the deficient performance prejudiced the defense through
errors so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable).
(in a guilty plea case, to satisfy the prejudice prong of the
ineffective assistance of counsel test, the defense must show
specifically that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial).
(when challenging the
performance of counsel, the defense bears the burden of establishing
the truth of the factual allegations that would provide the basis for
finding deficient performance; when there is a factual dispute, an
appellate court determines whether further factfinding is required; if,
however, the facts alleged by the defense would not result in relief
under the high standard of the ineffective assistance of counsel test,
an appellate court may address the claim without the necessity of
resolving the factual dispute).
(an appellate court need not
determine whether any of the alleged errors in counsel’s performance
established constitutional deficiencies under the serious deficiency
prong of the ineffective assistance of counsel test, if any such errors
would not have been prejudicial under the high hurdle established by
the second prong of the test).
(the decision to accept a
guilty plea is reviewed for an abuse of discretion; an appellant who
challenges the providency of a guilty plea must demonstrate a
substantial basis in law and fact for questioning the guilty plea).
United States v. Schroder, 65 M.J. 49 (the question of
whether a jury was properly instructed is a question of law that is
reviewed de novo).
(an appellate court applies
an abuse of discretion standard to a military judge’s decision on
whether to give a tailored instruction requested by the defense).
(where there are
constitutional dimensions at play, appellant’s claims must be tested
for prejudice under the standard of harmless beyond a reasonable doubt).
(where defense counsel did
not object to argument of trial counsel, an appellate court reviews the
argument for plain error).
(improper argument does not
require reversal unless the trial
counsel’s comments, taken as a whole, were so damaging that an
appellate court cannot be confident that the members convicted the
appellant on the basis of the evidence alone).
United States v. Roberson, 65 M.J. 43 (a military
judge’s decision to admit or exclude evidence is reviewed under an
abuse of discretion standard).
(an appellate court reviews
the prejudicial effect of an erroneous evidentiary ruling de novo).
(an appellate court evaluates
prejudice from an erroneous evidentiary ruling by weighing (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; using this evaluation, an
appellate court will reverse a case only if it determines that the
finder of fact would have been influenced by the evidence that was
erroneously omitted).
United
States v. Carr, 65 M.J. 39 (an appellate
court will set aside an appellant’s guilty plea only when the record of
trial shows a substantial basis in law and fact for questioning the
plea; in reviewing the providence of appellant’s guilty pleas, an
appellate court considers his colloquy with the military judge, as well
any inferences that may reasonably be drawn from it).
United
States v. Bare, 65 M.J. 35 (in applying MRE
403 to evidence otherwise admissible under MRE 414, an appellate court
applies an approach balancing numerous factors, to include the
following nonexhaustive list of factors: strength
of proof of prior act -- conviction versus gossip; probative weight of
evidence; potential for less prejudicial evidence; distraction of
factfinder; time needed for proof of prior conduct; temporal proximity;
frequency of the acts; presence or lack of intervening circumstances;
and relationship between the parties; no one factor is controlling,
although in a given case it could be).
United
States v. Rader, 65 M.J. 30 (an appellate
court reviews the denial of a motion to suppress for an abuse of
discretion; findings of fact are affirmed unless they are clearly
erroneous; conclusions of law are reviewed de novo).
(the control a third party
exercises over property or effects is a question of fact; an appellate
court will not disturb the military judge’s findings of fact unless
they are clearly erroneous or unsupported by the record; whether these
facts rise to the level of joint access or control for most purposes is
a question of law that an appellate court reviews de novo).
(an appellate court reviews
de novo the legal question of whether the established facts and the
violation of an Air Force regulation with respect to the conditions of
appellant’s pretrial confinement entitle appellant to additional
sentencing credit).
(when a violation of Article
13, UCMJ, is alleged, an appellate court scrutinizes the government’s
purpose or intent to punish, determined by examining the intent of
detention officials or by examining the purposes served by the
restriction or condition, and whether such purposes are reasonably
related to a legitimate governmental objective).
(an appellate court reviews a
military judge’s decision in response to an accused’s request for
additional confinement credit for abuses of discretion by pretrial
confinement authorities under an abuse of discretion standard).
United
States v. Paxton, 64 M.J. 484 (under
the two-pronged test of Strickland v. Washington, 466 US 668
(1984), for appellant to establish ineffective assistance of counsel,
he first must show that counsel’s performance fell below an objective
standard of reasonableness -- that counsel was not functioning as
counsel within the meaning of the Sixth Amendment; second, he must
demonstrate that there is a reasonable probability that, but for
counsel’s error, there would have been a different result).
(ineffective
assistance of counsel involves a mixed question of law and fact; an
appellate court reviews factual findings under a clearly erroneous
standard, but it applies a de novo standard of review to the ultimate
determination of whether appellant received ineffective assistance of
counsel and whether there was prejudice).
(an appellate court’s review
of counsel’s performance is highly deferential and is buttressed by a
strong presumption that counsel provided adequate professional service).
(as a
general matter, an appellate court will not second-guess the strategic
or tactical decisions made at trial by defense counsel).
(an appellate court reviews
claims of multiplicity de novo).
United States v. Wise, 64 M.J. 468 (a prisoner must
seek administrative relief prior to invoking judicial intervention to
redress concerns regarding post-trial confinement conditions; absent
some unusual or egregious circumstance, this means that the prisoner
has exhausted the prisoner grievance system in his detention facility
and that he has petitioned for relief under Article 138, UCMJ; this
requirement promotes resolution of grievances at the lowest possible
level and ensures that an adequate record has been developed to aid
appellate review).
(an appellate court reviews
factual findings under a clearly erroneous standard, but the ultimate
determination of whether an appellant has exhausted administrative
remedies is reviewed de novo, as a mixed question of law and fact).
(an appellate court reviews de
novo the question of whether an appellant has been subject to
impermissible conditions of post-trial confinement in violation of
Article 55, UCMJ, and/or the Eighth Amendment).
(interpreting Article 12,
UCMJ, is an issue of statutory interpretation, which an appellate court
reviews de novo, as is the question whether Article 12, UCMJ, has been
violated).
(once an appellant makes a
colorable claim that he was put in irons, the burden for establishing
that an exception to the prohibitions of Article 55, UCMJ, were met
falls to the government).
United
States v. Shaw, 64 M.J. 460 (a military
judge’s decision to accept a guilty plea is reviewed for an abuse of
discretion).
(pleas of guilty should not
be set aside on appeal unless there is a substantial basis in law and
fact for questioning the guilty plea).
(once the military judge has
accepted a guilty plea as provident and has entered findings based on
it, an appellate court will not reverse that finding and reject the
plea unless it finds a substantial conflict between the plea and the
accused’s statements or other evidence of record; a mere possibility of
such a conflict is not a sufficient basis to overturn the trial
results).
United States v. Beatty, 64 M.J. 456 (both legal and
factual sufficiency are matters for courts of criminal appeals to
consider de novo).
United States v. Flores, 64 M.J. 451 (an appellate
court reviews a military judge’s denial of a motion to suppress for
abuse of discretion; findings of fact are reviewed for clear error,
while conclusions of law are reviewed de novo; the court views the
evidence in the light most favorable to the prevailing party).
(the military judge’s finding
that appellant voluntarily abandoned his bag by switching bags with
another recruit before a search was ordered was not clearly erroneous
when the evidence was viewed in the light most favorable to the
government; because the military judge properly determined that
appellant abandoned his bag voluntarily and not in response to the
allegedly illegal police conduct, appellant did not carry his burden at
the motion hearing or on appeal of demonstrating that he had a
reasonable expectation of privacy in the bag; accordingly, appellant
lacked standing to challenge the validity of the search or the
admission of derivative evidence, including his confession).
United States v. Davis, 64 M.J. 445 (Article 59(a),
UCMJ, establishes an appellate standard for review of the findings and
sentence, not a trial-level standard for ruling on motions; this
standard is that a finding or sentence of a court-martial may not be
held incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused; like its
federal civilian counterpart, Fed. R. Crim. P. 52(a), Article 59(a)
recognizes that errors are likely to occur in the dynamic atmosphere of
a trial, and that prejudice must be shown before reversing the findings
or sentence).
(as a general matter, if an
appellant demonstrates that a ruling by the military judge was in
error, the burden then shifts to the government to demonstrate that the
error was harmless; if the error is of constitutional dimension or
involves unlawful command influence, the government must show that the
error was harmless beyond a reasonable doubt; an error is treated as
inherently prejudicial, without the need for a further showing of
prejudice, only if it amounts to a structural defect in the
constitution of the trial).
(on appeal, an appellate
court evaluates an error in an Article 32 proceeding under Article
59(a); the standard of review and allocation of burdens in such cases
depends on whether the defect amounts to a structural constitutional
error or other constitutional error, unlawful command influence, or
other nonconstitutional error; to the extent that prior case law
reflected inconsistent treatment of Article 59(a) in the context of
Article 32 errors, Article 59(a) now applies to all Article 32 errors
considered on direct review of the findings and sentence of a
court-martial).
(although the Article 32
investigation is an important element of the military justice process,
it is not part of the court-martial; an Article 32 investigation takes
place before the convening authority’s decision to refer a case for
trial by general court-martial; a case may be referred to trial by
special court-martial without conducting an Article 32 investigation,
even though a special court-martial can result in the stigma of a
punitive discharge and confinement for up to one year; in light of
those considerations, the Article 32 investigation is not so integral
to a fair trial that an error in the proceeding necessarily falls
within the narrow class of defects treated by the Supreme Court as
structural error subject to reversal without testing for prejudice).
United States v. Phillips, 64 M.J. 410 (whether a
convening authority’s action approving a sentence under Article 60(c),
UCMJ, precludes a different officer from converting a contingent
confinement provision of that sentence into actual confinement when
appellant fails to pay the fine is question of law that an appellate
court reviews de novo).
(an appellate court reviews a
decision to convert a fine into confinement for an abuse of discretion).
(in reviewing a case for
legal sufficiency, an appellate court is bound to draw every reasonable
inference from the evidence of record in favor of the prosecution).
(an appellate court reviews a
question of legal sufficiency de novo as a question of law).
(issues of due process and
whether constitutional error is harmless beyond a reasonable doubt are
reviewed by an appellate court de novo).
United States v. Gutierrez, 64 M.J. 374 (there are no
magic words to establish affirmative waiver of a defense; in making
waiver determinations, an appellate court looks to the record to see if
the statements signify that there was a “purposeful decision” at play).
(whether an affirmative
defense has been affirmatively waived is an instructional claim that an
appellate court reviews de novo).
United States v. Rankin, 64 M.J. 348 (the question of
whether documents offered at trial as records of regularly conducted
activity under MRE 803(6) and as public records under MRE 803(8) were
inadmissible hearsay is a question of law that an appellate court
reviews de novo).
United States v. Carruthers, 64 M.J. 340 (a military
judge’s decision to limit cross-examination as to the sentencing
details of a prosecution witness’s plea agreement is reviewed for abuse
of discretion; however, a military judge’s discretionary authority
arises only after there has been permitted as a matter of right
sufficient cross-examination).
(the military judge’s denial
of a requested instruction is reviewed for abuse of discretion).
(an appellate court applies a
three-pronged test to determine whether the failure to give a requested
instruction is error: (1) the requested instruction is correct; (2) it
is not substantially covered in the main instruction; and (3) it is on
such a vital point in the case that the failure to give it deprived the
accused of a defense or seriously impaired its effective presentation).
(when a military judge’s
impartiality is challenged on appeal, the test is whether, taken as a
whole in the context of the trial, the court-martial’s legality,
fairness, and impartiality were put into doubt by the military judge’s
actions; this test is applied from the viewpoint of the reasonable
person observing the proceedings).
(failure to object at trial
to alleged partisan action on the part of a military judge may present
an inference that the defense believed that the military judge remained
impartial).
(an appellate court’s
standard of review for determining whether there is plain error is de
novo).
United States v. Terry, 64 M.J. 295 (where military
judges consider implied bias and apply the liberal grant mandate on the
record, deference is warranted).
(the existence of actual bias
is a question of fact, and an appellate court consequently provides the
military judge with significant latitude in determining whether it is
present in a prospective member; that the military judge, rather than
the reviewing court, has been physically present during voir dire and
watched the challenged member’s demeanor makes the military judge
specially situated in making this determination).
(in analyzing implied bias,
appellate courts provide less deference to the military judge; here,
the military judge’s privileged position at trial is less important
because the test for implied bias is objective, and asks whether, in
the eyes of the public, the challenged member’s circumstances do injury
to the perception of appearance of fairness in the military justice
system; in considering this question, courts also consider whether most
people in the same position would be prejudiced, that is, biased;
consequently, issues of implied bias are reviewed under a standard less
deferential than abuse of discretion but more deferential than de novo).
United
States v. Green, 64 M.J. 289 (if a military
judge erroneously permits consideration of inadmissible evidence during
sentencing, an appellate court tests the error for prejudice).
(if a military judge comments
on the sentence, his remarks may be reviewed on appeal to determine
whether he relied on inadmissible matter in determining the sentence).
(an appellate court reviews a
military judge’s consideration of sentencing factors under an abuse of
discretion standard).
(a claim of judicial bias in
sentencing is evaluated by an appellate court by considering, in view
of the sentencing proceeding as a whole, whether a reasonable person
would doubt the court-martial’s legality, fairness, and impartiality).
United States v. Briggs, 64 M.J. 285 (because a
challenge based on actual bias is essentially one of credibility, and
because the military judge has an opportunity to observe the demeanor
of court members and assess their credibility on voir dire, a military
judge’s ruling on actual bias is afforded deference).
(since implied bias is an
objective standard, a military judge’s ruling on implied bias, while
not reviewed de novo, is afforded less deference than a ruling on
actual bias; however, deference is warranted only when the military
judge indicates on the record an accurate understanding of the law and
its application to the relevant facts).
United States v. Hardison, 64 M.J. 279 (in the absence
of a defense objection, an appellate court reviews a claim of erroneous
admission of evidence for plain error).
(appellant has the burden of
persuading the court that the three prongs of the plain error test are
satisfied).
(implied bias is an objective
test, viewed through the eyes of the public, focusing on the appearance
of fairness; accordingly, a military judge’s ruling on implied bias,
while not reviewed de novo, is afforded less deference than a ruling on
actual bias).
(military judges must follow
the liberal grant mandate in ruling on challenges for cause asserted by
an accused; an appellate court will overturn a military judge’s ruling
on an accused’s challenge for cause where he clearly abuses his
discretion in applying the liberal grant mandate).
(a military judge who
addresses implied bias by applying the liberal grant mandate on the
record will receive more deference on review than one that does not; an
appellate court does not expect record dissertations but, rather, a
clear signal that the military judge applied the right law; while not
required, where the military judge places on the record his analysis
and application of the law to the facts, deference is surely warranted).
(in the absence of actual
bias, where a military judge considers a challenge based on implied
bias, recognizes his duty to liberally grant defense challenges, and
places his reasoning on the record, instances in which the military
judge’s exercise of discretion will be reversed will indeed be rare; in
such circumstances, what might appear a close case on a cold appellate
record, might not appear so close when presented from the vantage point
of a military judge observing members in person and asking the critical
questions that might fill any implied bias gaps left by counsel).
United States v. Pena, 64 M.J. 259 (an appellate
court reviews allegations of cruel or unusual punishment under a de
novo standard).
(in an appellate court’s
evaluation of both constitutional and statutory allegations of cruel or
unusual punishment, it applies the Supreme Court’s Eighth Amendment
jurisprudence in the absence of legislative intent to create greater
protections in the UCMJ).
(an appellate court reviews
de novo claims that punishment was increased without providing the
requisite constitutional, statutory, and regulatory components of
notice and an opportunity to respond).
(although reviewing
authorities have the power to commute a sentence to a different form of
punishment, this authority may not be exercised in a manner that
increases the severity of the punishment; the question of whether a
change in the form of punishment increases the severity of the
punishment is contextual, requiring consideration of all the
circumstances in a particular case).
(the burden is on the party
challenging the conditions of mandatory supervised release program to
demonstrate that there has been an increase above the punishment of
confinement imposed at trial).
(when an appellant asks an
appellate court to review the post-trial administration of a sentence,
that court is typically confronted by issues in which the pertinent
facts are not in the record of trial; in such a case, it is
particularly important that the appellant provide the court with a
clear record of the facts and circumstances relevant to the claim of
legal error; the information about the personal, psychological,
economic, and family impact of such measures is primarily in the
control of the party appealing the sentence, and that party bears the
responsibility of submitting detailed documentation).
(an appellate court reviews
claims as to the providence of a plea under a de novo standard).
(an appellant who challenges
the providence of a guilty plea must demonstrate a substantial basis in
law and fact for questioning the guilty plea).
(when the challenge to the
providence of a guilty plea concerns an appellant’s claimed
misunderstanding of the collateral consequences of a court-martial,
such as an early release program, appellant must demonstrate that the
collateral consequences are major and appellant’s misunderstanding of
the consequences (1) results foreseeably and almost inexorably from the
language of a pretrial agreement; (2) is induced by the trial judge’s
comments during the providence inquiry; or (3) is made readily apparent
to the judge, who nonetheless fails to correct that misunderstanding;
in short, chief reliance must be placed on defense counsel to inform an
accused about the collateral consequences of a court-martial conviction
and to ascertain his willingness to accept those consequences).
(in reviewing claims of a
denial of a speedy trial under Article 10, UCMJ, an appellate court
does not demand constant motion, but reasonable diligence in bringing
the charges to trial; it inquires whether the government moved toward
trial with reasonable diligence; brief inactivity is not fatal to an
otherwise active, diligent prosecution).
(although Article 10, UCMJ,
creates a more stringent speedy trial standard than the Sixth
Amendment, the factors from Barker v. Wingo, 407 U.S. 514
(1972), are an apt structure for examining the facts and circumstances
surrounding an alleged Article 10 violation; those factors are:
(1) the length of the delay; (2) the reasons for the delay; (3)
whether the appellant made a demand for a speedy trial; and (4)
prejudice to the appellant).
(a four-part test is employed
to evaluate prejudice under the standard of review appropriate to a
non-constitutional evidentiary error: (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).
(if the military judge
commits constitutional error by depriving an accused of his right to
present a defense, the test for prejudice on appellate review is
whether the appellate court is able to declare a belief that it was
harmless beyond a reasonable doubt; the government must demonstrate
that there was no reasonable possibility that the absence of
potentially exculpatory evidence contributed to the contested findings
of guilty).
(an appellate court reviews de
novo the question of whether a constitutional error was harmless beyond
a reasonable doubt).
United States v. Canchola, 64 M.J. 245 (a claim of
denial of a due process right to speedy post-trial review is evaluated
under the four factors of Barker v. Wingo, 407 U.S. 514, 530
(1972): (1) the length of the delay; (2) the
reasons for the delay; (3) the appellant’s assertion of his right to
timely post-trial review and appeal; and (4) prejudice).
(the high demands placed upon
military personnel in supporting the national interests of the United
States, particularly in combat or hostile environments, is an
appropriate consideration when assessing the post-trial delay factors
under the Barker analysis; where operational requirements
affect post-trial processing delays, staff judge advocates and
convening authorities should ensure that those reasons are documented
in the record of trial; reviewing courts can then weigh and balance
those reasons in determining whether they provide adequate explanation
for any apparent post-trial delays; however, a general reliance on
budgetary and manpower constraints will not constitute reasonable
grounds for delay nor cause this factor to weigh in favor of the
government).
(in balancing the Barker
factors, in cases where an appellate court finds no prejudice under the
fourth prong, a due process violation will result only when, in
balancing the other three factors, the delay is so egregious that
tolerating it would adversely affect the public’s perception of the
fairness and integrity of the military justice system).
United States v. Perez, 64 M.J. 239 (an accused who
claims ineffective assistance of counsel must surmount a very high
hurdle; judicial scrutiny of a defense counsel’s performance must be
highly deferential and should not be colored by the distorting effects
of hindsight).
(to overcome the presumption
of his defense counsel’s competence, an appellant must satisfy the
two-part test set forth in Strickland v. Washington and
demonstrate: (1) a deficiency in counsel’s
performance that is so serious that counsel was not functioning as the
counsel guaranteed an accused by the Sixth Amendment; and (2) that the
deficient performance prejudiced the defense through errors so serious
as to deprive the accused of a fair trial, a trial whose result is
reliable).
(as a general matter, an
appellate court will not second-guess the strategic or tactical
decisions made at trial by defense counsel).
(an appellate court must
indulge a strong presumption that a defense counsel’s conduct falls
within the wide range of reasonable professional assistance; that is,
an accused must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy; there
are countless ways to provide effective assistance in any given case;
even the best criminal defense attorneys would not defend a particular
client in the same way).
(in cases involving attacks
on defense counsel’s trial tactics, an appellant must show specific
defects in counsel’s performance that were unreasonable under
prevailing professional norms; an appellant must also show prejudice).
(the test for prejudice on a
claim of ineffective assistance of counsel is whether there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different).
(an appellate court considers
whether a defense counsel was ineffective and whether any errors were
prejudicial under a de novo standard of review).
United States v. Lee, 64 M.J. 213 (an appellate
court reviews a military judge’s ruling on a request for expert
assistance for abuse of discretion).
(to test the adequacy of a
showing of necessity for expert assistance, an appellate court applies
a three-part test: the defense must show: (1) why the expert assistance
is needed; (2) what the expert assistance would accomplish for the
accused; and (3) why the defense counsel were unable to gather and
present the evidence that the expert assistance would be able to
develop).
United States v. Crafter, 64 M.J. 209 (failure to
object does not waive the issue of a specification’s legal sufficiency;
if, however, a specification has not been challenged prior to findings
and sentence, the sufficiency of the specification may be sustained if
the necessary facts appear in any form or by fair construction can be
found within the terms of the specification).
(the question of whether a
specification states an offense is a question of law that an appellate
court reviews de novo).
United
States v. Finch, 64 M.J. 118 (failure to object at trial to
exceptions and
substitutions made at findings constitutes waiver of that issue in the
absence
of plain error).
(there
are three
elements for the plain error test: (1) that there was an error, (2)
that the
error was plain, that is, clear or, equivalently, obvious, and (3) the
plain
error affected substantial rights).
(to
prevail on a
fatal-variance claim, appellant must show that the variance was
material and
that it substantially prejudiced him).
(a
variance that
is material is one that, for instance, substantially changes the nature
of the
offense, increases the seriousness of the offense, or increases the
punishment
of the offense).
(with
respect to
the two-part material variance test, the critical question is one of
prejudice;
the prejudice prong consists of a two-part analysis: (1) has the
accused been
misled to the extent that he has been unable adequately to prepare for
trial;
and (2) is the accused fully protected against another prosecution for
the same
offense).
(an
appellate
court reviews claims of post-trial and appellate delay using the
four-factor
analysis from Barker v. Wingo; if there has been a denial of
due
process, appellant is entitled to relief unless the court is convinced
that the
error was harmless beyond a reasonable doubt; where an appellate court
can
determine that any violation of the due process right to speedy
post-trial
review and appeal is harmless beyond a reasonable doubt, it need not
undertake
the four-factor Barker analysis prior to disposing of that
post-trial or
appellate delay issue).
United
States v. Haney, 64 M.J. 101 (there is a three-pronged test to
determine
whether counsel has been ineffective: (1) are the allegations made by
appellant
true; and, if they are, is there a reasonable explanation for counsel’s
actions
in the defense of the case, (2) if the allegations are true, did the
level of
advocacy fall measurably below the performance ordinarily expected of
fallible
lawyers, and (3) if ineffective assistance of counsel is found to
exist, is
there a reasonable probability that, absent the errors, the factfinder
would
have had a reasonable doubt respecting guilt).
(with
respect to
appellant’s claim that his appellate defense counsel failed to perform
the
specific duty of filing pleadings in a timely manner, appellant must
show that
there is a reasonable probability that he was prejudiced by the alleged
deficiency).
(there
are four
factors used to determine whether post-trial delay violates due process
rights:
(1) length of the delay, (2) reasons for the delay, (3) appellant’s
assertion
of his right to a timely appeal, and (4) prejudice to appellant; once
this due
process analysis is triggered by a facially unreasonable delay, the
four
factors are balanced, with no single factor being required to find that
post-trial delay constitutes a due process violation).
(in
order to prevail
on the prejudice prong of an ineffective assistance of counsel claim,
appellant
must ultimately show that the deficient performance prejudiced the
defense).
United
States
v. Gosser, 64 M.J. 93 (the test for excessive post-trial delay
looks at
four Barker v. Wingo factors: (1) the length of the delay, (2)
the
reasons for the delay, (3) appellant’s assertion of the right to timely
review
and appeal, and (4) prejudice; a full due process analysis is triggered
where
the length of delay is facially unreasonable).
(where
a due
process error is one of constitutional magnitude, an appellate court is
obliged
to test this error for harmlessness; to rebut a showing of error, the
government must show that the error was harmless beyond a reasonable
doubt).
United
States v. Long, 64 M.J. 57 (in examining Fourth Amendment privacy
interests, the courts look first to whether the individual had a
subjective
expectation of privacy; if the courts ascertain that a subjective
expectation
of privacy exists, they then determine if that expectation is one that
society
is prepared to accept as reasonable; the first question is one of fact,
which
is reviewed using a clearly erroneous standard; the second is one of
law, which
is reviewed de novo).
(whether
error
is harmless beyond a reasonable doubt is a question of law reviewed de
novo).
(in
determining
whether error is harmless beyond a reasonable doubt, the burden is on
the
government to show whether it appears beyond a reasonable doubt that
the error
complained of did not contribute to the verdict obtained).
United
States v. Kisala, 64 M.J. 50 (there is a presumption that orders
are
lawful; under this presumption, the servicemember challenging the order
bears
the burden of demonstrating the illegality).
United
States v. Shelton, 64 M.J. 32 (in evaluating whether appellant has
established the three criteria necessary to claim the clergy privilege,
the
focus of an appellate court is the ruling of the military judge; when
CAAF
reviews a decision of a court of criminal appeals on a military judge’s
ruling
on the clergy privilege, it typically pierces through that intermediate
level,
examines the military judge’s ruling, and then decides whether the
court of
criminal appeals was right or wrong in its examination of the military
judge’s
ruling).
(an
appellate
court reviews a military judge’s decision to admit evidence for an
abuse of
discretion).
United
States v. Harvey, 64 M.J. 13 (on appeal, an appellant must (1) show
facts
which, if true, constitute unlawful command influence; (2) show that
the
proceedings were unfair; and (3) show that the unlawful command
influence was
the cause of the unfairness).
(an
appellate
court reviews de novo the issue whether the defense produced some
evidence of
facts which, if true, constitute unlawful command influence and that
the
alleged unlawful command influence has a logical connection to the
court-martial in terms of its potential to cause unfairness in the
proceedings).
United
States v. Dearing, 63 M.J. 478 (the touchstone against which an
appellate
court measures the validity of the military judge’s refusal to give an
instruction
on self-defense is whether there is in the record some evidence from
which a
reasonable inference can be drawn that the affirmative defense was in
issue).
(an
appellate
court reviews the adequacy of the military judge’s instruction de
novo).
(the
legal test
for determining whether appellant’s due process right was violated by
excessive
post-trial delay considers four factors: (1) length of the delay;
(2)
reasons for the delay; (3) appellant’s assertion of his right to a
timely
appeal; and (4) prejudice to appellant; once a due process analysis is
triggered by a facially unreasonable delay, the four factors are
balanced, with
no single factor being required to find that post-trial delay
constitutes a due
process violation).
(the standard of review for a claim of denial of a due process right arising from denial of speedy post-trial review and appeal is de novo).
United
States v. Miller, 63 M.J. 452 (the test for ineffective assistance
of
appellate defense counsel is the same as the test for ineffective
assistance of
trial defense counsel; first, the accused must show that counsel’s
performance
was deficient; this requires showing that counsel made errors so
serious that
counsel was not functioning as the counsel guaranteed the accused by
the Sixth
Amendment; second, the accused must show that the deficient performance
prejudiced the defense; this requires showing that counsel’s errors
were so
serious as to deprive the defendant of a fair trial).
(CAAF
employs a
three-pronged test to determine whether counsel has been ineffective:
(1) are
the allegations made by appellant true; and, if they are, is there a
reasonable
explanation for counsel’s actions in the defense of the case; (2) if
the
allegations are true, did the level of advocacy fall measurably below
the
performance ordinarily expected of fallible lawyers; and (3) if
ineffective
assistance of counsel is found to exist, is there a reasonable
probability
that, absent the errors, the factfinder would have had a reasonable
doubt
respecting guilt).
(the
rejection
of a guilty plea requires that the record of trial show a substantial
basis in
law and fact for questioning the plea).
(when
collateral
consequences of a court-martial conviction -- such as administrative
discharge,
loss of a license or a security clearance, removal from a military
program,
failure to obtain promotion, deportation, or public derision and
humiliation --
are relied upon as the basis for contesting the providence of a guilty
plea,
the appellant is entitled to succeed only when the collateral
consequences are
major and the appellant’s misunderstanding of the consequences (a)
results
foreseeably and almost inexorably from the language of a pretrial
agreement;
(b) is induced by the trial judge’s comments during the providence
inquiry; or
(c) is made readily apparent to the judge, who nonetheless fails to
correct
that misunderstanding).
United
States v. Tanner, 63 M.J. 445 (the validity of the sentence in the
later
court-martial may be affected if the prior conviction introduced during
sentencing is reversed on appeal; in such an instance, an appellate
court tests
for prejudice from admission of that prior conviction by determining
whether
the sentence in the later court-martial might have been different had
the
conviction not been introduced during sentencing; in the course of
evaluating
potential prejudice, the court considers whether the same information
otherwise
would have been admissible at the sentence proceeding and at a sentence
rehearing).
(where
the
military judge did not conduct a balancing test in the context of MRE
414, an
appellate court reviews the evidence without giving any deference to
the
decision of the military judge).
United
States
v. Zachary, 63 M.J. 438 (in analyzing offenses charged under the
general
article, Article 134, UCMJ, an appellate court looks at both the
statute and
the President’s explanation in the MCM to determine the elements of the
offense).
(a
guilty plea is
set aside upon a showing that a substantial basis in law and fact for
questioning the guilty plea exists).
United
States v. Osheskie, 63 M.J. 432 (an appellate court reviews
ineffective
assistance of counsel claims de novo).
(the Strickland
test governs
ineffective assistance of counsel claims in cases involving guilty
pleas; appellant
must show not only that his counsel was deficient but also that there
is a
reasonable probability that, but for counsel’s errors, he would not
have
pleaded guilty and would have insisted on going to trial).
(despite
an
appellant’s submission of an affidavit that is factually adequate on
its face
on an ineffective assistance of counsel claim, an appellate court can
independently resolve the factual and legal issues in the case if the
appellate
filings and the record as a whole compellingly demonstrate the
improbability of
the facts).
(an
appellate
court reviews claims of post-trial and appellate delay using the
four-factor
analysis from Barker v. Wingo).
United
States v. Jenkins, 63 M.J. 426 (an appellate court reviews a
military
judge’s decision to admit or exclude evidence for an abuse of
discretion).
United States v. Washington, 63 M.J. 418 (when determining whether the evidence was legally sufficient to support a conviction, an appellate court views the evidence in the light most favorable to the prosecution and decides whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).
United
States v. Lewis, 63 M.J. 405 (under the law of the case doctrine, a
higher
appellate court will not review the lower court’s ruling unless the
lower
court’s decision is clearly erroneous and would work a manifest
injustice if
the parties were bound by it; that standard is difficult to
achieve: a
finding of manifest injustice requires a definite and firm conviction
that a
prior ruling on a material matter is unreasonable or obviously
wrong).
(as
a general
matter, the defense has the initial burden of raising the issue of
unlawful
command influence; on appeal, the defense meets its burden by showing
facts
which, if true, constitute unlawful command influence; that the
proceedings
were unfair; and that unlawful command influence was the cause of the
unfairness).
(once
the issue
of unlawful command influence has been raised, the burden shifts to the
government to demonstrate beyond a reasonable doubt either that there
was no
unlawful command influence or that the proceedings were untainted; this
burden
is high because command influence tends to deprive servicemembers of
their
constitutional rights).
(an
appellate
court reviews de novo the question of whether the government has met
its burden
of demonstrating, beyond a reasonable doubt, that the proceedings were
untainted by unlawful command influence; this review must necessarily
consider
both whether actual command influence was cleansed from the proceedings
as well
as whether any perceived unlawful command influence has been
eradicated).
(the
government
did not meet its burden of demonstrating beyond a reasonable doubt that
the
court-martial was free from the effects of actual unlawful command
influence
arising from the orchestrated efforts of the trial counsel and the
staff judge
advocate to force the recusal of the military judge; although the
successor
military judge directed that the SJA be disqualified, that the SJA be
barred
from sitting in the courtroom, and that there be a new convening
authority,
these actions fell short of removing doubt about the impact of actual
command
influence where the SJA’s instrument in the courtroom, the trial
counsel,
remained an active member of the prosecution despite participating
fully in the
unlawful command influence).
(review
of the
command influence in a case is not limited to actual unlawful influence
and its
effect on a trial; Congress and appellate courts are concerned not only
with
eliminating actual unlawful command influence, but also with
eliminating even
the appearance of unlawful command influence at courts-martial;
disposition of
an issue of unlawful command influence falls short if it fails to take
into
consideration the appearance of unlawful command influence).
(whether
the
conduct of the government created an appearance of unlawful command
influence
is determined objectively; even if there was no actual unlawful command
influence, there may be a question whether the influence of
command placed
an intolerable strain on public perception of the military justice
system; the
objective test for the appearance of unlawful command influence is
similar to
the tests appellate courts apply in reviewing questions of implied bias
on the
part of court members or in reviewing challenges to military judges for
an
appearance of conflict of interest; an appellate court focuses upon the
perception of fairness in the military justice system as viewed through
the
eyes of a reasonable member of the public; thus, the appearance of
unlawful
command influence will exist where an objective, disinterested
observer, fully
informed of all the facts and circumstances, would harbor a significant
doubt
about the fairness of the proceeding).
(the
orchestrated efforts of the trial counsel and the staff judge advocate
to force
the recusal of the military judge gave rise to the appearance of
unlawful
command influence where a reasonable observer would have significant
doubt
about the fairness of the court-martial in light of the government’s
conduct
with respect to the military judge).
United
States v. Leonard, 63 M.J. 398 (the test for actual bias is whether
any
bias is such that it will not yield to the evidence presented and the
judge’s
instructions; while actual bias is reviewed through the eyes of the
military
judge or the court members, implied bias is reviewed under an objective
standard,
viewed through the eyes of the public; the focus is on the perception
or
appearance of fairness of the military justice system; the test for
implied
bias also carries with it an element of actual bias; thus, there is
implied
bias when most people in the same position would be prejudiced; when
there is
no actual bias, implied bias should be invoked rarely).
(a
military
judge’s decision whether to grant a challenge for cause based on actual
bias is
reviewed for an abuse of discretion; this deferential standard exists
because
the judge has observed the demeanor of the participants in the voir
dire and
challenge process).
United
States v. Barnett, 63 M.J. 388 (a military judge’s decision to
admit or
exclude evidence is reviewed under an abuse of discretion
standard).
(a
military
judge abuses his discretion if his findings of fact are clearly
erroneous or
his conclusions of law are incorrect).
(where
a
military judge is required to do a balancing test under MRE 403 and
does not
sufficiently articulate his balancing on the record, his evidentiary
ruling
will receive less deference from an appellate court).
United
States v. Rodriguez-Rivera, 63 M.J. 372 (in analyzing allegations
of
prosecutorial misconduct, courts should gauge the overall effect of
counsel’s
conduct on the trial, and not counsel’s personal
blameworthiness).
(where
the
military judge and the lower court have made factual determinations
regarding
the events surrounding allegations of misconduct, the CAAF will accept
those
determinations unless they are clearly erroneous).
(if
prosecutorial misconduct is found, an appellate court will examine the
record
as a whole to determine whether appellant was prejudiced by the
misconduct).
(an
appellate
court weighs three factors in evaluating the impact of prosecutorial
misconduct
on a trial: (1) the severity of the misconduct; (2) the measures
adopted to
cure the misconduct; and (3) the weight of the evidence supporting the
conviction).
(as
a general
matter, appellate courts have permitted greater latitude and
flexibility when
it comes to treatment and testimony of child witnesses).
(a
military
judge’s decision to admit hearsay-exception evidence is reviewed by an
appellate court for an abuse of discretion).
(in
evaluating a
military judge’s ruling on a challenge for cause, an appellate court
finds it
appropriate to recognize the military judge’s superior position to
evaluate the
demeanor of court members; it will not, therefore, reverse a military
judge’s
ruling on a challenge for cause absent a clear abuse of
discretion).
(where
matters
adverse to the accused from outside the record have been erroneously
considered
by the convening authority, an appellate court will require appellant
to
demonstrate prejudice by stating what, if anything, would have been
submitted
to deny, counter, or explain the new matter; the prejudicial threshold
is low,
and if appellant makes some colorable showing of possible prejudice, an
appellate court will give that appellant the benefit of the doubt and
will not
speculate on what the convening authority might have done if defense
counsel
had been given an opportunity to comment).
(in
determining
whether the evidence is legally sufficient, an appellate court views
the evidence in the light most favorable to
the prosecution and
decides whether any rational trier of fact could have found the
essential
elements of a crime beyond a reasonable doubt).
(if
an appellate
court concludes that appellant has been denied the due process right to
speedy
post-trial review and appeal, it will grant relief unless it is
convinced
beyond a reasonable doubt that the constitutional error is
harmless).
(whether
appellant has been denied the due process right to a speedy post-trial
review
and appeal, and whether constitutional error is harmless beyond a
reasonable
doubt are reviewed by an appellate court de novo).
(as
a general
matter, an appellate court can dispose of an issue by assuming error
and
proceeding directly to the conclusion that any error was harmless;
similarly,
issues involving possible constitutional error can be resolved by
assuming error
and concluding that the error is harmless beyond a reasonable
doubt).
(in
cases
involving claims that appellant has been denied his due process right
to speedy
post-trial review and appeal, an appellate court may look initially to
whether
the denial of due process, if any, is harmless beyond a reasonable
doubt; an
appellate court will apply a similar analysis where, even though the
denial of
due process cannot be said to be harmless beyond a reasonable doubt,
there is
no reasonable, meaningful relief available).
(in
analyzing
whether appellate delay has violated the due process rights of an
accused, an
appellate court first looks at whether the delay in question is
facially
unreasonable; if it is, then this court examines and balances the four
factors
set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972):
(1) the
length of the delay; (2) the reasons for the delay; (3) the appellant’s
assertion of the right to timely review and appeal; and (4)
prejudice).
(if
an appellate
court concludes that an appellant has been denied the due process right
to
speedy post-trial review and appeal, it grants relief unless it is
convinced
beyond a reasonable doubt that the constitutional error is
harmless).
(whether
an
appellant has been denied the due process right to a speedy post-trial
review
and appeal, and whether constitutional error is harmless beyond a
reasonable
doubt are reviewed de novo).
United
States v. Toohey, 63 M.J. 353 (prior to affirming a case in which
there has
been constitutional error, an appellate court must be convinced beyond
a reasonable
doubt that the error was harmless).
(for
nonconstitutional errors, the government bears the burden of showing
that the
error did not have a substantial influence on the findings).
(an
appellate
courts reviews the prejudicial effect of an erroneous evidentiary
ruling de
novo).
(a
four-part test is applied to
determine
whether an error in excluding testimony had a substantial influence on
the
findings: (1) was the government’s case against appellant strong and
conclusive; (2) is the defense’s theory of the case feeble or
implausible; (3)
what is the materiality of the proffered testimony; and (4) what is the
quality
of the proffered defense evidence and is there any substitute for it in
the
record of trial).
reversal
is not required by the erroneous exclusion of evidence if the court
determines
that the finder of fact would not have been influenced by the omitted
evidence).
(an
appellate
court reviews de novo claims that appellant has been denied the due
process
right to a speedy post-trial review and appeal).
(where
an
appellate court finds constitutional error, it grants relief unless it
court is
convinced beyond a reasonable doubt that the constitutional error is
harmless).
(a
due process
analysis of speedy post-trial review and appeal cases utilizes four Barker
factors: (1) the length of the delay; (2) the reasons for the
delay; (3)
appellant’s assertion of the right to timely review and appeal; and (4)
prejudice; once a due process analysis is triggered by a facially
unreasonable
delay, the four factors are balanced, with no single factor being
required to
find that post-trial delay constitutes a due process violation; each
factor is
analyzed and a determination is made as to whether that factor favors
the
government or appellant; an analysis of the factors is then balanced to
determine whether there has been a due process violation; no single
factor is
required for finding a due process violation and the absence of a given
factor
will not prevent such a finding).
(the
government
bears the burden of demonstrating that a constitutional error is
harmless
beyond a reasonable doubt).
United
States v. Edmond, 63 M.J. 343 (in a due process analysis of
prosecutorial
misconduct, an appellate court looks at the fairness of the trial and
not the
culpability of the prosecutor; even where it finds misconduct on the
part of
the prosecutor, the court will go on to look at the overall effect of
counsel’s
conduct on the trial, and not counsel’s personal
blameworthiness).
(when
reviewing
claims of ineffective assistance of counsel, an appellate court is
guided by
the two-pronged test set forth by the United States Supreme Court in Strickland
v. Washington, 466 U.S. 668 (1984); first, an appellant must show
that
counsel’s performance fell below an objective standard of
reasonableness --
that counsel was not functioning as counsel within the meaning of the
Sixth
Amendment; the second prong of an appellant’s burden requires a showing
of
prejudice flowing from counsel’s deficient performance; the appellant
must
demonstrate such prejudice as to indicate a denial of a fair trial or a
trial
whose result is unreliable, i.e. that there is a reasonable probability
that,
but for counsel’s error, there would have been a different
result).
(in
evaluating
issues of prosecutorial misconduct, an appellate
court
reviews the military judge’s findings of fact to determine whether they
are
clearly erroneous; the questions whether the facts found by the
military judge
constitute prosecutorial misconduct and whether
such
misconduct was prejudicial error are questions of law that we
review de
novo).
(in
a
prosecutorial misconduct analysis, even if an appellate court were to
find
misconduct on the part of the prosecutor, this court will go on to look
at the
overall effect of counsel’s conduct on the trial, and not counsel’s
personal
blameworthiness; in assessing prejudice, an appellate court looks at
the
cumulative impact of any prosecutorial misconduct on the accused’s
substantial
rights and the fairness and integrity of his trial).
(an
appellate
court’s review of a defense counsel’s performance is highly deferential
and is
buttressed by a strong presumption that counsel provided adequate
professional
service; the presumption of competence is rebutted
by a
showing of specific errors made by defense counsel that were
unreasonable under
prevailing professional norms).
(to
determine
whether an accused’s consent was an independent act of free will,
breaking the
causal chain between the consent and a prior constitutional violation,
three
factors are considered: (1) the temporal proximity of the illegal
conduct
and the consent; (2) the presence of intervening circumstances; and (3)
the
purpose and the flagrancy of the initial misconduct).
United
States v. Phillippe, 63 M.J. 307 (a military judge’s decision to
accept a
guilty plea is reviewed for an abuse of discretion; pleas of guilty
should not
be set aside on appeal unless there is a substantial basis in law and
fact for
questioning the guilty plea).
United
States v. Lundy, 63 M.J. 299 (interpretation of a pretrial
agreement is a
question of law, which an appellate court reviews de novo).
(whether
the
government has complied with the material terms and conditions of an
agreement
presents a mixed question of law and fact; generally courts look to all
of the
facts and circumstances for this determination, and the inquiry is
generally
considered a question of fact).
(in
the context
of pretrial agreements involving the constitutional rights of a
military
accused, an appellate court looks not only to the terms of the
agreement, or
contract, but to the accused’s understanding of the terms of an
agreement as
reflected in the record as a whole; where the relevant facts are
undisputed,
the materiality determination necessarily reduces to a question of
law).
(an
appellant bears the burden of establishing that there is a significant
basis in
law or fact to overturn a guilty plea; in the context of this case, in
this
context, appellant bears the burden of establishing that a term or
condition of
the agreement was material to his decision to plead guilty, that the
government
failed to comply with that term or condition, and therefore, that his
plea was
improvident).
United
States v. Moss, 63 M.J. 233 (where the Sixth Amendment’s right to
confrontation is allegedly violated by a military judge’s evidentiary
ruling,
the ruling is reviewed for an abuse of discretion; if an abuse of
discretion is
found, the case will be reversed unless the error is harmless beyond a
reasonable doubt).
(when
an
appellant claims a violation of the Confrontation Clause on the grounds
that he
was prohibited from conducting an otherwise appropriate
cross-examination
designed to show a witness’s bias, the appellant has the burden of
showing that
a reasonable jury might have reached a significantly different
impression of
the witness’s credibility if the defense counsel had been able to
pursue the
proposed line of cross-examination).
United
States v. Thompson, 63 M.J. 228 (an appellate court reviews a
military
judge’s decision to admit evidence for abuse of discretion and will not
overturn that ruling unless it is arbitrary, fanciful, clearly
unreasonable, or
clearly erroneous, or influenced by an erroneous view of the
law).
United
States v. Adams, 63 M.J. 223 (when reviewing the providence of a
guilty
plea, an appellate court will only reject the plea where the record of
trial
shows a substantial basis in law and fact for questioning the plea).
United
States v. Tamez, 63 M.J. 201 (jurisdiction is a legal question that
an
appellate court reviews de novo).
(an appellant bears the burden of demonstrating to CAAF good cause for
considering a petition out of time; good cause in this context does not
lend
itself to precise definition; rather good cause represents a
discretionary
judgment on the part of CAAF that an appellant can establish some
reasonable
basis justifying his relief from that default; as part of this showing
of good
cause, counsel should assign some meritorious issue; of course, the
showing of
good cause for the untimely filing of a petition is distinct from the
showing
of good cause required to grant a petition for review).
United
States v. Moreno, 63 M.J. 129 (an appellate court reviews rulings
on
challenges for implied bias under a standard that is less deferential
than
abuse of discretion, but more deferential than de novo review).
(in
reviewing a
ruling on a challenge for cause, an appellate court must remain mindful
of the
liberal grant mandate; the liberal grant mandate recognizes the unique
nature
of military courts-martial panels, particularly that those bodies are
detailed
by convening authorities and that the accused has only one peremptory
challenge; an appellate court will overturn a military judge’s ruling
on an
accused’s challenge for cause where he clearly abuses his discretion in
applying the liberal grant mandate).
(implied
bias
should be invoked sparingly; nevertheless, an appellate court is not
reluctant
to apply the doctrine to ensure the appearance of fairness in
courts-martial).
(an
appellate
court reviews de novo claims that an appellant has been denied the due
process
right to a speedy post-trial review and appeal).
(in
conducting a
de novo review of post-trial delay due process claims, an appellate
court uses
the four factors set forth in Barker v. Wingo, 407 U.S. 514,
530
(1972): (1) the length of the delay; (2) the reasons for the
delay; (3)
the appellant’s assertion of the right to timely review and appeal; and
(4)
prejudice).
(once
a
post-trial delay due process analysis is triggered by a facially
unreasonable
delay, the four Barker factors are balanced, with no single
factor being
required to find that post-trial delay constitutes a due process
violation; an
appellate court analyzes each factor and makes a determination as to
whether
that factor favors the government or the appellant; the court then
balances its
analysis of the factors to determine whether there has been a due
process
violation; no single factor is required for finding a due process
violation and
the absence of a given factor will not prevent such a finding).
(unless
a
post-trial delay is facially unreasonable, a full due process analysis
will not
be triggered; an appellate court will conduct a case-by-case analysis
to
determine if a given delay is facially unreasonable).
(under
the
reasons-for-the-delay Barker factor, an appellate court looks
at the
government’s responsibility for any delay, as well as any legitimate
reasons
for the delay, including those attributable to an appellant; in
assessing the
reasons for any particular delay, an appellate court examines each
stage of the
post-trial period because the reasons for the delay may be different at
each
stage and different parties are responsible for the timely completion
of each
segment).
(a
more flexible
review of post-trial delay occasioned during the period from the
submission of
final briefs to the decision of the court of criminal appeals is
applied where
the exercise of the judicial decision-making authority of a court of
criminal
appeals is involved).
(the
government
bears responsibility for unreasonable delay during appeal occasioned by
the
workload of appellate defense counsel).
(in
the case of
appellate delay, prejudice should be assessed by considering three
similar
interests for prompt appeals: (1) prevention of oppressive
incarceration
pending appeal; (2) minimization of anxiety and concern of those
convicted
awaiting the outcome of their appeals; and (3) limitation of the
possibility that
a convicted person’s grounds for appeal, and his defenses in case of
reversal
and retrial, might be impaired).
(the
oppressive-incarceration-pending-appeal interest for prompt appeals is
directly
related to the success or failure of an appellant’s substantive appeal;
if the
substantive grounds for the appeal are not meritorious, an appellant is
in no
worse position due to the delay, even though it may have been
excessive; under
these circumstances, an appellant would have served the same period of
incarceration
regardless of the delay; however, if an appellant’s substantive appeal
is
meritorious and the appellant has been incarcerated during the appeal
period,
the incarceration may have been oppressive).
(the
anxiety-and-concern interest in prompt appeals involves
constitutionally
cognizable anxiety that arises from excessive delay; the appropriate
test for
the military justice system is to require an appellant to show
particularized
anxiety or concern that is distinguishable from the normal anxiety
experienced
by prisoners awaiting an appellate decision; this particularized
anxiety or
concern is thus related to the timeliness of the appeal, requires an
appellant
to demonstrate a nexus to the processing of his appellate review, and
ultimately assists this court to fashion relief in such a way as to
compensate
an appellant for the particular harm; the anxiety that an appellant may
experience is not dependent upon whether his substantive appeal is
ultimately
successful; an appellant may suffer constitutionally cognizable anxiety
regardless of the outcome of his appeal).
(the
impairment-of-ability-to-present-a-defense-at-a-rehearing interest in
prompt
appeals is directly related to whether an appellant has been successful
on a
substantive issue of the appeal and whether a rehearing has been
authorized; if
an appellant does not have a meritorious appeal, there obviously will
be no
prejudice arising from a rehearing; if, however, a conviction has been
set
aside and a rehearing authorized, the appellate delay encountered by
the
appellant may have a negative impact on his ability to prepare and
present his
defense at the rehearing; due to the passage of time, witnesses may be
unavailable, memories may have faded and records of trial may have been
misplaced or lost; in order to prevail on this factor, an appellant
must be
able to specifically identify how he would be prejudiced at rehearing
due to
the delay; mere speculation is not enough).
(for
courts-martial completed thirty days after May 11, 2006, CAAF will
apply a
presumption of unreasonable delay that will serve to trigger the Barker
four-factor analysis where the action of the convening authority is not
taken
within 120 days of the completion of trial; CAAF will apply a similar
presumption of unreasonable delay for courts-martial completed thirty
days
after May 11, 2006, where the record of trial is not docketed by the
service
court of criminal appeals within thirty days of the convening
authority’s
action).
(for
those cases
arriving at the service courts of criminal appeals thirty days after
May 11,
2006, CAAF will apply a presumption of unreasonable delay where
appellate
review is not completed and a decision is not rendered within eighteen
months
of docketing the case before the court of criminal appeals).
(the
presumptions of unreasonable delay will be viewed as satisfying the
first Barker
factor and they will apply whether or not the appellant was sentenced
to or
serving confinement; it is important to note that the presumptions
serve to
trigger the four-part Barker analysis -- not resolve it; the
government
can rebut the presumption by showing the delay was not unreasonable; by
using
these presumptions, CAAF triggers an appellate analysis and allocates
the
burden).
(once
the
four-factor Barker analysis is completed and those factors
balanced,
reviewing authorities that find a denial of speedy post-trial or appeal
should
tailor an appropriate remedy, if any is warranted, to the circumstances
of the
case; the nature of that relief will depend on the circumstances of the
case,
the relief requested, and may include, but is not limited to: (a)
day-for-day reduction in confinement or confinement credit; (b)
reduction of
forfeitures; (c) set aside of portions of an approved sentence
including punitive
discharges; (d) set aside of the entire sentence, leaving a sentence of
no
punishment; (e) a limitation upon the sentence that may be approved by
a
convening authority following a rehearing; and (f) dismissal of the
charges and
specifications with or without prejudice).
(those
cases
tried or received at a court of criminal appeals prior to May 11, 2006,
and
therefore not encompassed by the foregoing presumptions of unreasonable
delay
will continue to be reviewed on a case-by-case basis under the Barker
due
process analysis).
(dismissal
of
the charges with prejudice would be an option to address the denial of
an
appellant’s due process right to speedy review and appeal if the delay
either
impaired that appellant’s ability to defend against the charges at a
rehearing
or resulted in some other evidentiary prejudice).
United
States v. Magyari, 63 M.J. 123 (when an error is not objected to at
trial,
plain error analysis applies; to prevail under a plain error analysis,
appellant must show that: (1) there was an error; (2) it was plain or
obvious;
and (3) the error materially prejudiced a substantial right; if
appellant meets
his burden of showing plain error, the burden shifts to the Government
to prove
that any constitutional error was harmless beyond a reasonable
doubt).
United
States v. Brisbane, 63 M.J. 106 (when there is a motion to suppress
a statement
on the ground that rights’ warnings were not given, an appellate court
reviews
the military judge’s findings of fact on a clearly-erroneous standard,
and
conclusions of law de novo).
United
States v. Harmon, 63 M.J. 98 (jurisdiction is a legal question
which an
appellate court reviews de novo).
United
States v. Simmons, 63 M.J. 89 (pleas of guilty should not be set
aside on
appeal unless there is a substantial basis in law and fact for
questioning the
guilty plea).
United
States v. Pope, 63 M.J. 68 (in determining whether the evidence is
legally
sufficient, an appellate court views the evidence in the light most
favorable
to the prosecution and decides whether any rational trier of fact could
have
found the essential elements of the crime beyond a reasonable doubt;
the
assessment of the legal sufficiency of the evidence is limited to the
evidence
presented at trial).
(an
appellate
court reviews a military judge’s decision to admit evidence on
sentencing for a
clear abuse of discretion).
United States v. Frederickson, 63 M.J. 55 (if an appellant makes some colorable showing of possible prejudice for the SJA’s failure to serve new matter in an SJAR addendum on the defense, an appellate court will give that appellant the benefit of the doubt and it will not speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment; the burden is on an appellant to demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter; although the threshold is low, an appellant must demonstrate that the proffered response to the unserved addendum could have produced a different result).
United
States v. Cohen, 63 M.J. 45 (when there is a motion to suppress a
statement
on the ground that rights’ warnings were not given, an appellate court
reviews
the military judge’s findings of fact on a clearly-erroneous standard
and
conclusions of law de novo).
United
States v. Quintanilla, 63 M.J. 29 (an appellate court reviews a
military
judge’s decision on a challenge for cause for a clear abuse of
discretion).
(an
abuse of
discretion occurs if the military judge’s findings of fact are clearly
erroneous or if the decision is influenced by an erroneous view of the
law).
(a
military
judge’s ruling on a challenge for cause is given great deference; in
the course
of reviewing the military judge’s ruling on a challenge for cause, it
is
appropriate to recognize the military judge’s superior position to
evaluate the
demeanor of court members).
(although
the
CAAF takes into account the views of the CCA on challenges for cause,
it
typically employs a direct review of the ruling of the military
judge).
(the
CCA erred
in applying a heightened standard of review on a military judge’s
ruling on a
challenge for cause; the careful scrutiny that accompanies capital
cases is not
incompatible with applying the same standard of review used in a
non-capital
case on a military judge’s ruling on a challenge for cause after that
scrutiny
has been completed).
(the
CCA erred
in relying on a post-trial affidavit of a challenged member to assess
the
validity of the ruling by the military judge on that challenge where it
did not
identify any reason to depart from the normal practice of relying on
the
factual information developed in the record of trial when addressing
challenges
for cause).
(the
CAAF
reviews the question of whether the remedy developed by the CCA for a
military
judge’s erroneous granting of a causal challenge was appropriate for an
abuse
of discretion).
United
States v. Dobson, 63 M.J. 1 (an appellate court reviews allegations
of
ineffective assistance of counsel de novo; on appellate review, there
is a
strong presumption that counsel was competent; a servicemember who
seeks to
relitigate a trial by claiming ineffective assistance of counsel must
surmount
a very high hurdle).
(under
the first
prong of the test for ineffective assistance of counsel, which examines
the
issue of deficiency in performance, an appellate court asks: (1) are
appellant’s allegations true; (2) if so, is there a reasonable
explanation for
counsel’s actions; and, (3) if there is not a reasonable explanation,
did
defense counsel’s level of advocacy fall measurably below the
performance
ordinarily expected of fallible lawyers).
(even
if
counsel’s performance was deficient, the defense must surmount the
second prong
of the test for ineffective assistance of counsel, which measures
prejudice;
under this prong, the defense bears the burden of demonstrating that
there is a
reasonable probability that, but for counsel’s unprofessional errors,
the
result of the proceeding would have been different; the second prong is
critical because, if an appellate court concludes that any error would
not have
been prejudicial under the second prong of the test for ineffective
assistance
of counsel, it need not ascertain the validity of the allegations or
grade the
quality of counsel’s performance under the first prong).
(an
appellate
court reviews the ruling on the admissibility of evidence under an
abuse of
discretion standard, under which it assesses whether the military
judge’s
findings of fact were clearly erroneous or whether the decision was
influenced
by an erroneous view of the law).
(the
test for
nonconstitutional evidentiary error requires an appellate court to
weigh four
factors: (1) the strength of the government’s case, (2) the strength of
the
defense’s case, (3) the materiality of the evidence in question, and
(4) the
quality of the evidence in question).
(the
CAAF will
overturn the CCA’s reassessment of a sentence where it cannot be
confident that
the CCA could reliably determine what sentence the members would have
imposed).
United
States v. Roderick, 62 M.J. 425 (when an appellant challenges the
providence of his guilty plea on appeal, an appellate court considers
whether
there is a substantial basis in law and fact for questioning the guilty
plea).
(when
testing
for legal sufficiency, an appellate court looks at
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).
(legal sufficiency is a question of law that an
appellate
court reviews de novo).
(an
appellate
court conducts a de novo review of multiplicity claims).
United
States v. Wolford, 62 M.J. 418 (even though defense counsel did not
object
to the military judge’s instructions at the time of trial, waiver must
be
established by affirmative action of the accused’s counsel, and not by
a mere
failure to object to erroneous instructions; where there is no
affirmative
waiver, an appellate court reviews instructional claims de novo).
(if instructional
error is found
and there are constitutional dimensions at play, the instructional
claims must
be tested for prejudice under the standard of harmless beyond a
reasonable
doubt; the inquiry for determining whether constitutional error is
harmless
beyond a reasonable doubt is whether, beyond a reasonable doubt, the
error did
not contribute to the accused’s conviction or sentence).
(with
respect to
a legal sufficiency claim, an appellate court’s test is 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).
(an
appellate
court reviews a military judge’s decision to give an instruction de
novo).
United
States v. Crawford, 62 M.J. 411 (the question whether an accused is
entitled to credit for a violation of Article 13, UCMJ, is a mixed
question of
fact and law; whether the facts amount to a violation of Article 13,
UCMJ, is a
matter of law an appellate court reviews de novo).
(the
burden
rests upon an accused to establish a violation of Article 13,
UCMJ).
(because
the
conditions of an accused’s confinement relate to both ensuring his
presence for
trial and the security needs of the confinement facility, and because
an
appellate court is reluctant to second-guess the security
determinations of
confinement officials, the accused bears the burden of showing that the
conditions were unreasonable or arbitrary in relation to both
purposes).
(in
dealing with
post-trial, extra-record assertions of fact, an appellate court looks
to the Ginn
principles to determine whether it can resolve the issue without
further
factfinding proceedings; if an affidavit is factually adequate on its
face but
the appellate filings and the record as a whole compellingly
demonstrate the
improbability of those facts, the court may discount those factual
assertions
and decide the legal issue).
United
States v. Gaston, 62 M.J. 404 (an appellate court will set aside a
plea of
guilty if it finds that there is a substantial basis in law and fact
for
questioning the guilty plea; the court will look to the entire record
to
determine whether facts to support a guilty plea have been
established).
United
States v. Gosselin, 62 M.J. 349 (an appellate court will set aside
a guilty
plea where it determines that there is a substantial basis in law and
fact for
questioning the guilty plea).
United
States v. Cendejas, 62 M.J. 334 (the government bears the burden of
establishing that any constitutional error that occurs at trial is
harmless
beyond a reasonable doubt; whether the error is harmless beyond a
reasonable
doubt is a question of law that an appellate court reviews de
novo).
(if
a factfinder
is presented with alternative theories of guilt and one or more of
those
theories is later found to be unconstitutional, any resulting
conviction must
be set aside when it is unclear which theory the factfinder relied on
in
reaching a decision).
United
States v. Gonzalez, 62 M.J. 303 (where the government fails to
disclose
discoverable material pursuant to a specific request, the appellant
will be
entitled to relief unless the government can show that nondisclosure
was
harmless beyond a reasonable doubt).
(to show ineffective
assistance of
counsel, appellant must show both that his counsel’s performance was
deficient
and that the deficiencies were so serious as to deprive him of a fair
trial; an
appellant who seeks to relitigate a trial by claiming ineffective
assistance of
counsel must surmount a very high hurdle; there is a presumption that
counsel
provided adequate professional service; this presumption is rebutted
only by a
showing of specific errors made by defense counsel that were
unreasonable under
prevailing professional norms; in addition, even where counsel made an
error,
the error must have been so prejudicial as to indicate a denial of a
fair trial
or a trial whose result is unreliable).
(the Court of Appeals
for the
Armed Forces applies a three-prong test to determine if the presumption
of
competence has been overcome: (1) Are the allegations true; if
so, is
there a reasonable explanation for counsel’s actions?; (2) If the
allegations
are true, did defense counsel’s level of advocacy fall measurably below
the
performance ordinarily expected of fallible lawyers?; and, (3) If
defense
counsel was ineffective, is there a reasonable probability that, absent
the
errors, there would have been a different result?; where
the case can be resolved by
addressing the third prong -- the question of prejudice -- first, the
court need
not determine whether counsel’s performance was deficient).
United
States v. Lonnette, 62 M.J. 296 (if a servicemember on appeal
alleges error
in the application of a sentence that involves forfeitures, the
servicemember
must demonstrate that the alleged error was prejudicial; to establish
prejudice, an appellant bears the burden of demonstrating that he or
she was
entitled to pay and allowances at the time of the alleged error).
United
States v. Aleman, 62
M.J. 281 (under an appellate court’s standard of review for assessing
the
providence of a guilty plea, the plea will be rejected only where the
record of
trial shows a substantial basis in law and fact for questioning the
plea).
United
States v. Hill, 62 M.J. 271 (as a general matter, an appellate
court
presumes that a military judge knows the rules of evidence and
considers
testimony only for permissible purposes; that presumption is
strengthened by
the prompt action of a trial judge, which expressly cuts off and
rejects
questionable testimony; just as an appellate court presumes that the
members
follow the instructions of the military judge, it also presumes that a
military
judge adheres to his own evidentiary rulings).
United
States v. Bean, 62 M.J. 264 (an appellate court reviews allegations
of
error involving mandatory instructions de novo).
2005
United
States v. Fletcher, 62 M.J. 175 (while prosecutorial misconduct
does not
automatically require a new trial or the dismissal of the charges
against the
accused, relief will be granted if the trial counsel’s misconduct
actually
impacted on a substantial right of an accused, i.e., resulted in
prejudice).
(where
the
defense counsel objected to comments made during the prosecution’s
findings
argument, an appellate court will review them for prejudicial error).
(failure
to
object to improper argument before the military judge begins to
instruct the
members on findings constitutes waiver; in the absence of an objection,
an
appellate court reviews for plain error; plain error occurs when (1)
there is
error, (2) the error is plain or obvious, and (3) the error results in
material
prejudice to a substantial right of the accused).
(in
this case,
trial counsel’s open criticism and personal attack upon defense counsel
was
error; because the error was properly preserved by objection, it is
tested for
prejudice under Article 59(a); in addition, trial counsel’s arguments
that
vouched for evidence, injected unsolicited personal views of the
evidence and
the accused’s guilt, suggested that the defense was a fabrication, and
introduced facts not in evidence were plain and obvious error; because
there
was no objection to these plain and obvious errors, they are tested
under the
plain error doctrine to determine whether they resulted in material
prejudice
to a substantial right of the accused).
(it
is not the
number of legal norms violated but the impact of those violations on
the trial
which determines the appropriate remedy for prosecutorial misconduct;
in
assessing prejudice, an appellate court looks at the cumulative impact
of any
prosecutorial misconduct on the accused’s substantial rights and the
fairness
and integrity of his trial).
(to
determine
the impact of prosecutorial misconduct on a trial, the best approach
involves a
balancing of three factors: (1) the severity of the misconduct,
(2) the
measures adopted to cure the misconduct, and (3) the weight of the
evidence
supporting the conviction).
(prosecutorial
misconduct by a trial counsel will require reversal when the trial
counsel’s
comments, taken as a whole, were so damaging that an appellate court
cannot be
confident that the members convicted the appellant on the basis of the
evidence
alone).
(indicators
of
the severity of prosecutorial misconduct include (1) the raw numbers -–
the
instances of misconduct as compared to the overall length of the
argument, (2)
whether the misconduct was confined to the trial counsel’s rebuttal or
spread
throughout the findings argument or the case as a whole; (3) the length
of the
trial; (4) the length of the panel’s deliberations, and (5) whether the
trial
counsel abided by any rulings from the military judge).
United
States v. Hays, 62 M.J. 158 (the interpretation of solicitation
under
Article 134 is a question of law, which an appellate court reviews de
novo).
(legal
sufficiency is a question of law, which an appellate court reviews de
novo; the
test 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).
(an
appellate
court reviews a military judge’s ruling to admit or exclude evidence
for an
abuse of discretion).
(an
appellate
court reviews a military judge’s decision to admit expert testimony for
an
abuse of discretion).
United
States v. Sowell, 62 M.J. 150 (an appellate court reviews a
military
judge’s decision to restrict an accused’s sentencing statement for
abuse of
discretion).
United
States v. Bresnahan, 62 M.J. 137 (whether a confession is voluntary
is a
question of law that an appellate court reviews de novo; this review
requires
the court to look to the totality of the circumstances to determine
whether the
confession is the product of an essentially free and unconstrained
choice by
its maker; in assessing the totality of the circumstances, the court
will look
to factors such as: the mental condition of the accused; his age,
education,
and intelligence; the character of the detention, including the
conditions of
the questioning and rights warning; and the manner of the
interrogation,
including the length of the interrogation and the use of force,
threats,
promises, or deceptions).
(a
military
judge’s ruling on a request for expert assistance will not be
overturned absent
an abuse of discretion; to reverse for an
abuse of
discretion involves far more than a difference in opinion).
(if an appellate court concludes
that
uncharged misconduct evidence was erroneously admitted, the military
judge’s
decision will not be overturned unless the error materially prejudices
the
substantial rights of the accused).
United
States v. Warner, 62 M.J. 114 (there is no litmus test standard for
determining whether a substitute for a defense-requested expert is
adequate;
rather, this is a fact-intensive determination that is committed to the
military judge’s sound discretion).
(in
construing
Article 46, UCMJ (10 USC 846), an appellate court cannot simply defer
to the
rules contained within the MCM; as a congressional statute, Article 46
prevails
over any limiting interpretation of an MCM provision; to the extent
that
Article 46 provides rights beyond those contained within the MCM rule
on the
production of witnesses and evidence (RCM 703), it is an appellate
court’s
judicial duty to enforce the statutorily-established rights).
United
States v. Martinelli, 62 M.J. 52 (for an appellate court to reject
a guilty
plea on appellate review, the record of trial must show a substantial
basis in
law and fact for questioning the plea).
United
States v. Disney, 62 M.J. 46 (the
constitutionality of an act of Congress is reviewed by an appellate
court de
novo).
United
States v. Johnson, 62 M.J. 31 (a
military judge’s
ruling on admissibility of evidence is reviewed for an abuse of
discretion; to
be overturned on appeal, the military judge’s ruling must be arbitrary,
fanciful, clearly unreasonable or clearly erroneous, or influenced by
an
erroneous view of the law).
United
States v. Barrier, 61 M.J. 482 (an appellate court reviews a
military
judge’s decision to give a sentencing instruction for an abuse of
discretion;
however, the military judge has considerable discretion in tailoring
instructions to the evidence and law).
United
States v. Brewer, 61 M.J. 425 (an appellate court reviews a
military
judge’s decision to admit or exclude evidence for abuse of
discretion).
(where
there is
no objection to an instruction at trial, an appellate court will
provide relief
only if it finds plain error; to meet the test for plain error, an
appellant
must show that there was error, the error was plain or obvious, and the
error
materially prejudiced his substantial rights; if the appellant meets
this test,
the burden shifts to the government to show that the error was harmless
beyond
a reasonable doubt; the court reviews these questions de novo).
(where
an
appellate court finds a constitutional error, it must evaluate whether
the
government has shown that the error was harmless beyond a reasonable
doubt).
United States v. Fischer, 61 M.J. 415 (the question of whether an accused is entitled to credit for an Article 13 violation is reviewed de novo; it is a mixed question of law and fact, and the military judge’s findings of fact will not be overturned unless they are clearly erroneous; the accused bears the burden of proof to establish a violation of Article 13).
United
States v. Griggs, 61 M.J. 402 (an appellate court’s standard of
review for
challenges to legal sufficiency is 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; the court
draws
every reasonable inference from the record in favor of the
prosecution).
(an
appellate court reviews a military judge’s decision to exclude evidence
for an
abuse of discretion; and a ruling based on an erroneous view of the law
constitutes an abuse of discretion).
United
States v. Harris, 61 M.J. 391 (a guilty
plea will
be rejected only where the record of trial shows a substantial basis in
law and
fact for questioning the plea; an appellate court reviews de novo the
military
judge’s legal conclusion that an accused’s pleas were provident).
United
States v. Forbes, 61 M.J. 354 (an appellate court considers
allegations of
error involving mandatory instructions under a de novo standard of
review; it
reviews issues concerning non-mandatory instructions for an abuse of
discretion).
(because
MRE
301(g) requires a balancing of both mandatory and non-mandatory
components, the
standard of review must take into account the specific attributes of
the rule;
when a military judge gives a failure-to-testify instruction over
defense
objection after having identified the case-specific “interests of
justice” that
support his decision and articulating his analysis of those interests
relative
to the defense election, then he should be accorded great deference
under a
standard of review of abuse of discretion; if he identifies the
interests of
justice in question but does not articulate his balancing of those
interests
with the defense election, he is accorded less deference; if he does
not
identify interests of justice at all, the standard of review is de
novo).
United
States v. Rollins, 61 M.J. 338 (when the convening authority acts
to
correct errors in the results of trial, an appellate court reviews that
action
to determine whether the convening authority has cured any prejudice
flowing
from the erroneous treatment of the statute of limitations at trial).
(an
appellate
court reviews constitutional and legal sufficiency claims de
novo).
United
States v. Deisher, 61 M.J. 313 (an appellate court employs a de
novo
standard of review to assess the rulings of the military judge
concerning the
lawfulness of the charged order, including his decision to submit the
issue of
lawfulness to the court-martial panel).
United
States v. Kreutzer, 61 M.J. 293 (the erroneous denial in capital
cases of
an accused’s request for the expert assistance of a mitigation
specialist to
aid in the preparation of the case, is a denial of due process, and as
an error
of constitutional magnitude, it must be tested for prejudice under the
standard
of harmless beyond a reasonable doubt).
(the
inquiry for
determining whether constitutional error is harmless beyond a
reasonable doubt
is whether, beyond a reasonable doubt, the error did not contribute to
the
accused’s conviction or sentence; an appellate court will reverse a
conviction
unless it finds that a constitutional error was not a factor in
obtaining that
conviction; when constitutional error is substantial, and where that
error
contributes to a conviction, the conviction cannot stand).
(an
appellate
court reviews de novo the issue of whether a constitutional error was
harmless
beyond a reasonable doubt).
(the
party
benefiting from a constitutional error bears the burden of
demonstrating that
the error was harmless beyond a reasonable doubt; in this case, as the
party
benefiting from the constitutional error of denying the request for a
mitigation
specialist, the government is called upon to show that the error had no
causal
effect upon the findings; specifically, the government had to
demonstrate that
there was no reasonable possibility that the absence of a mitigation
specialist
contributed to the contested findings of guilty).
(if
an appellant
establishes that counsel was ineffective under the first prong of Strickland,
it is the appellant as opposed to any party benefiting from error who
bears the
burden of demonstrating prejudice).
(to
establish
prejudice for ineffective assistance of counsel, the appellant must
demonstrate
a reasonable probability that, but for counsel’s deficiency, the result
would
have been different; the appellant must demonstrate such prejudice as
to
indicate a denial of a fair trial, a trial whose result is
unreliable).
(the
tests for
determining constitutional harmless error and for determining prejudice
under
an ineffective assistance analysis are substantially different:
the
burden falls on different parties (the government vs. the appellant);
the
burdens themselves are different (possibility vs. probability); and
different
considerations are given to the quality and weight of the evidence of
guilt in
each test; in applying the two tests, it is therefore not unreasonable
or
illogical to come to two different conclusions, even in a single
case).
United States v. Alexander, 61 M.J. 266 (this Court reviews jurisdictional questions de novo; however, where an error is procedural rather than jurisdictional in nature, this Court tests for material prejudice to a substantial right to determine whether relief is warranted).
United
States v. Dooley, 61 M.J. 258 (under RCM 707, the military judge is
directed to apply certain factors in determining a remedy for a speedy
trial
violation, and then decide whether those factors lead to the conclusion
that
the case should be dismissed with or without prejudice; under an abuse
of
discretion standard, mere disagreement with the conclusion of the
military
judge who applied the RCM 707 factors is not enough to overturn his
judgment;
the standard requires that the military judge be clearly wrong in his
determination of the facts or that his decision be influenced by an
erroneous
view of the law).
United
States v. Leak, 61 M.J. 234 (whether the elements of an offense are
met is
based on a totality of the circumstances).
United
States v. Erickson, 61 M.J. 230 (this Court reviews the military
judge’s
acceptance of an appellant’s guilty plea for abuse of discretion; the
test is
whether there is a substantial basis in law and fact for questioning
the guilty
plea).
United
States v. King, 61 M.J. 225 (a determination of whether an accused
has
endured unlawful pretrial punishment involves both constitutional and
statutory
considerations; this Court defers to the findings of fact by the
military judge
where those findings are not clearly erroneous; however, this Court’s
application of those facts to the constitutional and statutory
considerations,
as well as any determination of whether an accused is entitled to
credit for
unlawful pretrial punishment involve independent, de novo review).
United
States v. Johnson, 61 M.J. 195 (a military judge’s ruling on a
petition for
a new trial is reviewed for abuse of discretion).
(an abuse of discretion occurs if the findings of fact upon which a
ruling was
predicated were not supported by evidence of record, if incorrect legal
principles were used, or if the application of correct legal principles
to the
facts of a particular case was clearly unreasonable).
United
States v. Bethea, 61 M.J. 184 (a military judge’s determination of
whether
probable cause existed to support a search authorization is reviewed
for an
abuse of discretion; the duty of a reviewing court is simply to ensure
that the
magistrate had a substantial basis for concluding that probable cause
existed;
in reviewing probable cause determinations, courts must look at the
information
made known to the authorizing official at the time of his decision; and
the
evidence must be considered in the light most favorable to the
prevailing
party).
United
States v. Saintaude, 61 M.J. 175 (claims that attorney conflicts of
interest resulted in the denial of an accused’s constitutional right to
the
effective assistance of counsel are reviewed de novo).
(to
demonstrate
ineffective assistance of counsel, appellant must surmount a very high
hurdle
by showing: (1) a deficiency in counsel’s performance that is so
serious that
counsel was not functioning as the counsel guaranteed appellant by the
Sixth
Amendment; and (2) that the deficient performance prejudiced the
defense
through errors so serious as to deprive appellant of a fair trial, a
trial
whose result is reliable).
(if
the Court
concludes that any error would not have been prejudicial under the
second prong
of Strickland, it need not ascertain the validity of the
allegations or
grade the quality of counsel’s performance under the first
prong).
(conflicts
of
interest, like other actions by an attorney that contravene the canons
of legal
ethics, do not necessarily demonstrate prejudice under the second prong
of Strickland;
although cases involving concurrent representation of multiple clients
have
been treated as inherently prejudicial, not all attorney conflicts
present
comparable difficulties, and most cases will require specifically
tailored
analyses in which appellant must demonstrate both the deficiency and
prejudice
under the standards set by Strickland).
(appellate
courts have applied varying approaches to the question of whether a
conflict of
interest should be viewed as inherently prejudicial if the conflict
does not
involve multiple representation; under this Court’s precedents, the
question of
whether there is inherent prejudice in a conflict between the
self-interest of
an attorney and the interests of the client must be assessed on a
case-by-case
basis).
(under
Strickland,
identification of a potential deficiency is not sufficient; to surmount
the
high hurdle presented by the second prong of Strickland, an
appellant
must demonstrate specific prejudice).
United
States v. Billings, 61 M.J. 163 (this Court reviews military
judges’
decisions regarding expert witnesses for abuse of discretion).
(the
trial judge
enjoys a great deal of flexibility in his or her gatekeeping role on
the
admissibility of expert testimony).
United
States v. Taylor, 61 M.J. 157 (this Court reviews a military
judge’s ruling
on evidentiary matters for an abuse of discretion).
United
States v. James, 61 M.J. 132 (in evaluating a military judge’s
ruling on a
challenge for cause, this Court recognizes the military judge’s
superior
position to evaluate the demeanor of court members; a military judge’s
ruling
on a challenge for cause will therefore not be reversed absent a clear
abuse of
discretion).
United
States v. Mizgala, 61 M.J. 122 (the standard of diligence under
which this
Court reviews claims of a denial of speedy trial under Article 10 is
not
constant motion, but reasonable diligence in bringing the charges to
trial;
short periods of inactivity are not fatal to an otherwise active
prosecution;
further, although Sixth Amendment speedy trial standards cannot dictate
whether
there has been an Article 10 violation, the factors from Barker v.
Wingo
are an apt structure for examining the facts and circumstances
surrounding an
alleged Article 10 violation).
(this
Court’s
framework to determine whether the Government proceeded with reasonable
diligence under Article 10, UCMJ, includes balancing the following four
Barker
v. Wingo factors: (1) the length of the delay; (2) the
reasons for
the delay; (3) whether the appellant made a demand for a speedy trial;
and (4)
prejudice to the appellant).
United
States v. Richardson, 61 M.J. 113 (a military judge’s ruling on a
challenge
for cause is reviewed for an abuse of discretion; military judges are
afforded
a high degree of deference on rulings involving actual bias; by
contrast,
issues of implied bias are reviewed under a standard less deferential
than
abuse of discretion but more deferential than de novo; as this Court
has often
stated, implied bias is reviewed under an objective standard, viewed
through
the eyes of the public, and it is intended to address the perception or
appearance of fairness of the military justice system; actual bias, on
the
other hand, tests the expressed views of members; challenges for actual
or
implied bias are evaluated based on a totality of the circumstances).
(the
discretion
of the military judge in the conduct of voir dire is not without
limits; the
standard of review is whether there was a clear abuse of discretion by
the
judge in denying individual or group voir dire).
United
States v. Reeves, 61 M.J. 108 (evidence is legally sufficient if,
considering the evidence in the light most favorable to the
prosecution, a
reasonable factfinder could have found all the essential elements of
the crime
beyond a reasonable doubt; every reasonable inference from the evidence
of
record is drawn in favor of the prosecution in resolving questions of
legal
sufficiency).
United
States v. Berry, 61 M.J. 91 (a military judge abuses his discretion
if his
application of the correct legal principles to the facts is clearly
unreasonable).
(where the military judge is required to do a balancing test under MRE
403 and
does not sufficiently articulate his balancing on the record, his
evidentiary
ruling will receive less deference by an appellate court).
(a finding or sentence of a court-martial may not be held incorrect on
the
ground of an error of law unless the error materially prejudices the
substantial rights of an accused; for a nonconstitutional error such as
an
erroneous admission of evidence on the merits of a case, the Government
has the
burden of demonstrating that the error did not have a substantial
influence on
the findings; in evaluating whether an erroneous admission of
Government
evidence is harmless, an appellate court uses a four-part test,
weighing:
(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. Jones, 61 M.J. 80 (whether appellant has established
prejudice
with respect to his right to a speedy post-trial review is a legal
question
subject to de novo review).
United
States v. Cano, 61 M.J. 74 (where an appellant demonstrates that
the
Government failed to disclose discoverable evidence in response to a
specific
request, the appellant will be entitled to relief unless the Government
can
show that nondisclosure was harmless beyond a reasonable doubt).
United
States v. Datz, 61 M.J. 37 (a military judge’s ruling on
admissibility of
evidence is reviewed for abuse of discretion; in order to be overturned
on
appeal, the judge’s ruling must be arbitrary, fanciful, clearly
unreasonable or
clearly erroneous, or influenced by an erroneous view of the
law).
United
States v. Carter, 61 M.J. 30 (in the absence of objection to trial
counsel’s argument on findings, we review for plain error).
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).
(ineffective
assistance of counsel involves a mixed question of law and fact;
factual
findings are reviewed under a clearly erroneous standard; but the
ultimate
determinations of whether an appellant received ineffective assistance
of
counsel and whether the error was prejudicial are reviewed de
novo).
United
States v. Meghdadi, 60 M.J. 438 (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. Scalo, 60 M.J. 435 (if defense counsel does not make a
timely
comment on an omission in the SJA’s recommendation, the error is waived
unless
it is prejudicial under a plain error analysis; we conduct a de novo
review of
this issue).
United States v. Williams, 60 MJ 360 (when a claim involves an interpretation of the pretrial agreement, this Court’s review is de novo).
2004
United
States v. Stirewalt, 60 MJ 297 (where the issue of
unlawful
command influence has been litigated on the record, CAAF reviews the
military
judge's findings of fact under a clearly erroneous standard; the
question of
command influence flowing from those facts, however, is a question of
law that
CAAF reviews de novo).
(a
violation of
RCM 405(d)(1) must be measured for prejudice).
United
States v. Banker, 60 MJ 216 (this Court reviews a
military
judge’s decision to exclude evidence under MRE 412 for an abuse of
discretion).
United
States v. Marcum, 60 MJ 198 (a constitutional question
is
reviewed de novo).
(the
application
of Lawrence v. Texas, 539 U.S. 558 (2003) to consensual conduct
charged
under Article 125, UCMJ, must be addressed in context and not through a
facial
challenge; the question this Court must ask is whether Article 125 is
constitutional as applied to the charged conduct; this as-applied
analysis
requires consideration of three questions: First, was the conduct
that
the accused was found guilty of committing of a nature to bring it
within the
liberty interest identified by the Supreme Court? Second, did the
conduct
encompass any behavior or factors identified by the Supreme Court as
outside
the analysis in Lawrence? 539 U.S. at 578. Third,
are there
additional factors relevant solely in the military environment that
affect the
nature and reach of the Lawrence liberty interest?).
(whether
an
appellant suffers prejudicial error when his trial defense counsel
reveals a
privileged communication during the sentencing phase of trial is a
mixed
question of law and fact reviewed de novo).
United
States v. Taylor, 60 MJ 190 (whether a staff judge
advocate or
convening authority is disqualified from participating in the
post-trial review
is a question of law that we review de novo; as we conduct our
analysis, the
defense has the initial burden of making a prima facie case for
disqualification).
United
States v. Gore, 60 MJ 178 (where a military judge
decides that
command influence cannot be cured and dismisses the charges with
prejudice, we
consider whether the military judge erred in fashioning this remedy for
the
unlawful command influence that tainted the proceedings; we review the
remedy
ordered by the military judge for an abuse of discretion).
(an
abuse of discretion
means that when judicial action is taken in a discretionary matter,
such action
cannot be set aside by a reviewing court unless it has a definite and
firm
conviction that the court below committed a clear error of judgment in
the
conclusion it reached upon a weighing of the relevant factors).
(we
will reverse
for an abuse of discretion if the military judge’s findings of fact are
clearly
erroneous or if his decision is influenced by an erroneous view of the
law; 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. Dowty, 60 MJ 163 (the issue of impermissible
screening of the panel pool is one that invites de novo review;
however, the
military judge’s findings of fact are binding unless they are clearly
erroneous).
(the defense shoulders the burden
of establishing the improper exclusion of qualified personnel from the
selection process; once the defense establishes such exclusion, the
Government
must show by competent evidence that no impropriety occurred when
selecting
appellant’s court-martial members).
(the Government has the burden to
demonstrate that the error in preliminarily screening the members by
asking for
volunteers to serve on a court-martial panel did not materially
prejudice the
substantial rights of the accused; in evaluating the prejudice, this
Court
focuses on the motive of those involved in the preliminary screening of
panel
members, the nature of the preliminary screening variable of
volunteerism, and
its impact on the selection of the members).
fact
for questioning the plea; appreciating the tendency of persons accused
of
criminal offenses to rationalize their behavior, this Court permits the
military judge in a borderline case to give weight to the defense
evaluation of
the evidence).
United
States v. Negron, 60 MJ 136 (in evaluating the
providence of a
plea, the entire record should be considered; to prevail on a challenge
to the
providence of a plea, appellant has the burden to demonstrate a
substantial
basis in law and fact for questioning the guilty plea).
United
States v. Cuento, 60 MJ 106 (voluntariness of a
confession is a question of law that an appellate court independently
reviews,
de novo).
(our
standard of review on petitions for new trial is deferential; we review
only
for an abuse of discretion).
(when
presented with a petition for new trial, the reviewing court must make
a
credibility determination, insofar as it must determine whether the
newly
discovered evidence, if considered by a court-martial in the light of
all other
pertinent evidence, would probably produce a substantially more
favorable
result for the accused; the reviewing court does not determine whether
the
proffered evidence is true; nor does it determine the historical acts;
it
merely decides if the evidence is sufficiently believable to make a
more
favorable result probable).
(we
find a Court
of Criminal Appeals has abused its discretion when we reach a definite
and firm
conviction that the court below committed a clear error of judgment in
the
conclusion it reached upon weighing of the relevant factors; this is a
textbook
standard and involves more than a mere difference of opinion).
United States v. Toohey, 60 MJ 100 (this Court’s review of post-trial delay involves a determination of whether a prejudicial error of law has occurred).
United
States v. Pauling, 60 MJ 91 (whether
two offenses are facially duplicative is a question of law that we will
review
de novo; two offenses are not facially duplicative if each requires
proof of a
fact which the other does not; rather than constituting a
literal
application of the elements test, determining whether two
specifications are
facially duplicative involves a realistic comparison of the two
offenses to
determine whether one is rationally derivative of the other; this
analysis
turns on both the factual conduct alleged in each specification and the
providence inquiry conducted by the military judge at trial).
(unreasonable multiplication of charges is
reviewed for
an abuse of discretion).
(the
test for legal sufficiency of the evidence
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; this Court reviews questions of legal
sufficiency de
novo).
United
States v. Barton, 60 MJ 62 (when considering the
adequacy of a
plea, this Court considers the entire record to determine whether the
dictates
of Article 45, UCMJ, Rule for Courts-Martial 910, and Care and
its
progeny have been met; we will not overturn the acceptance of a guilty
plea
unless there is a substantial basis in law and fact for doing so).
United
States v. Simmons, 59 MJ 485 (under Chapman v.
California,
386 U.S. 18 (1967), a reviewing court must declare the impact of a
constitutional error to be harmless beyond a reasonable doubt in order
to
affirm the resultant conviction; the government bears the burden of
establishing that any constitutional error is harmless beyond a
reasonable
doubt; whether the error is harmless beyond a reasonable doubt is a
question of
law that we review de novo; the inquiry under the Chapman
analysis is
whether it appears beyond a reasonable doubt that the error complained
of did
not contribute to the verdicts obtained).
(this
Court has
given the military judge great deference when deciding whether actual
bias
exists because it is a question of fact, and the judge has observed the
demeanor of the challenged member; this Court, however, gives less
deference to
the military judge when reviewing a finding on implied bias because it
is
objectively viewed through the eyes of the public).
(implied
bias is
viewed through the eyes of the public, focusing on the appearance of
fairness;
as a result, an objective standard is used when reviewing the judge’s
decision
regarding implied bias; thus, issues of implied bias are reviewed under
a
standard less deferential than abuse of discretion but more deferential
than de
novo).
(this
Court has
generally found that when there is no actual bias, implied bias should
be invoked
rarely; due process does not require a new trial every time a juror has
been
placed in a potentially compromising situation; instead, this Court has
observed that implied bias exists when, regardless of an individual
member’s
disclaimer of bias, most people in the same position would be
prejudiced [i.e.
biased]); in making judgments regarding implied bias, this Court looks
at the
totality of the factual circumstances).
United
States v. Mason, 59 MJ 416
(this
Court reviews for an abuse of discretion the military judge’s decision
to admit
a blood sample into evidence).
(a
military
judge’s finding of fact is binding on this Court unless it is shown to
be
clearly erroneous).
(for
this Court
to affirm despite an error of constitutional dimension, the error must
be
harmless beyond a reasonable doubt; the essential question is what
effect the
error had or reasonably may be taken to have had upon the court’s
decision).
United
States v. Quick, 59 MJ 383 (this Court reviews the
decision of
the Court of Criminal Appeals on the issue of ineffective assistance of
counsel
de novo as a question of law.).
(the
Supreme
Court in Strickland established a two-prong test for
ineffective
assistance of counsel; first, appellant must show that counsel’s
performance
was deficient; and second, appellant must show that the deficient
performance
prejudiced the defense).
(the
burden on
an appellant to show ineffective assistance of counsel is heavy because
counsel
is presumed to have performed in a competent, professional manner; to
overcome
this presumption, an appellant must show specific defects in counsel’s
performance that were unreasonable under prevailing professional norms).
(there
is no particular order that must be followed in analyzing an
ineffective
assistance of counsel claim; a court need not determine whether
counsel’s
performance was deficient before examining the prejudice suffered by
the
defendant as a result of the alleged deficiencies; if it is easier to
dispose
of an ineffectiveness claim on the ground of lack of sufficient
prejudice,
which we expect will often be so, that course should be followed).
United
States v. Giles, 59 MJ 374 (we review a military
judge’s
decision on whether to grant a severance motion for an abuse of
discretion; if
the motion has been denied, the appellant must demonstrate more than
the fact
that separate trials would have provided a better opportunity for an
acquittal;
the appellant must show that the ruling caused actual prejudice by
preventing
the appellant from receiving a fair trial; in conducting such a review,
we
apply the three-pronged test articulated in United States v. Curtis,
44
M.J. 106, 128 (C.A.A.F. 1996): (1) Do the findings reveal an
impermissible
crossover of evidence? (2) Would the evidence of one offense be
admissible
proof of the other? (3) Did the military judge provide a proper
limiting
instruction?).
United
States v. Adams, 59 MJ 367 (claims that appellate
defense
counsel have rendered ineffective assistance are measured by the same
test
applicable to such claims lodged against a trial defense counsel; thus,
we are
guided by the Supreme Court’s two-pronged test set forth in Strickland
v.
Washington; as applied to the appellate setting, this test places
the
burden on an appellant to show both deficient performance by appellate
defense
counsel and prejudice; an appellant meets his burden on deficient
performance
when he demonstrates that his appellate counsel’s performance was so
deficient
that it fell below an objective standard of reasonableness; the burden
to show
prejudice is met when the appellant shows that appellate counsel’s
errors were
so serious as to deprive the appellant of a fair appellate proceeding
whose
result is reliable).
(an
appellant’s
burden on the deficiency prong of Strickland v. Washington is
heavy
because counsel is presumed to have performed in a competent,
professional
manner; to overcome this presumption, an appellant must show specific
defects
in counsel’s performance that were unreasonable under prevailing
professional
norms).
(we
apply a
three-part test to determine whether an appellant has overcome the
presumption
of competence: (1) are the allegations made by appellant true; and, if
they
are, is there a reasonable explanation for counsel’s actions; (2) if
they are
true, did the level of advocacy fall measurably below the performance
ordinarily expected of fallible lawyers; and (3) if ineffective
assistance of
counsel is found to exist, is there a reasonable probability that,
absent the
errors, there would have been a different result).
(we
review an
appellate defense counsel’s effectiveness de novo as a question of law).
(there
is no
particular order in which the two components of the Strickland v.
Washington
test must be addressed; a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by
the
defendant as a result of the alleged deficiencies; the object of an
ineffectiveness claim is not to grade counsel’s performance; if it is
easier to
dispose of an ineffective claim on the ground of lack of sufficient
prejudice,
which we expect will often be so, that course should be followed).
(in
analyzing an
appellant’s claim of ineffective appellate representation, we do not
look at
the shortcomings of any single counsel and speculate about the impact
of
individual errors; rather, we measure the impact upon the proceedings
by the
combined efforts of the defense team as a whole).
United
States v. Henderson, 59 MJ 350 (the jurisdiction of a
special
court-martial over a non-mandatory capital offense is a legal question
which we
review de novo).
United
States v. Roberts, 59 MJ 323 (our review of
discovery/disclosure issues utilizes a two-step analysis: first,
we
determine whether the information or evidence at issue was subject to
disclosure or discovery; second, if there was nondisclosure of such
information, we test the effect of that nondisclosure on the
appellant’s
trial).
(an appellate court reviews a
military
judge’s decision on a request for discovery for abuse of discretion; a
military
judge abuses his discretion when his findings of fact are clearly
erroneous,
when he is incorrect about the applicable law, or when he improperly
applies
the law).
(the military judge’s
determination of
the materiality of defense-requested discovery evidence is a question
of law
that we review de novo).
(an appellate court reviews the materiality
of the
erroneously withheld information in terms of the impact that
information would
have had on the results of the trial proceedings).
(this Court has adopted two appellate tests for determining materiality
with
respect to the erroneous nondisclosure of discoverable evidence; the
first test
applies to those cases in which the defense either did not make a
discovery
request or made only a general request for discovery; once the
appellant
demonstrates wrongful nondisclosure under those circumstances, the
appellant
will be entitled to relief only by showing that there is a reasonable
probability of a different result at trial if the evidence had been
disclosed;
the second test is unique to our military practice and reflects the
broad
nature of discovery rights granted the military accused under Article
46; 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).
(although the military judge conducted an in camera review of the
disputed
evidence under R.C.M. 701(g)(2), we review that ruling as a matter of
law,
giving no deference to that ruling under our de novo standard of
review;
similarly, the appellate standard of review for assessing the impact of
improper nondisclosure is not deferential because we are not reviewing
any
trial level decision; our appellate assessment of impact is no
different regardless
of whether the discovery issue was ruled on by the military judge under
R.C.M.
701(g)(2) or whether it arose from a government decision to withhold
certain
evidence that was not discovered until after trial).
United
States v. Cain, 59 MJ 285 (our Court reviews claims of
ineffective assistance of counsel de novo).
United
States v. Wiest, 59 MJ 276 (our standard of review for
a trial
judge’s refusal to grant a continuance request is abuse of discretion;
in
determining whether the judge abused his discretion, we consider the
factors
articulated in United States v. Miller 47 M.J. 352 (C.A.A.F.
1997):
surprise, nature of any evidence involved, timeliness of the request,
substitute testimony or evidence, availability of witness or evidence
requested, length of continuance, prejudice to opponent, moving party
received
prior continuances, good faith of moving party, use of reasonable
diligence by
moving party, possible impact on verdict, and prior notice).
United
States v. Springer, 59 MJ 164 (the test for legal
sufficiency of evidence is 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; furthermore, this Court
will draw
every reasonable inference from the evidence of record in favor of the
prosecution).
United
States v. Diaz, 59 MJ 79 (this Court will not
reverse the
military judge’s decision on a motion for mistrial absent clear
evidence of
abuse of discretion).
(when an error impacts appellant’s constitutional rights, an
appellate court
cannot affirm the findings unless it determines beyond a reasonable
doubt that
the error did not contribute to the findings of guilty; the focus is
not on
whether the members were right in their findings but, rather, on
whether the
error had or reasonably may have had an effect upon the members’
findings).
(the government bears the burden of establishing that constitutional
error
is harmless beyond a reasonable doubt; the appellate court examines all
the
circumstances to determine whether the error was harmless beyond a
reasonable
doubt).
(whether a constitutional error in admitting evidence is harmless
beyond a
reasonable doubt is a question of law that will be reviewed de novo).
United States v. Mapes, 59 MJ 60 (the question of whether the Government has shown, by a preponderance of the evidence, that it has based the accused’s prosecution on sources independent of the immunized testimony is a preliminary question of fact; this Court will not overturn a military judge’s resolution of that question unless it is clearly erroneous or is unsupported by the evidence).
United
States v. Donaldson, 58 MJ 477 (we review a
military
judge's ruling on the admissibility of evidence for abuse of
discretion; an
abuse of discretion occurs when a military judge either erroneously
applies the
law or clearly errs in making his or her findings of fact).
United States v. Feltham, 58 MJ 470 (the standard of review of a military judge’s ruling admitting or excluding an excited utterance is an abuse of discretion; this Court will reverse for an abuse of discretion if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law).
United
States v. Moore, 58 MJ 466 (the legality of an
order is a
question of law that we review de novo).
United
States v. O'Connor, 58 MJ 450 (for this Court to
set aside
a finding based upon a guilty plea on appellate review, the record of
trial
must show a substantial basis in law and fact for questioning the
guilty plea).
United
States v. Robinson, 58 MJ 429 (we review issues
involving
reasonable suspicion that a person was engaged in criminal activity de
novo).
(although the military judge erroneously concluded that the police officer had probable cause to stop appellant for a traffic violation, the military judge’s error was harmless, because the military judge reached the correct result, albeit for the wrong reason; the facts found by the military judge were sufficient to establish the police officer's reasonable suspicion for an investigative stop).
United States v. Wellington, 58 MJ 420 (a military judge’s decision to admit residual hearsay is entitled to considerable discretion on appellate review).
United
States v. Simpson, 58 MJ 368 (the issue of whether
a
court-martial panel was properly instructed is a question of law, which
we
review de novo).
United States v. McMahon, 58 MJ 362 (we review a military judge’s evidentiary ruling for abuse of discretion; the military judge’s findings of fact will not be overturned unless they are clearly erroneous or unsupported by the record; we review conclusions of law de novo; we will reverse for an abuse of discretion if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law).
United
States v. Pipkin, 58 MJ 358 (we review the denial
of a
motion to suppress a confession for an abuse of discretion, and we
leave a
military judge’s findings of fact undisturbed unless they are clearly
erroneous).
United
States v. McCollum, 58 MJ 323 (whether an error,
constitutional or otherwise, was harmless is a question of law that we
review
de novo; the Government has the burden of persuading us that a
constitutional
error is harmless beyond a reasonable doubt; for nonconstitutional
errors, the
Government must demonstrate that the error did not have a substantial
influence
on the findings).
United
States v. Kasper, 58 MJ 314 (the issue of
whether
the members were properly instructed is a question of law, which CAAF
reviews de
novo).
(CAAF reviews a military judge’s decision to admit evidence for an abuse of discretion).
United States v. Riley, 58 MJ 305 (the test for legal sufficiency of the evidence 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; legal sufficiency is a question of law, reviewed de novo).
United
States v. Fisher, 58 MJ 300 (rejection of a guilty
plea on
appellate review requires that the record of trial show a substantial
basis in
law and fact for questioning the guilty plea).
United
States v. Dorman, 58 MJ 295 (whether trial defense
counsel
must grant appellate defense counsel access to the case file upon
request,
regardless of whether there is a claim of ineffective assistance of
counsel, is
a question of law that we review de novo).
United States v. Tschip, 58 MJ 275 (whether the right to give an unsworn statement was impermissibly impaired by a reference to administrative discharges in the military judge’s instructions is a question of law, which we review de novo; in the absence of an objection, we review deficiencies in the instruction for plain error).
United
States v. Dugan, 58 MJ 253 (at trial and on
appeal, the
defense has the initial burden of producing sufficient evidence to
raise
unlawful command influence; the burden of proof is low, but more than
mere
allegation or speculation; the quantum of evidence required to raise
unlawful
command influence is some evidence; at trial, the accused must show
facts
which, if true, constitute unlawful command influence, and that the
alleged
unlawful command influence has a logical connection to the
court-martial, in
terms of its potential to cause unfairness in the proceedings; on
appeal, an
appellant must (1) show facts which, if true, constitute unlawful
command
influence; (2) show that the proceedings were unfair; and (3) show that
the
unlawful command influence was the cause of the unfairness).
United States v. Holt, 58 MJ 227 (admissibility of evidence is reviewed for an abuse of discretion and that discretion is abused when evidence is admitted based upon an erroneous view of the law).
United States v. Rendon, 58 MJ 221 (CAAF reviews de novo whether an accused is entitled to a pretrial confinement credit; the interpretation of a provision of the MCM is a matter of law also to be reviewed de novo; to interpret R.C.M. 305 and particularly whether R.C.M. 305(k) applies to restriction tantamount to confinement, CAAF looks at the plain language of the MCM and construes its provisions in terms of its object and policy, as well as the provisions of any related rules, in order to ascertain the intent of the President; if the MCM is unclear, CAAF looks next to the drafters’ analysis).
United
States v. BarrazaMartinez, 58 MJ 173 (in light of
the
defense counsel’s failure to object, the Court reviews the trial
counsel’s
argument for plain error; appellant has the burden of persuading this
Court
that there was plain error).
United
States v. Miles, 58 MJ 192 (because a challenge
for cause
for actual bias is essentially one of credibility, the military judge’s
decision is given great deference because of his or her opportunity to
observe
the demeanor of court members and assess their credibility during voir
dire).
United States v. Wardle, 58 MJ 156 (this Court reviews a military judge’s ruling on the legality of pretrial confinement for abuse of discretion; there is an abuse of discretion when a military judge applies an erroneous view of the law; an appellate court should limit its review to the facts that were before the deciding official).
United
States v. Kaiser, 58 MJ 146 (where error in the
admission
of evidence does not violate an accused’s constitutional rights,
reversal is
not required if the Court determines that the error was not
prejudicial, i.e.
if the finder of fact was not influenced by it or if it had only a
slight
effect on resolution of the case).
(error of constitutional dimensions requires either automatic reversal or an inquiry into whether, beyond a reasonable doubt, the error did not contribute to the defendant’s conviction or sentence).
United States v. King, 58 M.J. 110 (CAAF reviews de novo the ultimate legal question of whether certain pretrial restrictions are tantamount to confinement).
United
States v. Hall, 58 MJ 90 (despite the
constitutional
underpinning of hearsay, not every instance in which hearsay is
improperly
admitted will rise to the level of a constitutional error; errors
in
admitting hearsay where an accused has had the opportunity to
cross-examine the
declarant have been found to be nonconstitutional violations).
United
States v. Hibbard, 58 M.J. 71 (the
issue
of whether a jury was properly instructed is a question of law, which
the Court
reviews de novo).
United States v. Cooper, 58 MJ 54 (the standard of review on appeal for speedy trial issues is de novo).
United
States v. Gibson, 58 MJ 1 (whenever the evidence
raises a
reasonable inference that a witness may have been an accomplice, and
either the
Government or defense requests an accomplice instruction, the military
judge
shall give the members a cautionary instruction regarding accomplice
testimony).
(the standard accomplice instruction need not necessarily be given
verbatim,
but the critical principles of that instruction shall be given and one
of the
critical principles is that the testimony of an accomplice must be
regarded
with caution).
United States v. Washington, 57 MJ 394 (in review of sentence appropriateness decisions by the Courts of Criminal Appeals, Court of Appeals for the Armed Forces will determine whether the lower court abused its discretion or caused a miscarriage of justice in exercising its highly discretionary sentence review function).
United
States v. Ellis, 57 MJ 375 (the voluntariness of a
confession is a question of law to be reviewed de novo by
examining the
totality of all the surrounding circumstances including both the
characteristics of the accused and the details of the interrogation).
United
States v. Khamsouk, 57 MJ 282 (a military judge’s
denial
of a motion to suppress is reviewed for an abuse of discretion; his
fact-finding
is reviewed under a clearly erroneous standard, and his conclusions of
law are
reviewed de novo).
United
States v. Spaustat, 57 MJ 256 (the proper
applications of
credit for illegal pretrial punishment and lawful pretrial confinement
are
questions of law, reviewed de novo).
(interpretation of a pretrial agreement is a question of law, reviewed de novo).
United
States v. Key, 57 MJ 246 (whether there is a legal
requirement to serve the SJA’s recommendation on a deferment request,
and
whether the SJA’s recommendation contained “new matter,” are issues of
law to
be reviewed de novo).
(Court of Appeals for the Armed Forces reviews claims of ineffective assistance of counsel de novo).
United States v. Jordan, 57 MJ 236 (rejection of a guilty plea on appellate review requires that the record of trial show a substantial basis in law and fact for questioning the guilty plea).
United States v. Hutchinson, 57 MJ 231 (in reviewing the exercise of Article 66(c) sentencing powers, the Court of Appeals for the Armed Forces determines, as a matter of law, whether a Court of Criminal Appeals abused its discretion or caused a miscarriage of justice in carrying out its highly discretionary sentence appropriateness role).
United States v. Tardif, 57 MJ 219 (interpretation of Articles of the Uniform Code of Military Justice presents an issue of law, which is reviewed de novo).United States v. Benner, 57 MJ 210 (we review de novo a military judge’s determination that a confession is voluntary).
United
States v. Alameda, 57 MJ 190 (when a military
judge
instructs the members, the question whether the content of the
instruction is
legally correct is reviewed de novo).
United States v. Doss, 57 MJ 182 (Court of Appeals for the Armed Forces will overturn the lower court’s sentence reassessment only to prevent obvious miscarriages of justice or abuses of discretion).
United
States v. Walker, 57 MJ 174 (the question whether
an error
was harmless is reviewed de novo).
(the test for nonconstitutional error is whether the error itself
had
substantial influence on the findings - if so, or if one is left in
grave
doubt, the conviction cannot stand).
United States v. Barreto, 57 MJ 127 (question of whether an accused is mentally competent to stand trial is one of fact, and the military judge’s determination will be overturned on appeal only if it is clearly erroneous).
United
States v. Humpherys, 57 MJ 83 (test for legal
sufficiency
of the evidence is 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).
(on
a question of
actual
bias, the judge’s findings on actual bias are reviewed for an abuse of
discretion).
(military
judge’s
decision
to admit evidence is reviewed for an abuse of discretion; the judge
abuses his
discretion if his findings of fact are clearly erroneous or his
conclusions of
law are incorrect).
(military judge’s
denial of
a motion to disqualify trial counsel is reviewed for an abuse of
discretion).
United
States v. Hollis, 57 MJ 74 (military judge’s
decision to
admit evidence is reviewed for abuse of discretion; the military
judge’s
factfinding is reviewed under the clearly erroneous standard of review,
and
conclusions of law are reviewed de novo; the military judge will
be
reversed if the findings of fact are clearly erroneous or if the
military
judge’s decision is influenced by an erroneous view of the law).
United
States v. Wiesen, 57 MJ 48, 56 MJ 172 (given the
factual
underpinning for testing actual bias, a military judge’s findings
regarding
actual bias are reviewed for an abuse of discretion).
United
States v. Stoneman, 57 MJ 35 (on appeal, Court of
Appeals
for the Armed Forces reviews de novo the question whether the facts
constitute
unlawful command influence).
United
States v. McDonald, 57 MJ 18 (judge’s decision to
give or
not give a specific instruction, as well as the substance of any
instructions
given, is reviewed to determine if they sufficiently cover the issues
in the
case and focus on the facts presented by the evidence; the question of
whether
a jury was properly instructed is a question of law, and thus, review is
de
novo).
United States v. Jeffers, 57 MJ 13 (the test for legal sufficiency is whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt).
United States v. Phanphil, 57 MJ 6 (a guilty plea will not be overturned on appeal unless there is a substantial basis in law and fact for questioning the guilty plea).
United States v. Pinson, 56 MJ 489 (whether a military judge’s conclusion as to whether a civilian investigation was “conducted, instigated, or participated in,” Mil.R.Evid. 305(h)(2), by military authorities should be reviewed de novo or under a “clearly erroneous” standard is an open question).United
States v. Simpson, 56 MJ 462 (the propriety of the
instructions given by a military judge is reviewed de novo).
(an abuse of discretion will be found only where the defendant is able to show that the denial of a severance caused him actual prejudice in that it prevented him from receiving a fair trial; it is not enough that separate trials may have provided him with a better opportunity for an acquittal).
United States v. Hall, 56 MJ 432 (the lower appellate court’s harmless-error analysis is reviewed de novo).(for constitutional errors, the government must persuade the appellate court that the error was harmless beyond a reasonable doubt).
(for nonconstitutional errors, the government must persuade the appellate court that the error did not have a substantial influence on the findings).
United States v. Gilbride, 56 MJ 428 (we review a military judge’s evidentiary rulings for an abuse of discretion; a military judge abuses his or her discretion by making findings of fact that are clearly erroneous or reaching conclusions of law that are incorrect).United
States v. Grant, 56 MJ 410 (a military judge’s
ruling
admitting or excluding evidence is reviewed for an abuse of
discretion).
United
States v. Downing, 56 MJ 419 (the burden of
persuasion
remains with the party making a challenge for cause against a potential
court
member).
United
States v. Davis, 56 MJ 299 (legal sufficiency of
the
evidence is reviewed by determining 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 court
will draw every reasonable inference from the evidence of record in
favor of
the prosecution).
United States v. Palagar, 56 MJ 294 (whether offenses stand in the relationship of greater and lesser-included offenses is a question of law that is reviewed de novo).
United
States v. Smith, 56 MJ 290 (whether an appellant
is
entitled to pretrial confinement credit is reviewed de novo).
(whether an appellant has been punished in violation of Article 55 or the Eight Amendment is reviewed de novo).
United States v. Richards, 56 MJ 282 (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).United
States v. Graham, 56 MJ 266 (legal sufficiency
exists
when, 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).
United
States v. Burt, 56 MJ 261 (claims of ineffective
assistance of counsel are reviewed de novo).
(claims of ineffective assistance of counsel are reviewed under a
two-prong
test: first, the defendant must show that counsel’s performance
was
deficient; and second, the defendant must show that the deficient
performance
prejudiced the defense).
United
States v. Sales, 56 MJ 255 (the question of
whether there
was ineffective assistance of counsel is a question of law that is
reviewed de
novo).
United
States v. Sills, 56 MJ 239 (“beyond a reasonable
doubt” is
the correct standard to fulfill congressional intent that the
intermediate
appellate courts conduct de novo review of factual sufficiency
under
Article 66(c), UCMJ. United States v. Turner, 25 MJ 324
(CMA 1987)).
United
States v. Whitten, 56 MJ 234 (the standard for
reviewing
the legal sufficiency of the evidence 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 offense beyond a reasonable
doubt).
United
States v. Gilley, 56 MJ 113 (violations of the
prohibition
against commenting on the accused’s assertion of his Fifth Amendment
rights are
subject to harmless error review).
(to determine if the presumption of competence of counsel has been overcome, the court will apply a three-prong test: (1) are appellant’s allegations true, and, if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if a defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result).
United
States v. Martin, 56 MJ 97 (shifting the burden of
proof
on mental responsibility to the accused does not change the standard of
review
or the tests for either factual or legal sufficiency).
(the review of non-guilt, factual findings on the defense of lack of
mental
responsibility has been approached by applying either the “clearly
erroneous”
or “reasonableness” standard of review, the difference in the
approaches
devolving from the difference in the deference accorded to review of
non-guilt
findings of fact made by judges and those made by juries).
(in reviewing non-guilt findings of fact made by judges, including
those on
lack of mental responsibility/insanity, federal courts apply the
“clearly
erroneous” standard – a finding is clearly erroneous when although
there is
evidence to support it, the reviewing court on the entire evidence is
left with
the definite and firm conviction that a mistake has been committed).
United
States v. Butcher, 56 MJ 87 (the decision of a
military
judge on the issue of recusal is reviewed on appeal for abuse of
discretion;
court specifically declines to adopt a minority position that the
standard of
review is de novo).
United
States v. Quintanilla, 56 MJ 37 (a judge’s
decision on the
issue of disqualification is reviewed for abuse of discretion).
(when a military judge’s impartiality [appearance of bias] is
challenged on
appeal, the test is 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; this test is objective, judged from the
standpoint of
a reasonable person observing the proceedings).
(the test for legal sufficiency to support a finding of guilty is whether, when the evidence is viewed 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 propriety of instructions given by a military judge is reviewed de novo).
2001
United
States v. Pacheco, 56 MJ 1 (the standard used to
determine whether evidence is
legally
sufficient requires all relevant evidence to be viewed in the light
most
favorable to the prosecution, including reasonable inferences to be
drawn from
that evidence).
(in assessing evidence under
the standard
for legal sufficiency of the evidence, the court need not consider
whether an
alleged directive constituted an apparently lawful order where
testimony –
which was not challenged at trial – that a sergeant disavowed in
appellant’s
presence any knowledge of or responsibility for appellant’s taking of
the
weapon effectively nullifies appellant’s argument that he acted
pursuant to an
apparently lawful order in obtaining a Desert Eagle).
United
States v. McConnell,
55 MJ 479 (Court declines to address the effectiveness of
appellant’s two lawyers separately or solely upon the conduct of lead
counsel;
where there are multiple defense counsel, the performance of defense
counsel is
measured by the combined efforts of the defense team as a whole).
(there is a two-pronged test
to analyzing
claims of ineffective assistance of counsel: first, appellant
must show
that counsel’s performance was deficient; second, appellant must show
that the
deficient performance prejudiced the defense).
(in analyzing claims of
ineffective
assistance of counsel, Court of Appeals for the Armed Forces has asked
three
questions: (1) are the allegations made by appellant true, and,
if they
are, is there a reasonable explanation for counsel’s actions in the
defense of
the case; (2) if they are true, did the level of advocacy fall
measurably below
the performance ordinarily expected of fallible lawyers; and (3) if
ineffective
assistance of counsel is found to exist, is there a reasonable
probability
that, absent the errors, the factfinder would have had a reasonable
doubt
respecting guilt?).
(the performance and prejudice
prongs of
the test for ineffective assistance of counsel can be analyzed
independently;
the Court can test allegations of ineffectiveness for prejudice by
assuming
that the errors alleged satisfy the deficient performance prong and
then
considering whether there is a reasonable probability that, absent the
errors,
the factfinder would have had a reasonable doubt respecting guilt).
(because counsel are presumed
competent,
an appellant must rebut this presumption by showing specific errors
that were
unreasonable under prevailing professional norms).
(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).
United
States v. Harris,
55 MJ 433 (a military judge’s decision to admit or exclude
evidence is reviewed for abuse of discretion).
United
States v. Bolkan,
55 MJ 425 (when defense counsel’s advocacy falls short of
that
required to render effective assistance of counsel, the court will test
for
prejudice).
United
States v. Catrett,
55 MJ 400 (whether a suspect is in custody for purposes of
Miranda
warnings is a de novo question of law to be decided on the
basis of the
facts found by the factfinder).
United
States v. Brown, 55 MJ 375 (in considering
whether evidence is legally
sufficient,
court must view the evidence in the light most favorable to the
prosecution and
determine whether any rational trier of fact could have found the
essential
elements of the crime beyond a reasonable doubt).
(the military judge’s
decision to admit an Air Force
Pamphlet on discrimination and sexual harassment is reviewed for abuse
of
discretion).
United
States v. Quiroz,
55 MJ 334 (even if offenses are not multiplicious as a
matter of
law with respect to double jeopardy concerns, the prohibition against
unreasonable multiplication of charges has long provided courts-martial
and
reviewing authorities with a traditional legal standard –
reasonableness – to
address the consequences of an abuse of prosecutorial discretion in the
context
of the unique aspects of the military justice system).
United
States v. Jones, 55 MJ 317 (a trial or
appellate judge’s decision on recusal is
reviewed for abuse of discretion; however, when an appellant does not
raise the
issue of disqualification until appeal, the reviewing court examines
the claim
under the plain error standard of review).
United States v. Lambert, 55 MJ 293 (in making the determination whether to investigate potential grounds for impeaching a verdict and what kind of investigation to make, as well as whether and to what extent the conduct was prejudicial, the trial court has wide discretion; the military judge’s decisions in this context are reviewed for abuse of discretion).
United
States v. McAllister,
55 MJ 270 (a military judge's decision on a request for
expert
assistance is reviewed for abuse of discretion).
United
States v. Oxendine,
55 MJ 323 (the standard for reviewing legal sufficiency of
the
evidence 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; under this standard,
court is
bound to draw every reasonable inference form the evidence of record in
favor
of the prosecution).
United
States v. Wacha, 55 MJ 266 (Court of Appeals
for the Armed Forces reviews, as a
matter
of law, whether the Court of Criminal Appeals abused its discretion or
caused a
miscarriage of justice in carrying out its highly discretionary
sentence
appropriateness role).
United
States v. Durant,
55 MJ 258 (the role of the Court of Appeals for the Armed
Forces
in reviewing whether the Court of Criminal Appeals properly carried out
its
highly discretionary function of sentence appropriateness is to
determine
whether the lower court abused its discretion or caused a miscarriage
of
justice).
United
States v. Ivey, 55 MJ 251 (a military
judge’s decision not to abate the proceedings is
reviewed
for abuse of discretion; his findings of fact will not be overturned on
appeal
unless they are clearly erroneous; his conclusions of law will be
reviewed de
novo).
United
States v. Grijalva,
55 MJ 223 (Court reviews de novo the issue of
whether constitutional
error was harmless beyond a reasonable doubt).
United
States v. Boyd, 55 MJ 217 (a military judge’s decision
whether to instruct on a specific
collateral
consequence of a sentence is reviewed for abuse of discretion).
United
States v. Norris,
55 MJ 209 (the standard of review of a military judge’s
ruling
admitting expert, scientific testimony is abuse of discretion).
(in reviewing a military
judge’s ruling on a
motion to
suppress under Article 31(b), Court applies a clearly-erroneous
standard of
review to findings of fact and a de novo standard to
conclusions of law).
United
States v. Anderson,
55 MJ 198 (ineffectiveness of counsel is a mixed question
of law
and fact; factual findings are reviewed under a clearly-erroneous
standard of
review, but the ultimate determinations whether counsel were
ineffective and
whether their errors were prejudicial are reviewed de novo).
United
States v. Goldwire,
55 MJ 139 (military judge’s decision to admit opinion
evidence is
reviewed under the abuse of discretion standard).
United
States v. Dewrell,
55 MJ 131 (military judge’s ruling admitting uncharged
other
sexual misconduct under Mil. R. Evid. 404(b), 413, and 414 is reviewed
under an
abuse of discretion standard).
(judicial scrutiny of
counsel’s performance must
be
highly deferential; counsel is strongly presumed to have given adequate
representation).
(claim that military judge
erred by refusing to
allow
the defense to conduct any group voir dire is reviewed for
abuse of
discretion).
United
States v. New, 55 MJ 95 (actual bias is a
question of fact, which is reviewed
subjectively,
through the eyes of the military judge of the court members).
(implied bias is viewed
through the eyes
of the public, and the focus is on the perception or appearance of
fairness of
the military justice system).
(the question of whether the
military judge correctly
determined that
an issue is a question of law is reviewed de novo).
(the question of whether the
military judge correctly
determined that
an order was lawful is reviewed on a de novo basis).
(an appellant has the burden
to establish
that an order is not lawful).
(the determination whether lawfulness of an order to deploy is a political question and thus nonjusticiable is reviewed on a de novo standard).
United
States v. Bailey,
55 MJ 38 (a military judge’s evidentiary rulings are
reviewed for
an abuse of discretion).
(when a military judge
conducts a proper
balancing test under Mil. R. Evid. 403, the evidentiary ruling will not
be
overturned unless there is a clear abuse of discretion; when the
military
judge fails to articulate a balancing analysis on the record, the
ruling is
accorded less deference).
(a military judge’s ruling on
a request for
expert
assistance is reviewed for abuse of discretion).
United
States v. White, 54 MJ 469 (whether facts
asserted by an appellant constitute a
violation of Article 55, UCMJ, or the Eighth Amendment to the
Constitution is
reviewed de novo).
(in seeking to obtain judicial
review of
prison conditions, an appellant must establish a clear record of both
the legal
deficiency in administration of the prison and the jurisdictional basis
for the
action).
United
States v. Carter,
54 MJ 414 (a military judge’s decision to admit or exclude
evidence is reviewed for abuse of discretion).
(in reviewing probable cause
determinations,
courts must
look at the information made known to the authorizing official at the
time of
his decision; the evidence must be considered in the light most
favorable to
the prevailing party).
(the duty of a court reviewing
a probable
cause determination is simply to ensure that the magistrate had a
substantial
basis for concluding the probable cause existed; such a determination
by a
neutral and detached magistrate is entitled to substantial deference;
resolution of doubtful or marginal cases should be largely determined
by the
preference for warrants with close calls being resolved in favor of
sustaining
the magistrate’s decision).
United
States v. Baldwin,
54 MJ 308 (the quantum of evidence necessary to raise
unlawful
command influence is the same as that required to submit a factual
issue to the
trier of fact; it must, however, be more than mere speculation).
United
States v. Sothen,
54 MJ 294 (an appellant who asks the Court of Criminal
Appeals to
engage in sentence comparison bears the burden of demonstrating that
any cited
cases are “closely related” to the appellant’s case, and that the
sentences are
“highly disparate”; if the appellant meets that burden, or if the court
raised
the issue on its own motion, the burden shifts to the government to
show a
rational basis for the disparity).
(Court of Appeals for the
Armed Forces
review of decisions by the Courts of Criminal Appeals on issues of
sentence
appropriateness is limited to the narrow issue of whether there has
been an
obvious miscarriage of justice or abuse of discretion).
United
States v. Simpson,
54 MJ 281 (denial of a motion to suppress a confession is
reviewed
under an abuse of discretion standard, and the trial judge’s findings
of fact
are accepted unless they are clearly erroneous).
(whether that portion of the
rights
warning requiring that the suspect be informed of “the nature of the
accusation” was inconsistent with applicable rights warning
requirements is
reviewed de novo).
United
States v. Rogers,
54 MJ 244 (the standard of review for legal sufficiency of
the
evidence is 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; in resolving legal sufficiency
questions,
court is bound to draw every reasonable inference from the evidence of
record
in favor of the prosecution).
2000
(recusal decisions by inferior courts are normally reviewed with an abuse of discretion standard).
United
States v. Paaluhi, 54 MJ 181 (claims of
ineffective
assistance of counsel are reviewed de novo; in order to
prevail, an
appellant must demonstrate that his counsel’s performance was deficient
and
that this deficiency seriously prejudiced appellant’s defense).
United States v. Manns, 54 MJ 164 (military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion).
United
States v. Ruiz, 54 MJ 138 (a military judge’s
evidentiary
rulings are reviewed under an abuse of discretion standard).
(a ruling that a
statement was
made voluntarily may present a question of law which is reviewed de
novo).
United
States v. McElhaney, 54 MJ 120 (military judge’s
ruling on
the admissibility of evidence is reviewed for an abuse of discretion,
and a
decision to admit or exclude evidence under Mil. R. Evid. 403 is also
reviewed
for an abuse of discretion; this is a strict standard, calling for more
than a
mere difference of opinion; to be reversed, the challenged ruling must
be
arbitrary, fanciful, clearly unreasonable or clearly erroneous).
(military
judge’s
ruling on
the admissibility of evidence is reviewed for an abuse of discretion,
and a
decision to admit or exclude evidence under Mil. R. Evid. 403 is also
reviewed
for an abuse of discretion; this is a strict standard, calling for more
than a
mere difference of opinion; to be reversed, the challenged ruling must
be
arbitrary, fanciful, clearly unreasonable or clearly erroneous).
(application
of a
federal
statute to the military justice system is a question of law that is
subject to de
novo review).
(military judge’s
ruling on
a request for a witness is reviewed for abuse of discretion and should
be
reversed only if, on the whole, denial of the defense witness was
improper;
judicial denial of a witness request will not be set aside unless there
is a
definite and firm conviction that the military judge committed a clear
error of
judgment in the conclusion it reached upon weighing relevant
factors).
United
States v. Fuller, 54 MJ 107 (in reviewing for
legal
sufficiency, the court must view the evidence in the light most
favorable to
the prosecution and determine whether any rational trier of fact could
have found
the essential elements of the offense beyond a reasonable doubt).
(the burden is on the government to show that erroneous admission of evidence, over defense objection under MRE 403 did not materially prejudice the substantial rights of the appellant).
United
States v. Ayers, 54 MJ 85 (legal sufficiency of
the
evidence is a question of law that is reviewed de novo; the test 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).
United States v. Kho, 54 MJ 63 (application of the plain error doctrine is reviewed de novo as a question of law).
United
States v. Armstrong, 54 MJ 51 (a military judge’s
ruling
on a challenge for cause is reviewed for abuse of discretion).
United States v. Reed, 54 MJ 37 (the test for legal sufficiency requires courts to review the evidence in the light most favorable to the government and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).
(the test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the court is convinced of the accused’s guilt beyond a reasonable doubt).
United States v. Johnson, 54 MJ 32 (where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed by this Court under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that this Court reviews de novo).
United States v. Browning, 54 MJ 1 (if a military judge weighs and excludes evidence under MRE 403, an appellant has the burden of coming forward with conclusive argument that the military judge abused his discretion; the military judge will not be reversed unless there is a clear abuse of discretion).
(where military judge properly balances probative value of alleged threats made by appellant against their prejudicial impact, articulates the reasons for admitting/excluding the evidence, and gives carefully crafted limiting instructions, the military judge will only be reversed for clear abuse of discretion).
United States v. Duncan, 53 MJ 494 (military judge’s decision on a motion to sever charges is reviewed for an abuse of discretion).
United States v. Henley, 53 MJ 488 (military judge’s ruling on admissibility of evidence is reviewed under an abuse of discretion standard).
(standard for reviewing a magistrate’s determination of probable cause is whether the magistrate had substantial evidence in the record to support his decision issuing the search warrant; reviewing court is not free to speculate about the impact of evidence which may not have been presented to the magistrate, but must review the record presented to the magistrate).
United States v. Henley, 53 MJ 488 (military judge’s denial of a challenge for cause is reviewed for an abuse of discretion).
United States v. Wright, 53 MJ 476 (the constitutionality of a statute is a question of law; therefore, the standard of review is de novo).
United States v. Matthews, 53 MJ 465 (a military judge’s ruling on the admissibility of evidence will be overturned only if there is a clear abuse of discretion; a military judge abuses his or her discretion if the ruling is influenced by an erroneous view of the law).
(court members are presumed to follow military judge’s instructions).
United States v. Allen, 53 MJ 402 (issues involving admissibility of evidence are reviewed for abuse of discretion; underlying findings of fact will not be overturned unless they are clearly erroneous or unsupported by the record of trial; conclusions of law will be reviewed de novo and will not be overturned unless the decision was based upon an erroneous view of the law).
United
States v. Shelton, 53 MJ 387(whether appellant is
legally
entitled to back pay between the dates of an initial action which was
set aside
and a subsequent action is a question of law that is reviewed de
novo).
(based upon a review of authorities - Articles 57(a)(1)(B) and
75(a), UCMJ;
paragraph 89c(7), MCM 1951; Article of War 50 ½; and paragraph 70509,
DoD Pay
Manual – court concludes that restoration of forfeitures executed
pursuant to
an initial action which was set aside would run counter to both
congressional
intent and the court’s efforts to encourage corrective action of
erroneous
statements in staff judge advocates’ recommendations).
(to the extent that United
States v. Foecking, 22 USCMA 46,
46 CMR 46
(1972), construed Article 57(a), UCMJ, to provide for restoration of
forfeitures executed pursuant to an initial action which was set aside,
it is
inconsistent with the legislative purpose behind Article 75(a), UCMJ,
and is
overruled; the decision to overrule Foecking case will be
prospective
only).
United
States v. Starr, 53 MJ 380 (with respect to issues
of
pretrial punishment, the court examines the military judge’s factual
findings
as to the intent to punish to see if they are clearly erroneous).
(the test for determining whether an individual is subject to
illegal
punishment or deprivation of liberty tantamount to confinement is
whether there
was an intent to punish or stigmatize a person awaiting disciplinary
action,
and if not, were the conditions in furtherance of a legitimate,
nonpunitive
government objective).
United States v. Chaney, 53 MJ 383 (in reviewing the propriety of peremptory challenges, the military judge’s determination of purposeful discrimination will be overturned only if it is clearly erroneous, and the military judge is given great deference because his or her determination is based primarily upon the judge’s personal evaluation of the credibility of the counsel making the challenge).
United States v. Anderson, 53 MJ 374 (to demonstrate that new or adverse matter considered by the convening authority was prejudicial, appellant must show what he would have submitted to deny, counter, or explain the new matter; the threshold is low, however, and the appellate court will not speculate on what the convening authority might have done if the defense counsel had been given the opportunity to comment).
United States v. Huberty, 53 MJ 369 (abuse of discretion is the proper standard by which to review a decision to admit or exclude expert evidence; an appellate court will not reverse unless a ruling is manifestly erroneous).
United States v. Pablo, 53 MJ 356 (the Government has the burden of persuading the court that an error was harmless – that it did not have a substantial influence on the findings).
United
States v. Langston, 53 MJ 335 (military judge’s
decision
whether a witness falls within one of the three exclusion exceptions to
MRE 615
is reviewed under an abuse of discretion standard).
United States v. Cobia, 53 MJ 305 (the standard of review for sufficiency of the evidence is de novo, and the test for sufficiency of the evidence is whether the evidence, when viewed in the light most favorable to the Government, and the reasonable inferences from the evidence support the essential elements beyond a reasonable doubt).
(standard of review as to the admissibility of a prior conviction under MRE 609(a)(1) is whether the military judge abused his discretion).
(an appellant must establish a factual foundation for a claim of ineffective representation; sweeping generalized accusations will not suffice).
United
States v. Alves, 53 MJ 286 (judicial scrutiny of a
claim of
ineffective assistance of counsel is highly deferential and should not
be
colored by the distorting effects of hindsight).
(to overcome the presumption that defense counsel is competent, an
appellant
must demonstrate: (1) a deficiency in counsel’s performance that
is so
serious that counsel was not functioning as the “counsel” guaranteed by
the
Sixth Amendment; and (2) that the deficient performance prejudices the
defense
through errors so serious as to deprive the defendant of a fair trial,
a trial
whose result is reliable).
United States v. Norfleet, 53 MJ 262 (the decision of a military judge not to recuse himself or herself is reviewed on appeal for abuse of discretion).
United
States v. Baer, 53 MJ 235 (the legal test for
improper
argument is whether the argument was erroneous and whether it
materially
prejudiced the substantial rights of the accused).
United
States v. Taylor, 53 MJ 195 (military judge’s
ruling on
admissibility of evidence is reviewed for abuse of discretion, and will
not be
overturned on appeal unless it is arbitrary, fanciful, clearly
unreasonable, or
clearly erroneous).
(the decision to grant a mistrial lies within the discretion of the military judge; an appellate court must not reverse the decision absent a clear abuse of that discretion).
United States v. Rolle, 53 MJ 187 (military judge’s ruling on a challenge for cause will be given great deference and will be reversed only for a clear abuse of discretion).
United States v. Moolick, 53 MJ 174 (military judge’s ruling admitting or excluding evidence is reviewed for abuse of discretion).
United States v. Smith, 53 MJ 168 (military judge’s factual finding that there was no intent to punish is reviewed under a clearly erroneous standard of review; in the absence of factual findings relating to intent to punish, Court will address the issue of illegal pretrial punishment de novo, as a mixed question of law and fact).
United
States v. Napolitano, 53 MJ 162 (a military
judge’s denial
of a challenge for cause will not be overturned unless there is a clear
abuse
of discretion by the judge in applying the liberal-grant policy).
United States v. Eversole, 53 MJ 132 (the Court of Appeals for the Armed Forces will not disturb a Court of Criminal Appeals’ reassessment a sentence due to some error in the proceedings, except to prevent obvious miscarriages of justice or abuses of discretion).
United States v. Henry, 53 MJ 108 (evidentiary rulings of a military judge are reviewed for abuse of discretion, and are overturned only if the judge’s findings of fact are clearly erroneous or his decision is influenced by an erroneous view of the law).
(whether the record of trial is complete is a question of law that is reviewed de novo).
United States v. Guthrie, 53 MJ 103 (an appellant bears the burden of proving that the government withheld discoverable evidence).
United States v. Harris, 53 MJ 86 (a sentence reassessment is reviewed for abuse of discretion; a lower court’s reassessment will only be disturbed to prevent obvious miscarriages of justice or abuses of discretion).
United States v. Golston, 53 MJ 61 (in reviewing claims of prosecutorial misconduct, an appellate court will consider the legal norm violated by the prosecutor and determine if the violation actually prejudiced a substantial right of the accused; if it did, then the court will look to the record as a whole to determine whether the violation was harmless under all the circumstances of the particular case).
United States v. Grier, 53 MJ 30 (instructional error is reviewed de novo).
United States v. Stoffer, 53 MJ 26 (whether an omission from a record of trial is substantial is a question of law which we review de novo).
United States v. Kirkland, 53 MJ 22 (whether a court-martial panel was selected free from systematic exclusion is a question of law which is reviewed de novo).
United States v. Melanson, 53 MJ 1 (questions of personal jurisdiction are reviewed on appeal de novo as questions of law, and the military judge’s findings of historical fact are accepted unless they are clearly erroneous or unsupported in the record).
United States v. Robbins, 52 MJ 455 (a military judge is presumed to know the law and apply it properly, is presumed capable of filtering out inadmissible evidence, and is presumed not to have relied on such evidence on the question of guilt or innocence).
United States v. Swift, 53 MJ 439 (findings of fact made in support of a ruling on a motion to suppress a statement on the grounds that Article 31 was not complied with are reviewed using a clearly-erroneous standard; conclusions of law are reviewed de novo).
United States v. Murray, 52 MJ 423 (appellate court must view the evidence in the light most favorable to the prosecution and determine whether any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt).
United States v. Smith, 52 MJ 337 (the first prong of the three-part test for the admissibility of other acts evidence (MRE 404(b)) will be reviewed to determine whether sufficient evidence was admitted so the members could find by a preponderance of the evidence that the other act occurred).
(the decision to admit or exclude evidence under MRE 403 is reviewed for a clear abuse of discretion).
United States v. Monroe, 52 MJ 326 (military judge’s ruling on a motion to suppress is reviewed for abuse of discretion; the judge’s fact-finding is reviewed under a clearly-erroneous standard, and his/her conclusions of law are reviewed de novo; the evide