The power granted to the individual service Courts of Criminal Appeals is one of the ways in which military criminal justice is unique. Article 66 of the UCMJ has historically established the service-level appellate courts and charged them with affirming only the findings and sentence that they find correct in law and fact. This is unlike civilian appellate courts, which are restricted to questions of legal deficiencies, not factual ones.
Prior to 2021, a service Court of Criminal Appeals was to consider the record, weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact. The only limitation on the Court’s review was that it had to recognize that the trial court saw and heard the witnesses. The service Courts had to be convinced of an appellant’s guilt beyond a reasonable doubt, just as the factfinder at trial had been, before affirming a guilty finding.
While the authority to determine the factual sufficiency of court-martial findings remains, the manner in which that inquiry is conducted recently changed. The FY2021 NDAA amended Article 66, UCMJ. Now, a Court’s factual sufficiency review is triggered only when an appellant requests the review and makes a specific showing of a deficiency in proof. The Court may still weigh the evidence and determine controverted questions of fact, but it must give appropriate deference to the fact that the trial court heard and saw the witnesses and evidence. If the Court’s review under these conditions leaves the Court “clearly convinced that the finding of guilty was against the weight of the evidence” it may dismiss, set aside, or modify the finding.
The first service-level appellate Court to tackle this new factual sufficiency review was the Navy-Marine Corps Court of Criminal Appeals in United States v. Harvey. In its 2023 decision, the Court found that a factual sufficiency review is triggered when an appellant identifies a weakness in the evidence admitted at trial and explains why the evidence contradicts the guilty finding. The Court also determined that the requirement to give “appropriate deference” to the trial court that saw and heard the witnesses created a higher standard than the “recognition” previously required. The Navy-Marine Corps Court interpreted the requirement to set aside a guilty finding where clearly convinced that the finding was against the weight of the evidence as a duty to weigh the evidence in a deferential manner to the result at trial. The Court held that this provision required appellate courts to presume that the appellant was guilty.
The Court of Appeals for the Armed Forces [CAAF] considered the Navy-Marine Corps Court’s interpretation of the new Article 66, UCMJ, requirements in its review of United States v. Harvey. It’s decision, issued this month, interprets key points of the amended statute differently. First, the CAAF agreed with the lower Court on the trigger to factual sufficiency review. Under the new statute, service Courts only have the authority to conduct this review when an appellant requests it and makes a specific showing of a deficiency in proof. However, the CAAF did not agree that the requirement to give the appropriate deference to the trial factfinder always created a higher standard of deference than had existed under the pre-2021 statute. The CAAF found that the appropriate deference a service Court will give to the trial factfinder will depend on the type of witness or evidence at issue. For example, an appellate Court might give higher deference to a factfinder’s observation of a witness’s demeanor than to a factfinder’s review of documentary evidence. This is because an appellate Court is equally able to interpret documentary evidence and does not need to defer to the trial factfinder’s conclusions. Finally, the CAAF disagreed with the lower Court’s presumption of guilt. The CAAF held that in order for a service Court to be clearly convinced that a finding of guilty is against the weight of the evidence, two requirements must be met. First, the the Court must decide that the weight of the evidence, as the Court has now weighed it, does not prove that the appellant is guilt beyond a reasonable doubt. Second, the Court must be clearly convinced of the correctness of this decision.
The CAAF sent the case of United States v. Harvey back to the Navy-Marine Corps Court of Criminal Appeals for a new factual sufficiency review under this newly articulated analysis. If you or your loved one wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.