The old FS is gone, along with 2020. Here is the new standard: ``(B) Factual sufficiency review.--(i) In an appeal of a finding of guilty under subsection (b), the Court may consider whether the finding is correct in fact upon request of the accused if the accused makes a specific showing of a deficiency in proof. (ii) After an accused has made such a showing, the Court may weigh the evidence and determine controverted questions of fact subject to-- (I) appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence; and (II) appropriate deference to findings of fact entered into the record by the military judge. (iii) If, as a result of the review conducted under clause (ii), the Court is clearly convinced that the finding of guilty was against the weight of the evidence, the Court may dismiss, set aside, or modify the finding, or affirm a lesser finding.''. A number of questions will need to be answered by the courts interpreting this provision for the first time. 1. What is a "specific showing of a deficiency"? Will this be a pro forma step? Presumably the accused's claim of innocence is sufficient to meet this bar? 2. What is "appropriate deference"? Regarding credibility determinations (section (I)), "appropriate deference" in other courts means total deference--is that what this means? What is "appropriate deference" for non-credibility findings (section (II))? Isn't all this subsumed in the eventual "clearly convinced" analysis anyway? 3. Is "clearly convinced" here the same as the "clear error" standard for federal district courts? See Fed. R. Civ. P. 52(a)(6); United States v. Cazares, 121 F.3d 1241, 1245 (9th Cir. 1997) (standard applied in both civil and criminal proceedings). I don't think so--clear and convincing is its own term of art. United States v. Martin, 56 M.J. 97, 103–04 (C.A.A.F. 2001) ("Clear and convincing evidence is that weight of proof which “produce[s] in the mind of the factfinder a ‘firm belief or conviction’ that the allegations in question are true.” Clifford S. Fishman, Jones on Evidence: Civil and Criminal § 3:10 (7th ed.1992)"). Is "clearly convinced" the same as "clear and convincing," though? One hopes so--otherwise Congress is asking the courts to make up a new evidentiary standard. Brenner FissellEIC
12 Comments
It’s been a little over 9 years since the Sundance Institute decided to fund production of The Invisible War, a documentary film by Kirby Dick concerning sexual assault in the U.S. military. The Invisible War ended up winning the Audience Award at the 2012 Sundance Film Festival (as well as other awards), but its greatest impact was felt in the nation’s capital. Pre-release screenings of the film were held for members of Congress, their staff, and senior Pentagon leaders. With the release of The Invisible War, the military establishment was called to a reckoning for its perceived inability to appropriately handle sexual assault. That campaign of scrutiny, driven by data that has, at times, tended to be more anecdotal than empirical (discussed in detail in this column, here), has prompted a dramatic erosion of command authority. Secretary of Defense Leon Panetta’s 2013 decision to deny junior officers the authority to dispose of sexual assault cases was a reaction to having recently viewed The Invisible War. That contraction of command authority is still in place, but it was only the beginning. Later that year, Congress enacted Section 1702 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2014 (Public Law 113-66), thereby gutting the efficacy of Article 32 pretrial investigations while simultaneously sapping commanders of their authority under Article 60 to grant clemency in any serious case, not just sexual assault cases. That expulsion of command from the post-trial process was made complete by Title LIX of the NDAA for FY 2017, which has made commanders mere surplusage in the post-trial process for serious offenses. These dramatic raids executed against command authority in the military justice system have invited a wholesale reexamination of the foundations of the military justice system. Command authority over the military justice system has never sat well, but that is not the only feature of the system that has been in tension with the American sense of justice. As the Congressional Research Service commented only a few months ago: A perennial concern has been the perception of a lack of complete judicial independence, as well as commander’s control over courts-martial, in part by choosing which charges to prefer against whom and by exercising post-trial clemency. Report R46503, Military Courts-Martial Under the Military Justice Act of 2016, Congressional Research Service (August 28, 2020) at 1. In our eagerness drive commanders out of the handling of sexual assault cases, we have awoken skepticism towards the military justice system at large. The system now stands to be overrun by inequities “older and fouler” than injustice in one class of cases. |
Links
CAAF -Daily Journal -Current Term Opinions ACCA AFCCA CGCCA NMCCA Joint R. App. Pro. Global MJ Reform LOC Mil. Law Army Lawyer Resources Categories
All
Archives
April 2022
|