[UPDATE] NDAA 2021: Changes coming down the pike, part 1

Editor's note: Tom Fricton notes below that the elimination of de novo factual sufficiency at the CCAs has now been approved by Congress's conference committee. This issue was discussed at length on here over the summer. See also here.

Update 12/8/2020: Trump's OMB has notified Congress that he intends to veto the NDAA.
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On 3 December 2020 a conference committee of both houses of Congress reported out a version of the Mac Thornberry National Defense Authorization Act for Fiscal Year 2021, better known as the NDAA 2021.  The forty-five hundred page behemoth still needs to be voted on by both houses, and is still subject to presidential veto due to a shortage of votes in the house for a veto-proof majority. There are a number of issues that may impact military justice that bear notice if the bill becomes law.  Over the course of a few posts, these changes will be discussed.

The most notable change for military justice practitioners is a major change to factual sufficiency review by the CCAs.  Previously, every CCA, under article 66(c) had the obligation to affirm only charges that the judges themselves were convinced of guilt beyond a reasonable doubt.  The new article 66 requires the same review, giving deference the the fact that the trial court viewed the evidence and deference to the findings of fact by the military judge, but now will consider whether the Court is “clearly convicted the the finding of guilty was against the weight of the evidence.”

This is a huge change as the CCA was previously endowed with “awesome, plenary, de novo power” United States v. Cole, 31 M.J. 270, 272 (C.A.A.F. 1990) under article 66 to independently review the factual sufficiency of charges beyond a reasonable doubt.

First, it should be noted this doesn’t remove legal sufficiency, or whether any reasonable trier of fact could have found every element beyond a reasonable doubt. United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011).

Second, appellate defense divisions are likely sharping their knives in anticipation of this one.  One issue is whether this shifts the burden to the defense.  United States v. Troutt, 24 C.M.R. 246, 249 (U.S. C.M.A. 1957) (cited by United States v. Washington, 57 M.J. 394, 400 (C.A.A.F. 2002) (“[I]n order to perform its article 66(c) review, … we must be assured on appeal that the court did not improperly shift the burden to appellant to raise doubts about his guilt.”).  Another issue is whether the legislation can remove the “beyond a reasonable doubt” standard from article 66 review.  The previous article 66 did not include that standard:  it was implied by the courts as the appropriate standard.  This was drawn from the due process clause allowing convictions only if proof has been marshaled beyond a reasonable doubt.  United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing  Jackson v. Virginia, 443 U.S. 307, 319 (1979) (finding a constitutional due process right to review by a proof beyond a reasonable doubt standard).  Finally, CAAF has previously ruled Article 66(c) review is a “substantial right.”  United States v. Jenkins, 60 M.J. 27, 30 (C.A.A.F. 2004).  The defense will likely argue this change should be subject to strict scrutiny review.
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While these are a just a few preliminary thoughts regarding this change, CAAF watchers can be assured, there will be much ink spilled over factual sufficiency in the next few years.

The next article on the NDAA 2021 will address some new data gathering pilot programs and how they may change discovery requests.

Maj Tom Fricton

Military Justice Editor