The New Factual Sufficiency Standard

1/4/2021

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 Fissell

EIC

12 Comments

Julie H link

1/4/2021 01:06:52 pm

Forgive me if these questions have been answered in previous posts, but I'm looking for practical guidance. When will the new factual sufficiency review apply? To cases already docketed? Only to cases docketed after this date? For example, if a Soldier was convicted in 2020 but the case hasn't been docketed at the CCA, which Art. 66 applies? Thank you.

Brenner M. Fissell

1/4/2021 01:09:26 pm

Here you go:

"(2) Review amendments.--The amendments made by subsections (b)
and (c) shall take effect on the date of the enactment of this Act,
and shall apply with respect to any case in which every finding of
guilty entered into the record under section 860c of title 10,
United States Code (article 60c of the Uniform Code of Military
Justice), is for an offense that occurred on or after that date.
"

Scott

1/4/2021 01:13:54 pm

So this only applies to cases in which the dates of all charged offenses are after now?

1/4/2021 01:15:16 pm

Thank you.

1/4/2021 01:21:14 pm

Scott, I just noticed interesting language: "shall apply to any case in which EVERY finding of guilty... is for an offense that occurred on or after that date." So you could have a case in which the dates of the offenses straddle today's date and you could still get the benefit of the old Art. 66.

Philip D. Cave link

1/4/2021 05:58:03 pm

Right, they have created another potential bridge problem similar to changes in 120.

Cloudesley Shovell

1/4/2021 08:20:14 pm

I'm not sure this really changes too much, other than relieve the CCAs of doing a factual sufficiency review in every single case. Appellate defense counsel just needs to make a "specific showing of a deficiency in proof." I don't think that requires anything more than some specificity in why one or more elements hasn't been proven.

I think "appropriate deference" is just an exhortation to follow existing law on standards of review. Not sure it changes much from the original Art. 66 or the standards of review that were developed under it.

As for the "clearly convinced' standard for setting aside a finding, I think a CCA stating verbatim that upon review, they are "clearly convinced that the finding of guilty was against the weight of the evidence" will satisfy the statute.

The lingering question is whether such action on the facts of the case is further reviewable on appeal. Absent some clear statement in the amended statute, I would say that such action by the CCA remains unreviewable, but there's also room to go the other way. Time will tell.

Kind regards,
CS

Isaac Kennen

1/4/2021 10:20:22 pm

CS,

Section 542(c) of the FY2021 NDAA amends Art 67 to allow the CAAF to review the factual sufficiency determinations made by the service courts. That's, in my view, a significant erosion of a right of the accused that was intended to offset the fact that the military jurisdiction does not afford the accused a trial before a panel of sufficient size to engage in meaningful deliberations (4 or 8 vs. 12), does not afford the right to a unanimous verdict, does not afford the right to a trial by members who are independent of the convening authority that is pursuing the prosecution, and does not afford the right to an independent judge.

This is a concerning change. In my view, this waters down one of the few measures that existed to balance out all of those deficiencies in the ability of a court-martial to engage in constitutionally-sufficient truth finding. Eliminating that protection, could, I think, expose the entire military justice apparatus to a constitutional challenge under the Fifth Amendment.

If a Fifth Amendment analysis is about balancing the interests of the accused against the efficacy of the protections in place and the interest of the government, then I would say every rock you take off of the accused's side of the equation drives a need for reevaluation of whether that balance remains cognizable.

Specifically, the NDAA provides:

(c) REVIEW BY UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES OF FACTUAL SUFFICIENCY RULINGS.—Section 867(c)(1) of title 10, United States Code (article 67(c)(1) of the Uniform Code of Military Justice), is amended--

(1) in subparagraph (A), by striking ‘‘or’’ at the end;

(2) in subparagraph (B), by striking the period at the end and inserting ‘‘; or’’; and

(3) by adding at the end the following new subparagraph: ‘‘(C) the findings set forth in the entry of judgment, as affirmed, dismissed, set aside, or modfied by the Court of Criminal Appeals as incorrect in fact under section 866(d)(1)(B) of this title (article 66(d)(1)(B)).’’.

Language copied from the enrolled bill, here: https://www.congress.gov/116/bills/hr6395/BILLS-116hr6395enr.pdf#page=225

Tami a/k/a Princess Leia

1/7/2021 01:07:21 pm

Isaac,

So does that mean even when an appellant wins in getting a conviction overturned based on factual insufficiency, the Government can appeal it and the CAAF would have to review it?

1/7/2021 09:16:29 pm

Tami,

I think the answer to your question warrants exploration. I'll plan to take it up in an article in the Scholarship Saturday column.

1/7/2021 10:13:37 pm

Thank you Isaac. Under United States v. Leak, the CAAF was allowed to review a CCA's factual sufficiency review for application of correct legal principles, since the application of correct legal principles is a question of law. But due to this change, it now sounds like CAAF can re-review factual sufficiency on its own as a question of fact.

Isaac Clay Kennen

1/10/2021 12:26:54 pm

Tami,

This post might interest you:

https://www.caaflog.org/home/scholarship-saturday-the-ability-of-appellate-courts-to-reverse-convictions-that-are-factually-insufficient-keeps-the-military-justice-system-respectable

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The New Factual Sufficiency Standard

Brenner Fissell

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