The New Factual Sufficiency Standard

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