Newsweek reports here on efforts to engage Congress on the unusual review powers of the service Courts of Criminal Appeals. Additional coverage by Military.com's Hope Hedge Seck can be found here.
For many years, a false myth has been perpetuated that the Service CCA's have a "unique" power to reverse for factual insufficiency. In fact some states' intermediate criminal appellate courts have even broader powers than do the CCA's. For example, NY Criminal Procedure Law, sec. 470.15(1) states:
"1. Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant."
Subparagraph 3, of this state goes on to provide:
"3. A reversal or a modification of a judgment, sentence or order must be based upon a determination made: (a) Upon the law; or (b) Upon the facts; or (c) As a matter of discretion in the interest of justice; or (d) Upon any two or all three of the bases specified in paragraphs (a), (b) and (c)."
Ohio has a similar process, e.g., in State v. Troisi, 124 Ohio St.3d 404 (2010), the intermediate appellate court reversed a conviction on "factual insufficiency" which was then affirmed by the Ohio Supreme Court.
I suspect that they are not the lone outliers in this area.
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For many years, a false myth has been perpetuated that the Service CCA's have a "unique" power to reverse for factual insufficiency. In fact some states' intermediate criminal appellate courts have even broader powers than do the CCA's. For example, NY Criminal Procedure Law, sec. 470.15(1) states:
ReplyDelete"1. Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant."
Subparagraph 3, of this state goes on to provide:
"3. A reversal or a modification of a judgment, sentence or order must be based upon a determination made:
(a) Upon the law; or
(b) Upon the facts; or
(c) As a matter of discretion in the interest of justice; or
(d) Upon any two or all three of the bases specified in paragraphs (a), (b) and (c)."
Ohio has a similar process, e.g., in State v. Troisi, 124 Ohio St.3d 404 (2010), the intermediate appellate court reversed a conviction on "factual insufficiency" which was then affirmed by the Ohio Supreme Court.
I suspect that they are not the lone outliers in this area.