Tuesday, June 16, 2020

Do we still/really need factual sufficiency review?

Over at CAAFlog 2.0, you'll see the beginnings of a conversation on pending legislation that would scuttle the longstanding power of the service Courts of Criminal Appeals to review courts-martial for factual sufficiency. (Readers of Global Military Justice Reform ought to follow CAAFlog 2.0 -- and vice versa.) Here's what the Editor just posted:
The factual sufficiency power has been in the UCMJ from the beginning--i.e., long before there were military judges. A useful but time-consuming piece of research would be to see whether the percentage of total jurisdictional cases that were set aside by the Boards of Review/CMRs/CCAs for factual insufficiency declined after the Military Justice Act of 1968 or the Military Rules of Evidence took effect. The raw number of cases in which that has happened in the post-'68-Act or post-MRE eras would also be worth knowing. That said, this power is obviously an artifact (one of several with which the Code is festooned) from the era before every case had lawyers on both sides at trial and before there was a proper trial judiciary. I'm not unhappy to see it go, but I do think we need to buttress the trial bench by affording the judges markedly longer terms of office as well as law clerks. They also ought to have the power to set aside a verdict as against the weight of the evidence. That's a proper function for the judges who actually saw and heard the witnesses and, importantly, it comports with Art. III practice. See Fed. R. Crim. P. 33; Art. 36, UCMJ.
What do you think? (If you comment here, you'll need to give your real name; at CAAFlog 2.0, not so much.)


  1. Allowing review for factual sufficiency seemed to protect African-American defendants after World War I. Now, denying review for factual sufficiency seems like it will protect sexual assault or rape victims. I think as long as reforms are made with minority and victim groups in mind, I can support removing the power of factual sufficiency review in the service Courts of Criminal Appeals.

  2. Anecdotally, cases that used to be screened out during the UCMJ's Drafters' intent via the Article 32, Investigation, more or less stopped when it was changed to a "Preliminary Hearing" controlled in sex cases by the SVC and complainant. Much like most States which still use a Grand Jury system, many of those "dog" cases, drunken 20 year olds in a dorm room, get routinely No Billed, just as the old '32 process. With that change, and the "climate" which exists that 99% of such cases go to trial if one values his/her career as an SJA or Convening Authority, the proverbial buck got passed, and now lands in the various CCA's who appear to recognize garbage in = garbage out. Take that power away from the CCA's and you're just passing the buck again, virtually forcing innocent clients into federal court.

    The Legislative history also shows concerns to help prevent or correct UCI, the lack of experienced counsel, etc. There is much uninformed garbage floating around, such as claims that Art. 66's "factual review" powers are "unique." They are not - many State criminal appellate courts, such as NY's, have similar powers, albeit not necessarily similar names - ours is an "interest of justice" issue. Leave it well-enough alone!


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