Ending the military's courts of criminal appeals de novo review of findings of fact.

• Author: Pinsker, Matt C.
• Position: IV. Professionalism of Courts-Martial B. Military Rules of Evidence through VIII. Conclusion, with footnotes, p. 499-524

2. Military Rules of Evidence

   While the evolution of the military judge is the strongest argument for removing the fact-finding powers of the courts of criminal appeals, there are other reasons that also support this position. One such reason is the adoption of the MRE. Not only did the rules increase the professionalism of the courts- martial, they also rendered military justice even more analogous to the federal courts. The 1921 MCM was the military's first attempt to clarify the rules of evidence for courts-martial. (203) Unlike the modern MRE, the 1921 MCM did not set forth detailed rules, but instead, simply stated that the rules of evidence at courts-martial would be the same as those generally followed in the federal district courts. (204) While this provided some guidance, it was inadequate for several reasons. First, there are traditional distinctions concerning evidence admissible in military, but not federal courts, such as the allowance of character evidence in the "good soldier" defense. (205) Next, the federal courts themselves were lacking a unified and coherent system of evidence at the time, instead relying on the common law to decide issues of admissibility. (206) Historically, the rules of evidence for federal courts had been an aspect of common law, rather than codified law. (207) The official Federal Rules of Evidence (FRE), on which the modern MRE would later be based, were not adopted until 1975. (208) The Rules Enabling Act of 1934 allowed the Supreme Court to make rules for evidence, but only two such rules were promulgated. (209) Although the Supreme Court developed rules such as the Rules of Civil Procedure and the Rules of Criminal Procedure, it avoided tackling issues of evidence. (210) Making a unified and coherent set of rules for the federal courts was an extremely political and controversial process, which is perhaps why it was not until 1975 that the federal courts had a cohesive set of rules. (211)

   Today, just as the federal courts are guided by the FRE, military courts are guided by the very similar MRE. The MRE are promulgated by the President under the authority prescribed by Congress in Article 36 of the UCMJ and have the force of law. (212) Although the MRE were modeled after the FRE, there are some differences such as the aforementioned good-soldier defense. (213) Prior to the implementation of the MRE, the military courts simply used the MCM, which was little more than "'how to guides,' coupled with basic hornbook type discussion and compilations of necessary legal information." (214) A key difficulty with the MCM was determining which parts were controlling and which parts were advisory. (215) With the modern MRE, the rules can more easily be applied uniformly in both general and special courts-martial. The MRE also make the determination of the admissibility of evidence easier and more straightforward.

   This application of the modern MRE can be contrasted with trying to enforce rules of evidence at special courts-martial in 1950. As previously stated, law officers were not present at special courts-martial, which were instead presided over by a panel president who would typically be a line officer instead of a lawyer. (216) The rules of evidence, despite being codified, can be complicated for even lawyers to interpret. Looking back, one can only speculate as to just how difficult it was for a nonlawyer panel president at a special court-martial to try to interpret and apply the common-law rules of evidence. (217) After removing the improperly admitted evidence from the record, a board of review could consider the remaining evidence and determine if it was sufficient to sustain the verdict.

   While there will always be some differences which reflect the uniqueness of the military, the MRE's striking resemblance to the FRE have rendered special and general courts-martial more analogous to federal trials than most probably anticipated when the UCMJ was promulgated. With only some exceptions, the same evidence that would be heard in a military court would also be heard in a civilian court. Furthermore, some of those exceptions, such as the good-soldier defense, actually work to the advantage of the defendant. (218) The military trials themselves are conducted in very similar fashion to trials in federal district courts. Not only do both use nearly the same standards for determining the admissibility of evidence, but a lawyer is also making the determination using clarified rules of evidence to determine what the panel may see and hear. No longer is there a panel acting as judge and jury as in 1950, (219) instead just like a federal district court, powers are divided between a panel deciding issues of fact and a judge presiding over proceedings and ruling on matters of law. Finally, unlike law officers in 1950, military judges today are analogous to federal district judges in that they operate with a wide scope of independence. This combination of factors has radically changed the way courts-martial are conducted and their overall professionalism and fairness. The fact-finding power of the boards of review was created because courts-martial under the original UCMJ were unprofessional, unfair, and did not at all resemble a civilian trial. Considering this basis is no longer true today, it is no longer necessary for the military's courts of criminal appeals to have fact-finding powers to ensure justice and fairness.

   5. JUDICIAL ECONOMY

   The fact-finding powers of the courts of criminal appeals are no longer being employed as intended--that is, to rectify command influence and to correct errors which inevitably arose out of the highly unprofessional proceedings. However, this is not in itself a reason to remove this power, but does indicate that the power should be reviewed to determine whether or not it is an asset to military justice. While the merits of having another level of review can be debated, the statistics concerning the overburdened appellate system speak for themselves. Judicial economy is a reason to consider eliminating the fact- finding ability of the courts of criminal appeals because this power is contributing to the overburdened workload of the military's justice system. (220) Not only is this one more task for the judges to perform, but it also generates significant work for the government's appellate counsel, thus contributing to a formidable backlog of cases.

1. Appellate Defense

   Pursuant to Article 70 of the UCMJ, at no cost to the appellant, the JAG assigns appellate defense counsel to review each case resulting in a guilty verdict, which must be affirmed by the courts of criminal appeals. (221) The appellate defense attorneys review the entire record of the trial to look for errors. (222) Upon finding possible errors, defense counsel includes them in an assignment of errors in a brief filed with the court and sent to the government's appellate division. The military's appellate defense attorneys openly acknowledge claims of factual insufficiency are frequently made, even when they are unlikely to succeed. (223) This is not to say that the claim is being made frivolously, but thorough defense counsel will explore every possibility to benefit their client. With the standard of review being almost de novo, factual insufficiency is a relatively easy and cost-effective argument for defense attorneys to make. (224) The attorneys are already obligated to review the entire record of trial, and in the process they can pull out any items of evidence favorable to the appellant and argue that any particular piece of evidence could possibly raise reasonable doubt. (225) Given that the burden of proof at trial and on appeal is the high standard of beyond reasonable doubt, it is somewhat plausible that any piece of evidence favorable to the defense raises reasonable doubt. (226) Moreover, no attorney ever wishes to see his or her work subsequently challenged on appeal as failing to meet the standards of competence under the Strickland test, regardless of the merits of the claim. (227) Alleging everything possible, including factual insufficiency, is one way to prevent this from occurring. (228)

2. Government Appellate Division

   Claims of factual insufficiency place a very heavy burden on the government's appellate attorneys. (229) Answering the defense's claim of factual insufficiency forces government attorneys to reargue the case on paper, which is a very time-consuming process. (230) A government attorney has to go through hundreds, and sometimes thousands, of pages of the trial record to pick out evidence and witness testimony supporting the finding of guilt and rebutting the claims of the appellate defense attorneys. (231) Depending on the length of the trial record and the specific nature of the claims of factual insufficiency, addressing this one assignment of error can easily take a government attorney days to complete, despite its high likelihood of futility. (232) This is not an efficient use of time or resources, especially considering the already sizable backlog of military appeals. on average, it takes 441 days between the conclusion of a trial and a decision from an Army Court of Criminal Appeals. (233) The harm caused by this delay is tangible as individuals actually suffer from it. There are documented cases where persons have already served their sentence of confinement and been released by the time their case is decided by a court of criminal appeals, which then removed the time in confinement from the person's record after adjusting their sentence. (234) For example, in United States v. Moore, (235) the court adjusted a sentence of six months down to five months. (236) However, the six-month sentence had been adjudged February 12, 1999, and the appellate court made its decision November 26, 2003, so as a practical matter the appellant did not receive any real relief. (237)

   Furthermore, "at a minimum, Government Appellate Division and...