Special Findings: Their Use at Trial and On Appeal

• Author: Captain (P) Lee D. Schinasi
• Pages: 02

Under Article Sljd) of the Unlfwm Code of Mclitay Justice, counsel before courts-martial may request the trial judge to make special findings of fact, $he or she 18 hearing the ease alone without a panel of .members. This provision of military law is denved from rule 23fc) of the Fedem1 Rules of Crimtml Procedure, used zn the United States district courla. Captain (P) Sehinasi, drawing upon the body of law concerning special findings which has been developed by the civilian cmrts, ez. plains h o ~ special findings can be used in a military settmng.

Requests for s p e d findings are loosely analogous to instme. tzons to a jury. Specialfindings can help the defense on appeal by uncovering mm in rzjudge's understanding of the law and its application to the facts of a case. Counsel for the government, on the other hand, can protect the recod by repsting special findings to show that the ju&e decided the ease correctly efbr all.

Captain (Pi Schinasi notes that milttay pmtitioms make less use of special findings than do their civilian counterparts

This article is based on B them heanng the same titie which we1 wltten by the author when he was a member of the 27th Judge Advocate OfKeer Graduate (Advanced) Clnaa, at the JAG School, Charlottesuilie. Virginia. during academic year 197E-78. The opinions and eonelusions expressed m this srtiele are those of the author and do not neeessanly reflect the views of The Judge Advocate Geneds School. the Demrtment ol the Arm?. or an'? other mvemmental

Bge"CS

**JAGC, U.S.

Army Instm.Uctoi. Cnrmnal Law Diuiaion, The Judge Advocate General's School, Charlottesuilie. Virdnia, 1979 ta present. Former branch chief, Government Appellate Division. U S Army Legal Senices Agency, Falls Church, Vrpl.ia, 197E-78. Former chief defense ~ounsel and trld mun~el at Fort Bliss, Texaa, 1972-75. B.B.A., 1968. and J D , 1971, Uluverafy of Toledo, Toledo, Ohia. Member of the bars of The Supreme Court of Ohio and the United states cOun Military A ~ ~ ~ ~ I ~ .

in the fedeml civilian c o u ~ s .

He reeomlnends that judge advocates become familiar with specialfindzngs procedures, and add this useful tool of litigation to thew a7senai.

1. INTRODUCTION

   This article deais with the provisions of the Uniform Code of Military Justice for obtaining special findings at courts-martial conducted by a judge sitting alone without a panel of members. Special findings are defined by the Code in the foliowing terms:

   The military judge . , . shall make a general finding and shall in addition on request find the facts specifically. If an opinion or memorandum of deciaian ia filed, It will be sufficient u the findings of fact appear therein.'

   Stated another way, special findings are a tool counsel can employ to ensure that their trial presentations will be properly interpreted and applied by the military judge, and that any error in law or judgment made by the judge will be preserved for appeal. Observed in this light, special &dings serve many of the same functions as do juryinstmctions in trials before a court with members.

   Unfortunately, special findings have rarely been used by militav coun-sel, although civilian, particularly federal, litigator8 have made wide use of them.' The disparity between federal and military practice seems

   L Uniform Code ofMiitary Justice, an Wd), 10 C.S.C. B 861 (19766) [heremaner cited as Wide 5Ud)l.

   SIP Unfed States v. Faim, 43 C.M.R. 702 (A.C.M.R. 1971)

   In the Foim ea% the aeevaed wad tned by a judge sttmg alone and wag convicted of two periods of unaufholized absence. The tnsl defense counsel requested s p e d findings euneerning junsdietionai mattera. The tnal judge refused. atnting that, in his opinion. $pedal findings need be made only as to matters pertaining to piit or innocence, and not as to the hers relevant to B motion The Army C o w of Military Review disagreed. and eent the case back to the tnal judge for preparation of special findings. Wnting for the couls, Judge Finkelatem observed that "[tlhe PBY~~TYof military ease% on [sppeeml findmgsy compelled the eou2s to turn ta federal civilian authonty to resolve the matter. 43 C M R at 103.

   waoi SPECIAL FIKDINGS

   particularly difficult to explain as article 51(d) is derived principally from rule 23(c) of the Federal Rules of Criminal Proeed~e.~

   The primary objective of this article is to acquaint military attorneys with special findings, compare the federal practice with ow own, and present various alternative means of implementing special findings cre-atively. Because so little military legal authority addresses these topics, great reliance will initially be placed upon federal cases for establishing parameters. Once this foundational material has been presented, a detailed discussion of military practice will follow.

   11. RULE 23(C): THE FEDERAL EXPERIENCE WITH SPECIAL FINDINGS A. DEVELOPMENT OF THE FEDERAL RULE American jurisprudence has long recognized the need for special findings in judge-alone case8, both criminal and civil. The need to have trial judges set forth their conclusions of law and determinations of fact has always been viewed as a method of insuring compliance wth the law, and for effecting justice.' Legislative history mirrors this concern, and has instigated the development of special findings.% Recent legislative

   The text of mle 23 onpinally appeared at 18 U.S.C 3 3441 It "0x4 appears. -7th other prorielom, in an appendix to Tifie 18, "Rules of Cnminal Procedure for the United States District Coum." Under mle 60, the authonzed short title of this compilation LS "Federal Rules of Cnminal Procedure." which d l be used

   throughout this article.

   See Noma V. Jackson, 16 U. S. 125 (1870)

   See United States \. Hussey. 131.J.

   804 (A.F.C.M.R. 1976).

   In the Xussey ea~e, m Air Force sergeant was convicted of vnrious drvg offensea by *judge Bitting alone. "mal defense counsel requested special finding8 concerning evidence corroborating certain admamans of the accused The judge panted the ~(equest,saymg that he would attach hãpecial findings to rhe record rhen he authenticated JY. In fact, rhe findings apparently were never made. and the An Force Court of Miiitan. Review sent the ease back fa the judge for eomplerian of this task. Concerning the pulposes af special findings. the court stated.

   activity has continued this trend' and caused rule 23(c) to be the model mechanism for implementing special findings.

   By merely making the request prior to general findings, a federal litigator can compel the bench to set forth its reasoning on each vital issue at bar. Other amendments to d e

   B(c) facilitate counsel's ability to obtain special findings by allowing the trial judge to render them orally.' This removes the burden of reducing his conclusions to written form, a past source of substantial displeasure among federal judges. Naturally, trial judges can still explain their findings through memorandum decisions or opinions, but are no longer required to.

   Federal judges have generally accepted the burden imposed upon them by d e

   B(c) without criticism. District eoUrts recognize that the need to analyze and articulate the grounds upon which their decisions have been based has at least two desirable consequences: It not oniyprotects the accused's right to a fair trial, but also increases the likelihood of an affumance if the ease is appealed.

   Even with this large body of civil and criminzl law encouraging the use ofspecialfindings, the concept isnot without itsdetractors. JudgeJerome Frank once said of special findings:

   A trial judge's decision is a unique composite reaction to the oral testimony, a composite which ought not-or, rather, cannot without artificiality, be broken down into findings of fact and legal conclusions.B

   Reinforcing Judge Franks' philosophy, Judge McClellan of the Adri-sow Committee on special findings declared

   [Slpeaal findings enable the appellate court to determine the legal dig-niflcmee attnbuted to particular facts by the military judge. and LO detemne whether the judge correctly applied any presumption of law. ar used sppmpliafe legal standards.

   1 M.J. at 8OMO9

   See 8A Moore's Federal PTaetiCe 123 06 at 2s25 (Id ed. 1978). Rule 231~). Fed.

   R. Crim. Proc., Z.BB laat amended In 1577. Pub. L KO.9S78. 5 2(b). 96th Cone.,

   1st Sese.. 51 Stat. 320 (1977).

   ' 8A Moore's Federal Practice 123.06 at 1S26.

   Skidmore V. Baltimore and Ohio R.R.. 167 F.2d 61. 68 (2nd Clr 1548).

   We all know, don't we, that when we hear a criminal ease tried we get convinced of the guilt of the defendant or we don't; and isn't it enough if we say guilty or not guilty, without going through the form of making special findings of facts designed by the judge-unconsciously of come-to support the eonclusions at which he has arrived.g

   Much more recently, the Third Circuit offered the following practical objection to mandatory special findings:

   It is common knowledge among trial judges that the task of rnaldng detailed findings in either civil or criminal cases is often tedious, and one that frequently consumes as much time as might otherwise be saved in the come of dispensing with a jury trial. Requiring such findings may well have a negative effect on the willingness of trial judges to eonduet non-jury criminal trials.

   Our functionis tocorrect error whiehaffectsaubstantialrights

   of litigants. It is beyond ow province to sit back like school teachers and grade every ruling of a lower court-produced often with great dispatch and during the strain and tension of a trial- if it were a test paper. Although we are a superior court in the judicial schema, we do not have license to substitute our judgment for that of the lower courts absent prejudicial error. To reverse a ruling made in good faith with which camselled parties were satisfied, in the absence of plain error, displays an insensitivity to the realities of litigation in the judicial Byatem.

   As noted above, the direct impact of today's holding uill be to discourage trial judges...