The William Winthrop Chair in Military Law: 

​Eugene R. Fidell
​
This chair honors William Winthrop, a treatise writer and scholar from the 1800s who was among the first to systematize military law. The Supreme Court of the United States has referred to Winthrop as “Blackstone of Military Law,” Reid v. Covert, 354 U.S. 1, 19, n. 38,  (1957). NIMJ accordingly confers this chair on the most learned and prominent living scholar of military justice in the United States: Eugene Fidell. Fidell, like Winthrop, spent decades convincing an often-reluctant legal academy (and bar) that military justice was a field worthy of serious study. Without these efforts, the field would have remained an intellectual backwater. Because of him, it is not. He has mentored a generation of law professors as well as hundreds of law students at Yale, where he regularly teaches military justice. 

The Ansell-Crowder Chair in Military Justice Reform:

Rachel VanLandingham

Military justice, like all law, is constantly in flux. From time to time, there are significant debates about its fundamental character. One of the most prominent of these debates occurred between two military lawyers after WWI: Major General Enoch H. Crowder & Brigadier General Samuel T. Ansell. Fred L. Borch, Military Justice in Turmoil: The Ansell-Crowder Controversy of 1917-1920, The Army Lawyer (March 2017). This chair honors these two men for spurring public deliberation about the future of military justice. NIMJ accordingly confers this chair on the most prominent scholarly advocate for the reform of military justice in the United States: Rachel VanLandingham. VanLandingham, like Ansell and Crowder, has been at the center of all significant debates about the future of military justice--advising Senators, Secretaries, and the public, where she frequently appears in the nation's most prominent media outlets. 

The Morgan-Larkin Chair

Vacant

This chair honors the architects of the Uniform Code of Military Justice: Edmund Morgan and Felix Larkin. Prior to the UCMJ, servicemembers' lives and liberty were subject to the archaic and draconian Articles of War (even up to WWII)--a legal regime that did not even have judges. The UCMJ created what is now known as CAAF.

The NIMJ Board welcomes nominations for this Chair from the public (please send email to admin@nimj.org). 

CAAF's standard formulation describes variance simply: “A variance between pleadings and proof exists when evidence at trial establishes the commission of a criminal offense by the accused, but the proof does not conform strictly with the offense alleged in the charge.” United States v. Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003). The doctrine recognizes that real trials rarely match the charge sheet with surgical precision. Witnesses misremember dates. Locations get rounded to the nearest landmark. Names appear in slightly different forms. Variance doctrine asks whether those gaps require reversal or whether the appellant suffered no actual prejudice.

Two kinds of factual gaps require different treatment. A discrepancy that goes to an element of the charged offense — the identity of the larceny victim, for example, where ownership is itself an element — raises a different problem than a discrepancy in surplus factual detail. The latter triggers a prejudice-based variance analysis. The former does not, because the gap reaches the existence of the offense itself.

When variance enters the appellate analysis, courts test for materiality and prejudice. The Court of Military Appeals identified the controlling factors in United States v. Lee, 1 M.J. 15, 17 (C.M.A. 1975), and CAAF refined them in United States v. Teffeau and United States v. Treat, 73 M.J. 331, 336 (C.A.A.F. 2014). The court asks whether the discrepancy:

    • Misled the accused regarding what he needed to defend against at trial;
    • Failed to protect the accused from another prosecution for the same offense;
    • Altered the nature of the offense;
    • Changed the applicable maximum punishment; or
    • Materially infringed the accused's due process rights in any other way.

If the variance fails any of these prongs, it is fatal. If it satisfies all of them, it is non-fatal, and the conviction may stand. Federal appellate practice outside the military uses an analogous framework. See, e.g., United States v. Cochran, 697 F.2d 600 (5th Cir. 1983) (affirming where the indictment alleged “on or about November 1, 1981” and proof showed September 1981 because the defendant suffered no prejudice).

The “On or About” Question Comes First
In date-related cases, the variance inquiry has a threshold step. The phrase “on or about” in a specification covers a range of dates reasonably near the stated date. CAAF held in United States v. Hunt, 37 M.J. 344, 347 (C.M.A. 1993), that the phrase “on or about” “connote[s] a range of days to weeks,” and the Court reaffirmed that reading in United States v. Simmons, 82 M.J. 134, 139 (C.A.A.F. 2022). When the proof falls within that range, no variance exists at all.

CAAF was explicit in Kershaw that this threshold step survives. A CCA must first decide whether the date proven at trial falls within the elastic range that “on or about” allows. Only after concluding that the proven date sits outside that range does the variance question arise.

The Facts of Kershaw
SSgt John D. Kershaw faced two specifications under Article 120b, UCMJ, alleging a lewd act and a sexual act on his niece, FA. The charge sheet placed both offenses “between on or about 1 April 2016 and on or about 30 April 2016.” At trial, the testimony of FA and her mother about the conduct itself was reasonably consistent. The dates were not. Locating the events in time required a complex matrix of past addresses and personal events, and the resulting timeline was muddled.

Trial counsel anticipated the problem and asked the military judge to give a variance instruction. The judge complied. The panel convicted Kershaw of the sexual abuse specification, contrary to his pleas, without making any exceptions or substitutions, and acquitted him of the rape specification.

On appeal, the Air Force Court of Criminal Appeals concluded that the evidence placed the offense “sometime between April 2015 and October 2015,” which the court found to be six months to a year before the charged window. The CCA held that gap was “too substantial” to fit within the “on or about” language. So far, so straightforward.

Then the CCA took an additional step. It declined to conduct a variance analysis at all. Because the military judge had given a variance instruction at trial and the panel had “made no changes” — that is, no exceptions or substitutions — the lower court reasoned that “there is no variance issue” for it to consider on appeal. The court set aside the conviction on factual sufficiency grounds.

The Certified Issue
The acting Judge Advocate General of the Air Force certified the question whether the AFCCA had erred by treating the case as a pure factual sufficiency problem and declining to analyze the discrepancy as a variance. CAAF granted review. United States v. Kershaw, 86 M.J. 133 (C.A.A.F. 2025).

CAAF's Holding
Chief Judge Ohlson, writing for a majority, set aside the AFCCA decision and remanded for a new factual sufficiency review. The Court held that a CCA possesses the authority to conduct a variance analysis on appeal even when the panel made no exceptions or substitutions, provided the discrepant fact is not an integral part of an element of the charged offense. Three steps in the Court's reasoning deserve attention.

Patterson Did Not Forclose Variance Analysis

CAAF first distinguished its recent decision in United States v. Patterson, 86 M.J. 24 (C.A.A.F. 2025), which had affirmed an AFCCA finding of factual insufficiency premised on a date discrepancy. Patterson held only that a CCA may rest a factual insufficiency finding on a pleading-proof gap; it expressly reserved the question whether a CCA may instead run a variance analysis and affirm if no prejudice exists. Kershaw answers that reserved question.

Hunt Permits Appellate Variance Analysis Without Trial-Level Exceptions

The Court drew most directly on Hunt, which had affirmed a lower court that conducted a full variance analysis even without trial-level exceptions and substitutions. Hunt stated, in language CAAF treated as binding rather than dicta: “[A]ssuming a material variance occurred here as a matter of law, we still cannot find reversible error in the judge's denial of the motion for a finding of not guilty. To prevail on that motion appellant must show that he was prejudiced by the variance in this case.” From this passage, CAAF derived a general principle: appellate variance analysis does not depend on what the trier of fact did with exceptions and substitutions.

CAAF connected that conclusion to the broader principle that a CCA conducting factual sufficiency review must independently assess the evidence in the entire record “without regard to the findings reached by the trial court.” On that view, the panel's treatment of exceptions and substitutions cannot serve as a gatekeeper for the appellate variance inquiry.

English Does Not Bar the Approach

The Court then addressed United States v. English, 79 M.J. 116 (C.A.A.F. 2019), which had reversed a CCA that excepted a charged means of force after the proof failed. English held that a CCA cannot use exceptions to create a broader or different offense than the offense charged at trial, and cannot affirm based on a generalized theory of force never submitted to the factfinder. CAAF distinguished those holdings. English speaks to discrepancies that go to elements of the offense; Kershaw speaks to discrepancies that do not. When the discrepancy is in surplus factual detail rather than an element, a CCA does not create a broader or different offense by holding the variance non-fatal.

The Scope of CCA Authority After Kershaw​
First, a CCA retains the option to find a conviction factually insufficient based purely on a pleading-proof gap. Patterson remains good law. The Government's argument that variance analysis is required did not carry the day.

Second, a CCA also possesses an alternative path. Where the discrepant fact is not an integral part of an element, the CCA may treat the gap as a non-fatal variance and affirm. CAAF described the choice between those two paths as discretionary.

Third, the variance authority is not derivative of trial-level fact-finding. The Court was emphatic on this point: “the factfinder below cannot serve as a variance gatekeeper.” A CCA may engage in variance analysis even when the panel returned its verdict without exceptions or substitutions and even when the trial court did not formally rule on a variance motion.

Fourth, the variance authority does not extend to discrepancies that go to elements of the offense. CAAF used a hypothetical assault prosecution to illustrate the boundary. If the specification alleges that the assault occurred in Arlington but the testimony places it in Alexandria, the CCA may except the location word and treat the gap as a non-fatal variance because the location is not an integral part of any element. By contrast, in United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010), the discrepancy concerned the identity of the larceny victim — an element of the offense — and no variance fix was available.

Fifth, in date-related cases, the appellate court must work in two steps. The first step asks whether the proof falls within the “on or about” range. Only if it does not does the second step — the variance analysis — begin.

Sixth, the variance authority is permissive, not mandatory. The Court remanded so that the AFCCA could decide whether to apply the variance framework, not because the AFCCA was required to affirm.

Judge Maggs's Dissent
Judge Maggs, joined by Judge Hardy, would have affirmed the AFCCA. He read Hunt as standing primarily for the meaning of “on or about,” and treated its prejudice language as dicta supported only by Lee, a case that involved findings by exceptions and substitutions. The dissent's central concern was a textual one: the prior version of Article 66(d)(1) directs that a CCA “may affirm only such findings of guilty . . . as the Court finds correct in . . . fact.” On the dissent's reading, allowing a CCA to affirm a finding the court itself believes is incorrect in fact runs counter to the statute.

The dissent also worried that the new rule undercuts the limited reach of “on or about,” undermines English's constraints on appellate revision of specifications, and effectively imports a federal-circuit prejudice test that Congress did not authorize. The dissent would have left those policy choices to Congress.

The majority responded that prejudice testing is a traditional appellate function, that nothing in the Article 66 text affirmatively forbids the variance approach, and that placing CCAs in a worse position than other federal appellate courts when applying the longstanding variance framework would conflict with the “awesome, plenary” authority CAAF has long ascribed to those courts.

A Footnote Worth Marking
Tucked into footnote 4 of the majority opinion is a reminder of broader application: when a CCA reviews a conviction resulting from a guilty plea, it applies neither legal nor factual sufficiency review. It instead considers the providence of the plea. See United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996). Kershaw's variance holding therefore operates only in cases tried on the merits, not in providence-of-the-plea reviews.

What Res Gestae Is — and What It Is Not
Res gestae, the Latin for “things done.” In modern federal evidence practice, the label captures conduct and statements so closely tied to the charged offense that they do not qualify as “other” acts at all. Federal circuits articulate the test in three overlapping ways. Conduct qualifies as intrinsic when it (1) arises out of the same transaction or series of transactions as the charged offense, (2) completes the story of the crime, or (3) intertwines inextricably with evidence of the charged offense. CAAF draw directly from United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007), and similar authority.

The functional point matters more than the label. When a court treats evidence as intrinsic, the evidence sits outside Rule 404(b)'s notice and propensity machinery and outside Rule 412's procedural gate. The Fifth Circuit put the point directly in United States v. Lockhart, 844 F.3d 501, 512 (5th Cir. 2016): intrinsic evidence is “not other bad acts evidence at all, but rather additional facts surrounding the charge at issue.” Military courts have applied the same logic for decades. United States v. Thomas, 11 M.J. 388 (C.M.A. 1981), distinguishes admissible uncharged misconduct that is “inextricably related in time and place” to the charged offense from other-acts evidence that Rule 404(b) excludes.

Three boundaries shape the doctrine. First, res gestae is not a catch-all admissibility theory. Courts reject it when the proffered conduct stands temporally or causally apart from the charged event. Second, M.R.E. 403 balancing still applies even to intrinsic evidence. Third, and central to Washington, the res gestae label does not by itself defeat the protections built into M.R.E. 412. The intrinsic-conduct analysis instead answers a prior question: whether the evidence qualifies as “other” sexual behavior at all. M.R.E. 412(d) defines other sexual behavior as “any sexual behavior, not encompassed by the alleged offense.” Conduct that forms part of the charged transaction is encompassed, and Rule 412 does not bar it.

Res gestae evidence is common in the prosecution's case. The evidence may establish an accused's grooming behavior, immediate flight, statements made during the charged transaction, and surrounding conduct that contextualizes the charged act. Although intrinsic evidence escapes M.R.E. 404(b)'s notice requirement, prosecutors still flag the theory in pretrial filings to head off late-trial litigation. Trial counsel should expect defense challenges that test temporal proximity, causal connection, and whether the proffered conduct genuinely completes the story or impermissibly broadens the offense.

Defense counsel use res gestae to admit context that supports consent, mistake of fact, identification disputes, or innocent explanation. The doctrine carries particular weight in Article 120 cases, where Article 120(g)(7), UCMJ (formerly (g)(8)(C)), directs the factfinder to consider “[a]ll the surrounding circumstances” in determining consent. CAAF underscored this connection in Washington and again in United States v. Casillas, 86 M.J. 94 (C.A.A.F. 2025), and United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024). Where the surrounding circumstances are intrinsic to the charged event, defense counsel should argue that the evidence falls outside Rule 412 by definition, rather than just reliance on an exception.

First Lieutenant Washington was charged with one specification of abusive sexual contact under Article 120(d), UCMJ. The alleged victim, CP, testified that after a night of drinking, the accused kissed him on a hotel bed and reached down his pants twice. CP said he told the accused, “I'm not into you. I'm not into that or anything like that.”

The defense theory rested on consent and mistake of fact. The accused testified that he and CP shared a lasting hug, lay down on the bed, talked about their dating lives, and that the accused touched CP's thigh as a natural escalation of a consensual, sexualized exchange. He denied ever touching CP's genitals. Pretrial, the defense had foreshadowed exactly this issue, telling the military judge that CP's heterosexuality could not be presented as foreclosing consensual conduct without opening the door to a defense response.

During a closed Article 39(a) session, the military judge concluded that the accused's testimony about the hug, lying down, the thigh touch, and CP's statement that men and women had “come on to him” fell within M.R.E. 412(a)(1) as other sexual behavior or, alternatively, within M.R.E. 412(a)(2) as sexual predisposition evidence. The judge offered the defense two options: cross-examine the accused in closed session under Rule 412 procedures, or accept an instruction telling the panel to disregard the testimony. The defense refused the closed cross-examination. The judge struck the testimony.

The defense argued throughout that the conduct in question was res gestae of the charged offense. Two panel members visibly struggled with the resulting instruction, with one asking whether they were to disregard “that it was consensual or just disregard the portion of sexual orientation.” The judge replied, “Both.”

The majority agreed with the defense. Judge Johnson wrote that the uncharged conduct — the hug, lying on the bed, the thigh touch, CP's objection to the thigh touch — was “intrinsic to, not separate from, the charged conduct.” She Court connected M.R.E. 412(d)'s definition of “other” sexual behavior to the same intrinsic-evidence framework that governs Rule 404(b), citing United States v. Peel, 29 M.J. 235 (C.M.A. 1989), and the Advisory Committee Note to Federal Rule 412.[1] Conduct that is part of a single criminal episode, the Court reasoned, cannot be “other” conduct.

The Court treated the two pieces of CP-related testimony separately. CP's relationship with his girlfriend was already in evidence through the Government's case, was not Rule 412 material under United States v. Alston, 75 M.J. 875 (A. Ct. Crim. App. 2016), and the defense never elicited content beyond its existence. CP's statement that men and women had flirted with him described others' behavior, not CP's mode of dress, speech, or lifestyle, so it did not satisfy the textual definition of sexual predisposition in M.R.E. 412(d).

Judge Johnson also found that the Government had opened the door. Trial counsel introduced CP's statement that he was “not into” the accused or “that or anything like that,” using sexual orientation to imply impossibility of consent. CAAF reaffirmed United States v. Collier, 67 M.J. 347 (C.A.A.F. 2009), holding that an accused must be permitted to rebut that inference.

Finally, CAAF held the remedy was disproportionate. Even if some of the testimony had been Rule 412 material, the judge struck testimony to which no party had objected and to which a prior ruling had already deemed admissible. Striking the consent narrative violated the accused's Sixth Amendment right to testify and to present a complete defense, and the Government could not show harmlessness beyond a reasonable doubt under United States v. Tovarchavez, 78 M.J. 458 (C.A.A.F. 2019). The Charge and Specification were set aside.

Judge Maggs dissented and would have affirmed on a different ground entirely. He read the case through M.R.E. 301(e)(1) and Brown v. United States, 356 U.S. 148 (1958), arguing that an accused who testifies on direct examination cannot then refuse to be cross-examined on related matters in a Rule 412 session.

Good that trial counsel often put more in the M.R.E. 404(b) than they might need to. By the same token, good on defense counsel who make a motion in limine for evidence that may not be within M.R.E. 412. Everyone benefits from early litigation. The military judge has time to first decide whether the evidence is "other acts" or "res gestae." And so long as any ruling is not labeled as preliminary, the issue is preserved. Of course, defense must always keep their ears open for the not-unusual opening of the door by trial counsel.

[1] Unlike the MCM, the Federal Rules Advisory Committee Notes, discussions, and procedures are an excellent resource for understanding the Military Rules of Evidence. The FRAC is an outstanding example of transparency in the rulemaking process.

A military judge sitting at a general court-martial at Fort Drum convicted First Lieutenant Brady T. Wicks of one specification of sexual assault under Article 120, UCMJ, contrary to his pleas. The judge acquitted him of a second sexual assault specification and one domestic violence specification. The court sentenced Wicks to dismissal from the service and three days of confinement.
On appeal to ACCA, Wicks one assignment of error: the military judge wrongly denied his motion to compel discovery of the full logical extraction of the victim's cell phone, which CID held in an evidence locker. The victim had consented only to a search of text messages between herself and Wicks. Because CID's Cellebrite software at the time could not perform a targeted extraction, agents extracted the phone's entire contents but limited their review to the authorized text messages.
The Army Court of Criminal Appeals, affirmed. The court held that the military judge did not abuse his discretion for several reasons: the full extraction never entered the government's possession, custody, or control for discovery purposes because the victim only granted limited consent; the victim retained a reasonable expectation of privacy in the remaining phone data under the Fourth Amendment; the defense failed to show the full extraction would provide relevant evidence that could impeach any witness; and adequate substitutes — including the text messages and victim-provided screenshots — already existed in the record. Even assuming the judge erred, the court found no prejudice under a harmless-beyond-a-reasonable-doubt standard.

Seems CAAF could affirm ACCA and avoid the harder questions, because

(2) The defense had not met its burden under R.C.M. 701(a)(6) to show that the provision of the full extraction would provide any evidence that would adversely affect the credibility of the victim.

(4) The defense had not established that the remaining data on the cell phone was relevant and necessary. Many of the text message chains provided by the victim pre-dated the charged offense; they did not establish a motive to fabricate, and the text messages did not confirm the sexual acts themselves.
(5) The defense argument on the full extraction being subject to compulsory process fell short because the defense could not establish any evidence that the full extraction would be of such central importance to the defense and that no adequate substitute existed.

No harm, no foul.