Micheal S. Pardo, What Makes Evidence Sufficient? 65 ARIZ L. REV. 431 (2023).
When is a party’s evidence sufficient in a civil case? When is the prosecution’s evidence sufficient in a criminal case? The answers to these questions play several important roles—both practical and constitutional—throughout civil and criminal litigation. As a practical matter, a judicial determination that evidence is insufficient may end a case pre-trial (for example, at summary judgment); may end a trial without getting to a jury (resulting in a judgment as a matter of law); or may overturn a jury’s verdict in a civil case or a guilty verdict in a criminal case. As a constitutional matter, the right to a jury trial in civil cases depends on whether parties have sufficient evidence to get to trial, and criminal defendants have a due process right to not be convicted based on insufficient evidence. Despite the importance of the sufficiency issue, the legal doctrine separating sufficient from insufficient evidence is imprecise and unclear, and judicial reasoning applying the doctrine in particular cases is often frustratingly opaque.
United States v. Mays
The Appellant was twice seen holding a cellphone over a shower stall in the SLU while a male was showering. He was charged with attempted wrongful, knowing, nonconsensual view of a person's private area, where there was an expectation of privacy. No-one could testify about what the cellphone screen showed and forensic analysis of the phone could not find any relevant evidence. Although, perhaps as circumstantial evidence, there was evidence of water damage to the cellphone.
The Appellant's theory at trial and on appeal was the lack of legal sufficiency because viewing the person by cellphone image was different from viewing the actual person. ACCA rejected that theory because the cellphone "facilitated" the wrongful viewing. The granted issue was
WHETHER THE OFFENSE OF INDECENT VIEWING UNDER UCMJ ART. 120C INCLUDES VIEWING OF A VISUAL IMAGE OF THE PRIVATE AREA OF ANOTHER?
The CAAF agrees with ACCA. The "real-time" viewing facilitated through the cellphone makes this different from later viewing an image or video that has previously been recorded. The attempt charge is valid because the Appellant only stopped one of the times because he saw a potential witness and fled the scene--some consciousness of guilt there.
We acknowledge that a distinction can be drawn between the private area of a person and a visual image of the private area of person. But that is not the question in this case. The question in this case is whether the meaning of the term “viewing” in Article 120c(a)(1), UCMJ, is broad enough to cover both viewing the private area and viewing a contemporaneously produced visual image of the private area of a person. For the reasons explained above, we have concluded that it is.
Memo to the field:
One last point requires attention. Although we hold that the evidence was legally sufficient for the military judge to find Appellant guilty of the two specifications of
As an aside there is a helpful discussion of the rule of lenity with reference to Muscarello v. United States, 524 U.S. 125, 138-39 (1998).
Update 31052023: See United States v. Jones (AFCCA) regarding an Article 117a offense.
United States v. Grijalva
Who said that the "service connection" requirement is dead after Solorio. If dead, Congress may have and the CGCCA has resurrected it for a specific offense--something that Congress could do. Grijalva was convicted of knowingly and wrongfully, without specific consent, sharing nude pictures in fake Tinder account.
Grijalva hacked into a friend of a friend's Snapchat account, downloaded nude and other pictures of the friend. He then created a fake Tinder account with the friends name and used her pictures. He promised a meeting with "her" and in the process made $200.00 based on the solicitation.
He was charged with an unenumerated offense under Article 134(2). On appeal, he alleged that the charge and specification was preempted by Article 117a. CGCCA disagreed.
Appellant was convicted of an unenumerated specification under Article 134, UCMJ, alleging: (1) that he knowingly, wrongfully, and without explicit consent broadcast an intimate visual image of Ms. B.C., who is identifiable from the visual image or from information displayed in connection with the visual image when he knew or reasonably should have known that the visual image was made under circumstances in which Ms. B.C. retained a reasonable expectation of privacy regarding any broadcast and when he knew or reasonably should have known that the broadcast of the visual image was likely to cause harm, harassment, or emotional distress for Ms. B.C. or to harm substantially Ms. B.C. with respect to her safety, business, calling, career, reputation, or personal relationships; and (2) that, under the circumstances, Appellant’s conduct was of a nature to bring discredit upon the armed forces. This embraced all but two of the elements of wrongful broadcast of an intimate visual image under Article 117a, UCMJ: (1) that the intimate visual image involves a person who is at least 18 years of age at the time the intimate visual image was created; and (2) that the accused’s conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.
The court rehearses the statutory language and legislative history of Article 117a. In doing so, the court concludes that the Article is limited to situations where the victim is another servicemember or veteran.
The issue arises over the interpretation of "(4) whose conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment," in the statute.
The statutory language makes clear that Article 117a is tailored to address nonconsensual sharing of intimate images of adults that, “under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.” Article 117a(a)(4). Legislative history shows that the specific statutory purpose for doing so was to target the sharing/broadcasting of intimate images of servicemembers and veterans without their permission.
In Grijalva, the victim was a civilian.
With that in mind, the court finds no difficulty in deciding against Grijalva on the preemption argument.
But I think the question to be asked of CAAF is more nuanced. Is it arguable that "whose conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment," is a blending of the second element of an Article 134(1) or (2) offense--conduct prejudicial to good order and discipline and/or service discrediting? The full text of Article 117a states
a) Prohibition.-Any person subject to this chapter-
The opinion notes that a 2017 DoJ recommended (ltr at 10) the additional element to address First Amendment concerns. DoJ cites to United States v. Wilcox, 66 M.J. 442, 449 (C.A.A.F. 2008). And as part of the discussion suggests that an enumerated offense under Article 134 would be appropriate. That's not in the 2019 manual.
United States v. Harvey
A panel of officer and enlisted members convicted Appellant, contrary to his pleas, of one specification of indecent exposure in violation of Article 120(c), Uniform Code of Military Justice [UCMJ], but acquitted him of one charge of sexual assault and one charge of battery, charged as violations of Articles 120 and 128, UCMJ. He was sentenced to one year, RiR, and a DD. In a published opinion, the court tells us
Regarding factual sufficiency, this is the Court’s first case to address the application of the recently amended Article 66, UCMJ, standard of review.[*]
The legal issue relates to the standard of review and what does the phrase "deficiency of proof" mean.
Appellant contends that a “deficiency in proof” means a weakness in the evidence presented to support an element, not a complete absence of evidence on an element. The Government contends that “deficiency in proof. . . must allege a defect in evidence that, if valid, would undermine at least one element of an offense.” Complete absence of evidence on an element of a charged offense would, of course, render a conviction legally insufficient because a reasonable fact-finder could not find all the essential elements beyond a reasonable doubt.” The parties in this case substantially agree on this point.
The reviewing court must give deference to the fact finder having heard and seen the witness, not "recognizing" the fact finder heard and saw the witnesses--a higher standard. However,
We hold that “appropriate deference” does not mean that this Court can no longer make any credibility determinations of witnesses, as the Government argues. This is because the statute explicitly allows this Court to “weigh the evidence and determine controverted questions of fact.” Obviously, testimony is part of the evidence to be weighed, and the qualifier in the subsection requires “appropriate deference” rather than entirely eliminating credibility determinations regarding testimony from the evidence to be weighed. And because members do not make special findings or explain how they weighed the evidence admitted at trial in reaching a general verdict (apart from sometimes indicating a minor variance in charged language or making a finding of guilt to a lesser included offense), we find that “appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence” is a higher standard than the prior “recognizing that the trial court saw and heard the witnesses.”
Further, thee was disagreement between the parties about what the phrase ""clearly convinced" and "against the weight of the evidence" means.
We find that the revised statute requires a departure from the prior practice, and the standard for factual sufficiency has become harder for an appellant to meet. It is clear that the factual sufficiency standard in the revised Article 66, UCMJ, statute has altered this Court’s review from taking a fresh, impartial look at the evidence requiring this Court to be convinced of guilt beyond a reasonable doubt, to a standard where an appellant has the burden to both raise a specific factual issue, and to show that his or her conviction is against the weight of the evidence admitted at trial. Thus, Congress has implicitly created a rebuttable presumption that in reviewing a conviction, a court of criminal appeals presumes that an appellant is, in fact, guilty.
The court went on to address the specific deficiencies raised by the appellant and found the charges legal sufficient.
The appellant also challenged the MJ's failure to give a mistake as to consent defense instruction. The court finds that a mistake as to consent is not a viable defense to the charged conduct. It did not help the appellant's cause that the offenses took place "in public." The court relies on United States v. Carruthers, 64 M.J. 340 (C.A.A.F. 2007) and United States v. Bailey, 77 M.J. 11 (C.A.A.F. 2017) for its analytical framework.
The court also found (harmless) error in submitting a stipulation for a prior court-martial as a personnel record under R.C.M. 1001(b)(2).
News for today
Air Force Times is reporting that Major General Cooley is now Colonel Cooley (Ret).
https://www.courtlistener.com/docket/63107798/32/1/mata-v-avianca-inc/ is the link to the affidavits in which the counsel admits to using ChatGPT for case research.
Some of us have tinkered with ChatGPT for briefs---um, not a good idea?
A query "Solorio v. United States," drew this answer:
I'm sorry, but I couldn't find any specific information about a legal case titled "Solorio v. United States" that occurred before my knowledge cutoff in September 2021. It's possible that this case may have emerged after that time or might not be widely known. Additionally, please note that as an AI language model, I don't have real-time access to the internet or the ability to browse current legal cases. If "Solorio v. United States" is a recent or ongoing case, I recommend consulting reliable legal sources or news outlets for the most up-to-date information.
United States v. Figuereo
Figuereo presents a case where the court found a valid claim of ineffective assistance of counsel based on a conflict of interest created by the lead military defense counsel. The court did, however, limit the IAC to the sentencing case. The court also set-aside an enlisted panel's findings of another offense. In reassessment the court set-aside 10 months of confinement (which the appellant had already served by then) and left in place three months of confinement.
a total of 13 months’ confinement, total forfeiture of pay and allowances, and a bad-conduct discharge. The confinement portion of the sentence was segmented. Ten months of the confinement sentence was attributed to the specification of abusive sexual contact, Article 120, UCMJ, and was to run consecutively with the rest of the confinement term (three months) attributed to the other charges and their specifications. For the charges and their specifications to which the Appellant pleaded guilty, the military judge imposed between two and three months’ confinement all to run concurrently with each other.
The facts surrounding the IAC are not pretty, and you should read them for yourself. When done, consider (1) what can and cannot be said to a defense witness about contacting an alleged victim of a sexual assault after that victim has testified, and (2) should you get that wrong how should you go about explaining your actions when they are brought up when trial counsel brings them up as creating a conflict of interest. And in the process avoid getting your name in the court's opinion.
United States v. London
In London, the members convicted the appellant of involuntary manslaughter. The NMCCA finds the conviction factually insufficient.
Appellant argues that the Government failed to prove that he punched Mr. Hotel, that the testimony and forensic evidence failed to prove that Mr. Hotel was punched, and that the forensic evidence showed that Mr. Hotel’s injury was consistent with falling backwards from pulling on Appellant’s sweatshirt rather than being punched.
The case for and against London heavily depended on forensic evidence--pathology and toxicology. There were eyewitnesses, but none could testify to crucial facts against the appellant--none saw appellant punch the victim. Essentially the government was arguing that Appellant did punch the victim which caused the victim to have an "accelerated fall," which caused a skull fracture and, ultimately death. Essentially the defense argued that the victim was pulling on Appellant's sweatshirt so strongly that it caused indicia of strangulation and was so hard it ripped the sweatshirt, and then when the sweatshirt ripped the intoxicated victim fell and struck his head.
The link to the Navy military justice and NMCCA opinions has been updated. The listing of publicly available cases seems to be a work in progress (hopefully the search function will be fixed).
The National Institute of Military Justice is pleased to announce the winner of the 2022 Kevin J. Barry Award.
This award is intended to recognize substantial scholarship from the previous year, and will be evaluated for “excellence in military legal studies,” with the winner selected by a committee of law professors and practitioners.
The winner is:
Professor Saira Mohamed (Berkeley), for her article entitled Abuse by Authority: The Hidden Harm of Illegal Orders. 107 Iowa L. Rev. 2183 (2022).
Prof. Mohamed's piece "argues that international and domestic law should acknowledge [a] superior's order not only as a link to the crimes of the subordinate, but also as an abuse of the superior's relationship of authority over the subordinate."
Given that one of the most distinctive features of military criminal law is its recognition of a limited superior orders defense, this new theoretical framing of unlawful orders makes an important contribution to our field.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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