Court of Appeals for the Armed Forces

Harvey--case to watch

Order Granting Petition for Review: No. 23-0239/NA. U.S. v. Harvey.
 
DID THE LOWER COURT ERRONEOUSLY INTERPRET AND APPLY THE AMENDED FACTUAL SUFFICIENCY STANDARD UNDER ARTICLE 66(d)(1)(b), UCMJ?

NMCCA published decision.

Regarding factual sufficiency, this is the Court’s first case to address the application of the recently amended Article 66, UCMJ, standard of review. ​Section 542(e) of the FY 2021 National Defense Authorization Act made the new standard applicable to offenses that occur after 1 Jan 2021.

See here for a discussion of the intricacies of starting dates because of various changes to the UCMJ.

Congress undoubtedly altered the factual sufficiency standard in amending the statute, making it more difficult for a court of criminal appeals to overturn a conviction for factual insufficiency. In the past, we evaluated factual sufficiency of a conviction to determine “whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, [we] are . . . convinced of [an appellant’s] guilt beyond a reasonable doubt.” . . . Now, to trigger factual sufficiency review under the present Article 66(d)(1)(B), Congress requires two circumstances be present: (1) a request of the accused; and (2) a specific showing of a deficiency in proof. In amending Article 66, Congress has therefore eliminated this Court’s duty, and power, to review a conviction for factual sufficiency absent an appellant (1) asserting an assignment of error, and (2) showing a specific deficiency in proof. 
. . . 
​In explaining how to conduct this analysis, Congress has enacted explicit statutory language that we are to give “appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence.” This is a different, and higher, standard than the prior statute’s language of “recognizing that the trial court saw and heard the witnesses.”

Query: With new technology, the court and counsel have the audio recording of the trial proceedings available. With that in mind, can the court go about its factual sufficiency analysis because the court and counsel can "hear" the witnesses, either sua sponte or on the invitation of counsel?

Here, the parties disagree as to the meaning of the new statutory language that this Court must give “appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence.”

In determining what deference to give because of the inability to see and hear the witnesses, NMCCA says,

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.”

Listening to the audio may give a different perspective on the tone and voice mannerisms--elements of credibility--when evaluating witness testimony or counsels' arguments.

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. We are guided by the well-settled principle that unless ambiguous, the plain language of a statute will control unless it leads to an absurd result. We do not find any ambiguity here, and recasting the statutory language in synonyms would only create confusion. Put plainly, this Court will weigh the evidence in a deferential manner to the result at trial. If we are clearly convinced that, when weighed, the evidence (including the testimony) does not support a conviction, we may set it aside. This is not to say that we must be convinced beyond a reasonable doubt that the Accused is not guilty in order to reverse a conviction – as Congress did not go that far. Nor do we accept the Government’s invitation to equate “substantially outweighed by the evidence not supporting guilt” with “against the weight of the evidence” as that is a higher standard beyond what Congress intended. Rather, Congress simply requires us to be clearly convinced that the guilty verdict is contradicted by the weight of the evidence in order to set aside a guilty finding.