Bookends of a sort

I believe it is prudent to sound a note of caution to the field about the applicability of this decision to future cases with different facts.

United States v. Norwood, 80 M.J. ___ (C.A.A.F. 2021) (Ohlson, J., concurring in the result).

This is comment appropriately applied to most appellate decisions. I tend to look at many appellate decisions from a different perspective than most. As I read appellate decisions I think of them as you shouldn’t do this, but if you do you will err or not. Or just because the court affirmed the prosecution’s conduct doesn’t mean that it was proper conduct or license to do it again.

I happened upon United States v. McCrary, 1 C.M.R. 1, 1951 CMA LEXIS 155 (1951)—the first case in which the then CMA issued an opinion (interestingly a case certified from the Air Force TJAG).

The Air Force Board of Review had approved the findings and approved the sentence. The certified issue was,

whether, as a matter of law, the facts are sufficient to sustain the conviction.

United States v. McCrary, 1 C.M.R. 1, 2 (U.S. C.M.A. 1951).

In view of the fact that this is the first written opinion published by this court we deem it advisable to set forth a few well-known principles of law which govern the scope of our review. We mention these principally to set a pattern for future cases which will reach this court by petition or certification.

The court then clarifies that while Congress gave the Boards of Review the power of factual sufficiency review that power was not given to CMA—CMA was established and continues to be limited to legal sufficiency review of the findings.

The second well-known rule of law is that if there is any substantial evidence in the record to support a conviction an appellate court, in the absence of other error, will not set aside the verdict. Almost every court of last resort has either adopted this rule or one which is in substantial agreement with it. Different ways of expressing the rule have been used, but few courts, if any, depart from its principle. To sustain a conviction, we need not be convinced beyond reasonable doubt that the defendant is guilty: it is sufficient if there is in the record substantial evidence to sustain the verdict.

And to circle back to Judge Ohlson, the McCrary court said,

“We do not want the views herein expressed to be considered as placing our stamp of approval upon a procedure which barely meets the minimum standards required for a lawsuit.” 1 C.M.R. at 7.