What CAAF held on factual sufficiency review

On August 6, 2026, the United States Court of Appeals for the Armed Forces (CAAF), the military’s highest court, decided United States v. Hunt, No. 25-0257, 2026 CAAF LEXIS 661 (C.A.A.F. Aug. 6, 2026). The decision is important for any service member appealing a court-martial conviction, and especially for those convicted of sexual assault under Article 120, UCMJ, 10 U.S.C. § 920, where credibility and consent are usually the whole ballgame.

What is factual sufficiency review?

The service Courts of Criminal Appeals (CCAs) have a power that almost no civilian appellate court has. They can reweigh the evidence, judge the credibility of witnesses, and set aside a conviction if they are clearly convinced the finding of guilty was against the weight of the evidence. Congress narrowed that power in the FY 2021 NDAA, and we explained how Congress changed factual sufficiency review in 2021 in an earlier post. Under the current version of Article 66, UCMJ, 10 U.S.C. § 866, the court no longer conducts that review automatically. The appellant must request it and must make a specific showing of a deficiency in proof. The new rule applies only when every finding of guilty rests on conduct committed on or after January 1, 2021; we covered whether the old or new factual sufficiency rule applies to your case, including bridge cases, in a separate post. We explain the full appellate process, including CCA review and CAAF petitions, on our military appellate defense page.

Since 2021, the Government has argued that this new requirement does double duty: it not only controls whether the CCA conducts the review, it also confines the court to the exact deficiency the appellant identified, and nothing else. Hunt rejects that argument.

What happened in Hunt

A general court-martial convicted Senior Airman Hunt of one specification of sexual assault. The case turned on a withdrawal of consent during an otherwise consensual encounter, and the complaining witness gave conflicting accounts of when she said stop and what happened next. On appeal, the defense asked the Air Force Court of Criminal Appeals (AFCCA) for factual sufficiency review, pointing to her inconsistent statements and her admitted lie to investigators, and arguing a reasonable possibility that the act stopped promptly when she withdrew consent.

The AFCCA agreed the conviction could not stand, but on a related ground the defense had not named: the Government failed to disprove beyond a reasonable doubt that the accused honestly and reasonably believed he still had consent, the mistake of fact as to consent defense. The Air Force certified the case to CAAF, asking whether a CCA can grant relief on a basis the appellant never specifically raised.

What CAAF held

CAAF said yes. The request and specific showing required by Article 66(d)(1)(B)(i) are a threshold to review, not a limit on its scope. Once an appellant clears that threshold as to a particular finding of guilty, the CCA may weigh the entire record on that finding and may set the finding aside on any factual ground, including a defense theory the appellant did not expressly argue. Hunt, 2026 CAAF LEXIS 661, at *2-3, *8-9. The one boundary: the review stays tied to the finding the appellant actually challenged. The CCA cannot roam into findings the appellant left alone.

The decision was close on the legal question. Two of the five judges, Chief Judge Maggs and Judge Ohlson, read the statute the Government’s way. But Judge Ohlson voted to affirm anyway because CAAF gives deference to how a CCA applies the statute, so the AFCCA’s decision setting aside the conviction stands.

Why this matters if you are appealing

First, the playing field on factual sufficiency is broader than the Government wanted. If your appellate counsel makes a solid, specific showing of a weakness in the proof on a finding, the CCA reviewing that finding is not boxed into the exact words of the brief. In sexual assault cases, where consent, withdrawal of consent, and mistake of fact overlap and blur into one another, that flexibility can be the difference between an affirmed conviction and a dismissal.

Second, the threshold still matters, a lot. CAAF has never defined exactly what a “specific showing of a deficiency in proof” requires, and one judge wrote that he would have found the showing in this case inadequate. A boilerplate claim that the evidence was weak will not open the door. The brief must identify real, particular problems with the Government’s proof. That is careful, record-intensive work, and it is where experienced appellate counsel earn their keep.

Third, name your defenses anyway. Hunt saved this appellant, but nothing in the opinion rewards vague pleading. The safe course remains to identify every deficiency in proof, including the Government’s failure to disprove defenses like mistake of fact, expressly and specifically.

Talk to us

Cave & Freeburg, LLP has handled court-martial appeals before every service CCA, CAAF, and the Supreme Court, and we have defended Article 120 sexual assault cases at trial and on appeal for decades. If you or a family member has been convicted at court-martial, the deadlines run quickly and the first brief is the one that matters most. Contact us for a confidential consultation, and follow our ongoing analysis of military justice decisions at the Court-Martial Trial Practice Blog.