To do or not to do

I recently read the first opinion issued by the then Court of Military Appeals (CMA). But first,

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 comment is appropriately applied to most appellate decisions. I tend to look at appellate decisions from a different perspective than most. As I read appellate decisions, I think of them as you should or should not do this with a touch of judgment. For example, the court affirmed a case in which the prosecution’s conduct was “approved” or did not result in prejudice does not mean that there is a license to do it again. In other words, prudence is required in interpreting and, most importantly, applying past appellate decisions. Just because an appellate says it is OK does not mean it is right to do in another case.

In United States v. McCrary, 1 C.M.R. 1, 1951 CMA LEXIS 155 (1951)—the Air Force TJAG certified an issue (so also the first case of a certification). The certified issue asked, “whether, as a matter of law, the facts are sufficient to sustain the conviction.” Id., at 2.

The court discussed the distinction between factual and legal sufficiency and its authority to decide an AOE on either grounds.

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.

Id., at 2-3.

The court then clarifies that while Congress gave the Board of Review the power of review for factual sufficiency, that power was not given to CMA—CMA was established and 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.

Id., at 3-4.

And to come back to Judge Ohlson, the McCrary court observed, “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.” Id., at 7.