It’s a privilege

I’ve not heard the awesome power of de novo review discussed this way.

On the basis of the entire record we cannot find that the court was wrong as a matter of law in finding an intention to desert. We are, however, by Article 66(c) of the Code privileged to say that we differ from the court in finding as a fact whether such intention existed. We determine that it did not.

United States v. Bolish, 12 C.M.R. 649 (C.G.C.M.R. 1953).

Rather I have heard read it this way.

Courts of Criminal Appeal are something like the proverbial 800-pound gorilla when it comes to their ability to protect an accused. Frequently, they are acknowledged to have awesome, plenary, de novo powers of review under Article 66(c). United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990). “A clearer carte blanche to do justice would be difficult to express” was the observation in United States v. Claxton, 32 M.J. 159, 162 (C.M.A. 1991). Thus, the question before us is not whether a Court of Military Review can, in the interests of justice, receive and consider an affidavit on the merits of a case. Cf. United States v. Bethea, 22 U.S.C.M.A. 223, 46 C.M.R. 223 (1973).

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