At Cave & Freeburg, our military defense lawyers bring decades of combined experience litigating appeals before every Service Court of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces (CAAF). We study every new statutory amendment and every new judicial interpretation because appellate law shifts quickly—and those shifts can shape your future. One of the most important recent changes concerns factual sufficiency review under Article 66, UCMJ. Congress radically narrowed this form of appellate protection for offenses occurring on or after 1 January 2021, and the service courts have spent the last three years defining how the new standard works in practice.
If you have a conviction involving post-2021 offenses, or if you face a pending court-martial today, you need to understand how this change affects your rights—and how skilled appellate counsel can still use Article 66 to your advantage.
What Factual Sufficiency Review Used to Look Like
For decades, Article 66(c), UCMJ, gave the Service Courts a unique, powerful duty: every appeal received an automatic, de novo factual review. The courts did not simply ask whether a rational factfinder could have convicted. Instead, they weighed the evidence themselves and independently decided whether they were personally convinced, beyond a reasonable doubt, of the accused’s guilt.
Under United States v. Turner, the courts applied a direct question:
After weighing all the evidence and considering that the factfinder saw the witnesses, am I myself convinced beyond a reasonable doubt that the accused is guilty?
The court owed no deference to the panel’s resolution of conflicts. If the judges were not personally convinced, they set the finding aside.
This standard reflected Congress’s deliberate choice to give service members more protection than defendants receive in federal civilian courts—even though federal courts apply only legal sufficiency review under Jackson v. Virginia. Military appellate courts, by contrast, served as a safety valve, catching weak or unreliable convictions even when proper legal rules were followed at trial.
That changed in 2021.
Congress Narrowed Factual Sufficiency Review in the FY-2021 NDAA
Through the FY-2021 National Defense Authorization Act, Congress replaced Article 66(c) with a new framework, now codified at Article 66(d)(1)(B). For any case in which every conviction involves an offense occurring on or after 1 January 2021, the rules have shifted significantly.
1. No more automatic factual review
Under the new system, the Court of Criminal Appeals reviews factual sufficiency only if the accused requests it. That request must be made through an assignment of error.
2. The accused must make a “specific showing of a deficiency in proof”
Congress created an explicit gatekeeping requirement. A mere claim that “the panel believed the wrong witness” no longer works. The appellant must identify concrete weaknesses in the government’s proof—gaps, contradictions, unreliability, or objective evidence undermining an element.
Without that specific showing, the court does no factual review at all.
3. The CCA must apply “appropriate deference”
Even after a viable request, the appellate court must weigh the evidence with “appropriate deference” to:
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the trial court’s ability to see and hear the witnesses, and
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any formal findings of fact by the military judge.
This deference did not exist under the old Article 66(c) formulation.
4. The CCA may reverse only if “clearly convinced” the verdict is “against the weight of the evidence”
The final hurdle is steep. The court must:
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Conclude that the evidence does not prove guilt beyond a reasonable doubt after weighing it, and
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Be clearly convinced that this conclusion is correct.
If the judges harbor any hesitation, they must affirm.
How the Service Courts Apply the New Standard
The Service Courts—AFCCA, ACCA, and NMCCA—have now issued published and unpublished opinions applying the post-2021 version of Article 66.
1. Factual review must be requested and justified
Cases such as United States v. Hunt, Kim, and Gray emphasize that the appellant must meet the threshold requirement. When appellate counsel identify explicit deficiencies—missing corroboration, flawed forensic evidence, or contradictions between witnesses—the courts proceed to the new review.
When the brief offers only broad disagreement with the verdict, the CCAs hold that the appellant has not triggered Article 66(d)(1)(B) at all.
2. The courts explicitly apply “appropriate deference”
Opinions now include a dedicated section in which the court explains how it applied deference. In practice, this often means:
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Giving weight to the panel’s ability to judge credibility.
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Accepting the military judge’s findings on contested preliminary matters.
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Considering whether objective evidence (videos, documents, physical evidence) reduces the need for deference.
3. Reversal remains rare under the new standard
In the early post-2021 cases, the Service Courts almost always affirm after applying the new test. They frequently conclude that although the evidence may be close, they are not “clearly convinced” the finding is against the weight of the evidence.
This is the most significant practical change: the appellate courts now require a higher level of certainty before they will disturb a conviction.
How CAAF Has Interpreted the New Statute
The Court of Appeals for the Armed Forces has now provided crucial guidance:
United States v. Harvey (2024)
CAAF held that:
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CCAs still conduct a de novo weighing of the evidence.
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“Weight of the evidence” and “clearly convinced” do not alter the government’s burden of proof.
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The phrase “appropriate deference” varies depending on the type of evidence (demeanor-based vs. objective).
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The appellant must meet the “specific showing of a deficiency in proof” to trigger factual review.
United States v. Csiti (2025)
CAAF clarified that it does not conduct factual-sufficiency review itself. Instead, it ensures the CCA applied the correct legal framework. If a CCA misinterprets Article 66(d)(1)(B), CAAF can step in—but it cannot re-weigh evidence.
These cases now anchor the post-2021 statutory regime.
What This Means for Your Appeal—and Why Counsel Matters
Congress made factual sufficiency review harder to obtain and harder to win. But the right still exists, and skilled appellate counsel can still use Article 66 effectively. At Cave & Freeburg, we:
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Identify and articulate the “specific deficiencies in proof” required to trigger review.
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Frame evidentiary weaknesses in a manner that respects the statutory gatekeeping rules.
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Show how the weight of the evidence undermines essential elements.
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Build our arguments around Harvey, Csiti, and the most recent service-court cases.
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Tailor our presentation to the specific deference the court must apply.
In close cases—especially sexual-assault allegations, consent disputes, digital-evidence cases, and conflicting-witness scenarios—a well-crafted factual insufficiency challenge can still make the decisive difference.
If You Face a Court-Martial or Appeal, We Can Help
Cave & Freeburg has built a national reputation for excellence in military criminal defense and appellate litigation. If you are under investigation, facing court-martial, or contesting a conviction, contact us:
Cave & Freeburg, LLP – Military Lawyers
Website: https://www.court-martial.com
Phone: (703) 298-9562 or (917) 701-8961
Email: mljucmj@court-martial.com
We will review your case, identify the issues that matter, and fight to protect your future.