Under Article 62, UCMJ, the prosecution can appeal a military judge’s trial ruling under six circumstances. The two most common are:
(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.
For example, a military judge dismisses a specification because the specification fails to state an offense. That is what happened in United States v. Schloff. The government appealed, the ACCA decided the appeal in favor of the government, CAAF agreed with the ACCA, and the Supreme Court declined to issue a writ of certiorari. (We are now in the traditional Article 66, UCMJ, appeal before ACCA on the sole specification for which there was a conviction.)
(B) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.
For example, exclusion of evidence through a suppression motion on the seizure of evidence. Or, as in a case I currently have, the refusal to declare a witness unavailable so the government can use the Article 32, UCMJ testimony of the witness.
In discussions with a number of appellate counsel colleagues we have noticed an appreciable rise in the number of government appeals, especially the Army. For the accused and trial defense counsel, this means several things.
- Delay, potentially of months while the appeals process works its magic. The prosecution is supposed to certify that the appeal is not solely for the purpose of delay.
- The record. If there is any indication that the prosecution may seek to appeal, you should make sure that the record contains everything possible that you believe will be necessary for a successful defense of the appeal. You should make sure the military judge makes complete findings of fact and conclusions and that you’ve given her the best case law possible to cite the ruling. The appellate court is supposed to give deference to the judge on appeal unless there are no findings and conclusions or the findings are clearly erroneous. So help the judge to help yourselves.