A history note

Military appellate lawyers know the mantra:

 This Court has an independent obligation to review each case de novo to ensure the factual and legal sufficiency of the findings. Article 66(c), UCMJ, 10 U.S.C. § 866 (2012); United States v. Turner, 25 M.J. 324 (C.M.A. 1987). In doing so, this Court is empowered to substitute its judgment for that of the trial court. Id. When deciding legal insufficiency, the test is “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2004). A review of legal sufficiency is limited to the evidence introduced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993). As for factual insufficiency, “the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses,” this Court is unconvinced of the accused’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 325; see also McMurrin, 72 M.J. at 706.

That’s the standard of review when the court of criminal appeals reviews a case.

The first case ever decided by the Court of Military Appeals established the proposition that this Court would not determine questions of fact, but was limited to questions of law.  United States v. McCrary, 1 C.M.A. 1, 3, 1 C.M.R. 1, 3 (1951).

United States v. Beatty, 64 M.J. 456, 458, 2007 CAAF LEXIS 534, 7 (C.A.A.F. 2007).

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