I was ruminating on the Partington issue, and I was reading the recent NMCCA’s decisions, and I came across this.
Federal courts, to include the Court of Appeals for the Armed Forces, have long held that a defective specification challenged for the first time on appeal will be liberally construed in favor of its validity. See United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986).
Now R.C.M. 907(b)(1)(B), clearly states that F2SO is not waived. But it might be a good idea to consider NMCCA’s view on the “construction” issue. Perhaps the best point to raise the issue then is after the prosecution rests or during the discussion on instructions if it’s a members case, or before the judge makes findings if its an MJA.