Under Article 66(c) of the Uniform Code of Military Justice (UCMJ), the military’s courts of criminal appeals have the unusual appellate power to conduct a de novo review of a trial court’s findings of fact. Congress gave the military’s appellate courts their unique fact-finding powers in 1950 because under the original UCMJ, special and general courts-martial were highly unprofessional proceedings and extremely susceptible to command influence, thereby creating the risk of unjustly convicting and harshly sentencing servicemembers. Originally, there were not even military judges presiding at summary courts-martial. Instead, a senior line officer untrained in the law was designated president of the panel and was responsible for deciding questions of law, such as the admissibility of evidence. The panel president also served as a juror, voting with the panel to decide the accused’s guilt or innocence and sentencing. While law officers were present at general courts-martial, they were not the presiding officers of the court and lacked the traditional judicial powers bestowed upon judges to ensure the integrity of trials and other judicial proceedings. Furthermore, both the law officer and panel president were hand-picked and evaluated by the convening authority. Based on this structure and the high potential for both prejudicial command influence and legal error, the appellate courts’ de novo review of a trial court’s findings of fact was an important protection for servicemembers.
Today, these justifications for the plenary fact-finding powers of the courts of criminal appeals no longer exist. Due to amendments to the UCMJ over the past fifty years, military trials now resemble civilian trials and are presided over at both special and general courts-martial by an independent and professional circuit of military judges with powers modeled after Article III judges. This has reduced the potential for command influence while increasing the professionalism of trials, thus mitigating the chances of legal error. Furthermore, the fact-finding power of the military’s courts of criminal appeals is actually an impediment to justice because it adds a considerable burden on the military’s already severely backlogged appellate system. Claims of factual insufficiency are frequently and easily made by appellate defense counsel, but are very time consuming for appellate prosecutors to respond to. Despite this huge investment of resources in conducting a de novo review of claims of factual sufficiency, the courts of criminal appeals almost never find factual insufficiency. On the rare occasion they do, courts rarely reduce a sentence, and therefore, the high costs of the power’s continued existence cannot be justified. Not only will removing this de novo fact-finding power reduce the military’s appellate backlog, but it will also do so without prejudicing the rights of servicemembers because they already have numerous due process protections that civilians do not.