Wednesday, May 17, 2017

The Army JAG certifies a case about Article 62

Article 62 authorizes interlocutory appeals by the prosecution in a court-martial in various situations, including of:

An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.

Art. 62(a)(1)(B). It's a relatively new provision in the Code, having been added by the Military Justice Act of 1983, Pub. L. No. 98-209 (with additional grounds for appeal added in 1996).

Rule for Courts-Martial 908 details procedural steps for such an appeal, but it does not define the term (or perhaps terms) substantial proof of a fact material in the proceeding, leaving the matter up to the appellate court acting on the appeal.

The Judge Advocate General of the Army has a problem with that:

No. 17-0408/AR. United States, Appellant v. Erik P. Jacobsen, Appellee. CCA 20160786. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, and a supporting brief were filed under Rule 22, together with a motion to stay trial proceedings on this date on the following issue:

WHETHER THE TRIAL COUNSEL'S CERTIFICATION THAT EVIDENCE IS "SUBSTANTIAL PROOF OF A FACT MATERIAL IN THE PROCEEDING" IS CONCLUSIVE FOR PURPOSES OF ESTABLISHING APPELLATE JURISDICTION UNDER ARTICLE 62(a)(1)(B), UNIFORM CODE OF MILITARY JUSTICE.

Appellee will file an answer under Rule 22(b) on or before May 25, 2017.

I don't see an opinion on the Army CCA's website.

I'm not aware of any CAAF precedent that addresses this issue, but the Navy-Marine Corps CCA addressed it in dicta in United States v. Maza, 73 M.J. 507, 513 (N.M. Ct. Crim. App. 2014) (discussed here):

Article 62(a)(1)(B), UCMJ, confers upon this court jurisdiction over Government appeals from orders or rulings by a military judge that " exclude[] evidence that is substantial proof of a fact material in the proceeding." The legislative history of Article 62 and the CAAF's interpretation of Article 62 establish that Congress intended Article 62 to be applied in the same manner as the Criminal Appeals Act, 18 U.S.C. § 3731. United States v. Brooks, 42 M.J. 484, 486 (C.A.A.F. 1995); see also United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 1995). In other words, Article 62, UCMJ, ensures that the Government has the same opportunity to appeal adverse trial rulings that it has in federal civilian criminal proceedings. United States v. Lopez de Victoria, 66 M.J. 67, 71 (C.A.A.F. 2008). To invoke jurisdiction under 18 U.S.C. § 3731, the relevant United States Attorney must certify that a federal appeal is taken because the evidence excluded is substantial proof of a material fact. The military justice system includes essentially the same requirement. See R.C.M. 908(b)(3). In addition, the Judge Advocate General's representative must decide whether to file the appeal. R.C.M. 908(b)(6).



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