United States Code

USC most recently checked for updates: Jun 13, 2024

§ 866.
Art. 66. Courts of Criminal Appeals
(a)
Courts of Criminal Appeals.—
(1)
In general.—
Each Judge Advocate General shall establish a Court of Criminal Appeals which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing court-martial cases, the court may sit in panels or as a whole in accordance with rules prescribed under subsection (h). Any decision of a panel may be reconsidered by the court sitting as a whole in accordance with such rules. Appellate military judges who are assigned to a Court of Criminal Appeals may be commissioned officers or civilians, each of whom must be a member of a bar of a Federal court or of the highest court of a State and must be certified by the Judge Advocate General as qualified, by reason of education, training, experience, and judicial temperament, for duty as an appellate military judge. The Judge Advocate General shall designate as chief judge one of the appellate military judges of the Court of Criminal Appeals established by him. The chief judge shall determine on which panels of the court the appellate judges assigned to the court will serve and which military judge assigned to the court will act as the senior judge on each panel. In accordance with regulations prescribed by the President, assignments of appellate military judges under this section (article) shall be for appropriate minimum periods, subject to such exceptions as may be authorized in the regulations.
(2)
Additional qualifications.—
In addition to any other qualifications specified in paragraph (1), any commissioned officer or civilian assigned as an appellate military judge to a Court of Criminal Appeals shall have not fewer than 12 years of experience in the practice of law before such assignment.
(b)
Review.—
(1)
Appeals by accused.—
A Court of Criminal Appeals shall have jurisdiction over—
(A)
a timely appeal from the judgment of a court-martial, entered into the record under section 860c(a) of this title (article 60c(a)), that includes a finding of guilty; and
(B)
a summary court-martial case in which the accused filed an application for review with the Court under section 869(d)(1) of this title (article 69(d)(1)) and for which the application has been granted by the Court.
(2)
Review of certain sentences.—
A Court of Criminal Appeals shall have jurisdiction over all cases that the Judge Advocate General orders sent to the Court for review under section 856(d) of this title (article 56(d)).
(3)
Automatic review.—
A Court of Criminal Appeals shall have jurisdiction over a court-martial in which the judgment entered into the record under section 860c of this title (article 60c) includes a sentence of death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable discharge or bad-conduct discharge, or confinement for 2 years or more.
(c)
Timeliness.—
An appeal under subsection (b)(1) is timely if—
(1)
in the case of an appeal under subparagraph (A) of such subsection, it is filed before the later of—
(A)
the end of the 90-day period beginning on the date the accused is provided notice of appellate rights under section 865(c) of this title (article 65(c)); or
(B)
the date set by the Court of Criminal Appeals by rule or order; and
(2)
in the case of an appeal under subparagraph (B) of such subsection, an application for review with the Court is filed not later than the earlier of the dates established under section 869(d)(2)(B) of this title (article 69(d)(2)(B)).
(d)
Duties.—
(1)
Cases appealed by accused.—
(A)
In general.—
In any case before the Court of Criminal Appeals under subsection (b), the Court may act only with respect to the findings and sentence as entered into the record under section 860c of this title (article 60c). The Court may affirm only such findings of guilty as the Court finds correct in law, and in fact in accordance with subparagraph (B).
(B)
Factual sufficiency review.—
(i)
In an appeal of a finding of guilty under subsection (b), the Court may consider whether the finding is correct in fact upon request of the accused if the accused makes a specific showing of a deficiency in proof.
(ii)
After an accused has made such a showing, the Court may weigh the evidence and determine controverted questions of fact subject to—
(I)
appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence; and
(II)
appropriate deference to findings of fact entered into the record by the military judge.
(iii)
If, as a result of the review conducted under clause (ii), the Court is clearly convinced that the finding of guilty was against the weight of the evidence, the Court may dismiss, set aside, or modify the finding, or affirm a lesser finding.
(2)
Error or excessive delay.—
In any case before the Court of Criminal Appeals under subsection (b), the Court may provide appropriate relief if the accused demonstrates error or excessive delay in the processing of the court-martial after the judgment was entered into the record under section 860c of this title (article 60c).
(e)
Consideration of Sentence.—
(1)
In general.—
In considering a sentence on appeal, other than as provided in section 856(d) of this title (article 56(d)), the Court of Criminal Appeals may consider—
(A)
whether the sentence violates the law;
(B)
whether the sentence is inappropriately severe—
(i)
if the sentence is for an offense for which the President has not established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022; or
(ii)
in the case of an offense for which the President has established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, if the sentence is above the upper range of such sentencing parameter;
(C)
in the case of a sentence for an offense for which the President has established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, whether the sentence is a result of an incorrect application of the parameter;
(D)
whether the sentence is plainly unreasonable; and
(E)
in review of a sentence to death or to life in prison without eligibility for parole determined by the members in a capital case under section 853(c) of this title (article 53(c)), whether the sentence is otherwise appropriate, under rules prescribed by the President.
(2)
Record on appeal.—
In an appeal under this subsection or section 856(d) of this title (article 56(d)), other than review under subsection (b)(2) of this section, the record on appeal shall consist of—
(A)
any portion of the record in the case that is designated as pertinent by any party;
(B)
the information submitted during the sentencing proceeding; and
(C)
any information required by rule or order of the Court of Criminal Appeals.
(f)
Limits of Authority.—
(1)
Set aside of findings.—
(A)
In general.—
If the Court of Criminal Appeals sets aside the findings, the Court—
(i)
may affirm any lesser included offense; and
(ii)
may, except when prohibited by section 844 of this title (article 44), order a rehearing.
(B)
Dismissal when no rehearing ordered.—
If the Court of Criminal Appeals sets aside the findings and does not order a rehearing, the Court shall order that the charges be dismissed.
(C)
Dismissal when rehearing Impracticable.—
(i)
In general.—
Subject to clause (ii), if the Court of Criminal Appeals orders a rehearing on a charge and the convening authority finds a rehearing impracticable, the convening authority may dismiss the charge.
(ii)
Cases referred by special trial counsel.—
If a case was referred to trial by a special trial counsel, a special trial counsel shall determine if a rehearing is impracticable and shall dismiss the charges if the special trial counsel so determines.
(2)
Set aside of sentence.—
If the Court of Criminal Appeals sets aside the sentence, the Court may—
(A)
modify the sentence to a lesser sentence; or
(B)
order a rehearing.
(3)
Additional proceedings.—
If the Court of Criminal Appeals determines that additional proceedings are warranted, the Court may order a hearing as may be necessary to address a substantial issue, subject to such limitations as the Court may direct and under such regulations as the President may prescribe. If the Court of Appeals for the Armed Forces determines that additional proceedings are warranted, the Court of Criminal Appeals shall order a hearing or other proceeding in accordance with the direction of the Court of Appeals for the Armed Forces.
(g)
Action in Accordance With Decisions of Courts.—
The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of Appeals for the Armed Forces, or the Supreme Court, instruct the appropriate authority to take action in accordance with the decision of the Court of Criminal Appeals.
(h)
Rules of Procedure.—
The Judge Advocates General shall prescribe uniform rules of procedure for Courts of Criminal Appeals and shall meet periodically to formulate policies and procedure in regard to review of court-martial cases in the offices of the Judge Advocates General and by Courts of Criminal Appeals.
(i)
Prohibition on Evaluation of Other Members of Courts.—
No member of a Court of Criminal Appeals shall be required, or on his own initiative be permitted, to prepare, approve, disapprove, review, or submit, with respect to any other member of the same or another Court of Criminal Appeals, an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the armed forces, or in determining whether a member of the armed forces should be retained on active duty.
(j)
Ineligibility of Members of Courts To Review Records of Cases Involving Certain Prior Member Service.—
No member of a Court of Criminal Appeals shall be eligible to review the record of any trial if such member served as investigating officer in the case or served as a member of the court-martial before which such trial was conducted, or served as military judge, trial or defense counsel, or reviewing officer of such trial.
(Aug. 10, 1956, ch. 1041, 70A Stat. 59; Pub. L. 90–632, § 2(27), Oct. 24, 1968, 82 Stat. 1341; Pub. L. 98–209, §§ 7(b), (c), 10(c)(1), Dec. 6, 1983, 97 Stat. 1402, 1406; Pub. L. 103–337, div. A, title IX, § 924(b)(2), (c)(1), (4)(A), Oct. 5, 1994, 108 Stat. 2831, 2832; Pub. L. 104–106, div. A, title XI, § 1153, Feb. 10, 1996, 110 Stat. 468; Pub. L. 114–328, div. E, title LIX, § 5330, Dec. 23, 2016, 130 Stat. 2932; Pub. L. 115–91, div. A, title V, § 531(j), title X, § 1081(c)(1)(K), Dec. 12, 2017, 131 Stat. 1385, 1598; Pub. L. 116–283, div. A, title V, § 542(a), (b), Jan. 1, 2021, 134 Stat. 3611; Pub. L. 117–81, div. A, title V, §§ 539A(b), 539E(d), Dec. 27, 2021, 135 Stat. 1698, 1703; Pub. L. 117–263, div. A, title V, § 544(b), Dec. 23, 2022, 136 Stat. 2582.)
cite as: 10 USC 866