On Monday CAAF summarily affirmed the AFCCA’s decisions in two cases certified by the Judge Advocate General of the Air Force: Arriaga and Lindgren. The certification in Arriaga was discussed in this post. The certification in Lindgren was discussed in this post. In both cases the CCA applied Humphries to dismiss a defective Article 134 specification.
Each certification included a question asking whether CAAF should adopt the full, four prong test for plain error recognized by The Supreme Court in United States v. Olano, 507 U.S. 725 (1993). For those not familiar with this test and CAAF’s treatment of plain error (or who wonder what “plain error” means), I think you’ll get a pretty solid introduction by reading two posts: The right to get away with it, and The Hazard of Humphries.
Last term, in posts about Tunstall and Clifton, I wrote that I thought that CAAF was ready to adopt the full, four prong test. A footnote in Judge Erdmann’s majority opinion in Tunstall flatly rejected this possibility:
We have consistently rejected application of the fourth prong of Olano when addressing questions under Article 59(a), UCMJ, and do not intend to revisit that practice here.
Slip op. at 14-15 N.7.
The AF JAG actually certified three cases that asked CAAF to consider whether it should apply the four prong test for plain error. The third was Carter (discussed here). It was also resolved by summary disposition against the Government (discussed here).
With these three summary dispositions, CAAF continues its consistent rejection of the four prong test for plain error.