Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Davis, No. 14-0029/AR (CAAFlog case page): Oral argument audio
United States v. Paul, No. 14-0119/AF (CAAFlog case page): Oral argument audio

3 Responses to “CAAF argument audio: Davis and Paul”

  1. AF JAG says:

    Listening to the oral argument in U.S. v. Paul, you couldn’t help but feel bad for the government appellate counsel, compelled as he was, to answer this question from Judge Stuckey:  “What gives the CCA the right to plug in an element of the offense by this means on appeal?”  The awkward answer:  YOU DO.  “We are convinced however that this Court is entitled to take judicial notice of indisputable facts . . . Indeed, the power to take judicial notice is probably one of our inherent powers as an appellate court.”  United States v. Williams, 17 M.J. 207, 214 (C.M.A. 1984).
    Listening to this argument develop it is evident that CAAF is angry with the concept of judicial notice on appeal, but the righteous indignation seems a bit out of place where they designed the doctrine (United States v. Williams (C.M.A. 1984)), and indeed, applied in United States v. Erickson (C.A.A.F. 2005). 
    Secondly, the Court spent a good amount of time ruminating on how this error deprived Appellant of a hearing under MRE 201A . . . but no time conducting a PREJUDICE ANALYSIS.  Where was that?  Is violation of MRE 201A a structural error where MDMA is, and was at the time of trial, indisputably listed as a schedule I controlled substance as a matter of federal law?  Why?  Why couldn’t the government prove that it was harmless beyond a reasonable doubt because MDMA is in fact, INDISPUTABLY, a Schedule I controlled substance?  Why doesn’t the fact that a finder of fact is NOT permitted to disregard domestic law (as they would a judicially noticed “fact” under MRE 201(g)) matter here?
    In the end, the whole spectacle reminded me of that iconic 1980s anti-drug commercial where the father is snooping through his son’s room, discovers drug paraphernalia, and then forcefully confronts his son, “Who taught you how to do this stuff?!”  “You alright!”  the child plaintively replies, “I learned it by watching you!” 

    That’s what it sounded like today—CAAF designed the appellate judicial notice doctrine in the military, and then castigates a court when they actually have the nerve to use it.

  2. Z- says:

    AF JAG – Compare the US v. Williams you cite, 17 M.J. 207 (C.M.A. 1984), with US v. Williams, 3 M.J. 155 (C.M.A. 1977).  There is a difference in treatment between an indisputable fact that is nothing more and one that is an element of a crime.  Also, when the thing to be judicially noticed is a law that “is of consequence to the determination of the action,” it falls under the requirements of MRE 201(c).  See MRE 202 (formerly 201A).

  3. Zeke says:

    I agree that appellate courts are – and should be – permitted to take judicial notice of indisputable facts.  But, that doesn’t mean that they should then be able to use those judicially noticed facts to find that sufficient evidence to establish guilt on a particular element had been presented at trial.   Either the evidence (or judicial notice) was put before the trial court, or it wasn’t.  An appellate court’s finding that the evidence was indisputable and could have been presented is interesting but irrelevant to the question of whether the trial fact finder had sufficient evidence of that element before it when it rendered its verdict.   The accused, and the public as well, has the right to have guilt as to every element determined by a trial court, not an appellate court.  If we’re going to let appellate courts determine whether elements have been proven or not, then why even bother with a trial.

    Why doesn’t the fact that a finder of fact is NOT permitted to disregard domestic law (as they would a judicially noticed “fact” under MRE 201(g)) matter here?

    Asserting that the people lack the authority to disregard their own laws is not an uncontroversial, or uncontested, proposition… Should a free man be compelled by his government to assist it in the execution of a law he deems unjust?  If so, then is that man truly free?  Can that government truly claim to be of, by, and for its people?