In an article published in the Spring 2015 edition of the Military Law Review (complete issue available here), Colonel Jeremy Weber, USAF, who is currently assigned as a judge on the Air Force Court of Criminal Appeals, observes that “no subject is more critical yet more neglected in appellate practice than standards of review.” Colonel Jeremy Stone Weber, The Abuse of Discretion Standard of Review in Military Justice Appeals, 223 Mil. L. Rev. 41 (Spring 2015) (available here).

Standards of review matter because many appellate issues are close calls. Trial judges are often called upon to rule on issues when more than one “right” answer may be possible; reasonable people in the trial judge’s situation may all agree on the correct legal framework for the issue but reach different conclusions. At the heart of the matter, the standard of review determines what the appellate court is doing when it reviews a trial judge’s actions. Is the appellate court simply determining the right “law” to apply to the issue, or is it making a judgment call about the trial judge’s determination? Does the appellate court consider the issue important enough that it must review the issue with a clean slate or do other interests dictate granting the trial judge some latitude in determining a course of action? Ultimately, then “a standard of review answers two similar, yet different, questions: (1) How ‘wrong’ the lower court has to be before it will be reversed, and (2) What is necessary to overturn the lower court’s decision?”

Weber, supra, at 43-44. The article begins with a brief discussion of four standards: de novo (for questions of law), plain error (for forfeited errors), clearly erroneous (for findings of fact), and abuse of discretion. The article then closely examines that final standard.

Judge Weber makes nine observations:

A. Abuse of Discretion is a Catch-All Phrase that Encompasses Review of Several Distinct Types of Issues

B. Abuse of Discretion Represents a Spectrum of Deference, Not One Fixed Standard

C. Military Appellate Courts Have Not Solved the Mixed Questions Challenge

D. Military Appellate Courts Are Generally Less Deferential Than Their Civilian Counterparts in Employing the Abuse of Discretion Standard

E. The Unique Authority of the Courts of Criminal Appeals Allows for Increased Appellate Scrutiny

F. Government Interlocutory Appeals Involve a Special Class of Abuse of Discretion Review

G. The Abuse of Discretion Standard Does Not Cover Review of Decisions by the Courts of Criminal Appeals

H. Military Judges Can Take Certain Steps to Increase the Amount of Deference Their Rulings Enjoy

I. Abuse of Discretion Review is Inherently Tied to the Issue of Prejudice

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