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. Update: a reader forwarded the CCA’s order. It’s available here. The order states, in part:

Contrary to appellant’s claim, the military judge did not issue “[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” UCMJ art. 62(a)(l)(B) (emphasis added). Although Congress intended to provide military prosecutors, to the extent practicable, with the same rights of appeal afforded to federal civilian prosecutors in 18 U.S.C. § 3731 (i.e., the right to appeal trial rulings dismissing charges or excluding substantive evidence), the jurisdictional language codified by Congress in Article 62, UCMJ, differs from 18 U.S.C. § 3731. See United States v. Lopez de Victoria, 66 M.J. 67, 68-71 (C.A.A.F. 2008) (explaining the general intent of Congress in enacting Article 62, UCMJ).

Specifically, the plain language of 18 U.S.C. § 3731 confers appellate jurisdiction over trial orders suppressing evidence, only conditioned upon timely certification from the United States attorney. United States v. Grace, 526 F.3d 499, 505-06 (9th Cir. 2008) (en bane). In contrast, the plain language of Article 62(a)(l), UCMJ, confers appellate jurisdiction for orders or rulings that actually meet specified criteria. Although Article 62(a)(2), UCMJ, contains similar timeliness and certification requirements to 18 U.S.C. § 3731, these requirements are listed separate and apart from the jurisdictional basis. Essentially, 18 U.S.C. § 3731 vests the determination of the materiality of the excluded evidence solely with the United States attorney; in this important respect, Article 62, UCMJ, is not analogous. When Congress intends to confer the right to appeal based solely on the certification of a specified officer, it is perfectly capable of making that intention clear in statutory language. Compare 18 U.S.C. § 3731, and Article 67(a)(2), UCMJ, with Article 62(a), UCMJ.

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).

4 Responses to “The Army JAG certifies a case about Article 62 (updated)”

  1. Vulture says:

    So maybe this is one way to ensure that their is definitive proof of an Accuser’s prior false allegation.  All you have to do is get the JAG to certify the question.

  2. Tami a/k/a Princess Leia says:

    U.S. v. Pacheco, 36 M.J. 530 (AFCMR 1992) seems to be directly on point.  It’s sufficient for jurisdiction that the trial counsel “believes” the evidence is “substantial.” 

  3. Zachary D Spilman says:

    Good catch Tami a/k/a Princess Leia, however the AFCMR was quoting the NMCMR:

    Viewing the facts sub judice, we find that the Petitioners have properly alleged that the excluded evidence was substantial proof of a fact material to the proceedings. We are not persuaded by the Respondent’s argument that the evidence was cumulative. In an interlocutory appeal, it is beyond the scope of this Court to speculate as to what weight or importance a particular piece of evidence might have at trial. It is sufficient that the petitioner believes that the evidence is significant enough to seek reversal of a military judge’s exclusionary ruling rather than continue at trial with whatever other evidence that might be available. Accordingly, we hold that this Court has jurisdiction to hear Petitioner’s [the prosecution’s] appeal.

    United States v. Scholz, 19 M.J. 837, 841 (NMCMR 1984) (emphasis added).

  4. Tami a/k/a Princess Leia says:

    Since there’s disagreement between the services on whether the TC’s belief is sufficient for a CCA to have jurisdiction, even precedent that is 25-33 years old, seems ripe for a CAAF decision.  I think the age of precedent swings in favor of CAAF siding with TJAG on this one.  Doesn’t mean the government will be successful when it returns to ACCA though.

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