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Use by trial counsel
- Prosecutors canprotect the record from appellate intervention by requiring the trialjudge to clearly establish the factual and legal predicate upon which conviction will be based. Schinasi at 102. Special findings can also show that the judge decided the case correctly after all. Schinasi at 73.
- Toensure that conflicting and often confusing evidence is thoroughly evaluated by the trial court, and that the law is properly applied to the facts, protecting the record from inconsistent appellant review. Schinasi at 88. This may be particularly important in light of Article 66(c), which allows the military appellate courts the unique ability, unlike civilian appellate courts, to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact… Id.
- Special findings provide a concise format for establishing what evidence was considered by the bench, and, more important, what legal theory was employed to support the ultimate decision. Used in this fashion, special findings prohibit an appellate court from ‘discovering’ variant interpretations or irregularities in the record which could be used to justify reversing conviction. Schinasi at 122.