As a result of U.S. v. Tovarchavez’s conclusion, the Court of Appeals for the Armed Forces (CAAF) has held that any and all constitutional errors must be reviewed for harmlessness, even if those errors were once preserved by the plain error standard or forfeited without objection. If the error is not found to be “harmless beyond a reasonable doubt,” then there must be a reversal to correct it. To put the decision into perspective, a non-constitutional error can be affirmed and not reversed if it is found “harmless” to a minimal degree.


Army Specialist Tovarchavez faced court-martial for charges of sexual assault. At the conclusion of trial, the Military Judge instructed the members they can consider the charged offenses as evidence that the charged offenses likely occurred. This is also known as propensity evidence, or evidence of the likelihood that something occurred. The instruction is an error according to US v. Hills. Despite the erroneous nature of that instruction, the defense did not submit any objection, and Tovarchavez was subsequently convicted and penalized.

It is here that the constitutional error and its need for review originates. The military judge’s instruction was incorrect and erroneous under constitutional rules, but it did not face objection so it was allowed to stand, for a time.

When the case was appealed up to the Army Court of Criminal Appeals (CCA), though, the error was submitted to the “plain error test,” which requires the appellant to prove the error existed, it was obvious, and it changed the outcome of the case. The Army CCA determined that the error did not directly impact the case’s outcome, deemed it “harmless,” and affirmed the conviction. Yet that decision did not bring into consideration case law and rulings established by preexisting cases, including U.S. v. Hills and Chapman v. California. Within the languages of these cases, an error must be “harmless beyond a reasonable doubt” if it is constitutional in nature due to the heightened severity of the mistake.

Furthermore, reasonable doubt must exist if a reasonable person could assume the error influenced the decision-makers of a case. Given that the error originated from a military judge’s instruction, it is reasonable to assume the court-martial members were directly influenced by that instruction, and so it reasonably affected the case’s outcome to any degree. That is to say, the error does not pass the “harmless beyond a reasonable doubt” test, regardless of whether or not it passed the lesser “plain error test.”

When the case was appealed to the CAAF, it was concluded that a constitutional error is so egregious, it must be reviewed using heightened standards to preserve the fair application of justice. Tovarchavez’s case became convoluted when the defense did not object to the erroneous instruction from the military judge, which led to the argument that only a plain error test was required to determine its merit. This argument essentially said the defense must have found it harmless at the time due to the lack of an objection, and so the lesser test should apply. As a result for U.S. v. Tovarchavez in particular, the ruling reversed both the findings and the sentencing.


The outcome of U.S. v. Tovarchavez will have a significant influence on all future court-martial and military criminal defense cases in that it demands the utmost standards of legal correctness from military judges and military prosecutors. It is no longer valid to pin the blame on the accused or their defense counsel for not objecting to a constitutional error carried out by the opposition, assuming that the error could reasonably cause even the slightest influence on the case’s outcome. Given the nature of a constitutional error, it is also assumed that it will cause an influence eventually, if not immediately. In other words, the CAAF’s decision should allow defendant’s greater opportunities to challenge the errors of the opposition that led to their own convictions and punishments.


As evidenced by U.S. v. Tovarchavez and the similar cases that came before it, a court-martial or military criminal defense case can become seemingly overly-complicated with a quick turn of events. If you are facing court-martial or serious criminal accusations as a military service member, you must make certain that your defense is ready for anything, including constitutional errors of judgement and the consequent appeals process.

For trusted, experienced guidance in such a trying time, turn to Military Criminal Defense Attorney Joseph L. Jordan. Across his many years of practice as both a defense lawyer and a former military prosecutor, Attorney Jordan has seen all types of cases and overcome all sorts of case complications for the fair treatment of his clients. Whether you are a Soldier, Sailor, Marine, Airman, or Coast Guardsman, you know you can trust Attorney Jordan and his legal team to defend your rights, just as you proudly defend our great nation. He offers his counsel to service members stationed at bases around the world, so you can count on him no matter where you are.

Call (866) 624-7503 or use an online contact form to request a case evaluation from the first name in military criminal defense law firms.