(concurring):
The dissent claims that this decision “sends a loud message that trial judges have very little, if any, discretion.” That is just not the case. Military judges still have discretion, but they must apply the law correctly-
As Senior Judge Schlegel correctly notes, “[w]e review a military judge’s ruling on a motion to suppress — like other decisions to admit or exclude evidence — for an abuse of discretion.” United States v. Ayala, 43 M.J. 296, 298 (1995). But, the term “abuse of discretion” does not describe one standard. It “more accurately describes a range of appellate responses” to a trial court’s decisions. 2 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 7.06 (3d ed.1999).
Appellate courts must first identify the issue before they can determine how to apply the abuse of discretion standard. For example, Mil.R.Evid. 403 provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, by considerations of undue waste of time, or needless presentation of cumulative evidence. Mil. R.Evid. 403 is only invoked if the evidence is otherwise admissible under the Military Rules of Evidence. We will not “overturn a *557military judge’s decision to admit evidence under Mil.R.Evid. 403 absent a clear abuse of discretion.” United States v. Miller, 46 M.J. 63, 65 (1997). In reviewing the balancing of the probative value of the evidence against the danger of unfair prejudice, we give judges “enormous leeway” in deciding to admit or suppress. Stephen A. Saltzburg et al., Military Rules of Evidence Manual 490 (4th ed.1999). See United States v. Abel, 469 U.S. 45, 54 (1984). Finding that a military judge abused his discretion in performing the balancing involves far more than a difference of opinion — the action must be “arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Miller, 46 M.J. at 65 (quoting United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)).
When the issue is one of admissibility of evidence, the abuse of discretion standard is defined differently. “In reviewing a military judge’s ruling on a motion to suppress, we review factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard.” Ayala, 43 M.J. at 298. Although we have authority to perform our own factfinding under Article 66(c), UCMJ, 10 U.S.C. § 866(e), we normally defer to the military judge’s findings of fact. Of course in a government appeal, such as this, we do not have factfinding powers. Article 62, UCMJ, 10 U.S.C § 862. However, the military judge gets no deference whatsoever on his conclusions of law.
In this case, we gave the military judge the appropriate deference on his findings of fact. We did not give the military judge deference on his conclusions of law because he is not entitled to any. His decision to suppress the confession because the prosecution failed to produce independent evidence that a crime was committed is based on an erroneous view of the law.