2007
United States v. Paxton, 64 M.J. 484 (counsel are
cautioned to limit arguments on findings to evidence in the record and
to such fair inferences as may be drawn therefrom).
United States v. Moran, 65 M.J. 178 (the law
generally discourages trial counsel’s presentation of testimony or
argument mentioning an accused’s invocation of his constitutional
rights unless, for example, an accused invites such testimony or
argument in rebuttal to his own case; such comments may serve to hinder
the free exercise of such rights -- rights that carry with them the
implicit assurance that their invocation will carry no penalty; the
constraint against mentioning the exercise of constitutional rights
does not depend on the specific right at issue).
(in the closing part of his
findings argument to the members, trial counsel made an obvious error
when he commented that when the OSI asked the accused to consent to the
collection of his body hair, the accused refused and invoked his right
to counsel; not only was this comment an inaccurate characterization of
the testimony presented (the accused had not invoked his right to
counsel), but it improperly referenced the accused’s exercise of a
constitutional right and suggested, intentionally or not, that the
members infer guilt from the invocation of that right).
(it is improper for a
prosecutor to ask the court members to infer guilt because an accused
has exercised his constitutional rights; an argument by trial counsel
which comments upon an accused’s exercise of his or her
constitutionally protected rights is beyond the bounds of fair comment).
(a trial counsel’s statement
implicating an accused’s assertion of his rights is not per se impermissible;
in context, it may appropriately be made in rebuttal; additionally, if
a statement was an isolated reference to a singular invocation of
rights, it may be harmless in the context of the entire record).
(by arguing in the closing
part of his findings argument that the accused’s invocation of his
right to counsel was substantive evidence of the accused’s guilt, the
trial counsel violated the accused’s Fifth Amendment rights, MRE
301(f)(3), and RCM 919, which provides in its Discussion that the trial
counsel may not comment on the accused’s exercise of the right against
self-incrimination or the right to counsel).
United
States v. Schroder, 65 M.J. 49 (trial counsel is
at liberty to strike hard, but not foul, blows; to
that end, it is error for trial counsel to make arguments that unduly
inflame the passions or prejudices of the court members).
(an accused is supposed to be
tried and sentenced as an individual on the basis of the offenses
charged and the legally and logically relevant evidence presented;
thus, trial counsel is also prohibited from injecting into argument
irrelevant matters, such as personal opinions and facts not in
evidence).
(although MRE 414(a) provides
that evidence of uncharged misconduct may be considered for any matter
to which it is relevant, there is a risk with propensity evidence that
an accused may be convicted and sentenced based on uncharged conduct
and not the acts for which he is on trial; as a result, where MRE 414
evidence is admitted, there is a need for procedural safeguards to
delimit the use of such evidence; one such safeguard is to ensure that
trial counsel does not use such evidence to unduly inflame the members;
the MRE 414 safeguards could be undermined if trial counsel’s comments
were permitted to range outside the realm of legally relevant matters
and express a sense of outrage and injustice regarding the victims of
uncharged misconduct).
(in child molestation case,
trial counsel erred in arguing that the members should render justice
for the purported victim of uncharged misconduct which was admitted as
propensity evidence; the argument invited the members to convict and
punish appellant for his uncharged misconduct, as opposed to using that
misconduct to inform their judgments regarding the charged conduct;
this error was also plain and obvious).
2006
(failure to object to improper argument before the military judge
begins to instruct the members on findings constitutes waiver in the
absence plain error).
2005
United
States v. Carter, 61 M.J. 30 (it is black letter law that a trial
counsel
may not comment directly, indirectly, or by innuendo, on the fact that
an
accused did not testify in his defense; he may not comment on the
accused’s
exercise of the right against self-incrimination; and he may not argue
that the
prosecution’s evidence is unrebutted if the only rebuttal could come
from the
accused).
(not every prosecutorial comment on the failure of an accused to
testify is
impermissible; it is well established that the government may comment
on the
failure of a defendant to refute government evidence or to support his
own
claims; a constitutional violation occurs only if either the defendant
alone
has the information to contradict the government evidence referred to
or the
jury naturally and necessarily would interpret the summation as comment
on the
failure of the accused to testify).
(a prosecutorial comment must be examined in light of its context
within the
entire court-martial; under the “invited response” or “invited reply”
doctrine,
the prosecution is not prohibited from offering a comment that provides
a fair
response to claims made by the defense).
(the charged act here involved two adults alone in a private room in
the early
hours of the morning; there were no screams, no injuries, no physical
evidence
of a struggle, and no other witnesses; only the accused possessed
information
to contradict the government’s sole witness; as such, prosecutorial
comment on
the failure to present contradicting evidence constituted an
impermissible
reference to the accused’s exercise of the privilege against
self-incrimination
unless the comment constituted a fair response to a claim made by the
defense).
(the improper comments in this case were not isolated or a “slip of the
tongue;” trial counsel used the words “uncontroverted” and
“uncontradicted”
repeatedly -- eleven times in all -- such that the reference to the
accused’s
decision not to testify became a centerpiece of the closing argument;
even
after the military judge instructed the members not to draw any adverse
inferences from the accused’s silence, trial counsel persisted in
characterizing the evidence as “uncontradicted” three more times;
considering
the statements in context, trial counsel improperly implied that the
accused
had an obligation to produce evidence to contradict the government’s
witness;
this essentially shifted the burden of proof to the accused to
establish his
innocence -- a violation of protections of the Fifth Amendment).
United States v. Fletcher, 62 M.J. 175
(during the findings argument,
the trial
counsel offered her personal views, made disparaging comments about the
accused
and his counsel, and drew parallels between the accused’s case and the
legal
problems of various entertainers and public religious figures; these
comments
rose to the level of prosecutorial misconduct, and the misconduct was
prejudicial).
(it is improper for a trial
counsel to
interject herself into the proceedings by expressing a personal belief
or
opinion as to the truth or falsity of any testimony or evidence; when a
trial
counsel offers her personal opinions, they become a form of unsworn,
unchecked
testimony and tend to exploit the influence of the office and undermine
the
objective detachment which should separate a lawyer from the cause for
which
she argues; there are many ways a trial counsel might violate the rule
against
expressing a personal belief or opinion; one is by giving personal
assurances
that the Government’s witnesses are telling the truth; another is by
offering
substantive commentary on the truth or falsity of the testimony and
evidence).
(improper vouching occurs when
the trial
counsel places the prestige of the government behind a witness through
personal
assurances of the witness’s veracity; improper vouching can include the
use of
personal pronouns in connection with assertions that a witness was
correct or
to be believed; prohibited language includes “I think it is clear,”
“I’m
telling you,” and “I have no doubt;” acceptable language includes “you
are free
to conclude,” “you may perceive that,” “it is submitted that,” or “a
conclusion
on your part may be drawn”).
(in this case, the trial
counsel
improperly vouched for the credibility of the Government’s witnesses
and
evidence in a trial for the wrongful use of cocaine where after
discussing the
testing methods and cut-off levels, she concluded “we know that that
was from
an amount that’s consistent with recreational use, having fun and
partying with
drugs,” she personally characterized the drug test results exhibit as
“a
perfect litigation package,” and she opined that one of the
prosecution’s main
witnesses was “the best possible person in the whole country to come
speak to
us about this”).
(improper interjection of the
prosecutor’s views can also include substantive commentary on the truth
or
falsity of testimony or evidence; prosecutors sometimes breach their
duty to
refrain from overzealous conduct by commenting on the defendant’s guilt
and
offering unsolicited personal views on the evidence).
(the trial counsel improperly
interjected
her personal views of the evidence and her personal opinion about the
accused’s
guilt at trial for the wrongful use of cocaine where she described the
Government’s evidence as “unassailable,” “fabulous,” and “clear,”
stated that
it was clear from the urinalyses that he was “doing it over and over,”
that he
was “a weekend cocaine user,” and that he was “in fact guilty of divers
uses of
cocaine,” and described the accused’s defense as “nonsense,” “fiction,”
“unbelievable,” “ridiculous” and “phony”).
(the injection of the trial
counsel’s
personal beliefs and opinions was plain and obvious error where over
the course
of her findings argument, there were more than two dozen instances in
which she
offered her personal commentary on the truth or falsity of the
testimony and
evidence, where she repeatedly inserted herself into the proceedings by
using
the pronouns “I” and “we,” where she put the authority of the
Government and
her office behind the prosecution’s witnesses, and where she bluntly
concluded
that the accused was in fact guilty).
(not only is it improper for a
trial
counsel to interject her personal views into a case, it is also
improper for a
trial counsel to attempt to win favor with the members by maligning
defense
counsel).
(the trial counsel improperly
made
disparaging comments about the defense counsel’s style and also made
comments
suggesting that the accused’s defense was invented by his counsel at
trial for
the wrongful use of cocaine where she openly criticized defense counsel
by
accusing him of scaring witnesses, cutting off witnesses, and suborning
perjury
from his own client, she referred to the accused’s arguments as
“fiction”
at least four times and called one of the accused’s arguments a “phony
distraction”).
(the trial counsel’s attacks
on defense
counsel’s courtroom manner and integrity were plainly improper where
she
obviously attempted to win over the jury by putting herself in a
favorable
light while simultaneously making defense counsel look like a mean and
nasty
person who would say anything to get his client off the hook were
plainly
improper, she erroneously encouraged the members to decide the case
based on
the personal qualities of counsel rather than the facts, and her
comments not
only had the potential to mislead the members, but also detracted from
the
dignity and solemn purpose of the court-martial proceedings).
(disparaging comments by the
trial
counsel are improper when they are directed to the defendant himself;
calling
the accused a liar is a dangerous practice that should be
avoided).
(the trial counsel improperly
made
disparaging comments about the accused’s credibility at trial for the
wrongful
use of cocaine where she told the members that the accused had “zero
credibility” and that his testimony was “utterly unbelievable,” and
where in
rebuttal, she argued that the accused lied when questioned by his
defense
counsel; this language was more of a personal attack on the accused
than a
commentary on the evidence).
(the trial counsel’s improper
characterization of the accused as a liar at trial for the wrongful use
of
cocaine did not rise to the level of plain error where the defense had
opened
the door for comment on conflicting testimony when the accused
testified that
he had never used drugs and then later admitted that he had
experimented with
marijuana; although the trial counsel should have avoided
characterizing the
accused as a liar and confined her comments instead to the plausibility
of his
story, her comments were not so obviously improper as to merit relief
in the
absence of an objection from counsel).
(when counsel argues facts not
in
evidence, or when he discusses the facts of other cases, he violates
the
principles that a court-martial must reach a decision based only on the
facts
in evidence and that arguments made by counsel are not evidence;
however, there
is an exception to this general rule; it is proper for a trial counsel
to
comment during argument on contemporary history or matters of common
knowledge
within the community; in the past, common knowledge has included
knowledge
about routine personnel actions, knowledge of ongoing military
actions
overseas, knowledge of the Navy’s “zero tolerance” policy for drug
offenses,
the existence in the United States of a “war on drugs,” and any other
matter
upon which men in general have a common fund of experience and
knowledge, through
data notoriously accepted by all).
(counsel are prohibited from
making
arguments calculated to inflame the passions or prejudices of the
jury).
(the trial counsel’s
references to
religious figures and entertainers who had experienced legal problems
in
response to the accused’s good citizen defense improperly invited
comparison to
those cases, the facts of which were not admitted into evidence and
which bore
no similarity to the accused’s case; although references to public
figures and
news stories may be allowed, the specificity and detail of her comments
went
well beyond the generic comments; the trial counsel did not make
generalized
references to current events to give her argument some context; she
made
specific references to sensational events not in evidence in order to
support
her contention that the accused was guilty; although the accused’s good
citizen
defense may have opened the door to an appropriate response, the
comments of
the trial counsel were outside the bounds of fair comment).
(the trial counsel’s improper
introduction of facts not in evidence at trial for the wrongful use of
cocaine
when she compared the accused’s case to those of religious figures and
entertainers who had experienced legal problems was plain error; the
trial counsel
did not draw legitimate inferences based on the evidence or refer to
matters
within the common knowledge of the members; instead, she invited the
members to
accept new and inflammatory information as factual based solely on her
authority as the trial counsel).
(in this case, when the three
balancing
factors to determine the impact of prosecutorial misconduct are weighed
against
one another, the balance is firmly in the accused’s favor; the trial
counsel’s
improper arguments in violating the rules against vouching for
witnesses,
offering of personal views, attacking opposing counsel, and arguing
based on
scandalous facts not in evidence were both persuasive and severe; the
military
judge’s curative efforts were minimal and insufficient to overcome the
severity
of the trial counsel’s misconduct; and the accused presented a good
citizen/good character defense that could reasonably have raised
questions in
the members’ minds about the strength of the prosecution’s case;
accordingly,
the trial counsel’s misconduct was materially prejudicial to the
accused’s
substantial rights under both Article 59(a) and the plain error
doctrine).
2002
United
States v. Gilley, 56 MJ 113 (where prosecutorial
comments
are a fair response to a claim made by the defendant or his counsel,
there is
no violation of the Fifth Amendment privilege against
self-incrimination).
(to determine whether or not prosecutorial comments are fair, the
comments are
examined in context, and invoke consideration of the "invited
response" or "invited reply" rule to assess whether, viewed in
the context of the entire trial, defense counsel’s comments clearly
invited the
reply).
(trial counsel’s argument, which consisted of repeated references to
appellant’s request for counsel, could have reflected negatively upon
the
invocation of those rights by leading the members to attach a
significance to
such invocation that went beyond fair rebuttal of appellant’s
allegation).
United
States v. Alameda, 57 MJ 190 (military judge
committed
constitutional error by permitting the prosecution to introduce
evidence of
appellant’s post-apprehension silence as substantive evidence of guilt,
and to
then comment on that evidence in closing argument).
(instructions that did not address the question whether any adverse
inference could be drawn from appellant’s silence at the time of his
apprehension did not cure the error in trial counsel’s argument and may
have
exacerbated it by leading the members to conclude that they were
permitted to
draw an adverse inference from appellant’s silence at the time of his
apprehension).
(a distinction exists between direct review and collateral review in
determining if impermissible comment on pretrial silence was
harmless: on
direct review, reviewing court must be satisfied beyond a reasonable
doubt that
the error was harmless; on collateral review, the court must be
satisfied that
the judgment was not substantially swayed by the error).
United
States v. Terlep, 57 MJ 344 (it is not proper for
a trial
counsel to express his personal opinion or belief that a government
witness is
telling the truth; however, trial counsel’s argument here could
reasonably be
construed as simply calling the court’s attention to the victim’s
fortitude in
performing her civic duty as a witness in this personally difficult
case).
United
States v. Pomarleau, 57 MJ 351 (it is not
appropriate in
argument to suggest that a military judge’s decision to admit or
exclude
evidence, or to sustain an objection, itself amounts to a comment on
the
veracity of that evidence or witness, as trial counsel did in this
case).
2001
United
States v. Riveranieves, 54 MJ 460 (where trial
counsel
misstates evidence during argument on findings and an objection that
that
argument is improper is sustained, the military judge should
immediately
instruct the members that the argument was improper and that they must
disregard it).
(appellant was prejudiced where trial counsel misstated evidence
during
argument on findings and, upon objection, the military judge agreed
with trial
counsel’s reading of the record and communicated this belief to the
members;
prejudice under these circumstances is determined by the particular
circumstances of each case, and prejudice was found in this base
because: (1)
there was no immediate or timely curative instruction; (2) this was a
urinalysis case and the misstatement pertained to a critical issue and
its
resolution based on scientific principles; and (3) the judge’s comments
effectively blunted appellant’s previously noted defense that his urine
sample
had been purposefully tampered with after he submitted it to military
authorities).
2000
United
States v. Garren, 53 MJ 142 (trial counsel’s
opening and
closing comments, that appellant was an NCO who did not take
responsibility for
his actions, called attention to inconsistencies in appellant’s
statements to
criminal investigators and were fair comment upon what trial counsel
expected
the evidence to show and what he was in fact required to show to
establish
guilt beyond a reasonable doubt in a trial that dealt with appellant’s
lies
about his criminal responsibility).
United
States v. Diffoot, 54 MJ 149 (trial counsel’s
closing
argument, which argued that appellant should be convicted because he
was the
Hispanic associate of two Hispanic Marines who admitted committing the
larceny
crimes, prejudicially violated appellant’s due process right to a
fundamentally
fair trial: (1) it improperly attempted to enhance the
prosecution’s case
based on the defendant’s race and his criminal associations; (2) the
comments
were made during closing argument, a critical point in the trial; (3)
the
evidence of appellant’s guilt was not overwhelming; (4) there was no
effort by
the trial counsel or military judge to disavow the improper argument;
and (5)
there was no effort to limit consideration of appellant’s ethnicity and
associations to proper purposes).
(even in the absence of an objection, court will act to remedy
serious
injustice and preserve the integrity of the military justice system
where trial
counsel argued that appellant should be convicted because he was the
Hispanic
associate of two Hispanic Marines who admitted committing the larceny
crimes).
United
States v. Ruiz, 54 MJ 138 (failure to make timely
objection to matters raised in argument will waive any issue on appeal
with
respect thereto in the absence of plain error).