MILITARY JUSTICE PERSONNEL: Prosecution Function: Trial Counsel

2017 (October Term)

United States v. Andrews, 77 M.J. 393 (trial counsel are representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done; as such, they are in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer; it is as much their duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one).

(every attorney in a court-martial has a duty to uphold the integrity of the military justice system).

2016 (October Term)

United States v. Claxton, 76 M.J. 356 (in response to a defense discovery request, it is the duty of the trial counsel to learn of any favorable evidence known to others acting on the government’s behalf, including the police, and disclose it to the defense). 

(the prosecutor is the representative of a sovereignty whose interest in a criminal prosecution is not that it shall win a case, but that justice shall be done; the prosecutor may prosecute with earnestness and vigor, but while he may strike hard blows, he is not at liberty to strike foul ones; it is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one). 

2014 (September Term)

United States v. Norman, 74 M.J. 144 (it is better practice for a trial counsel to make the government’s theory of service discrediting conduct apparent during closing argument). 

2013 (September Term)

United States v. Frey, 73 M.J. 245 (trial counsel may prosecute with earnestness and vigor, but while he may strike hard blows, he is not at liberty to strike foul ones; it is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one).  

(trial counsel is entitled to argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence; however, the RCMs and existing case law both establish that it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members). 

(in this case, trial counsel’s sentencing argument was improper in a prosecution for engaging in sexual contact with a child and engaging in a sexual act with a child, where trial counsel appealed to the members to apply their knowledge of the “ways of the world” to sentence appellant based on a risk of recidivism through serial molestation).

(trial counsel in this case overstepped the bounds of proper argument in requesting that the members draw upon information not in evidence (their knowledge of the “ways of the world”) to make a specific conclusion that the accused was a serial child molester who had offended before and in theory would offend again; one is hard pressed to imagine many statements more damaging than the implication that someone who has been convicted of molesting a single child will go on to molest many more). 

2012 (September Term)

United States v. Halpin, 71 M.J. 477 (during sentencing argument, the trial counsel is at liberty to strike hard, but not foul, blows; as a zealous advocate for the government, trial counsel may argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence).

2010 (September Term)

United States v. Eslinger, 70 M.J. 193 (where the government calls a number of senior command representatives in sentencing to rebut defense retention evidence, the trial counsel should assess which and how many are necessary). 

United States v. Marsh, 70 M.J. 101 (merely urging the court members to consider an unsworn statement for what it is falls within the boundary of fair prosecutorial comment; however, it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members). 

(trial counsel’s statement during sentencing argument asking the panel members to give less weight to appellant’s unsworn statement because he was not subject to cross-examination fell within the boundary of fair prosecutorial comment, where appellant’s statement was not subject to cross-examination and the members could legitimately consider that fact in assessing its credibility). 

(trial counsel’s sentencing argument to the court members that they could not trust appellant, who worked as a helicopter repairman, with the lives of pilots because of his conviction for making a false official statement during a rape investigation and that invited them to put themselves in an aircraft repaired by appellant was unduly inflammatory and constituted plain and obvious error; there was no rational nexus between the fact that appellant lied during the rape investigation and the assertion that he could not be trusted with the lives of pilots in the future; trial counsel’s invitation to the court members to imagine themselves as potential future victims only served to inflame a fear as to what might happen if the panel did not adjudge a discharge; and this argument was not supported by the testimony of appellant’s squad leader who testified that appellant was in the top ten percent of the soldiers he had supervised, but was currently restricted from working on airplanes during the court-martial because the proceedings might interfere with his thought process while he was working on an aircraft; in fact, appellant’s squad leader and first sergeant testified that they would serve and deploy with appellant again).  

(trial counsel is at liberty to strike hard, but not foul, blows; as a result, it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members; the trial counsel also must not inject matters that are not relevant into argument; nor can the trial counsel ask court members to place themselves in the shoes of the victim or a near relative). 

United States v. Flores, 69 M.J. 366 (a trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in her defense).

2008 (September Term)

United States v. Ashby, 68 M.J. 108 (it is blackletter law that a trial counsel may not comment on the accused’s exercise of his constitutionally protected rights, including his right to remain silent; in this case, trial counsel’s comments in his opening statement referencing appellant’s invocation of his right to remain silent were improper).

United States v. Paige, 67 M.J. 442 (a military accused has the right not to testify, and trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense). 


(the privilege against self-incrimination provides an accused servicemember with the right not to testify at his court-martial and precludes comment by trial counsel on his silence). 


(it is permissible for trial counsel to comment on the defense’s failure to refute government evidence or to support its own claims).


(a constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the members naturally and necessarily would interpret the summation as comment on the failure of the accused to testify). 

(the discussion to RCM 919 suggests that trial counsel may not argue that the prosecution’s evidence is unrebutted if the only rebuttal could come from the accused).

2008 (Transition)

United States v. Allende, 66 M.J. 142 (under the direction of the military judge, the trial counsel makes arrangements for preparation of the record; the trial counsel examines the record and makes any necessary corrections; during this process, the trial counsel permits the defense counsel to examine the record except when unreasonable delay will result). 


(trial counsel may authenticate the record of trial if the military judge cannot do so by reason of his death, disability, or absence).



United States v. Erickson, 65 M.J. 221 (when arguing for what is perceived to be an appropriate sentence, the trial counsel is at liberty to strike hard, but not foul, blows). 


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. Edmond, 63 M.J. 343 (prosecutorial misconduct is action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon). 


(several legal norms are violated when a trial counsel attempts to or unlawfully dissuades a defense witness from testifying at a court-martial - an accused’s due process rights and witness interference). 


(that a witness’s testimony would have contradicted the testimony of the government’s own witnesses does not form a sufficient basis for the trial counsel to warn the witness about perjury; rather, unusually strong admonitions against perjury are typically justified only where the trial counsel has a more substantial basis in the record for believing the witness might lie -- for instance, a direct conflict between the witness’s proposed testimony and that witness’s prior testimony; it is not uncommon in litigation, or in life in general, for individuals to have different perceptions of the same event; the fact that two witnesses have conflicting views of an event does not mean, without more, that either witness is intentionally testifying falsely). 


(a trial counsel substantially interferes with a witness’s decision to testify where he combines a standard admonition against perjury -- that the defense witness could be prosecuted for perjury in the event the witness lied on the stand -- with an unambiguous statement of his belief that the witness would be lying if the witness testified in support of the accused’s alibi; the additional statement will serve as no more than a thinly veiled attempt to coerce a witness off the stand). 


(the trial counsel committed prosecutorial misconduct by confronting a civilian witness subpoenaed by the defense with speculation that his proposed testimony was a lie and combining it with a warning that the Government would prosecute him; this combination substantially interfered with the witness’s decision to testify and had the effect of unlawfully dissuading him form testifying at the accused’s court-martial). 

(prosecutors and military judges may provide appropriate information to witnesses about the consequences of perjury; it is not improper per se for a trial court judge or prosecuting attorney to advise prospective witnesses of the penalties for testifying falsely; but warnings concerning the dangers of perjury cannot be emphasized to the point where they threaten and intimidate the witness into refusing to testify). 

(after subpoenaing a witness on behalf of the defense, the trial counsel was not authorized to tell the witness that he could choose to either testify or not testify because the witness could not choose to leave without testifying unless the defense agreed to release him and the subpoena was quashed by the military judge). 


(under RCM 703(b)(1), a party is entitled to the production of any witness whose testimony on a matter in issue on the merits would be relevant and necessary; the trial counsel is obligated to arrange for the presence of any witness requested by the defense unless the trial counsel contends that the witness’s production is not required under the rule). 


United States v. Fletcher, 62 M.J. 175 (trial prosecutorial misconduct is behavior by the prosecuting attorney that oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense).

(while prosecutorial misconduct does not automatically require a new trial or the dismissal of the charges against the accused, relief will be granted if the trial counsel’s misconduct actually impacted on a substantial right of an accused, i.e., resulted in prejudice).

(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).

(the trial counsel may prosecute with earnestness and vigor -- indeed, she should do so; but, while she may strike hard blows, she is not at liberty to strike foul ones; it is as much her duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one).

United States v. Strother, 60 M.J. 476 (a prosecutor will be disqualified as an “interested party” if the prosecutor has a financial or improper personal stake in the outcome of the proceeding).

(the due process limitations on officials performing judicial or quasi-judicial functions are not applicable to those acting in a prosecutorial or plaintiff-like capacity; prosecutors need not be entirely neutral and detached; in an adversary system, they are necessarily permitted to be zealous in their enforcement of the law; we do not suggest, however, that the due process clause imposes no limits on the partisanship of prosecutors; prosecutors are also public officials who must serve the public interest; the traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which prosecutorial decisions are motivated by improper factors or are otherwise contrary to law).

(the following factors do not transform a prosecutor into an “interested party” who must be disqualified as a matter of due process:  (1) the prosecutor was responsible for reviving a dormant investigation; (2) he provided legal advice to commanders and investigators during an earlier phase of the case; (3) he assisted in decisions leading to grants of immunity; (4) this was his first big case for the command; (5) the pressure to secure a conviction for him was great, particularly in view of the grants of immunity to other persons whose culpability arguably was greater; and (6) his performance at trial likely would have been documented on his fitness evaluation reports). 

(prosecutors are advisors and advocates for a party, and as such, they need not maintain the degree of neutrality required of judges; prosecutors routinely provide advice and recommendations on the conduct of investigations, grants of immunity, and charging decisions; the fact that such decisions later may be challenged at trial or on appeal does not disqualify an attorney from serving as a prosecutor as a matter of due process; likewise, a prosecutor inevitably faces the pressure of his or her first big case, as well as the pressure generated when advice provided in a pretrial setting comes under challenge at trial; such pressures, which come with the territory inhabited by prosecuting attorneys, do not transform a prosecutor into an interested party; and prosecutors are obligated to deal with such pressures in the context of the prosecutor’s responsibility to ensure both that the guilty not escape and that the innocent not suffer). 

(Article 27(a)(2), UCMJ, provides that no person who has acted as an investigating officer in any case may act later as trial counsel; for purposes of disqualification of counsel, the President has narrowed the term “investigating officer” in the MCM to its original usage – the disqualification of the officer who conducted the “impartial” investigation under Article 32, and we conclude that there is no basis in law to impose a broader judicial construction). 

(in this case, trial counsel did not serve as the Article 32 investigating officer, and appellant has not demonstrated that trial counsel’s activities so departed from the normal role of a prosecutor as to make him a de facto Article 32 “investigating officer”; consequently, trial counsel was not disqualified as a result of prior service in the same case as a statutory “investigating officer”).


United States v. Humpherys, 57 MJ 83  (prior representation may lead to disqualification on either of two independent grounds:  (1) an attorney may be disqualified if the current representation is adverse to a former client, and the prior representation of that client involved the same or a substantially related matter; and (2) an attorney may be disqualified if there is a reasonable probability that specific confidences from the prior representation may be used to the disadvantage of the former client. See Dep’t of the Army Reg. 27-26, Rules of Professional Conduct for Lawyers, Appendix B, Rule 1.9(a)(1) and (2); Dep’t of the Navy, JAG Instruction 5803.1B, Enclosure 1, Rule 1.9 (11 Feb. 2000; TJAG Policy Number 26, Air Force Rules of Professional Conduct, Attachment 1, Rule 1.9 (Feb. 4, 1998)).

(there is a three-pronged analysis to determine when former counsel is disqualified from prosecuting a subsequent case under the substantial relationship test:  the accused carries the burden of demonstrating (1) the former representation; (2) a substantial relation between the subject matter of the former representation and the issues in the later action; and (3) the later adverse employment).

(the substantial relationship test does not require demonstration of specific confidences that might be used against the former client).

(the confidential information test does not require proof of a substantial relationship if, in fact, a client establishes that confidential information told to a lawyer during a former representation might be used against the client in the case at hand).

(under the confidential information test, the accused must demonstrate the specific confidences related during the prior representation and how they could be used to the disadvantage of the accused in the subsequent representation).

(military judges possess ample authority to protect the attorney-client relationship during consideration of disqualification motions, including the power to examine evidence in camera, seal records of any Article 39(a) sessions, exclude unnecessary persons from hearings, and issue protective orders).

(military judge’s denial of a motion to disqualify trial counsel is reviewed for an abuse of discretion).

(military judge did not abuse his discretion in ruling that appellant failed to demonstrate a substantial relationship between the earlier representation and the present case where appellant made only vague assertions during the pretrial hearing and failed to provide the necessary specificity to determine the commonality between the subject matter, causes of action, or issues in the two cases).

(appellant failed to carry the burden of establishing that the cross-examination of his wife by trial counsel was based upon specific confidential communications between himself and trial counsel during the prior representation; defense made only perfunctory assertions and declined the military judge’s offer to give defense an opportunity to present further evidence on the issue).

United States v. Quintanilla
, 56 MJ 37 (trial counsel’s responsibilities include the duty to obtain the presence of witnesses for both the prosecution and the defense, including the issuance of military orders for active duty witnesses and subpoena’s for civilians).


United States v. Golston, 53 MJ 61 (trial counsel is a representative of the United States Government who must act accordingly and refrain improper methods designed to wrongfully obtain a conviction).

(a criminal defendant may challenge prosecutorial methods as a due process violation and obtain relief if the method challenged is of sufficient significance to result in the denial of the defendant’s right to a fair trial).

(it is unprofessional misconduct by a trial counsel to use a former client’s confidences to impeach that former client as a witness at a trial by courts-martial).

(trial counsel has a continuing duty to apprise the military judge of any change in circumstances concerning that counsel’s qualification to serve as trial counsel; see RCM 901(d)).
(where trial counsel’s former legal assistance client was the accused’s wife who testified as a defense witness, accused was not prejudiced by trial counsel’s failure to inform the military judge and the defense about the possible conflict of interest).

(the fact that a military attorney represented the accused’s wife in an unrelated legal assistance matter and she was expected to be called as a defense witness did not violate Article 27(a), nor was there evidence that it violated any other codal article, Manual provision, or service regulation that disqualifies a military attorney from prosecuting that accused).

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