United States v. Rodriguez-Rivera, 63 M.J. 372 (prosecutorial misconduct is generally defined as 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).
(there may be a case, based upon the dialogue between the parties and the military judge, where there is a sound basis in the record for concluding that there was a clear, common understanding between the military judge and the parties as to sequestration, without issuance of a formal order; in such a case, violating that clear understanding could constitute prosecutorial misconduct; in this case, there was neither a formal nor a clearly understood sequestration order, and a sequestration order could not be implied based on the judge’s denial of the government’s request to allow one or both of the parents to be present when the child testified; unless the record demonstrates that witnesses were to be sequestrated, the prosecution cannot be found to have intentionally committed misconduct; as a result, there was no prosecutorial misconduct based on an allegation that the trial counsel intentionally violated the military judge’s sequestration order by allowing the parents of the child to discuss the substance of the child’s testimony during a recess).
(there was no prosecutorial misconduct based on an allegation that the child victim was improperly coached by the trial counsel, the assistant trial counsel, and the child’s parents during a recess in the child’s testimony, where the trial counsel and parents did nothing more that encourage the child to tell the truth and the whole story; to the extent the military judge did have concerns about any influence the discussion during the recess may have had on the child, he mitigated that influence by allowing cross-examination of the child concerning the events during the recess and the possibility that the child was coached or coerced).
(there was no prosecutorial misconduct arising from an allegation that the assistant trial counsel was less than candid about the discussions that occurred between him and a child witness during the recess, where a difference in perception between the assistant trial counsel and a child witness about their discussions was not a sufficient basis for finding that the assistant trial counsel was dishonest with the military judge).
(there was no
prosecutorial misconduct arising from an allegation that a government
expert witness had listened to other witnesses and collaborated with
the government by passing notes to the trial counsel during the trial,
where the trial counsel advised the military judge that the notes the
witness had passed were not written by her, but that the witness was
merely relaying notes passed to the trial counsel from other people;
the military judge accepted the trial counsel’s explanation, after
having had the opportunity to observe the proceedings and the
explanation of the trial counsel; thus, there is no basis in the record
to conclude that the military judge’s finding that the trial counsel
was candid with regard to this incident was clearly erroneous).