2006
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).
(in analyzing
allegations of prosecutorial misconduct, courts should gauge the
overall effect of counsel’s conduct on the trial, and not counsel’s
personal blameworthiness).
(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).