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).
2011 (September Term)
United States v. Hayes, 71 M.J. 112 (argument by trial counsel and statements by the military judge are not evidence).
2010 (September Term)
United States v. Clark, 69 M.J. 438 (the Fifth Amendment cannot with one hand protect an accused from being compelled to testify and yet with the other hand permit trial counsel to argue that an accused’s silent demeanor in response to an accusation of wrongdoing is tantamount to a confession of guilt).
(the government is permitted to make a fair response to claims made by the defense, even when a Fifth Amendment right is at stake).
(trial counsel’s comments made in rebuttal closing argument to defense counsel’s claims made in closing argument must be examined in context to determine if they were fair, given the defense theory of the case).
United States v. Lewis, 69 M.J. 379 (an improper implication by the trial counsel that the defendant carries the burden of proof on the issue of guilt constitutes a due process violation; the limitation on comments regarding the burden of proof does not apply, however, in circumstances where the defense has the burden of proof on a particular matter, such as an alibi defense; likewise, the limitation on comments cannot be used by the defense as both a shield and a sword).
(when determining whether prosecutorial comment was improper, the statement must be examined in light of its context within the entire court-martial).
(in this case, where the defense articulated a strategy expressly promising an affirmative showing of innocence, attempted to make such an affirmative showing during its case on the merits, and argued in closing that it had delivered on its promise, the prosecution could (1) on cross-examination of the defense expert, rely on the defense posture and the evidence presented during the defense case as providing the basis for questions posed to the expert regarding whether his investigation had found any exculpatory evidence, and (2) during rebuttal of closing argument, rely on the defense counsel’s closing argument, which highlighted the earlier defense presentation, as providing the basis for the comments that the defense expert had found nothing exculpatory for appellant; the defense posture and the evidence opened the door to exploration of these matters; in context, the prosecution’s questions and argument fell well within the range of permissible cross-examination and argument; accordingly, appellant failed to meet his burden of establishing error, much less plain error).
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).
(a direct reference made by trial counsel during his closing argument on the merits to a statement made by appellant during the providence inquiry in an attempt to show that appellant corroborated the testimony of another witness was plain and obvious error).
(trial counsel’s comment during closing argument on the merits that compared a witness’s trial testimony regarding the number of photographs appellant had taken of detainees at an Iraqi detention facility to protected statements made by appellant during the providence inquiry was a comment on appellant’s right to remain silent and an error of constitutional dimension).
(in cases where appellant does not testify and trial counsel argues on the merits that appellant had not been forthcoming in her version of facts, this tactic is fraught with danger as it often implicates appellant’s right to remain silent).
(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 an accused to refute the government’s evidence or to support his own claims; a constitutional violation occurs only if either the accused alone has the information to contradict the government’s evidence referred to or the factfinder naturally and necessarily would interpret the summation as a comment on the failure of the accused to testify).
(after defense counsel argued during closing argument that a government witness was not a credible witness, trial counsel’s rebuttal argument which summarized the evidence introduced during the court-martial and argued that it corroborated the government witness’s testimony was not an improper comment on appellant’s failure to testify, but rather proper comment on the evidence, where trial counsel reviewed the evidence before the court and then compared the witness’s testimony with appellant’s only version of the facts, which was contained in her properly admitted pretrial statements to investigators).
(it is well established that the trial counsel may comment during his closing argument on the failure of an accused to refute the government’s evidence or to support the accused’s own claims).
(the test for determining whether an indirect remark by trial counsel during closing argument on the merits constitutes improper comment on an accused’s failure to testify is whether the language used was manifestly intended to be, or was of such character that the factfinder would naturally and necessarily take it to be a comment on the failure of the accused to testify).
United States v. Pope, 69 M.J. 328 (it is constitutional error to admit evidence of - or comment on in argument - an accused’s post-apprehension silence as evidence of guilt).
United States v. Burton, 67 M.J. 150 (counsel should limit their arguments to the evidence of record, as well as all reasonable inferences fairly derived from such evidence).
(the government may not introduce similarities between a charged offense and prior conduct, whether charged or uncharged, to show modus operandi or propensity without using a specific exception within our rules of evidence, such as MRE 404 or 413 [allowing character evidence when offered first by the accused, allowing evidence of other crimes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, and allowing evidence of prior sexual assaults when the accused is charged with a sexual assault offense]; it follows, therefore, that portions of a closing argument encouraging a panel to focus on such similarities to show modus operandi and propensity, when made outside the ambit of these exceptions, are not a reasonable inference fairly derived from the evidence, and are improper).
(trial counsel’s suggestion during closing argument on findings that the members of the panel could compare the similarities between the charged sex offenses for a propensity to commit these types of offenses and see the accused’s modus operandi was improper argument; although the charged offenses were themselves the proper subject of closing argument, the underlying conduct had not been offered or admitted under MRE 404 or 413 [allowing character evidence when offered first by the accused, allowing evidence of other crimes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, and allowing evidence of prior sexual assaults when the accused is charged with a sexual assault offense], and as such, trial counsel’s invitation to the panel to compare the charged offenses to find modus operandi or propensity was improper).
(any error in the trial counsel’s closing argument on findings that the members of the panel could compare the similarities between the charged sex offenses for a propensity to commit these types of offenses and see the accused’s modus operandi did not rise to the level of plain error that required the military judge to sua sponte instruct the panel on the use of propensity evidence or take other remedial measures, where the similar conduct was charged and presented as two separate offenses, the military judge specifically instructed the panel that the trial counsel’s argument was not evidence and gave a general spillover instruction, neither trial nor defense counsel offered propensity evidence or requested a propensity instruction, and the comments of trial counsel were not so egregious as to provoke an objection by trial defense counsel).
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).
(trial counsel’s comments in argument in a rape trial that there was uncontradicted evidence of the alleged victim’s intoxicated condition during the intercourse violated appellant’s right not to testify, where the alleged victim could not remember what happened and appellant thus was the only person who could have contradicted the only eyewitness’s testimony with respect to that time period).
(trial counsel’s comments in argument that there was uncontradicted evidence of the alleged victim’s intoxicated condition after intercourse did not violate appellant’s right not to testify in rape trial, even though the alleged victim could not remember what happened, where appellant was not present during that period and thus could not have contradicted the evidence in question).
(the members would not naturally and necessarily interpret the trial counsel’s summation in a rape trial as comment on the failure of the accused to testify where trial counsel’s closing argument addressed the evidence raised through direct and cross-examination of numerous government and defense witnesses who provided extensive observations of the alleged victim’s intoxicated condition as a sequence through time; the testimony of the defense’s own witnesses contributed to the development of the sequence, which extended beyond the crucial time periods immediately preceding and following the rape to the point where the alleged victim was receiving medical attention at the barracks, in the ambulance, and at the hospital; in emphasizing that the evidence at the time of the rape and immediately after the rape was uncontradicted, trial counsel’s summation stressed consistency between the observations of two witnesses, contrasting it with the more varied nature of the testimony surrounding the other witnesses’ observations as the evening progressed).
(trial counsel’s comments in argument in a rape trial that appellant had to assert that his mistake was honest to establish a mistake of fact defense violated appellant’s right not to testify, where trial counsel’s choice of words suggested that appellant had to testify to establish the defense).
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).
(failure to object to improper argument before the military judge begins to instruct the members on findings constitutes waiver in the absence plain error).
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).
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).
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).
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).
States v. Ruiz, 54 MJ 138 (failure to make timely
objection to matters raised in argument will waive any issue on appeal
respect thereto in the absence of plain error).