TRIAL STAGES: Appeals: Invited Error / Open Door

2011 (September Term)

United States v. Stewart, 71 M.J. 38 (although appellant had made a motion for appropriate relief based on an alleged duplicitous pleading (i.e., the victim “was substantially incapacitated or substantially incapable of declining participation in the sexual act”) and the judge severed the specification into two specifications alleging alternative theories of criminal liability, one alleging that the victim was “substantially incapacitated,” and the other alleging that the victim was “substantially incapable of declining participation in the sexual act,” this motion did not invite the error that caused the CCA to impermissibly affirm a finding of guilty of aggravated sexual assault based on conduct for which members had found him not guilty; the problem was not whether the decision to sever the charged specification into two specifications was proper, but rather with the military judge’s subsequent instructions to the members which defined the terms with the same definition and rendered the distinction between the terms meaningless). 

2010 (September Term)

United States v. Savala, 70 M.J. 70 (the CCA did not clearly err in concluding that the prosecution opened the door to cross-examination of the victim with respect to a prior complaint of sexual assault that the defense contended was fabricated to protect her reputation, where the prosecution introduced evidence of the victim’s prior complaint to bolster her credibility with respect to the reasons for her delayed reporting of the charged offense, thereby benefiting the prosecution). 



United States v. Carter, 61 M.J. 30 (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).  
(credibility is at issue in nearly all cases involving witness testimony; in this case, the prosecution’s argument repeatedly drew the members’ attention to the fact that the accused did not testify; the comments were not tailored to the defense credibility argument; if we were to hold that any defense challenge to a witness’s credibility opens the door to such prosecutorial comments, the “invited reply” doctrine would swallow the protections guaranteed by the Fifth Amendment). 



United States v. Gilley, 56 MJ 113 (because appellant failed to object to testimony that he did not read written statement and requested counsel, and since the testimony contradicted appellant’s claim that he read the statement but refused to sign it because it was full of lies, court found that defense counsel opened the door to the use of this testimony for that limited purpose).


United States v. Dinges, 55 MJ 308 (invited error precludes any relief for error in the admission of testimony where that witness was called by the defense during the sentencing portion of the trial).


United States v. Anderson, 51 MJ 145 (where defense sought to impeach victims with their own prior statements which affirmed trial testimony, appellant should not be allowed to retreat from his unsuccessful trial strategy; nor should appellant be allowed to fault the military judge for that lack of success).

United States v. Eggen, 51 MJ 159 (an appellant cannot create error and then take advantage of a situation of his own making; invited error provides no basis for relief).

(actions of defense counsel in cross-examining expert on whether a victim of a sexual assault was “faking” emotions and being truthful opened the door for prosecutor to rehabilitate his expert’s testimony, even to extent of having expert opine that the victim was not faking).

(defense attempt to explore with government expert whether victim of sexual assault was lying and whether the victim had a motive to lie induced prosecution cross-examination about motive of sexual offenders to lie).

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