2023 (October Term)
United States v. Hasan, 84 M.J. 181 (during sentencing argument, the trial counsel is at liberty to strike hard, but not foul, blows; trial counsel may argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence, but may not inject his personal opinion into the panel's deliberations, inflame the members' passions or prejudices, or ask them to convict the accused on the basis of criminal predisposition; trial counsel's argument must be viewed in context because it is improper to surgically carve out a portion of the argument with no regard to its context).
2022 (October Term)
United States v. Harrington, 83 M.J. 408 (in this case, trial counsel’s participation in the delivery of the victim’s unsworn statement via a question-and-answer format violated the principle that an unsworn victim statement belongs solely to the victim; and accordingly, the military judge abused his discretion by permitting trial counsel and the victim’s parents to present the unsworn victim statements in this format).
(in this case, trial counsel’s participation in the presentation of the victim’s unsworn statement—especially in a question-and-answer format that closely resembles the presentation of actual evidence during every other phase of the trial—unnecessarily blurred the distinction between actual sentencing evidence and the unsworn victim statement).
2021 (October Term)
United States v. Palacios Cueto, 82 M.J. 323 (if a trial counsel makes statements to members that violate the limitations set forth in the RCMs, this can be a form of prosecutorial misconduct).
(no specific rule prohibits a trial counsel from using the word “justice” when speaking to the members; but a court-martial must reach a decision based only on the facts in evidence; accordingly, a prosecutor should be careful not to confuse the jury by conflating ‘justice’ and ‘criminal conviction; justice’ must be tethered to the evidence and the burden of proof lest it be confused with justice for the victim or society or the military justice system; similarly, trial counsel should not use the word “justice” to imply that sentencing should be based on unauthorized considerations).
(appellate judges must exercise care in determining whether a trial counsel’s statement is improper or has improper connotations; a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations; a statement that might appear improper if viewed in isolation may not be improper when viewed in context; and even if a statement is improper, it may not be sufficiently prejudicial, in the context of the entire trial, to violate the accused’s due process rights).
(the best approach for assessing the prejudice from prosecutorial misconduct involves a balancing of three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction).
(in this case, it was not problematic where trial counsel tethered “justice” to the evidence during rebuttal closing argument by saying that a decision of guilty or not guilty is “justice” if it is based upon the evidence and the law).
(in this case, where in his sentencing argument, trial counsel defined “justice” to mean “an appropriate punishment,” he did not err because most military judges give members a comparable instruction and RCM 1002(f)(3)(C) directs courts-martial to take into consideration the need for the sentence to provide a just punishment for the offense).
(in this case, assuming that the trial counsel’s other repeated references to “justice” were plain and obvious error, those references did not cause appellant to suffer material prejudice to a substantial right where the misconduct was only moderately severe, effective curative measures were taken, and the weight of the evidence supporting the conviction was moderate).
(in some cases, uncorrected statements by a prosecutor may lead to a violation of due process if the judge does not adequately correct them; but in this case, the military judge gave proper instructions so that any error that occurred was not constitutional in dimension, and accordingly, the harmlessness beyond a reasonable doubt standard did not apply).
2020 (October Term)
United States v. Chandler, 80 M.J. 425 (one of the goals of the UCMJ is to assure the accused a thoroughly fair and impartial review of an appellant’s case; towards that goal, Article 6(c), UCMJ, says in pertinent part that no person who served as trial counsel in a case may later serve as a staff judge advocate or legal officer to any reviewing or convening authority upon the same case; a person does not need to be officially detailed as trial counsel in order to act as trial counsel).
(in this case, where trial counsel inserted into the PTA the provision that appellant was required to enter into a reasonable stipulation of fact, the SJA, as legal advisor to the convening authority, was empowered to advise the convening authority regarding whether this condition of the PTA was met; in this regard, it was not inappropriate for the SJA to directly call and inform defense counsel that he would advise the convening authority not to accept the PTA unless appellant agreed to stipulate to the multiple uses of cocaine and marijuana reflected in his confession, especially where trial counsel and the defense paralegal were part of this conversation and trial and defense counsel still had the ability to decide how to handle the stipulation at trial and in presentencing proceedings; the SJA’s pretrial actions did not transform him into a trial counsel, and thus, did not disqualify him under Article 6(c) from advising the convening authority on post-trial matters).
2018 (October Term)
United States v. Voorhees, 79 M.J. 5 (every attorney in a court-martial has a duty to uphold the integrity of the military justice system).United States v. Bodoh, 78 M.J. 231 (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).
(prosecutorial misconduct can be generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, and prosecutors have a duty to refrain from improper methods calculated to produce a wrongful conviction).
(in terms of prejudice, 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); in evaluating prejudice, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; it considers: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction).
(in this case involving an allegation of sexual assault, trial counsel’s references to SHARP training during voir dire were not error and did not constitute prosecutorial misconduct; although it is unclear why trial counsel inquired into whether the members believed that the SHARP program made it easier for soldiers to report sexual assaults than civilians, this question was facially benign and therefore not erroneous; the remaining questions posed about the SHARP program were designed to assess whether the members’ SHARP training would improperly influence their deliberations, and this was an appropriate line of inquiry for voir dire).
(when examining witnesses, trial counsel cannot seek to introduce, either overtly or surreptitiously, inadmissible evidence and cannot misstate legal principles).
(in this case involving an allegation of sexual assault, trial counsel erred when questioning appellant during cross-examination where, after first establishing that appellant had participated in SHARP training, he then asked a series of clearly impermissible questions founded on the false premise that a person who is intoxicated is inherently incapable of consenting to sexual acts).
(when trial counsel invokes military policies, counsel is advised to tread lightly because of the danger of interjecting the command structure into the members deliberations; a policy directive must not be used as leverage to compel a certain result in the trial itself).
(in this case involving an allegation of sexual assault, appellant was not prejudiced by trial counsel’s argument on findings that the members had learned during SHARP training that people on drugs and alcohol are more vulnerable to assault; the observation that people on drugs and alcohol are more vulnerable to assault was an unremarkable observation that is based on common knowledge).
(in this case involving an allegation of sexual assault, appellant was not prejudiced by trial counsel’s argument on findings that the members had learned during SHARP training that people on drugs and alcohol are more vulnerable to assault; the observation that people on drugs and alcohol are more vulnerable to assault was an unremarkable observation that is based on common knowledge).
(in this case involving an allegation of sexual assault, trial counsel erred in his findings argument by referencing myths taught in the SHARP program about how a victim will or should react in the course or aftermath of a sexual assault; simply stated, the myths reportedly taught about in SHARP training did not constitute trial evidence, and it was therefore erroneous for trial counsel to present argument about these myths in the context of SHARP training; however, because the government elicited testimony from its expert witness on precisely the same point when it questioned her about rape myths, the underlying point made by trial counsel was fully supported by evidence in the record; accordingly, appellant failed to demonstrate that trial counsel’s error resulted in material prejudice to a substantial right of the accused).
(in this case involving an allegation of sexual assault, the trial counsel’s argument to the members that they could consider their SHARP training in finding appellant guilty, was improper where the training reference was not based on evidence adduced at trial; however, where this reference was fleeting and vague, the trial defense counsel did not object to it, and the military judge provided ameliorative instructions to the members that (1) an intoxicated individual can still consent to sexual activity, (2) argument by counsel is not evidence, and (3) an accused may be convicted based only on evidence before the court, appellant failed to establish a reasonable probability that, absent the error, the results of the trial would have been different; accordingly, trial counsel’s passing reference to training did not constitute plain error).
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).
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).
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).
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).
(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”).
2002
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).
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).
2000
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).