U.S. v. Carpenter, 51 M.J. 393

Military Justice Personnel: Defense Function: Responsibilities

1. it is improper argument for a prosecutor to ask the court members to infer guilt because an accused has exercised his constitutional rights; a prosecutor treads on dangerous ground [i.e., the rights to be present in court and confront witnesses] when he comments on an accused’s ability to observe the witnesses and shape his testimony

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in a harmless error analysis, the lack of objection is relevant to a determination of prejudice as it is some measure of minimal impact of a prosecutor’s improper comment
2. trial counsel’s comments on accused’s ability to observe the witnesses and shape his testimony were harmless beyond a reasonable doubt where: (1) defense counsel did not object to this rebuttal argument; (2) critical government evidence was overwhelming; (3) appellant’s defense was initially improbable and later collapsed in the face of contradictory evidence; (4) prosecution argument as a whole suggested that appellant did not tailor his testimony very well; and, (5) appellant’s credibility collapsed after the prosecution’s case in rebuttal

Trial Stages: Appeals: Preservation of Error / Plain Error

1. under a plain error analysis, an appellant has the initial burden to show that there was an error, that it was plain or obvious, and that it materially prejudiced a substantial right; only if appellant meets that burden of persuasion does the burden shift to the government to show that the error was not prejudicial or, in the case of constitutional error, to show beyond a reasonable doubt that the error was not prejudicial