U.S. v. Golston, 53 M.J. 61

Military Justice Personnel: Prosecution Function: Trial Counsel

1. trial counsel is a representative of the United States Government who must act accordingly and refrain improper methods designed to wrongfully obtain a conviction
2. 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
3. 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
4. trial counsel has a continuing duty to apprise the military judge of any change in circumstances concerning that counsel’s qualification to serve as trial counsel; see RCM 901(d)
5. where trial counsel’s former legal assistance client was the accused’s wife who testified as a defense witness, accused was not prejudiced by trial counsel’s failure to inform the military judge and the defense about the possible conflict of interest
6. the fact that a military attorney represented the accused’s wife in an unrelated legal assistance matter and she was expected to be called as a defense witness did not violate Article 27(a), nor was there evidence that it violated any other codal article, Manual provision, or service regulation that disqualifies a military attorney from prosecuting that accused

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in reviewing claims of prosecutorial misconduct, an appellate court will consider the legal norm violated by the prosecutor and determine if the violation actually prejudiced a substantial right of the accused; if it did, then the court will look to the record as a whole to determine whether the violation was harmless under all the circumstances of the particular case