U.S. v. Jenkins, 54 M.J. 12

Core Criminal Law Subjects: Evidence: Character

1. MRE 608(a) permits the credibility of a witness to be supported or attacked by opinion evidence, but that opinion evidence may refer only to the witness’ character for truthfulness or untruthfulness; a witness may not, however, opine that another witness is lying or telling the truth

Core Criminal Law Subjects: Evidence: Credibility

1. MRE 608(a) permits the credibility of a witness to be supported or attacked by opinion evidence, but that opinion evidence may refer only to the witness’ character for truthfulness or untruthfulness; a witness may not, however, opine that another witness is lying or telling the truth
2. it is improper for a trial counsel to compel a defendant to state that the witnesses testifying against him are lying
3. while it is improper for a trial counsel to compel a defendant to state that the witnesses testifying against him are lying, each such case will be reviewed on a case-by-case basis to determine if the improper cross-examination was prejudicial
4. trial counsel’s improper questioning, which was designed to compel the accused to state that the witnesses testifying against him were lying, was not plain error where: (1) defense counsel’s theme of the case was that the accused had been framed by his co-actors; (2) accused declined to respond to trial counsel’s questions about whether certain witnesses were lying; and (3) even though the accused did testify that a law enforcement officer was testifying falsely, that error was harmless where trial counsel’s questions merely reinforced the defense theory of the case

Core Criminal Law Subjects: Witnesses: Impeachment of

1. MRE 608(a) permits the credibility of a witness to be supported or attacked by opinion evidence, but that opinion evidence may refer only to the witness’ character for truthfulness or untruthfulness; a witness may not, however, opine that another witness is lying or telling the truth

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. court members are presumed to follow the military judge’s instructions

Trial Stages: Sentence and Punishment: Argument

1. failure to object to improper argument before the military judge begins to instruct on sentencing constitutes waiver of the objection; to overcome waiver, an appellant must demonstrate plain error – he must show there was error, that the error was plain or obvious, and that the error materially prejudiced his substantial rights
2. improper sentencing argument can often be cured by an appropriate limiting instruction
3. trial counsel’s sentencing argument, which repeatedly referred to the accused as a thief and a liar, did not rise to plain error where the defense counsel did not find the argument sufficiently offensive to warrant an objection or request for curative instructions, and where the military judge’s detailed and appropriate limiting instructions cured any possible error in trial counsel’s sentencing argument
4. an accused’s mendacity may be considered in sentencing, subject to certain limitations: (1) the members must be instructed that they may not consider trial counsel’s mendacity argument unless they conclude that the accused did lie under oath to the court; (2) the members must also conclude in their minds that such lies were willful and material; (3) the members may consider the accused’s mendacity only insofar as they conclude that it, along with all the other circumstances in the case, bears upon the likelihood that the accused can be rehabilitated; and (4) the members may not mete out additional punishment for false testimony itself

Trial Stages: Sentence and Punishment: Instructions

1. improper sentencing argument can often be cured by an appropriate limiting instruction

Trial Stages: Appeals: Harmless / Prejudicial Error

1. while it is improper for a trial counsel to compel a defendant to state that the witnesses testifying against him are lying, each such case will be reviewed on a case-by-case basis to determine if the improper cross-examination was prejudicial

Trial Stages: Appeals: Preservation of Error / Plain Error

1. trial counsel’s improper questioning, which was designed to compel the accused to state that the witnesses testifying against him were lying, was not plain error where: (1) defense counsel’s theme of the case was that the accused had been framed by his co-actors; (2) accused declined to respond to trial counsel’s questions about whether certain witnesses were lying; and (3) even though the accused did testify that a law enforcement officer was testifying falsely, that error was harmless where trial counsel’s questions merely reinforced the defense theory of the case
2. failure to object to improper argument before the military judge begins to instruct on sentencing constitutes waiver of the objection; to overcome waiver, an appellant must demonstrate plain error – he must show there was error, that the error was plain or obvious, and that the error materially prejudiced his substantial rights
3. trial counsel’s sentencing argument, which repeatedly referred to the accused as a thief and a liar, did not rise to plain error where the defense counsel did not find the argument sufficiently offensive to warrant an objection or request for curative instructions, and where the military judge’s detailed and appropriate limiting instructions cured any possible error in trial counsel’s sentencing argument

Trial Stages: Appeals: Waiver

1. failure to object to improper argument before the military judge begins to instruct on sentencing constitutes waiver of the objection; to overcome waiver, an appellant must demonstrate plain error – he must show there was error, that the error was plain or obvious, and that the error materially prejudiced his substantial rights