U.S. v. Alameda, 57 M.J. 190

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Admission by silence

1. admissions by silence continue to be recognized in both military and civilian federal practice; however, Mil.R.Evid. 304(h)(3) prohibits an inference of wrongdoing when the failure to deny an accusation of wrongdoing concerns an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody; prearrest silence is usually inadmissible and not an act from which guilt can be inferred
2. Appellant’s failure to deny an allegation of domestic assault did not support an inference of guilt and was irrelevant where: (1) appellant was told that he was being apprehended for an alleged assault; (2) appellant had a history of domestic violence; (3) appellant had been accused of assaulting his wife less that two weeks earlier; (4) appellant had been ordered to stay away from her because of the incident; and (5) even if appellant’s silence constituted an admission, it would admit only an “alleged assault,” not attempted premeditated murder
3. military judge committed constitutional error by permitting the prosecution to introduce evidence of appellant’s post-apprehension silence as substantive evidence of guilt, and to then comment on that evidence in closing argument
4. instructions that did not address the question whether any adverse inference could be drawn from appellant’s silence at the time of his apprehension did not cure the error in trial counsel’s argument and may have exacerbated it by leading the members to conclude that they were permitted to draw an adverse inference from appellant’s silence at the time of his apprehension

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Article 31

1. privilege against self-incrimination recognized in Article 31(a), supra, is virtually identical to the privilege under the Fifth Amendment; thus, Fifth Amendment analysis also applies to Article 31(a)

Core Criminal Law Subjects: Evidence: Waiver

1. where military judge summarily overruled defense counsel’s relevance objection to testimony about appellant’s silence at the time of his apprehension, without allowing either side to articulate reasons for or against admitting the testimony, and without articulating any rationale for admitting the evidence, defense counsel’s objection challenging the relevance the testimony was sufficient to preserve the issue of the admissibility of that testimony in light of Mil.R.Evid. 304(h)(3)
2. defense counsel’s timely objection to trial counsel’s argument was sufficient to preserve the constitutional and statutory issues arising from trial counsel’s use of evidence of appellant’s silence at the time of his apprehension as substantive proof of guilt

Trial Stages: Merits: Argument

1. military judge committed constitutional error by permitting the prosecution to introduce evidence of appellant’s post-apprehension silence as substantive evidence of guilt, and to then comment on that evidence in closing argument
2. instructions that did not address the question whether any adverse inference could be drawn from appellant’s silence at the time of his apprehension did not cure the error in trial counsel’s argument and may have exacerbated it by leading the members to conclude that they were permitted to draw an adverse inference from appellant’s silence at the time of his apprehension
3. a distinction exists between direct review and collateral review in determining if impermissible comment on pretrial silence was harmless: on direct review, reviewing court must be satisfied beyond a reasonable doubt that the error was harmless; on collateral review, the court must be satisfied that the judgment was not substantially swayed by the error

Trial Stages: Appeals: Harmless / Prejudicial Error

1. whether an error was harmless is reviewed de novo
2. the following four factors are considered to evaluate prejudice from erroneous evidentiary rulings: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
3. for constitutional error, reviewing court must be satisfied beyond a reasonable doubt that the error was harmless; for non-constitutional error, the court must be satisfied that the judgment was not substantially swayed by the error; if the court is not satisfied, or if it is left in grave doubt, the conviction cannot stand
4. a distinction exists between direct review and collateral review in determining if impermissible comment on pretrial silence was harmless: on direct review, reviewing court must be satisfied beyond a reasonable doubt that the error was harmless; on collateral review, the court must be satisfied that the judgment was not substantially swayed by the error
5. after considering the admissible evidence of premeditation and intent to kill, Court of Appeals for the Armed Forces was are not satisfied beyond a reasonable doubt that the members would have convicted appellant of attempted premeditated murder, the lesser-included offenses of attempted unpremeditated murder, or attempted voluntary manslaughter, without (1) the testimony about appellant’s post-apprehension silence, (2) masking tape, latex gloves, and utility knife which were irrelevant, (3) the improper comment of trial counsel on appellant’s post-apprehension silence, and (4) the instruction of the military judge that may have exacerbated the impact of trial counsel’s argument by leading the members to conclude that they were permitted to draw an adverse inference from appellant’s silence at the time of his apprehension

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where military judge summarily overruled defense counsel’s relevance objection to testimony about appellant’s silence at the time of his apprehension, without allowing either side to articulate reasons for or against admitting the testimony, and without articulating any rationale for admitting the evidence, defense counsel’s objection challenging the relevance the testimony was sufficient to preserve the issue of the admissibility of that testimony in light of Mil.R.Evid. 304(h)(3)
2. defense counsel’s timely objection to trial counsel’s argument was sufficient to preserve the constitutional and statutory issues arising from trial counsel’s use of evidence of appellant’s silence at the time of his apprehension as substantive proof of guilt

Trial Stages: Appeals: Law of the Case

1. where government has not contested holding by court below held that certain evidence was not sufficiently connected to appellant to be relevant, and where reviewing court is satisfied that it is not clearly erroneous, nor would it work a manifest injustice if the parties were bound by it, the holding by the court below is the law of the case

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

1. when a military judge instructs the members, the question whether the content of the instruction is legally correct is reviewed de novo
2. military judge’s decision to admit evidence is reviewed for abuse of discretion; if the military judge makes findings of fact, they are reviewed under a clearly-erroneous standard of review, and conclusions of law are reviewed de novo
3. whether an error was harmless is reviewed de novo
4. issues involving argument referring to unlawful subject matter are reviewed de novo as issues of law