U.S. v. Carter, 61 M.J. 30

First Principles: Constitutional Matters: Generally

1. members of the armed forces, like their civilian counterparts, may not be compelled to incriminate themselves in a criminal case; the privilege against self-incrimination provides an accused with the right to not testify, and precludes comment by the prosecution on the accused’s silence

Trial Stages: Merits: Argument

1. it is black letter law that a trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense; he may not comment on the accused’s exercise of the right against self-incrimination; and he may not argue that the prosecution’s evidence is unrebutted if the only rebuttal could come from the accused
2. not every prosecutorial comment on the failure of an accused to testify is impermissible; it is well established that the government may comment on the failure of a defendant to refute government evidence or to support his own claims; a constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the jury naturally and necessarily would interpret the summation as comment on the failure of the accused to testify
3. a prosecutorial comment must be examined in light of its context within the entire court-martial; under the “invited response” or “invited reply” doctrine, the prosecution is not prohibited from offering a comment that provides a fair response to claims made by the defense
4. the charged act here involved two adults alone in a private room in the early hours of the morning; there were no screams, no injuries, no physical evidence of a struggle, and no other witnesses; only the accused possessed information to contradict the government’s sole witness; as such, prosecutorial comment on the failure to present contradicting evidence constituted an impermissible reference to the accused’s exercise of the privilege against self-incrimination unless the comment constituted a fair response to a claim made by the defense
5. the improper comments in this case were not isolated or a “slip of the tongue;” trial counsel used the words “uncontroverted” and “uncontradicted” repeatedly -- eleven times in all -- such that the reference to the accused’s decision not to testify became a centerpiece of the closing argument; even after the military judge instructed the members not to draw any adverse inferences from the accused’s silence, trial counsel persisted in characterizing the evidence as “uncontradicted” three more times; considering the statements in context, trial counsel improperly implied that the accused had an obligation to produce evidence to contradict the government’s witness; this essentially shifted the burden of proof to the accused to establish his innocence -- a violation of protections of the Fifth Amendment

Trial Stages: Appeals: Invited Error / Open Door

1. under the “invited response” or “invited reply” doctrine, the prosecution is not prohibited from offering a comment that provides a fair response to claims made by the defense
2. credibility is at issue in nearly all cases involving witness testimony; in this case, the prosecution’s argument repeatedly drew the members’ attention to the fact that the accused did not testify; the comments were not tailored to the defense credibility argument; if we were to hold that any defense challenge to a witness’s credibility opens the door to such prosecutorial comments, the “invited reply” doctrine would swallow the protections guaranteed by the Fifth Amendment

Trial Stages: Appeals: Preservation of Error / Plain Error

1. with respect to plain error, the defense must show that there was error, that the error was plain, and that the error materially prejudiced the accused’s substantial rights; once the defense meets its burden of establishing plain error, the burden shifts to the government in the case of constitutional error to convince us that the error (here, the trial counsel impermissibly referencing the accused’s Fifth Amendment right to not testify) was harmless beyond a reasonable doubt
2. where trial counsel improperly implied that the accused had an obligation to produce evidence to contradict the government’s witness, this essentially shifted the burden of proof to the accused to establish his innocence -- a violation of protections of the Fifth Amendment; as such, the comments constituted error under the first prong of the plain error test; in addition, trial counsel repeatedly made the comments in the context of the accused’s decision not to testify; in light of the well-established prohibition against such comments, the error was plain under the second prong of the plain error test; although the military judge instructed the members that they were not to make adverse inferences from the accused’s decision to remain silent, we agree that trial counsel’s subsequent rebuttal vitiated any curative effect; the rebuttal occurred immediately after the instruction, and trial counsel continued to make improper reference to the accused’s silence by characterizing the evidence as “uncontroverted;” finally, this was not a case where the impact of any error was not prejudicial because the defense failed to fulfill a promise to put on a defense; the defense never focused the members’ attention on any facts that it planned to present; thus, under the circumstances, the government failed to meet its burden of establishing that trial counsel’s improper comments were harmless beyond a reasonable doubt

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

1. in the absence of objection to trial counsel’s argument on findings, we review for plain error