U.S. v. Moran, 65 M.J. 178

First Principles: Constitutional Matters: Generally

1. the law generally discourages trial counsel’s presentation of testimony or argument mentioning an accused’s invocation of his constitutional rights unless, for example, an accused invites such testimony or argument in rebuttal to his own case; such comments may serve to hinder the free exercise of such rights -- rights that carry with them the implicit assurance that their invocation will carry no penalty; the constraint against mentioning the exercise of constitutional rights does not depend on the specific right at issue

First Principles: Constitutional Matters: Right to Counsel

1. in the American system of justice, the exercise of the right to counsel is proof of neither guilt nor innocence

Military Justice Personnel: Prosecution Function: Trial Counsel

1. the law generally discourages trial counsel’s presentation of testimony or argument mentioning an accused’s invocation of his constitutional rights unless, for example, an accused invites such testimony or argument in rebuttal to his own case; such comments may serve to hinder the free exercise of such rights -- rights that carry with them the implicit assurance that their invocation will carry no penalty; the constraint against mentioning the exercise of constitutional rights does not depend on the specific right at issue
2. in the closing part of his findings argument to the members, trial counsel made an obvious error when he commented that when the OSI asked the accused to consent to the collection of his body hair, the accused refused and invoked his right to counsel; not only was this comment an inaccurate characterization of the testimony presented (the accused had not invoked his right to counsel), but it improperly referenced the accused’s exercise of a constitutional right and suggested, intentionally or not, that the members infer guilt from the invocation of that right
3. it is improper for a prosecutor to ask the court members to infer guilt because an accused has exercised his constitutional rights; an argument by trial counsel which comments upon an accused’s exercise of his or her constitutionally protected rights is beyond the bounds of fair comment
4. a trial counsel’s statement implicating an accused’s assertion of his rights is not per se impermissible; in context, it may appropriately be made in rebuttal; additionally, if a statement was an isolated reference to a singular invocation of rights, it may be harmless in the context of the entire record
5. by arguing in the closing part of his findings argument that the accused’s invocation of his right to counsel was substantive evidence of the accused’s guilt, the trial counsel violated the accused’s Fifth Amendment rights, MRE 301(f)(3), and RCM 919, which provides in its Discussion that the trial counsel may not comment on the accused’s exercise of the right against self-incrimination or the right to counsel

Military Justice Personnel: Military Judge: Generally

1. military judges, unlike lay members, are presumed capable of filtering out inadmissible evidence

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Invocation of Rights

1. MRE 301(f)(3) provides that the fact that the accused during official questioning and in exercise of rights under the Constitution requested counsel is inadmissible against the accused
2. in the American system of justice, the exercise of the right to counsel is proof of neither guilt nor innocence

Core Criminal Law Subjects: Evidence: Search and Seizure › Consent

1. under the Fourth Amendment, an accused has the right to deny a special agent’s initial request for his consent to the collection of his body hair
2. refusing to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing

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

1. an inference of guilt stemming from the accused shaving all of his body hair after learning that investigators wished to procure a hair sample from him to test for drug use was permissible under the consciousness of guilt doctrine; there exists longstanding precedent that, while such behavior may not give rise to a presumption of guilt, it nonetheless can, within certain constraints, be entered into evidence and commented upon; moreover, the effect of the accused shaving his body in this case was essentially the destruction of evidence; that an inference of consciousness of guilt can be drawn from the destruction of evidence is well-recognized in the law

Trial Stages: Merits: Trial Procedures › Generally

1. the law generally discourages trial counsel’s presentation of testimony or argument mentioning an accused’s invocation of his constitutional rights unless, for example, an accused invites such testimony or argument in rebuttal to his own case; such comments may serve to hinder the free exercise of such rights -- rights that carry with them the implicit assurance that their invocation will carry no penalty; the constraint against mentioning the exercise of constitutional rights does not depend on the specific right at issue

Trial Stages: Merits: Argument

1. the law generally discourages trial counsel’s presentation of testimony or argument mentioning an accused’s invocation of his constitutional rights unless, for example, an accused invites such testimony or argument in rebuttal to his own case; such comments may serve to hinder the free exercise of such rights -- rights that carry with them the implicit assurance that their invocation will carry no penalty; the constraint against mentioning the exercise of constitutional rights does not depend on the specific right at issue
2. in the closing part of his findings argument to the members, trial counsel made an obvious error when he commented that when the OSI asked the accused to consent to the collection of his body hair, the accused refused and invoked his right to counsel; not only was this comment an inaccurate characterization of the testimony presented (the accused had not invoked his right to counsel), but it improperly referenced the accused’s exercise of a constitutional right and suggested, intentionally or not, that the members infer guilt from the invocation of that right
3. it is improper for a prosecutor to ask the court members to infer guilt because an accused has exercised his constitutional rights; an argument by trial counsel which comments upon an accused’s exercise of his or her constitutionally protected rights is beyond the bounds of fair comment
4. a trial counsel’s statement implicating an accused’s assertion of his rights is not per se impermissible; in context, it may appropriately be made in rebuttal; additionally, if a statement was an isolated reference to a singular invocation of rights, it may be harmless in the context of the entire record
5. by arguing in the closing part of his findings argument that the accused’s invocation of his right to counsel was substantive evidence of the accused’s guilt, the trial counsel violated the accused’s Fifth Amendment rights, MRE 301(f)(3), and RCM 919, which provides in its Discussion that the trial counsel may not comment on the accused’s exercise of the right against self-incrimination or the right to counsel

Trial Stages: Appeals: Harmless / Prejudicial Error

1. before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt; this will depend on whether there is a reasonable possibility that the evidence or error complained of might have contributed to the conviction; to say that an error did not contribute to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous; it is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record
2. a special agent’s reference on direct examination to the accused’s refusal to consent to the collection of his body hair, which, under the Fourth Amendment, he had the right to deny, was harmless beyond a reasonable doubt because other evidence that was properly admitted was sufficient to dispel any notion that agent’s statement “tipped the balance” against the accused where the accused’s drug offense convictions were supported by evidence provided by six witnesses who testified against him; furthermore, there was substantial circumstantial evidence regarding the accused’s consciousness of guilt that was properly before the members, namely evidence that the accused shaved all of his body hair, which prevented the government from testing his hair for drug use; independent evidence of the accused’s guilt was overwhelming -- a conclusion that rendered any error harmless beyond a reasonable doubt
3. a police officer’s testimony on direct examination about the accused’s travel to see his attorney and that the accused had invoked his right to counsel was harmless beyond a reasonable doubt because other evidence that was properly admitted was sufficient to dispel any notion that officer’s statement “tipped the balance” against the accused where the accused’s drug offense convictions were supported by evidence provided by six witnesses who testified against him; furthermore, there was substantial circumstantial evidence regarding the accused’s consciousness of guilt that was properly before the members, namely evidence that the accused shaved all of his body hair, which prevented the government from testing his hair for drug use; independent evidence of the accused’s guilt was overwhelming -- a conclusion that rendered any error harmless beyond a reasonable doubt
4. a policeman’s testimony on direct examination about the accused’s refusal to consent to have his blood drawn was harmless beyond a reasonable doubt because the evidence of drunk driving was otherwise overwhelming and a test of the accused’s blood that was lawfully drawn under a warrant indicated a blood alcohol level of .25 percent ethanol
5. trial counsel’s inaccurate and improper statement, in the closing part of his findings argument to the members, commenting on the accused’s invocation of his right to counsel, did not prejudice the accused’s substantial rights, where the prejudicial impact of trial counsel’s comments was dampened by the minor part they played in the midst of a nineteen-page argument and where other evidence that was properly admitted was sufficient to dispel any notion that the trial counsel’s statement “tipped the balance” against the accused where the accused’s drug offense convictions were supported by evidence provided by six witnesses who testified against him; furthermore, there was substantial circumstantial evidence regarding the accused’s consciousness of guilt that was properly before the members, namely evidence that the accused shaved all of his body hair, which prevented the government from testing his hair for drug use; independent evidence of the accused’s guilt was overwhelming -- a conclusion that rendered any error harmless beyond a reasonable doubt

Trial Stages: Appeals: Preservation of Error / Plain Error

1. by failing to preserve any evidentiary errors or errors with respect to argument, appellant forfeited them absent plain error; plain error is established when: (1) an error was committed; (2) the error was plain, clear, or obvious; and (3) the error resulted in material prejudice to an appellant’s substantial rights; appellant has the burden of persuading an appellate court that these elements of the plain error test are satisfied

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

1. whether there has been improper reference to an accused’s invocation of his constitutional rights is a question of law that an appellate court reviews de novo
2. whether there was plain error is a determination reviewed by an appellate court de novo.
3. appellant has the burden of persuading an appellate court that the three elements of the plain error test are satisfied
4. statements made by witnesses concerning the invocation of an accused’s rights must be reviewed closely; this is especially so when such comments are reiterated by trial counsel and when the trial is before members rather than a military judge alone
5. an appellate court examines prosecutorial comment within the context of the entire court-martial

Miscellaneous Matters: Manual for Courts-Martial: Force and Effect

1. although not binding, the Discussion to the Rules for Courts-Martial reflects applicable judicial precedent