U.S. v. Burton, 67 M.J. 150

Core Criminal Law Subjects: Evidence: Character

1. an accused may not be convicted of a crime based on a general criminal disposition
2. the government may not introduce similarities between a charged offense and prior conduct, whether charged or uncharged, to show modus operandi or propensity without using a specific exception within our rules of evidence, such as MRE 404 or 413 [allowing character evidence when offered first by the accused, allowing evidence of other crimes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, and allowing evidence of prior sexual assaults when the accused is charged with a sexual assault offense]; it follows, therefore, that portions of a closing argument encouraging a panel to focus on such similarities to show modus operandi and propensity, when made outside the ambit of these exceptions, are not a reasonable inference fairly derived from the evidence, and are improper

Core Criminal Law Subjects: Evidence: Other Acts

1. the government may not introduce similarities between a charged offense and prior conduct, whether charged or uncharged, to show modus operandi or propensity without using a specific exception within our rules of evidence, such as MRE 404 or 413 [allowing character evidence when offered first by the accused, allowing evidence of other crimes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, and allowing evidence of prior sexual assaults when the accused is charged with a sexual assault offense]; it follows, therefore, that portions of a closing argument encouraging a panel to focus on such similarities to show modus operandi and propensity, when made outside the ambit of these exceptions, are not a reasonable inference fairly derived from the evidence, and are improper

Core Criminal Law Subjects: Evidence: Plan or Design

1. the government may not introduce similarities between a charged offense and prior conduct, whether charged or uncharged, to show modus operandi or propensity without using a specific exception within our rules of evidence, such as MRE 404 or 413 [allowing character evidence when offered first by the accused, allowing evidence of other crimes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, and allowing evidence of prior sexual assaults when the accused is charged with a sexual assault offense]; it follows, therefore, that portions of a closing argument encouraging a panel to focus on such similarities to show modus operandi and propensity, when made outside the ambit of these exceptions, are not a reasonable inference fairly derived from the evidence, and are improper

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. the government may not introduce similarities between a charged offense and prior conduct, whether charged or uncharged, to show modus operandi or propensity without using a specific exception within our rules of evidence, such as MRE 404 or 413 [allowing character evidence when offered first by the accused, allowing evidence of other crimes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, and allowing evidence of prior sexual assaults when the accused is charged with a sexual assault offense]; it follows, therefore, that portions of a closing argument encouraging a panel to focus on such similarities to show modus operandi and propensity, when made outside the ambit of these exceptions, are not a reasonable inference fairly derived from the evidence, and are improper

Trial Stages: Merits: Argument

1. counsel should limit their arguments to the evidence of record, as well as all reasonable inferences fairly derived from such evidence
2. the government may not introduce similarities between a charged offense and prior conduct, whether charged or uncharged, to show modus operandi or propensity without using a specific exception within our rules of evidence, such as MRE 404 or 413 [allowing character evidence when offered first by the accused, allowing evidence of other crimes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, and allowing evidence of prior sexual assaults when the accused is charged with a sexual assault offense]; it follows, therefore, that portions of a closing argument encouraging a panel to focus on such similarities to show modus operandi and propensity, when made outside the ambit of these exceptions, are not a reasonable inference fairly derived from the evidence, and are improper
3. trial counsel’s suggestion during closing argument on findings that the members of the panel could compare the similarities between the charged sex offenses for a propensity to commit these types of offenses and see the accused’s modus operandi was improper argument; although the charged offenses were themselves the proper subject of closing argument, the underlying conduct had not been offered or admitted under MRE 404 or 413 [allowing character evidence when offered first by the accused, allowing evidence of other crimes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, and allowing evidence of prior sexual assaults when the accused is charged with a sexual assault offense], and as such, trial counsel’s invitation to the panel to compare the charged offenses to find modus operandi or propensity was improper
4. any error in the trial counsel’s closing argument on findings that the members of the panel could compare the similarities between the charged sex offenses for a propensity to commit these types of offenses and see the accused’s modus operandi did not rise to the level of plain error that required the military judge to sua sponte instruct the panel on the use of propensity evidence or take other remedial measures, where the similar conduct was charged and presented as two separate offenses, the military judge specifically instructed the panel that the trial counsel’s argument was not evidence and gave a general spillover instruction, neither trial nor defense counsel offered propensity evidence or requested a propensity instruction, and the comments of trial counsel were not so egregious as to provoke an objection by trial defense counsel

Trial Stages: Merits: Findings

1. an accused may not be convicted of a crime based on a general criminal disposition
2. trial counsel’s suggestion during closing argument on findings that the members of the panel could compare the similarities between the charged sex offenses for a propensity to commit these types of offenses and see the accused’s modus operandi was improper argument; although the charged offenses were themselves the proper subject of closing argument, the underlying conduct had not been offered or admitted under MRE 404 or 413 [allowing character evidence when offered first by the accused, allowing evidence of other crimes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, and allowing evidence of prior sexual assaults when the accused is charged with a sexual assault offense], and as such, trial counsel’s invitation to the panel to compare the charged offenses to find modus operandi or propensity was improper

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when no objection is made during the trial, a counsel’s arguments are reviewed for plain error
2. plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice
3. an error is not plain and obvious if, in the context of the entire trial, appellant fails to show the military judge should be faulted for taking no action even without an objection; the relevant context includes the evidence presented at trial and the instructions given by the military judge
4. any error in the trial counsel’s closing argument on findings that the members of the panel could compare the similarities between the charged sex offenses for a propensity to commit these types of offenses and see the accused’s modus operandi did not rise to the level of plain error that required the military judge to sua sponte instruct the panel on the use of propensity evidence or take other remedial measures, where the similar conduct was charged and presented as two separate offenses, the military judge specifically instructed the panel that the trial counsel’s argument was not evidence and gave a general spillover instruction, neither trial nor defense counsel offered propensity evidence or requested a propensity instruction, and the comments of trial counsel were not so egregious as to provoke an objection by trial defense counsel

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

1. when no objection is made during the trial, a counsel’s arguments are reviewed for plain error