U.S. v. Paige, 67 M.J. 442

First Principles: Constitutional Matters: Confessions

1. members of the armed forces, like their civilian counterparts, may not be compelled to incriminate themselves in a criminal case
2. a military accused has the right not to testify, and trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense
3. the privilege against self-incrimination provides an accused servicemember with the right not to testify at his court-martial and precludes comment by trial counsel on his silence
4. a constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the members naturally and necessarily would interpret the summation as comment on the failure of the accused to testify

Military Justice Personnel: Prosecution Function: Trial Counsel

1. a military accused has the right not to testify, and trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense
2. the privilege against self-incrimination provides an accused servicemember with the right not to testify at his court-martial and precludes comment by trial counsel on his silence
3. it is permissible for trial counsel to comment on the defense’s failure to refute government evidence or to support its own claims
4. a constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the members naturally and necessarily would interpret the summation as comment on the failure of the accused to testify
5. the discussion to RCM 919 suggests that trial counsel may not argue that the prosecution’s evidence is unrebutted if the only rebuttal could come from the accused

Core Criminal Law Subjects: Defenses: Mistake of Fact

1. mistake of fact as to consent is an affirmative defense that can be raised even in the absence of an accused’s testimony

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

1. a military accused has the right not to testify, and trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense
2. the privilege against self-incrimination provides an accused servicemember with the right not to testify at his court-martial and precludes comment by trial counsel on his silence
3. a constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the members naturally and necessarily would interpret the summation as comment on the failure of the accused to testify
4. the discussion to RCM 919 suggests that trial counsel may not argue that the prosecution’s evidence is unrebutted if the only rebuttal could come from the accused

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Self-incrimination

1. members of the armed forces, like their civilian counterparts, may not be compelled to incriminate themselves in a criminal case
2. a military accused has the right not to testify, and trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense
3. the privilege against self-incrimination provides an accused servicemember with the right not to testify at his court-martial and precludes comment by trial counsel on his silence
4. a constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the members naturally and necessarily would interpret the summation as comment on the failure of the accused to testify
5. the discussion to RCM 919 suggests that trial counsel may not argue that the prosecution’s evidence is unrebutted if the only rebuttal could come from the accused

Trial Stages: Merits: Argument

1. a military accused has the right not to testify, and trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense
2. the privilege against self-incrimination provides an accused servicemember with the right not to testify at his court-martial and precludes comment by trial counsel on his silence
3. it is permissible for trial counsel to comment on the defense’s failure to refute government evidence or to support its own claims
4. a constitutional violation occurs only if either the defendant alone has the information to contradict the government evidence referred to or the members naturally and necessarily would interpret the summation as comment on the failure of the accused to testify
5. the discussion to RCM 919 suggests that trial counsel may not argue that the prosecution’s evidence is unrebutted if the only rebuttal could come from the accused
6. trial counsel’s comments in argument in a rape trial that there was uncontradicted evidence of the alleged victim’s intoxicated condition just prior to and at the instance of penetration did not violate appellant’s right not to testify, even though the alleged victim could not remember what happened and appellant was thus the only person who could testify as to the alleged victim’s condition at that time, where the closing argument did not focus on that time period
7. trial counsel’s comments in argument in a rape trial that there was uncontradicted evidence of the alleged victim’s intoxicated condition during the intercourse violated appellant’s right not to testify, where the alleged victim could not remember what happened and appellant thus was the only person who could have contradicted the only eyewitness’s testimony with respect to that time period
8. trial counsel’s comments in argument that there was uncontradicted evidence of the alleged victim’s intoxicated condition after intercourse did not violate appellant’s right not to testify in rape trial, even though the alleged victim could not remember what happened, where appellant was not present during that period and thus could not have contradicted the evidence in question
9. the members would not naturally and necessarily interpret the trial counsel’s summation in a rape trial as comment on the failure of the accused to testify where trial counsel’s closing argument addressed the evidence raised through direct and cross-examination of numerous government and defense witnesses who provided extensive observations of the alleged victim’s intoxicated condition as a sequence through time; the testimony of the defense’s own witnesses contributed to the development of the sequence, which extended beyond the crucial time periods immediately preceding and following the rape to the point where the alleged victim was receiving medical attention at the barracks, in the ambulance, and at the hospital; in emphasizing that the evidence at the time of the rape and immediately after the rape was uncontradicted, trial counsel’s summation stressed consistency between the observations of two witnesses, contrasting it with the more varied nature of the testimony surrounding the other witnesses’ observations as the evening progressed
10. trial counsel’s comments in argument in a rape trial that appellant had to assert that his mistake was honest to establish a mistake of fact defense violated appellant’s right not to testify, where trial counsel’s choice of words suggested that appellant had to testify to establish the defense

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the harmless beyond a reasonable doubt standard when the error involves remarks that trial counsel made during closing argument pertaining to an accused’s decision to exercise his Fifth Amendment rights is whether there is a reasonable possibility that the error complained of might have contributed to the conviction; to say that an error did not contribute to the ensuing verdict is to conclude that the error was unimportant in relation to everything else the members considered on the issue in question, as revealed in the record
2. trial counsel’s plain and obvious error in commenting in argument in a rape trial that appellant had to assert that his mistake was honest to establish a mistake of fact defense was harmless beyond a reasonable doubt, where the evidence strongly supported that the victim was incapable of consenting to sexual intercourse due to intoxication, where the extensive and consistent testimony addressing the victim’s condition immediately before the intercourse strongly supported that the defense of mistake of fact did not exist, and where the members were instructed that appellant had a right to remain silent and that they could not draw any adverse inference to appellant from the fact that he did not testify as a witness; trial counsel’s error was unimportant in relation to everything else the members considered

Trial Stages: Appeals: Preservation of Error / Plain Error

1. an appellant meets the plain error standard if he establishes that (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights; once appellant meets his burden of establishing plain error and if the error is of constitutional dimension, the burden shifts to the government to convince the appellate court that this constitutional error was harmless beyond a reasonable doubt
2. trial counsel’s comments in argument in a rape trial that there was uncontradicted evidence of the alleged victim’s intoxicated condition during the intercourse was not plain or obvious error, where a second witness corroborated almost all of the only eyewitness’s testimony
3. trial counsel’s comments in argument in a rape trial that appellant had to assert that his mistake was honest to establish a mistake of fact defense was plain or obvious error, where trial counsel’s choice of words suggested that appellant had to testify to establish the defense and the members would have naturally and necessarily interpreted this aspect of trial counsel’s summation as comment on appellant’s failure to testify

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

1. in determining whether a trial counsel violated an accused’s right not to testify at his court-martial, an appellate court examines a prosecutorial comment within the context of the entire court-martial
2. whether a trial counsel’s comments improperly invoked appellant’s constitutional right not to testify is a question of law that an appellate court reviews de novo; where defense counsel did not object to any of trial counsel’s comments, an appellate court reviews for plain error
3. an appellant meets the plain error standard if he establishes that (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights; once appellant meets his burden of establishing plain error and if the error is of constitutional dimension, the burden shifts to the government to convince the appellate court that this constitutional error was harmless beyond a reasonable doubt

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

1. although the discussion section of the MCM is non-binding, this statement reflects applicable judicial precedent