U.S. v. Flores, 69 M.J. 366

Military Justice Personnel: Prosecution Function: Trial Counsel

1. a trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in her defense

Military Justice Personnel: Military Judge: General Powers

1. in a guilty plea context, a military judge who has advised an accused that she is waiving her right against self-incrimination only to those offenses to which she is pleading guilty cannot later rely on those statements as proof of a separate offense; to do so would compel an accused to incriminate herself in the separate criminal proceeding

Trial Stages: Merits: Pleas, generally

1. a guilty plea and related statements to one offense cannot be admitted to prove any element of a separate offense; however, this prohibition does not apply when using a plea to a lesser included offense to prove a common fact or element of a greater offense

Trial Stages: Merits: Guilty Pleas

1. in a guilty plea context, a military judge who has advised an accused that she is waiving her right against self-incrimination only to those offenses to which she is pleading guilty cannot later rely on those statements as proof of a separate offense; to do so would compel an accused to incriminate herself in the separate criminal proceeding
2. a guilty plea and related statements to one offense cannot be admitted to prove any element of a separate offense; however, this prohibition does not apply when using a plea to a lesser included offense to prove a common fact or element of a greater offense

Trial Stages: Merits: Argument

1. a trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in her defense
2. a direct reference made by trial counsel during his closing argument on the merits to a statement made by appellant during the providence inquiry in an attempt to show that appellant corroborated the testimony of another witness was plain and obvious error
3. trial counsel’s comment during closing argument on the merits that compared a witness’s trial testimony regarding the number of photographs appellant had taken of detainees at an Iraqi detention facility to protected statements made by appellant during the providence inquiry was a comment on appellant’s right to remain silent and an error of constitutional dimension
4. in cases where appellant does not testify and trial counsel argues on the merits that appellant had not been forthcoming in her version of facts, this tactic is fraught with danger as it often implicates appellant’s right to remain silent
5. 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 an accused to refute the government’s evidence or to support his own claims; a constitutional violation occurs only if either the accused alone has the information to contradict the government’s evidence referred to or the factfinder naturally and necessarily would interpret the summation as a comment on the failure of the accused to testify
6. after defense counsel argued during closing argument that a government witness was not a credible witness, trial counsel’s rebuttal argument which summarized the evidence introduced during the court-martial and argued that it corroborated the government witness’s testimony was not an improper comment on appellant’s failure to testify, but rather proper comment on the evidence, where trial counsel reviewed the evidence before the court and then compared the witness’s testimony with appellant’s only version of the facts, which was contained in her properly admitted pretrial statements to investigators
7. it is well established that the trial counsel may comment during his closing argument on the failure of an accused to refute the government’s evidence or to support the accused’s own claims
8. the test for determining whether an indirect remark by trial counsel during closing argument on the merits constitutes improper comment on an accused’s failure to testify is whether the language used was manifestly intended to be, or was of such character that the factfinder would naturally and necessarily take it to be a comment on the failure of the accused to testify

Trial Stages: Merits: Findings

1. in a guilty plea context, a military judge who has advised an accused that she is waiving her right against self-incrimination only to those offenses to which she is pleading guilty cannot later rely on those statements as proof of a separate offense; to do so would compel an accused to incriminate herself in the separate criminal proceeding

Trial Stages: Appeals: Cumulative Error

1. it is well established that an appellate court can order a rehearing based on the accumulation of errors not reversible individually
2. appellate courts are far less likely to find cumulative error where the record contains overwhelming evidence of an accused’s guilt; in this case, with respect to the errors found, there was not a reasonable possibility that, taken cumulatively, the errors might have contributed to the conviction where the evidence of appellant’s guilt was indeed overwhelming

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when an objection is made to a nonconstitutional error, appellate courts determine whether the error materially prejudiced the substantial rights of the accused
2. regardless of whether there was an objection or not, in the context of a constitutional error, the burden is on the government to establish that the comments were harmless beyond a reasonable doubt
3. a plain and obvious error that occurred when trial counsel, during his closing argument on the merits, used a statement made by appellant during the providence inquiry in an attempt to show that appellant corroborated the testimony of another witness, was harmless beyond a reasonable doubt, where the referenced corroboration was contained in a voluntary pretrial statement made by appellant to investigators, which was properly admitted at trial
4. although trial counsel’s comment during closing argument on the merits that compared a witness’s trial testimony regarding the number of photographs appellant had taken of detainees to protected statements made by appellant during the providence inquiry was a comment on appellant’s right to remain silent and an error of constitutional dimension, the error was harmless beyond a reasonable doubt, where appellant’s voluntary pretrial statements that were properly before the court also supported the implication that appellant had not been forthcoming about the number of photographs she had taken
5. even if trial counsel’s comment during closing argument on the merits that appellant had never given a set story to investigators was an improper reference to appellant’s right to remain silent, the error was harmless beyond a reasonable doubt in light of the truly overwhelming evidence of appellant’s guilt of wrongfully fraternizing with detainees and making false official statements

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when no objection is made to a nonconstitutional error during a court-martial, a trial counsel’s arguments are reviewed for plain error; plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice
2. a direct reference made by trial counsel during his closing argument on the merits to a statement made by appellant during the providence inquiry in an attempt to show that appellant corroborated the testimony of another witness was plain and obvious error
3. even if trial counsel’s comment during closing argument on the merits that nothing introduced during the court-martial corroborated what appellant had said when she had the opportunity to do so could be interpreted to be a reference to appellant’s right to remain silent, the comment did not constitute plain and obvious error, where appellant made two voluntary pretrial statements to investigators that were properly before the court, and in context, trial counsel’s argument was that nothing was admitted during the court-martial that corroborated those pretrial statements

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

1. whether a trial counsel’s comments improperly reference an accused’s invocation of an accused’s constitutional right to remain silent is a question of law that an appellate court reviews de novo
2. when an objection is made to a nonconstitutional error, appellate courts determine whether the error materially prejudiced the substantial rights of the accused
3. when no objection is made to a nonconstitutional error during the court-martial, a trial counsel’s arguments are reviewed for plain error; plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice
4. regardless of whether there was an objection or not to a nonconstitutional error, in the context of a constitutional error, the burden is on the government to establish that the comments were harmless beyond a reasonable doubt
5. comments made by trial counsel in argument that are challenged as being an improper reference to an accused’s right to remain silent are reviewed in context rather than in isolation
6. the test for determining whether an indirect remark by trial counsel during closing argument on the merits constitutes improper comment on an accused’s failure to testify is whether the language used was manifestly intended to be, or was of such character that the factfinder would naturally and necessarily take it to be a comment on the failure of the accused to testify