U.S. v. Lewis, 69 M.J. 379

First Principles: Constitutional Matters: Due Process

1. under the Due Process Clause of the Fifth Amendment, the government must prove a defendant’s guilt beyond a reasonable doubt
2. an improper implication by the trial counsel that the defendant carries the burden of proof on the issue of guilt constitutes a due process violation; the limitation on comments regarding the burden of proof does not apply, however, in circumstances where the defense has the burden of proof on a particular matter, such as an alibi defense; likewise, the limitation on comments cannot be used by the defense as both a shield and a sword

Trial Stages: Merits: Argument

1. an improper implication by the trial counsel that the defendant carries the burden of proof on the issue of guilt constitutes a due process violation; the limitation on comments regarding the burden of proof does not apply, however, in circumstances where the defense has the burden of proof on a particular matter, such as an alibi defense; likewise, the limitation on comments cannot be used by the defense as both a shield and a sword
2. when determining whether prosecutorial comment was improper, the statement must be examined in light of its context within the entire court-martial
3. in this case, where the defense articulated a strategy expressly promising an affirmative showing of innocence, attempted to make such an affirmative showing during its case on the merits, and argued in closing that it had delivered on its promise, the prosecution could (1) on cross-examination of the defense expert, rely on the defense posture and the evidence presented during the defense case as providing the basis for questions posed to the expert regarding whether his investigation had found any exculpatory evidence, and (2) during rebuttal of closing argument, rely on the defense counsel’s closing argument, which highlighted the earlier defense presentation, as providing the basis for the comments that the defense expert had found nothing exculpatory for appellant; the defense posture and the evidence opened the door to exploration of these matters; in context, the prosecution’s questions and argument fell well within the range of permissible cross-examination and argument; accordingly, appellant failed to meet his burden of establishing error, much less plain error

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in the absence of defense objection, an appellate court reviews for plain error
2. under the plain error standard, an appellant must show 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; an error is not plain and obvious if, in the context of the entire trial, the accused fails to show the military judge should be faulted for taking no action even without an objection
3. in this case, where the defense articulated a strategy expressly promising an affirmative showing of innocence, attempted to make such an affirmative showing during its case on the merits, and argued in closing that it had delivered on its promise, the prosecution could (1) on cross-examination of the defense expert, rely on the defense posture and the evidence presented during the defense case as providing the basis for questions posed to the expert regarding whether his investigation had found any exculpatory evidence, and (2) during rebuttal of closing argument, rely on the defense counsel’s closing argument, which highlighted the earlier defense presentation, as providing the basis for the comments that the defense expert had found nothing exculpatory for appellant; the defense posture and the evidence opened the door to exploration of these matters; in context, the prosecution’s questions and argument fell well within the range of permissible cross-examination and argument; accordingly, appellant failed to meet his burden of establishing error, much less plain error

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

1. the issue whether trial counsel’s cross-examination of a defense witness and his comments in closing argument constituted a due process violation by suggesting that the defense bore the burden of proof to demonstrate that appellant was not guilty involves a question of law that an appellate court reviews de novo
2. in the absence of defense objection to questions in cross-examination and to comments in closing argument, an appellate court reviews for plain error
3. under the plain error standard, an appellant must show 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; an error is not plain and obvious if, in the context of the entire trial, the accused fails to show the military judge should be faulted for taking no action even without an objection
4. when determining whether prosecutorial comment was improper, the statement must be examined in light of its context within the entire court-martial; in the course of reviewing whether an appellant was deprived of a fair trial by such comments, the question an appellate court must resolve is whether, viewed within the context of the entire trial, defense counsel’s comments clearly invited the reply