U.S. v. Clark, 69 M.J. 438

First Principles: Constitutional Matters: Confessions

1. servicemembers have a constitutional, statutory, and regulatory right to silence
2. it is settled that the government may not use a defendant’s exercise of his Fifth Amendment rights as substantive evidence against him
3. based on the language of MRE 304(h)(3) and the weight of authority in the federal circuits, it is constitutional error to introduce evidence of appellant’s post-apprehension silence as substantive evidence of guilt, and to then comment on that evidence in closing argument
4. the Fifth Amendment cannot with one hand protect an accused from being compelled to testify and yet with the other hand permit trial counsel to argue that an accused’s silent demeanor in response to an accusation of wrongdoing is tantamount to a confession of guilt
5. the government is permitted to make a fair response to claims made by the defense, even when a Fifth Amendment right is at stake

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. when assessing the admissibility of the evidence of an accused’s demeanor, a military judge must identify the demeanor at issue and ask whether the demeanor is itself testimonial or not testimonial in nature, or whether evidence of the demeanor at issue includes improper commentary on the accused’s silence; if evidence of an accused’s demeanor is testimonial or includes an improper comment on silence, the judge analyzes the evidence under the Fifth Amendment or applicable statutory and regulatory safeguards; where the evidence is neither testimonial nor an improper comment on silence, the judge then considers whether the accused’s demeanor is relevant under MRE 404(b) or other evidentiary rules relating to relevance

Core Criminal Law Subjects: Evidence: Generally

1. an accused’s lack of response or reaction to an accusation is not demeanor evidence, but a failure to speak that may not be used as substantive evidence against him
2. demeanor evidence is evidence that describes or portrays outward appearance or behavior, such as facial expressions, tone of voice, gestures, and the hesitation or readiness to answer questions; in its traditional sense, demeanor merely refers to the nonverbal conduct of a testifying witness or of the accused while on the witness stand or in the courtroom, rather than evidence counsel may seek to formally admit under the rules of evidence; however, demeanor evidence may also include physical evidence (a photograph) or real evidence, as in the case of physical observations made by a witness testifying, including other exemplars used to identify the accused (e.g., where the suspect was made to stand, to assume a stance, to walk, or to make a particular gesture); furthermore, an accused’s demeanor has been admitted where it is relevant to an accused’s consciousness of guilt under MRE 404(b), such as in cases of an accused fleeing from the scene of a crime or destroying evidence, or in cases of witness or prosecutor intimidation; these categories of evidence of an accused’s demeanor are generally nontestimonial and thus admissible and subject to appropriate comment where relevant under the rules of evidence; demeanor evidence may also be testimonial, however, such as where an accused points to the scene of a crime and then to himself while nodding his head up and down in response to police questioning
3. when assessing the admissibility of the evidence of an accused’s demeanor, a military judge must identify the demeanor at issue and ask whether the demeanor is itself testimonial or not testimonial in nature, or whether evidence of the demeanor at issue includes improper commentary on the accused’s silence; if evidence of an accused’s demeanor is testimonial or includes an improper comment on silence, the judge analyzes the evidence under the Fifth Amendment or applicable statutory and regulatory safeguards; where the evidence is neither testimonial nor an improper comment on silence, the judge then considers whether the accused’s demeanor is relevant under MRE 404(b) or other evidentiary rules relating to relevance
4. demeanor evidence is relevant to an accused’s consciousness of guilt only in cases where the inference of guilt is clear
5. subtle physical demeanor is not admissible as relevant to an accused’s consciousness of guilt, because it is equally susceptible to other inferences

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

1. servicemembers have a constitutional, statutory, and regulatory right to silence
2. it is settled that the government may not use a defendant’s exercise of his Fifth Amendment rights as substantive evidence against him
3. MRE 304(h)(3) safeguards an accused’s right to remain silent, providing that a person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation; based on the language of MRE 304(h)(3) and the weight of authority in the federal circuits, it is constitutional error to introduce evidence of appellant’s post-apprehension silence as substantive evidence of guilt, and to then comment on that evidence in closing argument; a lack of response or reaction to an accusation is not demeanor evidence, but a failure to speak
4. testimonial demeanor, like other testimonial evidence in response to police questioning, implicates an accused’s right to silence and against self-incrimination, thus triggering the application of the Fifth Amendment and its statutory and regulatory safeguards; even where demeanor is nontestimonial, improper commentary on the accused’s silence in response to police questioning when presenting evidence of an accused’s demeanor may nevertheless implicate the same rights and protections as testimonial evidence; thus, where the evidence concerns testimonial demeanor or includes improper commentary on the accused’s silence, that demeanor evidence is generally inadmissible under the Fifth Amendment and its statutory and regulatory safeguards, unless the accused waives those rights or otherwise invites the evidence
5. when assessing the admissibility of the evidence of an accused’s demeanor, a military judge must identify the demeanor at issue and ask whether the demeanor is itself testimonial or not testimonial in nature, or whether evidence of the demeanor at issue includes improper commentary on the accused’s silence; if evidence of an accused’s demeanor is testimonial or includes an improper comment on silence, the judge analyzes the evidence under the Fifth Amendment or applicable statutory and regulatory safeguards; where the evidence is neither testimonial nor an improper comment on silence, the judge then considers whether the accused’s demeanor is relevant under MRE 404(b) or other evidentiary rules relating to relevance
6. trial counsel’s comments in his opening statement, direct examination of the investigating agent, and closing argument constituted plain error because they clearly commented on appellant’s silence in response to appellant’s post-apprehension, pre-advisement accusation of criminal conduct, in violation of MRE 304(h)(3) and the Fifth Amendment right to silence; first, trial counsel’s opening statement reference to appellant’s reaction - “shoulders slumped and his head dropped; chin to chest” - as his response to being confronted with being suspected of communicating sexual language with a minor conveyed that appellant failed to deny the accusation, rather than merely describe appellant’s body movements as one of a series of events to describe what was happening; second, during the direct examination of the investigating agent, trial counsel not only elicited explicit comments on appellant’s response of silence but explicitly commented on appellant’s silence himself in the examination questions; finally, trial counsel relied on these comments in his closing argument to explicitly argue that appellant’s silence evidenced his guilt
7. the Fifth Amendment cannot with one hand protect an accused from being compelled to testify and yet with the other hand permit trial counsel to argue that an accused’s silent demeanor in response to an accusation of wrongdoing is tantamount to a confession of guilt
8. trial counsel may use the fact of post-arrest silence to contradict an accused who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest, thus acting not as substantive evidence of guilt but rather as a challenge to the accused’s testimony as to his behavior following arrest; however, trial counsel is prohibited from treating the accused’s silence as substantive evidence of guilt
9. trial counsel’s comments on rebuttal closing argument that the first thing that appellant said when he was confronted by law enforcement officers was said through his defeated body language and silence were comments that were not invited as a fair response to appellate defense counsel’s general closing argument that “right from the start,” appellant had stated that he thought he was communicating over the internet with a cop and not a 13-year-old girl; appellant did not testify to making an exculpatory statement to the police after his arrest, and his defense counsel did not argue that the “first” thing appellant said was, “I thought it was a cop”; taken in context, trial counsel’s comments went beyond what was permissible as fair response and used appellant’s demeanor and silence as evidence of guilt; as such, this was constitutional error

Trial Stages: Merits: Argument

1. the Fifth Amendment cannot with one hand protect an accused from being compelled to testify and yet with the other hand permit trial counsel to argue that an accused’s silent demeanor in response to an accusation of wrongdoing is tantamount to a confession of guilt
2. the government is permitted to make a fair response to claims made by the defense, even when a Fifth Amendment right is at stake
3. trial counsel’s comments made in rebuttal closing argument to defense counsel’s claims made in closing argument must be examined in context to determine if they were fair, given the defense theory of the case

Trial Stages: Appeals: Harmless / Prejudicial Error

1. with respect to constitutional error, an appellate court must be satisfied beyond a reasonable doubt that the error was harmless beyond a reasonable doubt
2. any error in trial counsel’s use of appellant’s demeanor and silence as evidence of guilt was harmless beyond a reasonable doubt in a prosecution for attempting to communicate indecent language to a child where the government’s case against appellant was supported by substantial evidence; appellant was positively identified by his name and contact information online after he became “friends” with a police officer posing on the internet as a 13-year-old girl, and he admitted both in a police interview and in a sworn statement to sexual communications with someone he believed to be thirteen years old

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where the asserted errors regarding trial counsel’s references during the opening statement, direct examination of appellant, and closing argument to appellant’s exercise of his right to silence were not preserved at trial, an appellate court reviews them for plain error
2. whether there was plain error is a question reviewed de novo
3. to find plain error, appellant must show that there is error, that the error was plain or obvious, and that the error materially prejudiced his substantial rights
4. trial counsel’s comments in his opening statement, direct examination of the investigating agent, and closing argument constituted plain error because they clearly commented on appellant’s silence in response to appellant’s post-apprehension, pre-advisement accusation of criminal conduct, in violation of MRE 304(h)(3) and the Fifth Amendment right to silence; first, trial counsel’s opening statement reference to appellant’s reaction - “shoulders slumped and his head dropped; chin to chest” - as his response to being confronted with being suspected of communicating sexual language with a minor conveyed that appellant failed to deny the accusation, rather than merely describe appellant’s body movements as one of a series of events to describe what was happening; second, during the direct examination of the investigating agent, trial counsel not only elicited explicit comments on appellant’s response of silence but explicitly commented on appellant’s silence himself in the examination questions; finally, trial counsel relied on these comments in his closing argument to explicitly argue that appellant’s silence evidenced his guilt

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

1. whether there has been improper reference to an accused’s exercise of his constitutional rights is a question of law that an appellate court reviews de novo
2. where the asserted errors regarding trial counsel’s references during the opening statement, direct examination of appellant, and closing argument to appellant’s exercise of his right to silence were not preserved at trial, an appellate court reviews them for plain error
3. whether there was plain error is a question reviewed de novo
4. to find plain error, appellant must show that there is error, that the error was plain or obvious, and that the error materially prejudiced his substantial rights
5. when assessing the admissibility of the evidence of an accused’s demeanor, an appellate court must identify the demeanor at issue and ask whether the demeanor is itself testimonial or not testimonial in nature, or whether evidence of the demeanor at issue includes improper commentary on the accused’s silence; if evidence of an accused’s demeanor is testimonial or includes an improper comment on silence, the court analyzes the evidence under the Fifth Amendment or applicable statutory and regulatory safeguards; where the evidence is neither testimonial nor an improper comment on silence, the court then considers whether the accused’s demeanor is relevant under MRE 404(b) or other evidentiary rules relating to relevance
6. in order to determine whether trial counsel’s comments in his rebuttal closing argument to claims made by defense counsel in his closing argument were fair, an appellate court must examine them in context, given the defense theory of the case
7. with respect to constitutional error, an appellate court must be satisfied beyond a reasonable doubt that the error was harmless beyond a reasonable doubt

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. servicemembers have a constitutional, statutory, and regulatory right to silence