U.S. v. Frey, 73 M.J. 245

Military Justice Personnel: Prosecution Function: Trial Counsel

1. trial counsel may prosecute with earnestness and vigor, but while he may strike hard blows, he is not at liberty to strike foul ones; it is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one
2. trial counsel is entitled to argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence; however, the RCMs and existing case law both establish that it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members
3. in this case, trial counsel’s sentencing argument was improper in a prosecution for engaging in sexual contact with a child and engaging in a sexual act with a child, where trial counsel appealed to the members to apply their knowledge of the “ways of the world” to sentence appellant based on a risk of recidivism through serial molestation
4. trial counsel in this case overstepped the bounds of proper argument in requesting that the members draw upon information not in evidence (their knowledge of the “ways of the world”) to make a specific conclusion that the accused was a serial child molester who had offended before and in theory would offend again; one is hard pressed to imagine many statements more damaging than the implication that someone who has been convicted of molesting a single child will go on to molest many more

Military Justice Personnel: Prosecution Function: Misconduct

1. the standard for determining prosecutorial misconduct is that the trial counsel may prosecute with earnestness and vigor, but while he may strike hard blows, he is not at liberty to strike foul ones; it is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one
2. trial counsel is entitled to argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence; however, the RCMs and existing case law both establish that it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members
3. in this case, trial counsel’s sentencing argument was improper in a prosecution for engaging in sexual contact with a child and engaging in a sexual act with a child, where trial counsel appealed to the members to apply their knowledge of the “ways of the world” to sentence appellant based on a risk of recidivism through serial molestation
4. prosecutorial misconduct does not automatically require a new trial or the dismissal of the charges against the accused; relief will be granted only if the trial counsel’s misconduct actually impacted on a substantial right of the accused (i.e., resulted in prejudice); with respect to a sentencing argument, reversal is appropriate when the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the accused was sentenced on the basis of the evidence alone
5. trial counsel in this case overstepped the bounds of proper argument in requesting that the members draw upon information not in evidence (their knowledge of the “ways of the world”) to make a specific conclusion that the accused was a serial child molester who had offended before and in theory would offend again; one is hard pressed to imagine many statements more damaging than the implication that someone who has been convicted of molesting a single child will go on to molest many more

Trial Stages: Sentence and Punishment: Evidence

1. members are supposed to adjudicate a sentence based on the evidence presented and the military judge’s instructions, which define, among other things, the potential confinement exposure of the accused and relevant sentencing factors and philosophies; nowhere does the MCM or case law suggest that members are permitted to ignore this evidentiary requirement and replace it with their personal knowledge of the “ways of the world” to determine an appropriate sentence
2. whether or not a person convicted of a particular offense is more or less likely to offend again or become a serial recidivist is a question requiring expert testimony, empirical research, and scientific and psychological method, inquiry, and evidence; recidivism is not a matter resolved through appeal to common sense or a member’s knowledge of “the ways of the world”
3. members are expected to use their common sense in assessing the credibility of testimony as well as other evidence presented at trial
4. when determining a sentence, members are allowed to consider all evidence properly introduced before findings as well as the proffered sentencing evidence

Trial Stages: Sentence and Punishment: Argument

1. trial counsel is entitled to argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence; however, the RCMs and existing case law both establish that it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members
2. in this case, trial counsel’s sentencing argument was improper in a prosecution for engaging in sexual contact with a child and engaging in a sexual act with a child, where trial counsel appealed to the members to apply their knowledge of the “ways of the world” to sentence appellant based on a risk of recidivism through serial molestation
3. RCM 1001, governing presentencing procedure, states that during argument, trial counsel may refer to generally accepted sentencing philosophies including specific deterrence of misconduct by the accused; such sentencing theories also encompass protecting society from the wrongdoer and general deterrence, preventing others from committing similar offenses in the future
4. trial counsel in this case overstepped the bounds of proper argument in requesting that the members draw upon information not in evidence (their knowledge of the “ways of the world”) to make a specific conclusion that the accused was a serial child molester who had offended before and in theory would offend again; one is hard pressed to imagine many statements more damaging than the implication that someone who has been convicted of molesting a single child will go on to molest many more
5. whether or not a person convicted of a particular offense is more or less likely to offend again or become a serial recidivist is a question requiring expert testimony, empirical research, and scientific and psychological method, inquiry, and evidence; recidivism is not a matter resolved through appeal to common sense or a member’s knowledge of “the ways of the world”
6. the term “ways of the world” refers to court members’ evaluation of lay testimony, defenses, and witness credibility; the term can include the fact that a single punch to the torso or head can kill or cause serious bodily injury, or that an accused recanted his confession after talking to a lawyer; it does not, however, include a likelihood that an accused used drugs given proof he had used them before, or the recidivism rates of child molesters

Trial Stages: Sentence and Punishment: Instructions

1. whether it is useful rather than confusing to also instruct members to use their knowledge of “the ways of the world” to assess the credibility of evidence is a matter of discretion for the military judge; however, what military judges cannot do is invite members to substitute their understanding of the “ways of the world” for evidence or for the military judge’s instructions on sentencing; one person’s perception of the ways of the world might vary dramatically from another’s, based on education, experience, and personal bias; the phrase “common sense” is sufficient, and more accurate, to convey the sort of personal knowledge members can rely upon when weighing evidence and formulating their decisions; though language encouraging members to rely upon their knowledge of the “ways of the world” is present in the Military Judges’ Benchbook, it was stricken from the 1984 version of the MCM and is not part of the current MCM

Trial Stages: Appeals: Harmless / Prejudicial Error

1. three factors are balanced to assess whether misconduct, including improper sentencing argument, impacted the accused’s substantial rights and the integrity of his trial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction
2. although trial counsel’s improper insinuation in his sentencing argument that appellant was necessarily guilty of additional offenses and would be a serial recidivist if not confined was both unsubstantiated and severe, and although the military judge’s sentencing instructions were not sufficient to cure trial counsel’s improper argument, the substantial rights of appellant were not materially prejudiced where the members adjudged an even lighter sentence than the government requested and settled upon the period of confinement that appellant asked for, where the weight of the evidence amply supported the sentence adjudged, and where appellant failed to demonstrate that he was not sentenced on the basis of the evidence alone

Trial Stages: Appeals: Remedies › Generally

1. prosecutorial misconduct does not automatically require a new trial or the dismissal of the charges against the accused; relief will be granted only if the trial counsel’s misconduct actually impacted on a substantial right of the accused (i.e., resulted in prejudice); with respect to a sentencing argument, reversal is appropriate when the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the accused was sentenced on the basis of the evidence alone

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

1. improper argument involves a question of law that an appellate court reviews de novo; the legal test for improper argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused; where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that the accused was sentenced on the basis of the evidence alone
2. three factors are balanced to assess whether misconduct, including improper sentencing argument, impacted the accused’s substantial rights and the integrity of his trial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction