U.S. v. Sewell, 76 M.J. 14

Military Justice Personnel: Prosecution Function: Misconduct

1. improper argument is one facet of prosecutorial misconduct
2. prosecutorial misconduct occurs when trial counsel oversteps the bounds of that propriety and fairness that should characterize the conduct of such an officer in the prosecution of a criminal offense; such conduct can be generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon

Trial Stages: Merits: Argument

1. improper argument is one facet of prosecutorial misconduct
2. in his arguments, trial counsel may strike hard blows, but he is not at liberty to strike foul ones
3. it is appropriate for trial counsel to argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence; he may not, however, inject his personal opinion into the panel’s deliberations, inflame the members’ passions or prejudices, or ask them to convict the accused on the basis of criminal predisposition

Trial Stages: Appeals: Harmless / Prejudicial Error

1. three factors guide an appellate court’s determination of the prejudicial effect of improper argument: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the convictions; the third factor may so clearly favor the government that the appellant cannot demonstrate prejudice
2. in this case, even assuming clear or obvious error with respect to some of trial counsel’s statements during argument in which he allegedly made improper propensity arguments, vouched for witness credibility, referenced facts not in evidence, and inflamed the passions of the panel, there was no prejudice given the weight of the evidence supporting the convictions and given the fact that appellant was acquitted of all offenses for which there was no corroborating evidence

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

1. an appellate court reviews questions of improper argument and prosecutorial misconduct de novo
2. when preserved by objection, allegations of improper argument are reviewed by an appellate court de novo to determine whether the military judge’s ruling constitutes an abuse of discretion; on the other hand, if there is no objection at trial, appellant has the burden of establishing the prejudice; in either case, reversal is warranted only when the trial counsel’s comments, taken as a whole, were so damaging that the appellate court cannot be confident that the members convicted appellant on the basis of the evidence alone