U.S. v. Bodoh, 78 M.J. 231

Military Justice Personnel: Prosecution Function: Trial Counsel

1. trial prosecutorial misconduct is behavior by the prosecuting attorney that oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense
2. prosecutorial misconduct can be generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, and prosecutors have a duty to refrain from improper methods calculated to produce a wrongful conviction
3. in terms of prejudice, while prosecutorial misconduct does not automatically require a new trial or the dismissal of the charges against the accused, relief will be granted if the trial counsel’s misconduct actually impacted on a substantial right of an accused (i.e., resulted in prejudice); in evaluating prejudice, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; it considers: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction
4. in this case involving an allegation of sexual assault, trial counsel’s references to SHARP training during voir dire were not error and did not constitute prosecutorial misconduct; although it is unclear why trial counsel inquired into whether the members believed that the SHARP program made it easier for soldiers to report sexual assaults than civilians, this question was facially benign and therefore not erroneous; the remaining questions posed about the SHARP program were designed to assess whether the members’ SHARP training would improperly influence their deliberations, and this was an appropriate line of inquiry for voir dire
5. when examining witnesses, trial counsel cannot seek to introduce, either overtly or surreptitiously, inadmissible evidence and cannot misstate legal principles
6. in this case involving an allegation of sexual assault, trial counsel erred when questioning appellant during cross-examination where, after first establishing that appellant had participated in SHARP training, he then asked a series of clearly impermissible questions founded on the false premise that a person who is intoxicated is inherently incapable of consenting to sexual acts
7. when trial counsel invokes military policies, counsel is advised to tread lightly because of the danger of interjecting the command structure into the members deliberations; a policy directive must not be used as leverage to compel a certain result in the trial itself
8. in this case involving an allegation of sexual assault, appellant was not prejudiced by trial counsel’s argument on findings that the members had learned during SHARP training that people on drugs and alcohol are more vulnerable to assault; the observation that people on drugs and alcohol are more vulnerable to assault was an unremarkable observation that is based on common knowledge
9. in this case involving an allegation of sexual assault, appellant was not prejudiced by trial counsel’s argument on findings that the members had learned during SHARP training that people on drugs and alcohol are more vulnerable to assault; the observation that people on drugs and alcohol are more vulnerable to assault was an unremarkable observation that is based on common knowledge
10. in this case involving an allegation of sexual assault, trial counsel erred in his findings argument by referencing myths taught in the SHARP program about how a victim will or should react in the course or aftermath of a sexual assault; simply stated, the myths reportedly taught about in SHARP training did not constitute trial evidence, and it was therefore erroneous for trial counsel to present argument about these myths in the context of SHARP training; however, because the government elicited testimony from its expert witness on precisely the same point when it questioned her about rape myths, the underlying point made by trial counsel was fully supported by evidence in the record; accordingly, appellant failed to demonstrate that trial counsel’s error resulted in material prejudice to a substantial right of the accused
11. in this case involving an allegation of sexual assault, the trial counsel’s argument to the members that they could consider their SHARP training in finding appellant guilty, was improper where the training reference was not based on evidence adduced at trial; however, where this reference was fleeting and vague, the trial defense counsel did not object to it, and the military judge provided ameliorative instructions to the members that (1) an intoxicated individual can still consent to sexual activity, (2) argument by counsel is not evidence, and (3) an accused may be convicted based only on evidence before the court, appellant failed to establish a reasonable probability that, absent the error, the results of the trial would have been different; accordingly, trial counsel’s passing reference to training did not constitute plain error

Military Justice Personnel: Military Judge: Generally

1. in this case involving an allegation of sexual assault, where trial counsel erred when questioning appellant by asking a series of clearly impermissible questions founded on the false premise that a person who is intoxicated is inherently incapable of consenting to sexual acts, the military judge fully cured trial counsel’s error by (1) sustaining the defense’s objection to the questioning, (2) ruling that trial counsel had misstated the law, and (3) properly summarizing the law by stating that there was nothing that says a person cannot have sex with somebody who has taken alcohol or a cough and flu medication; in light of the military judge’s curative measures, appellant failed to establish that trial counsel’s improper questioning was prejudicial

Core Criminal Law Subjects: Witnesses: Generally

1. when examining witnesses, trial counsel cannot seek to introduce, either overtly or surreptitiously, inadmissible evidence and cannot misstate legal principles

Trial Stages: Merits: Trial Procedures › Generally

1. when examining witnesses, trial counsel cannot seek to introduce, either overtly or surreptitiously, inadmissible evidence and cannot misstate legal principles

Trial Stages: Merits: Trial Procedures › Voir dire

1. voir dire is a valuable tool to determine whether potential court members will be impartial; thus, voir dire should be used to obtain information for the intelligent exercise of challenges; it is, however, subject to limitations
2. trial counsel’s references to SHARP training during voir dire were not error and did not constitute prosecutorial misconduct; although it is unclear why trial counsel inquired into whether the members believed that the SHARP program made it easier for soldiers to report sexual assaults than civilians, this question was facially benign and therefore not erroneous; the remaining questions posed about the SHARP program were designed to assess whether the members’ SHARP training would improperly influence their deliberations, and this was an appropriate line of inquiry for voir dire

Trial Stages: Merits: Argument

1. counsel should limit their findings arguments to the evidence of record, as well as all reasonable inferences fairly derived from such evidence; when argument goes beyond the facts established in the record or the reasonable inferences drawn from the evidence, this constitutes error
2. an exception to general rule that counsel should limit their findings arguments to the evidence of record, as well as all reasonable inferences fairly derived from such evidence, is that it is proper for counsel to comment during argument on contemporary history or matters of common knowledge within the community; these matters include routine personnel actions, a military branch’s drug policy, and any other matter upon which servicemembers in general have a common fund of experience and knowledge, through data notoriously accepted by all
3. when trial counsel invokes military policies, counsel is advised to tread lightly because of the danger of interjecting the command structure into the members deliberations; a policy directive must not be used as leverage to compel a certain result in the trial itself
4. in this case involving an allegation of sexual assault, appellant was not prejudiced by trial counsel’s argument on findings that the members had learned during SHARP training that people on drugs and alcohol are more vulnerable to assault; the observation that people on drugs and alcohol are more vulnerable to assault was an unremarkable observation that is based on common knowledge
5. in this case involving an allegation of sexual assault, trial counsel erred in his findings argument by referencing myths taught in the SHARP program about how a victim will or should react in the course or aftermath of a sexual assault; simply stated, the myths reportedly taught about in SHARP training did not constitute trial evidence, and it was therefore erroneous for trial counsel to present argument about these myths in the context of SHARP training; however, because the government elicited testimony from its expert witness on precisely the same point when it questioned her about rape myths, the underlying point made by trial counsel was fully supported by evidence in the record; accordingly, appellant failed to demonstrate that trial counsel’s error resulted in material prejudice to a substantial right of the accused
6. in this case involving an allegation of sexual assault, the trial counsel’s argument to the members that they could consider their SHARP training in finding appellant guilty, was improper where the training reference was not based on evidence adduced at trial; however, where this reference was fleeting and vague, the trial defense counsel did not object to it, and the military judge provided ameliorative instructions to the members that (1) an intoxicated individual can still consent to sexual activity, (2) argument by counsel is not evidence, and (3) an accused may be convicted based only on evidence before the court, appellant failed to establish a reasonable probability that, absent the error, the results of the trial would have been different; accordingly, trial counsel’s passing reference to training did not constitute plain error

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in terms of prejudice, while prosecutorial misconduct does not automatically require a new trial or the dismissal of the charges against the accused, relief will be granted if the trial counsel’s misconduct actually impacted on a substantial right of an accused (i.e., resulted in prejudice); in evaluating prejudice, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; it considers: (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. in this case involving an allegation of sexual assault, where trial counsel erred when questioning appellant by asking a series of clearly impermissible questions founded on the false premise that a person who is intoxicated is inherently incapable of consenting to sexual acts, the military judge fully cured trial counsel’s error by (1) sustaining the defense’s objection to the questioning, (2) ruling that trial counsel had misstated the law, and (3) properly summarizing the law by stating that there was nothing that says a person cannot have sex with somebody who has taken alcohol or a cough and flu medication; in light of the military judge’s curative measures, appellant failed to establish that trial counsel’s improper questioning was prejudicial
3. in this case involving an allegation of sexual assault, appellant was not prejudiced by trial counsel’s argument on findings that the members had learned during SHARP training that people on drugs and alcohol are more vulnerable to assault; the observation that people on drugs and alcohol are more vulnerable to assault was an unremarkable observation that is based on common knowledge
4. in this case involving an allegation of sexual assault, trial counsel erred in his findings argument by referencing myths taught in the SHARP program about how a victim will or should react in the course or aftermath of a sexual assault; simply stated, the myths reportedly taught about in SHARP training did not constitute trial evidence, and it was therefore erroneous for trial counsel to present argument about these myths in the context of SHARP training; however, because the government elicited testimony from its expert witness on precisely the same point when it questioned her about rape myths, the underlying point made by trial counsel was fully supported by evidence in the record; accordingly, appellant failed to demonstrate that trial counsel’s error resulted in material prejudice to a substantial right of the accused

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where appellant did not object to trial counsel’s misstatements of law or references to the SHARP program at trial, an appellate court reviews for plain error; to prevail, appellant bears the burden of establishing (1) error, (2) that is clear or obvious, and (3) results in material prejudice to a substantial right of the accused; all three prongs must be satisfied; the third prong is satisfied if the appellant shows a reasonable probability that, but for the error claimed, the outcome of the proceeding would have been different
2. in this case involving an allegation of sexual assault, the trial counsel’s argument to the members that they could consider their SHARP training in finding appellant guilty, was improper where the training reference was not based on evidence adduced at trial; however, where this reference was fleeting and vague, the trial defense counsel did not object to it, and the military judge provided ameliorative instructions to the members that (1) an intoxicated individual can still consent to sexual activity, (2) argument by counsel is not evidence, and (3) an accused may be convicted based only on evidence before the court, appellant failed to establish a reasonable probability that, absent the error, the results of the trial would have been different; accordingly, trial counsel’s passing reference to training did not constitute plain error

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

1. where appellant did not object to trial counsel’s misstatements of law or references to the SHARP program at trial, an appellate court reviews for plain error; to prevail, appellant bears the burden of establishing (1) error, (2) that is clear or obvious, and (3) results in material prejudice to a substantial right of the accused; all three prongs must be satisfied; the third prong is satisfied if the appellant shows a reasonable probability that, but for the error claimed, the outcome of the proceeding would have been different
2. in terms of prejudice, while prosecutorial misconduct does not automatically require a new trial or the dismissal of the charges against the accused, relief will be granted if the trial counsel’s misconduct actually impacted on a substantial right of an accused (i.e., resulted in prejudice); in evaluating prejudice, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; it considers: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction