U.S. v. Norwood, 81 M.J. 12

Military Justice Personnel: Prosecution Function: Misconduct

1. a prosecutor proffers an improper argument amounting to prosecutorial misconduct when the argument 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. trial counsel may properly ask for a severe sentence, but they cannot threaten the court members with the specter of contempt or ostracism if they reject their request
3. in this case, the prosecutor committed error that was plain or obvious in the sentencing proceeding when she pressured the members to consider how their fellow servicemembers would judge them and the sentence they adjudged instead of the evidence at hand; furthermore, neither the defense counsel nor the military judge took action to address the issue themselves, and thus there was a total lack of curative measures to redress this misconduct; in addition, the error caused material prejudice to the substantial rights of appellant where the prosecutor’s egregious attempt to pressure the members resulted in a reasonable probability that the sentence adjudged was not based on the evidence alone and was greater than it would have been otherwise

Military Justice Personnel: Military Judge: Discretion

1. a military judge’s decision constitutes an abuse of discretion if his or her findings of fact are clearly erroneous, the decision is influenced by an erroneous view of the law, or the decision is outside the range of choices reasonably arising from the applicable facts and the law

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. hearsay statements (out of court statements offered into evidence to prove the truth of the matter asserted) usually are inadmissible in courts‑martial

Core Criminal Law Subjects: Evidence: Prior Consistent Statements

1. a prior consistent statement made out of court may not constitute hearsay, and thus can be admitted as substantive evidence, if certain threshold requirements are first met: (1) the declarant of the statement testifies at the court‑martial, (2) the declarant is subject to cross-examination, and (3) the statement is consistent with the declarant’s testimony; furthermore, the prior consistent statement to be offered must either (1) rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying, or (2) rehabilitate the declarant’s credibility as a witness when attacked on another ground; finally, the party that attempts to admit the prior consistent statement into evidence bears the burden of proving that it is admissible
2. in this case, the military judge did not err by admitting the substantive portions of the victim’s videotaped forensic interview as a prior consistent statement where the interview served to rehabilitate the victim’s credibility after the defense attacked it on cross-examination on the ground that her testimony was coached by the government and the interview was consistent with the victim’s trial testimony
3. even if the military judge erred in concluding that a prior consistent statement was admissible under one prong of the rule, there could not be prejudice when the statement was still admissible under the other prong of the rule
4. the prior statement admitted as a prior consistent statement need not be identical in every detail to the declarant’s testimony at trial for it to be a prior consistent statement; the statement should be for the most part consistent, and in particular, consistent with respect to the facts of central importance to the trial

Trial Stages: Merits: Argument

1. a prosecutor proffers an improper argument amounting to prosecutorial misconduct when the argument 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. where the military judge erred in overruling defense counsel’s objection to the prosecutor’s improper argument that the victim’s family believed that she was telling the truth in this prosecution for the sexual abuse of a child, the argument did not amount to severe misconduct, particularly because no one would expect her family not to believe her and it only made up a few lines of rebuttal argument, the defense immediately objected to the argument, and, although the military judge overruled the objection, he issued a curative instruction explaining that the members alone are to judge witnesses’ credibility
3. although the prosecutors in this prosecution for the sexual abuse of a child case clearly committed obvious error during findings by repeatedly vouching for the victim, there was no material prejudice to appellant where the victim testified credibly that appellant sexually abused her and, despite strenuous efforts to undermine her credibility, the defense failed to offer a plausible reason as to why the victim would have fabricated these allegations; therefore, appellant could not show a reasonable probability that he would not have been convicted in the absence of these improper arguments
4. arguing an inflammatory hypothetical scenario with no basis in evidence amounts to improper argument

Trial Stages: Merits: Findings

1. a court-martial must reach a decision based only on the facts in evidence

Trial Stages: Sentence and Punishment: Argument

1. a prosecutor proffers an improper argument amounting to prosecutorial misconduct when the argument 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. a prosecutor’s reference to an accused as a child molester was a permissible characterization supported by the charge and the evidence where the accused was prosecuted for and convicted of one specification of sexual abuse of a child
3. arguing an inflammatory hypothetical scenario with no basis in evidence amounts to improper argument
4. trial counsel may properly ask for a severe sentence, but they cannot threaten the court members with the specter of contempt or ostracism if they reject their request
5. in this case, the prosecutor committed error that was plain or obvious in the sentencing proceeding when she pressured the members to consider how their fellow servicemembers would judge them and the sentence they adjudged instead of the evidence at hand; furthermore, neither the defense counsel nor the military judge took action to address the issue themselves, and thus there was a total lack of curative measures to redress this misconduct; in addition, the error caused material prejudice to the substantial rights of appellant where the prosecutor’s egregious attempt to pressure the members resulted in a reasonable probability that the sentence adjudged was not based on the evidence alone and was greater than it would have been otherwise

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if a military judge did improperly admit evidence, an appellate court evaluates whether the error prejudiced the appellant, weighing (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
2. when an accused objects to an improper argument during his court‑martial, an appellate court reviews the issue de novo; in that de novo review, the appellate court determines whether any error materially prejudiced the appellant’s substantial rights under Article 59, UCMJ; in this regard, it weighs three factors to determine whether trial counsel’s improper arguments were prejudicial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction
3. in this case, the prosecutor committed error that was plain or obvious in the sentencing proceeding when she pressured the members to consider how their fellow servicemembers would judge them and the sentence they adjudged instead of the evidence at hand; furthermore, neither the defense counsel nor the military judge took action to address the issue themselves, and thus there was a total lack of curative measures to redress this misconduct; in addition, the error caused material prejudice to the substantial rights of appellant where the prosecutor’s egregious attempt to pressure the members resulted in a reasonable probability that the sentence adjudged was not based on the evidence alone and was greater than it would have been otherwise

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when an accused objects to an improper argument during his court‑martial, an appellate court reviews the issue de novo; however, if an accused failed to object to improper argument during the court‑martial, an appellate court reviews the matter for plain error
2. to prove plain error resulted from a trial counsel’s improper argument during the sentencing proceeding, appellant has the burden of establishing (1) there was error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right; and in this context, material prejudice to the substantial rights of the accused occurs when an error creates an unfair prejudicial impact on the court members’ deliberations; in other words, the appellant must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different
3. although the prosecutors in this prosecution for the sexual abuse of a child case clearly committed obvious error during findings by repeatedly vouching for the victim, there was no material prejudice to appellant where the victim testified credibly that appellant sexually abused her and, despite strenuous efforts to undermine her credibility, the defense failed to offer a plausible reason as to why the victim would have fabricated these allegations; therefore, appellant could not show a reasonable probability that he would not have been convicted in the absence of these improper arguments
4. in this case, the prosecutor committed error that was plain or obvious in the sentencing proceeding when she pressured the members to consider how their fellow servicemembers would judge them and the sentence they adjudged instead of the evidence at hand; furthermore, neither the defense counsel nor the military judge took action to address the issue themselves, and thus there was a total lack of curative measures to redress this misconduct; in addition, the error caused material prejudice to the substantial rights of appellant where the prosecutor’s egregious attempt to pressure the members resulted in a reasonable probability that the sentence adjudged was not based on the evidence alone and was greater than it would have been otherwise

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

1. an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; and a military judge’s decision constitutes an abuse of discretion if his or her findings of fact are clearly erroneous, the decision is influenced by an erroneous view of the law, or the decision is outside the range of choices reasonably arising from the applicable facts and the law
2. if a military judge did improperly admit evidence, an appellate court evaluates whether the error prejudiced the appellant, weighing (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
3. when an accused objects to an improper argument during his court‑martial, an appellate court reviews the issue de novo; in that de novo review, the appellate court determines whether any error materially prejudiced the appellant’s substantial rights under Article 59, UCMJ; in this regard, it weighs three factors to determine whether trial counsel’s improper arguments were prejudicial: (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. when a trial counsel makes an improper argument during findings, reversal is warranted only when the trial counsel’s comments taken as a whole were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone
5. if an accused failed to object to improper argument during the court‑martial, an appellate court reviews the matter for plain error
6. to prove plain error resulted from a trial counsel’s improper argument during the sentencing proceeding, appellant has the burden of establishing (1) there was error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right; and in this context, material prejudice to the substantial rights of the accused occurs when an error creates an unfair prejudicial impact on the court members’ deliberations; in other words, the appellant must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different
7. an appellate court presumes, absent contrary indications, that the panel followed the military judge’s instructions