U.S. v. Witt, 83 M.J. 282

Military Justice Personnel: Prosecution Function: Misconduct

1. prosecutorial misconduct by a trial counsel will require reversal 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
2. where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that appellant was sentenced on the basis of the evidence alone
3. in assessing prejudice in cases of prosecutorial misconduct, an appellate court looks at three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; how much weight to give each factor has not been determined, but if the third factor so overwhelmingly favors the government, it is sufficient to establish lack of prejudice

Trial Stages: Sentence and Punishment: Argument

1. even assuming error in the trial counsel’s sentencing argument in this case, there was no evidence that the arguments resulted in material prejudice to any of appellant’s substantial rights where the weight of the evidence supporting the conviction was strong enough to establish a lack of prejudice in and of itself; appellant confessed to a set of incredibly vicious and deliberate stabbings resulting in the death of a young married couple and permanent injury to the third victim; yet despite trial counsel’s request for the death sentence and the nature of appellant’s crimes, the members unanimously sentenced appellant to life without parole, suggesting that they believed the aggravating circumstances were substantially outweighed by the extenuating and mitigating circumstances

Trial Stages: Appeals: Preservation of Error / Plain Error

1. if a defense counsel fails to object to sentencing arguments at the time of trial, an appellate court reviews for plain error
2. the standard for plain error review requires that: (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights
3. he burden lies with appellant to establish plain error

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

1. improper argument involves a question of law that an appellate court reviews de novo
2. the legal test for improper argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused
3. the standard for plain error review requires that: (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights
4. he burden lies with appellant to establish plain error
5. even if an appellate court were to conclude that prosecutorial misconduct occurred, relief is merited only if that misconduct actually impacted on a substantial right of an accused, i.e., resulted in prejudice
6. prosecutorial misconduct by a trial counsel will require reversal 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
7. where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that appellant was sentenced on the basis of the evidence alone
8. in assessing prejudice in cases of prosecutorial misconduct, an appellate court looks at three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; how much weight to give each factor has not been determined, but if the third factor so overwhelmingly favors the government, it is sufficient to establish lack of prejudice