U.S. v. Leipart, 85 M.J. 35

First Principles: Constitutional Matters: Generally

1. the Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself; in a guilty plea context, a military judge who has advised an accused that he is waiving his right against self-incrimination only to those offenses to which he is pleading guilty cannot later rely on those statements as proof of a separate offense; neither the guilty plea itself nor any related statements as to one offense may be admitted to prove any element of a separate offense; to do so would compel an accused to incriminate himself in the separate criminal proceeding

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. to establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel's performance was deficient, and that the deficiency caused prejudice; with respect to the first prong of this test, courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; as to the second prong, a challenger must demonstrate a reasonable probability that, but for counsel's deficient performance the result of the proceeding would have been different
2. in this case, trial defense counsel's performance was not deficient and thus he did not render ineffective assistance of counsel when he referenced the accused's pleas of guilty to assault and threat charges involving the same victim during a trial on contested charges of sexual assault where (1) his purpose of allowing military judge to be aware of the mixed pleas was to help familiarize the judge, as the factfinder, as to how the expected evidence related to both the contested and uncontested specifications, as described in defense's opening statement, and (2) counsel did not agree that military judge could consider the pleas or his providence inquiry to prove any element of the contested offenses

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 which should characterize the conduct of such an officer in the prosecution of a criminal offense
3. in this case, the trial counsel committed clear error in his closing argument on the merits of a trial on sexual assault charges when he used the accused's guilty pleas and providence inquiry on assault and threat charges involving the same victim to bolster his argument that the accused was guilty of the contested charges; by doing so, the trial counsel infringed on the accused's right against self-incrimination

Military Justice Personnel: Military Judge: Generally

1. a military judge is presumed to know the law and apply it correctly, absent clear evidence to the contrary
2. the Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself; in a guilty plea context, a military judge who has advised an accused that he is waiving his right against self-incrimination only to those offenses to which he is pleading guilty cannot later rely on those statements as proof of a separate offense; neither the guilty plea itself nor any related statements as to one offense may be admitted to prove any element of a separate offense; to do so would compel an accused to incriminate himself in the separate criminal proceeding
3. the presumption that the military judge knows and follows the law is only as valid as the law itself
4. misstatements by the trial counsel are not imputed to the military judge, absent evidence the military judge adopted the rationale of the misstatements

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Self-incrimination

1. the Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself; in a guilty plea context, a military judge who has advised an accused that he is waiving his right against self-incrimination only to those offenses to which he is pleading guilty cannot later rely on those statements as proof of a separate offense; neither the guilty plea itself nor any related statements as to one offense may be admitted to prove any element of a separate offense; to do so would compel an accused to incriminate himself in the separate criminal proceeding

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. a military judge is presumed to know the law and apply it correctly, absent clear evidence to the contrary
2. the presumption that the military judge knows and follows the law is only as valid as the law itself

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Generally

1. under plain error review, the appellant bears the burden to demonstrate error that is clear or obvious and results in material prejudice to his substantial rights

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Presumptions

1. a military judge is presumed to know the law and apply it correctly, absent clear evidence to the contrary
2. the presumption that the military judge knows and follows the law is only as valid as the law itself

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. a military judge is presumed to know the law and apply it correctly, absent clear evidence to the contrary
2. the presumption that the military judge knows and follows the law is only as valid as the law itself

Trial Stages: Merits: Guilty Pleas

1. the Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself; in a guilty plea context, a military judge who has advised an accused that he is waiving his right against self-incrimination only to those offenses to which he is pleading guilty cannot later rely on those statements as proof of a separate offense; neither the guilty plea itself nor any related statements as to one offense may be admitted to prove any element of a separate offense; to do so would compel an accused to incriminate himself in the separate criminal proceeding

Trial Stages: Merits: Argument

1. improper argument is one facet of prosecutorial misconduct
2. in this case, the trial counsel committed clear error in his closing argument on the merits of a trial on sexual assault charges when he used the accused's guilty pleas and providence inquiry on assault and threat charges involving the same victim to bolster his argument that the accused was guilty of the contested charges; by doing so, the trial counsel infringed on the accused's right against self-incrimination

Trial Stages: Appeals: Harmless / Prejudicial Error

1. an appellate court reviews prosecutorial misconduct and improper argument de novo and where no objection is made, it reviews for plain error; under plain error review, the appellant bears the burden to demonstrate error that is clear or obvious and results in material prejudice to his substantial rights; where a forfeited constitutional error was clear or obvious, material prejudice is assessed using the harmless beyond a reasonable doubt standard, and that standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction
2. in this case, the trial counsel's error in his closing argument on the merits of a trial on sexual assault charges by using the accused's guilty pleas and providence inquiry on assault and threat charges involving the same victim to bolster his argument that the accused was guilty of the contested charges was harmless beyond a reasonable doubt where (1) the military judge, as factfinder, presumably knew and correctly followed the law which clearly prohibited such argument in light of the right against self-incrimination, (2) nothing in the record indicated that the judge misunderstood the law or adopted the rationale of the trial counsel's misstatements, and (3) the judge's mixed findings on the sexual assault charges suggested the judge thoroughly analyzed the evidence for each offense

Trial Stages: Appeals: Preservation of Error / Plain Error

1. an appellate court reviews prosecutorial misconduct and improper argument de novo and where no objection is made, it reviews for plain error; under plain error review, the appellant bears the burden to demonstrate error that is clear or obvious and results in material prejudice to his substantial rights; where a forfeited constitutional error was clear or obvious, material prejudice is assessed using the harmless beyond a reasonable doubt standard, and that standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction
2. in this case, the trial counsel committed clear error in his closing argument on the merits of a trial on sexual assault charges when he used the accused's guilty pleas and providence inquiry on assault and threat charges involving the same victim to bolster his argument that the accused was guilty of the contested charges; by doing so, the trial counsel infringed on the accused's right against self-incrimination

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

1. an appellate court reviews de novo allegations of ineffective assistance of counsel
2. to establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel's performance was deficient, and that the deficiency caused prejudice; with respect to the first prong of this test, courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; as to the second prong, a challenger must demonstrate a reasonable probability that, but for counsel's deficient performance the result of the proceeding would have been different
3. an appellate court reviews prosecutorial misconduct and improper argument de novo and where no objection is made, it reviews for plain error; under plain error review, the appellant bears the burden to demonstrate error that is clear or obvious and results in material prejudice to his substantial rights; where a forfeited constitutional error was clear or obvious, material prejudice is assessed using the harmless beyond a reasonable doubt standard, and that standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction