U.S. v. Matti, 86 M.J. 384

First Principles: Constitutional Matters: Generally

1. a comment by the prosecution on the accused's silence, violates an accused's Fifth Amendment right to not testify; thus, it is black letter law that a trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense

First Principles: Constitutional Matters: Due Process

1. the Due Process Clause of the Fifth Amendment to the Constitution requires the government to prove the accused's guilt beyond a reasonable doubt
2. the government is permitted to make a fair response to claims made by the defense, even when a Fifth Amendment right is at stake; under the 'invited response' or 'invited reply' doctrine, the prosecution is not prohibited from offering a comment that provides a fair response to claims made by the defense; accordingly, a prosecutorial comment must be examined in light of its context within the entire court-martial

Military Justice Personnel: Prosecution Function: Trial Counsel

1. a comment by the prosecution on the accused's silence, violates an accused's Fifth Amendment right to not testify; thus, it is black letter law that a trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense
2. trial counsel may not vouch for the credibility of witnesses; vouching occurs when the trial counsel places the prestige of the government behind a witness through personal assurances of the witness's veracity
3. trial counsel can address the issue of credibility with arguments that rely on the evidence
4. in this case, trial counsel did not act improperly when he asked the members, in assessing the victim's credibility, to think about whether there were any benefits for the victim of reporting a domestic violence claim
5. in this case, trial counsel crossed the line from permissible commentary into improper vouching when he made the following three statements: (1) "You have a credible witness. You have the victim who came up here and took the stand and she was credible."; (2) "You have not been provided with any real reason to doubt the credibility of this witness. She's telling the truth. What does she have to gain by not telling the truth?"; and (3) "You know she's telling the truth."; trial counsel did not limit himself to commenting on the evidence relevant to issues of credibility but rather directly told members that a witness was credible; such comments were clear and obvious errors
6. trial counsel may respond to a defense theory with arguments based on evidence, but trial counsel cannot use disparaging language, instead of reasoned arguments, to make the defense case seem fantastical
7. in this case, trial counsel's comments in argument on the merits that repeatedly accused the defense of relying on "conspiracy theories" constituted improper disparagement of the defense and were clear and obvious error where there were no powerful conspirators and the words "conspiracy theory" could serve only to disparage the defense without adding any argument that could not be made without using such a loaded term
8. it is improper for a trial counsel to interject himself or herself into the proceedings by expressing a personal belief or opinion as to the truth or falsity of any testimony or evidence; expressing personal opinions is improper because the members may view the opinions as evidence and, if these opinions come from a representative of the government, the members may give them great weight
9. in this case, the trial counsel violated the prohibition against expressing personal opinions when he stated that the witness testimony "rings true" and that disbelieving the witnesses would not "make sense"
10. the trial counsel may not make comments during argument that have the effect of switching the burden of proof from the government to the accused
11. a trial counsel may violate the prohibition against making an argument that has the effect of switching the burden of proof from the government to the accused by commenting on the failure of the defense to produce evidence
12. the government is permitted to make a fair response to claims made by the defense, even when a Fifth Amendment right is at stake; under the 'invited response' or 'invited reply' doctrine, the prosecution is not prohibited from offering a comment that provides a fair response to claims made by the defense; accordingly, a prosecutorial comment must be examined in light of its context within the entire court-martial
13. in this case, in the absence of defense objection to trial counsel's argument, it was not clear and obvious that trial counsel shifted the burden of proof when he argued that the defense claimed all the witnesses were lying without providing any reasonable explanation and needed to; although the phrase "needs to" viewed in isolation may appear ill-advised, viewed in context, it is neither plain or obvious that trial counsel was shifting the burden of proof; trial counsel's statements referred not to the absence of testimony or evidence, but to the absence of explanations by the defense; trial counsel's remarks were addressing a logical problem with trial defense counsel's theory rather than implicitly attempting to shift the burden to the defense to provide evidence
14. the absence of objection to trial counsel's argument tends to indicate that the defense did not regard the prosecutor's argument as egregiously improper and is a persuasive inducement to an appellate court to evaluate the prosecutor's argument in the same light as the defense probably considered it at the trial
15. (in light of the persistent problem of trial counsel using improper arguments during courts-martial, the following is a non-exhaustive compendium of the types of improper argument that trial counsel must avoid, that defense counsel should consider objecting to, and that military judges ought to monitor: (1) expressing personal beliefs and opinions; (2) engaging in improper vouching; (3) offering personal views; (4) referring to matters outside the record; (5) commenting on the accused's invocation of constitutional rights; (6) referring to an accused's right to silence; (7) commenting on the accused's invocation of the right to counsel; (8) commenting on the accused's failure to testify; (9) using the providence inquiry to prove other offenses (10) shifting the burden to the accused; (11) making personal attacks; (12) attacking counsel; (13) attacking the accused; (14) disparaging the defense theory; (15) appeal to court-martial to predicate its verdict upon the probable public reaction); (16) misstating the facts; (17) misstating the law; (18) associating the accused with other offensive conduct or persons; (19) citing other cases; (20) citing excluded evidence; (21) citing command policy directives; and (22) diverting members from the evidence)

Military Justice Personnel: Prosecution Function: Misconduct

1. a comment by the prosecution on the accused's silence, violates an accused's Fifth Amendment right to not testify; thus, it is black letter law that a trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense
2. trial counsel may not vouch for the credibility of witnesses; vouching occurs when the trial counsel places the prestige of the government behind a witness through personal assurances of the witness's veracity
3. in this case, trial counsel crossed the line from permissible commentary into improper vouching when he made the following three statements: (1) "You have a credible witness. You have the victim who came up here and took the stand and she was credible."; (2) "You have not been provided with any real reason to doubt the credibility of this witness. She's telling the truth. What does she have to gain by not telling the truth?"; and (3) "You know she's telling the truth."; trial counsel did not limit himself to commenting on the evidence relevant to issues of credibility but rather directly told members that a witness was credible; such comments were clear and obvious errors
4. trial counsel may respond to a defense theory with arguments based on evidence, but trial counsel cannot use disparaging language, instead of reasoned arguments, to make the defense case seem fantastical
5. in this case, trial counsel's comments in argument on the merits that repeatedly accused the defense of relying on "conspiracy theories" constituted improper disparagement of the defense and were clear and obvious error where there were no powerful conspirators and the words "conspiracy theory" could serve only to disparage the defense without adding any argument that could not be made without using such a loaded term
6. it is improper for a trial counsel to interject himself or herself into the proceedings by expressing a personal belief or opinion as to the truth or falsity of any testimony or evidence; expressing personal opinions is improper because the members may view the opinions as evidence and, if these opinions come from a representative of the government, the members may give them great weight
7. in this case, the trial counsel violated the prohibition against expressing personal opinions when he stated that the witness testimony "rings true" and that disbelieving the witnesses would not "make sense"
8. the trial counsel may not make comments during argument that have the effect of switching the burden of proof from the government to the accused
9. a trial counsel may violate the prohibition against making an argument that has the effect of switching the burden of proof from the government to the accused by commenting on the failure of the defense to produce evidence
10. in this case, in the absence of defense objection to trial counsel's argument, it was not clear and obvious that trial counsel shifted the burden of proof when he argued that the defense claimed all the witnesses were lying without providing any reasonable explanation and needed to; although the phrase "needs to" viewed in isolation may appear ill-advised, viewed in context, it is neither plain or obvious that trial counsel was shifting the burden of proof; trial counsel's statements referred not to the absence of testimony or evidence, but to the absence of explanations by the defense; trial counsel's remarks were addressing a logical problem with trial defense counsel's theory rather than implicitly attempting to shift the burden to the defense to provide evidence
11. the absence of objection to trial counsel's argument tends to indicate that the defense did not regard the prosecutor's argument as egregiously improper and is a persuasive inducement to an appellate court to evaluate the prosecutor's argument in the same light as the defense probably considered it at the trial
12. (in light of the persistent problem of trial counsel using improper arguments during courts-martial, the following is a non-exhaustive compendium of the types of improper argument that trial counsel must avoid, that defense counsel should consider objecting to, and that military judges ought to monitor: (1) expressing personal beliefs and opinions; (2) engaging in improper vouching; (3) offering personal views; (4) referring to matters outside the record; (5) commenting on the accused's invocation of constitutional rights; (6) referring to an accused's right to silence; (7) commenting on the accused's invocation of the right to counsel; (8) commenting on the accused's failure to testify; (9) using the providence inquiry to prove other offenses (10) shifting the burden to the accused; (11) making personal attacks; (12) attacking counsel; (13) attacking the accused; (14) disparaging the defense theory; (15) appeal to court-martial to predicate its verdict upon the probable public reaction); (16) misstating the facts; (17) misstating the law; (18) associating the accused with other offensive conduct or persons; (19) citing other cases; (20) citing excluded evidence; (21) citing command policy directives; and (22) diverting members from the evidence)

Trial Stages: Merits: Argument

1. arguments may properly include reasonable comment on the evidence in the case, including inferences to be drawn therefrom, in support of a party's theory of the case
2. failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute forfeiture of the objection
3. a comment by the prosecution on the accused's silence, violates an accused's Fifth Amendment right to not testify; thus, it is black letter law that a trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense
4. argument may include comment about the testimony, conduct, motives, interests, and biases of witnesses to the extent supported by the evidence
5. trial counsel may not vouch for the credibility of witnesses; vouching occurs when the trial counsel places the prestige of the government behind a witness through personal assurances of the witness's veracity
6. trial counsel can address the issue of credibility with arguments that rely on the evidence
7. in this case, trial counsel did not act improperly when he asked the members, in assessing the victim's credibility, to think about whether there were any benefits for the victim of reporting a domestic violence claim
8. in this case, trial counsel crossed the line from permissible commentary into improper vouching when he made the following three statements: (1) "You have a credible witness. You have the victim who came up here and took the stand and she was credible."; (2) "You have not been provided with any real reason to doubt the credibility of this witness. She's telling the truth. What does she have to gain by not telling the truth?"; and (3) "You know she's telling the truth."; trial counsel did not limit himself to commenting on the evidence relevant to issues of credibility but rather directly told members that a witness was credible; such comments were clear and obvious errors
9. trial counsel may respond to a defense theory with arguments based on evidence, but trial counsel cannot use disparaging language, instead of reasoned arguments, to make the defense case seem fantastical
10. in this case, trial counsel's comments in argument on the merits that repeatedly accused the defense of relying on "conspiracy theories" constituted improper disparagement of the defense and were clear and obvious error where there were no powerful conspirators and the words "conspiracy theory" could serve only to disparage the defense without adding any argument that could not be made without using such a loaded term
11. it is improper for a trial counsel to interject himself or herself into the proceedings by expressing a personal belief or opinion as to the truth or falsity of any testimony or evidence; expressing personal opinions is improper because the members may view the opinions as evidence and, if these opinions come from a representative of the government, the members may give them great weight
12. in this case, the trial counsel violated the prohibition against expressing personal opinions when he stated that the witness testimony "rings true" and that disbelieving the witnesses would not "make sense"
13. the trial counsel may not make comments during argument that have the effect of switching the burden of proof from the government to the accused
14. a trial counsel may violate the prohibition against making an argument that has the effect of switching the burden of proof from the government to the accused by commenting on the failure of the defense to produce evidence
15. the government is permitted to make a fair response to claims made by the defense, even when a Fifth Amendment right is at stake; under the 'invited response' or 'invited reply' doctrine, the prosecution is not prohibited from offering a comment that provides a fair response to claims made by the defense; accordingly, a prosecutorial comment must be examined in light of its context within the entire court-martial
16. in this case, in the absence of defense objection to trial counsel's argument, it was not clear and obvious that trial counsel shifted the burden of proof when he argued that the defense claimed all the witnesses were lying without providing any reasonable explanation and needed to; although the phrase "needs to" viewed in isolation may appear ill-advised, viewed in context, it is neither plain or obvious that trial counsel was shifting the burden of proof; trial counsel's statements referred not to the absence of testimony or evidence, but to the absence of explanations by the defense; trial counsel's remarks were addressing a logical problem with trial defense counsel's theory rather than implicitly attempting to shift the burden to the defense to provide evidence
17. the absence of objection to trial counsel's argument tends to indicate that the defense did not regard the prosecutor's argument as egregiously improper and is a persuasive inducement to an appellate court to evaluate the prosecutor's argument in the same light as the defense probably considered it at the trial
18. (in light of the persistent problem of trial counsel using improper arguments during courts-martial, the following is a non-exhaustive compendium of the types of improper argument that trial counsel must avoid, that defense counsel should consider objecting to, and that military judges ought to monitor: (1) expressing personal beliefs and opinions; (2) engaging in improper vouching; (3) offering personal views; (4) referring to matters outside the record; (5) commenting on the accused's invocation of constitutional rights; (6) referring to an accused's right to silence; (7) commenting on the accused's invocation of the right to counsel; (8) commenting on the accused's failure to testify; (9) using the providence inquiry to prove other offenses (10) shifting the burden to the accused; (11) making personal attacks; (12) attacking counsel; (13) attacking the accused; (14) disparaging the defense theory; (15) appeal to court-martial to predicate its verdict upon the probable public reaction); (16) misstating the facts; (17) misstating the law; (18) associating the accused with other offensive conduct or persons; (19) citing other cases; (20) citing excluded evidence; (21) citing command policy directives; and (22) diverting members from the evidence)

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when determining whether improper arguments were harmless, the best approach involves a balancing of 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
2. in this case, the improper arguments by trial counsel did not cause material prejudice and therefore were not plain error where (1) the severity of the misconduct was moderate (although trial counsel made multiple improper comments, these comments were largely repetitive, they made up but a small part of an otherwise proper argument, and neither the military judge nor defense counsel recognized the errors or saw the need for remedial measures); (2) the standard instructions on the believability of witnesses and the nature of argument as not being evidence likely lessened the impact of the improper arguments; (3) the weight of the government's evidence supported the position that the errors caused no material prejudice; and (4) the panel's mixed findings indicated that the members weighed the evidence at trial and independently assessed appellant's guilt without regard to trial counsel's arguments

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when an objection is forfeited, an appellate court reviews the assertion of improper comment only for plain error
2. plain error has occurred when (1) there was an error, (2) the error was clear or obvious, and (3) the error caused material prejudice to a substantial right of the accused
3. under plain error review, the appellant generally has the burden of proving material prejudice; but when an improper argument violates a constitutional right, the government has the burden of proving that the error was harmless beyond a reasonable doubt
4. in this case, in the absence of defense objection to trial counsel's argument, it was not clear and obvious that trial counsel shifted the burden of proof when he argued that the defense claimed all the witnesses were lying without providing any reasonable explanation and needed to; although the phrase "needs to" viewed in isolation may appear ill-advised, viewed in context, it is neither plain or obvious that trial counsel was shifting the burden of proof; trial counsel's statements referred not to the absence of testimony or evidence, but to the absence of explanations by the defense; trial counsel's remarks were addressing a logical problem with trial defense counsel's theory rather than implicitly attempting to shift the burden to the defense to provide evidence
5. the absence of objection to trial counsel's argument tends to indicate that the defense did not regard the prosecutor's argument as egregiously improper and is a persuasive inducement to an appellate court to evaluate the prosecutor's argument in the same light as the defense probably considered it at the trial

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

1. whether a statement made during an argument on findings or sentencing is improper is a question of law that an appellate court reviews de novo
2. when an objection is forfeited, an appellate court reviews the assertion of improper comment only for plain error
3. under plain error review, the appellant generally has the burden of proving material prejudice; but when an improper argument violates a constitutional right, the government has the burden of proving that the error was harmless beyond a reasonable doubt
4. the absence of objection to trial counsel's argument tends to indicate that the defense did not regard the prosecutor's argument as egregiously improper and is a persuasive inducement to an appellate court to evaluate the prosecutor's argument in the same light as the defense probably considered it at the trial
5. when determining whether improper arguments were harmless, the best approach involves a balancing of 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

Trial Stages: Appeals: Waiver

1. failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute forfeiture of the objection
2. when an objection is forfeited, an appellate court reviews the assertion of improper comment only for plain error