Trial Counsel Argument — A Judge’s Duty

C.A.A.F.'s decision in United States v. Burton, __ M.J. ___, No. 07-0848/AF (C.A.A.F. Jan. 15, 2009), leads to consideration of arguments on findings. [and for the curious, United States v. Burton, No. ACM 36296 (A.F. Ct. Crim. App. July 16, 2007) (unpublished).]

The general principle on argument at trial is that:

Counsel should limit their arguments to “the evidence of record, as well as all reasonable inferences fairly derived from such evidence.” United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000), (emphasis added).

Quite an easy rule to follow — not.

appellate principle is that if the defense doesn't object at trial,
then the appellant usually must resort to a plain error claim.

error occurs when (1) there is error, (2) the error is plain or
obvious, and (3) the error results in material prejudice.” United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005).

In Burton, C.A.A.F. found that "[t]rial counsel's invitation to the panel to compare the charged offenses to find modus operandi or propensity was improper, but under the facts of this case the military judge’s failure to sua sponte instruct the panel on the use of propensity evidence or take other remedial action did not constitute plain error," (emphasis added).

lesson for trial practitioners (and I include the trial military judge)
comes from Judge Erdmann (concurring in part and dissenting in part).

agree with the majority that trial counsel erroneously invited the
members to compare the evidence presented on each offense to find
propensity. Had the trial counsel desired to make that argument,
he should have followed the procedural steps of Military Rule of
Evidence (M.R.E.) 413(b). Had those procedural steps been followed, the
military judge would have made the necessary threshold findings under
M.R.E. 4131 and would have conducted an M.R.E. 403 balancing analysis.
(emphasis added.)

Judge Erdmann would have resolved this case on an a "plain error" of the military judge to give an instruction sua sponte. The military judge is not a potted plant theory.

Not only was trial counsel’s invitation to compare the offenses for propensity in direct conflict with the spillover instruction given by the military judge, he erroneously explained
to the members that they could consider the propensity evidence despite
the spillover instruction. The military judge should have corrected
that conflict sua sponte by providing a propensity instruction.

must avoid arguing contrary to the instructions and when arguing about
instructions counsel must explain them accurately. While the military
judge is a gatekeeper of a fashion, counsel should not put the military
judge (or opposing counsel) in the position of having to bring up an
instructions issue in this way.

The military judge has an independent duty to determine and deliver appropriate instructions. United States v. Westmoreland,
31 M.J. 160, 163-64 (C.M.A. 1990). “‘[T]he military judge must bear the
primary responsibility for assuring that the jury properly is
instructed on the elements of the offenses raised by the evidence as
well as potential defenses and other questions of law.’” Id. at 164 (quoting United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975)).

United States v. Ober, 66 M.J. 393 (C.A.A.F. 2008)(slip op. 34.)

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