Counsel may comment on matters introduced pursuant to R.C.M. 1001(b)
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- Counsel may not argue facts not in evidence or introduced for a limited purpose.
- United States v. Shoup , 31 M.J. 819 (A.F.C.M.R. 1990). Trial counsel improperly mentioned facts not in evidence by arguing to the military judge This is the third drug case you have heard this week; there were many before and there will be many more in the future…Over twenty people died in Panama a few weeks ago trying to stop drugs from coming into this country.
- Trial counsel may not comment on uncharged misconduct that comes up as impeachment evidence during the presentencing proceeding. United States v. White , 36 M.J. 306 (C.M.A. 1993). In trial for drug use based on positive urinalysis, the trial counsel cross-examined a defense character witness regarding uncharged second positive urinalysis. Trial counsel erred by arguing that “we are not just talking about one use of Cocaine.” Findings Argument (Art and Law)
- Trial counsel cannot take proper rehabilitation testimony and then state that the inference to draw from that testimony is that the accused should not be in the service.
- United States v. Hampton , 40 M.J. 457 (C.M.A. 1994). A stipulation of expected testimony admitted during presentencing stated that in the witness’ opinion, the accused did not have any rehabilitative potential. During sentencing argument, trial counsel stated that the expected testimony was that accused “doesn’t have rehabilitative potential, doesn’t deserve to be in the Army.” The court held that even if trial counsel’s misstatement is characterized as a reasonable inference drawn from the expected testimony, such argument is still improper.
- Counsel may argue impact on unit or service if there is evidence that the accused’s crimes affected the unit.
- United States v. Simmons , 31 M.J. 884 (A.F.C.M.R. 1990). Trial counsel’s argument in drug case that[w]e’re going to find out who uses drugs when a plane crasheswas improper where the accused’s duty was to clean airplanes and there was no evidence that appellant’s use of amphetamines affected his duty.
- United States v. Spears , 32 M.J. 934 (A.F.C.M.R. 1991). Trial counsel’s argument that an inspection which revealed a missing meal card had an impact on the entire unit was not a reasonable inference. If trial counsel want to make an argument that the crime affected the unit, the trial counsel need to introduce proper sentence evidence under R.C.M. 1001(b)(4).