Military Sexual Assault Defenses: Mistake of Fact Explained by a Military Defense Lawyer

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  1. A drastic remedy. The judge should declare a mistrial only when “ manifestly necessary in the interest of justice” due to circumstances which “cast substantial doubt upon the fairness or impartiality of the trial.” United States v. Waldron , 36
  • M.R. 126, 129 (C.M.A. 1966). United States v. Brooks , 42 M.J. 484 (1995)(MJ should not have declared mistrial based on his improper inquiry into members’ deliberative process). a. See e.g. United States v. King , 32 M.J. 709 (A.C.M.R. 1991), rev’d on other grounds , 35 M.J. 337 (C.M.A. 1992). Mistrial not required even though trial counsel improperly communicated to civilian psychologist who was defense representative. Factors considered by the court: the psychologist would have eventually asked for the background information provided by the trial counsel; any advantage to the trial counsel from the information was minimal; and there was no bad faith on the part of the trial counsel. b. But see United States v. Diaz , 59 M.J. 79 (C.A.A.F. 2003), in which the CAAF held that a military judge abused his discretion in denying a motion for a mistrial when two witnesses –one of them an expert — testified they believed death of appellant’s daughter was a homicide and appellant was the perpetrator. The combined prejudicial impact of the testimony could not be overcome by a curative instruction, particularly since the testimony went to the two main issues of the case: the cause of the death and the identity of the perpetrator.
  • Effect. A declaration of a mistrial shall have the effect of withdrawing the affected charges and specifications from the court-martial.
  • First consider alternative measures. a. United States v. Balagna , 33 M.J. 54 (C.M.A. 1991). Witness testimony before panel included reference to accused’s submission of Chapter 10 request. The MJ gave curative instruction immediately. Defense motion for mistrial was denied. MJ gave second curative instruction during findings. Held no error to deny motion for mistrial. b. United States v. Taylor , 53 M.J. 195 (C.A.A.F. 2000). Military Judge did not abuse his discretion in denying a defense request for mistrial where trial counsel made several impermissible references to accused’s gang affiliation in his opening statement. Curative instruction to members was sufficient, in spite of the fact that during the trial several members asked questions about the accused’s gang affiliation. c. United States v. Mobley , 34 M.J. 527 (A.F.C.M.R. 1991), aff’d , 36 M.J. 34 (C.M.A. 1992). Instructions advising members of accused’s right to remain silent; that they could not draw any adverse inference from accused’s failure to testify; and, that trial counsel’s exposition of the facts was argument and not evidence ameliorated any prejudice caused by trial counsel’s comments during closing argument that called attention to the accused’s failure to testify. d. United States v. Skerrett , 40 M.J. 331 (C.M.A. 1994)(no mistrial warranted where MJ admonished panel twice to disregard testimony concerning dismissed specification and each member individually assured MJ that excluded testimony would not influence consideration of remaining specifications.
  • Government can usually re-refer charges. See United States v. Mora , 26 M.J. 122 (C.M.A. 1988) (upholding new referral after a mistrial in a military judge alone case).

Closing Arguments Examples: Kick-Ass Closing Arguments Part 1: Closing Argument Template

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