Asking the panel to “imagine” or “Golden Rule” arguments
Counsel may not ask members to place themselves in position of victim’s relative when determining punishment. United States v. Shamberger , 1 M.J. 377 (C.M.A. 1976).
Counsel may not ask the panel to place themselves in the position of the victim, as in, use the word “imagine.” United States v. Baer, 53 M.J. 235 (C.A.A.F. 2000). Trial counsel to asked the members to “imagine being [the victim] sitting there as these people are beating him,” and “imagine the pain and agony . . . you can’t move. You’re being taped and bound almost like a mummy. Imagine as you sit there as they start binding.” The court stated that such “Golden Rule arguments” are impermissible and improper. The court also warned that “trial counsel who make impermissible Golden Rule arguments and military judges who do not sustain proper objections based upon them are risking reversal.” See also United States v. McClary , 68 M.J. 606 (C.G. Ct. Crim. App. 2010) (error to ask the panel to imagine what it would be like to have your neck squeezed while being choked). But see United States v. Edmonds , 36 M.J. 791 (A.C.M.R. 1993); United States v. Melbourne , 58 M.J. 682 (N-M. Ct. Crim. App. 2003).
However, counsel can ask the members to consider the fear and pain of the victim. United States v. Baer, 53 M.J. 235 (C.A.A.F. 2000).
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