Right to remain silent at trial

  1. uscourtmartiallawyers197The basic rule is that if the accused does not speak (sworn or unsworn) at trial and his counsel does not otherwise open the door, then the trial counsel cannot make any comments to the panel that suggest that they should draw a negative inference from that failure to speak.
  2. If the accused remains silent at trial, the trial counsel cannot comment on that election.
    1. The fact that a witness has asserted the right against self-incrimination cannot be considered as raising any inference unfavorable to either the accused or the government. M.R.E. 301(f)(1).
    2. Trial counsel may not argue that the prosecution’s evidence is unrebutted if the only rebuttal could come from the accused or if the members would naturally and necessarily interpret the summation as comment on the failure of the accused to testify. R.C.M. 919(b) discussion; United States v. Paige , 67 M.J. 442 (C.A.A.F. 2009); United States v. Flores , 69 M.J. 366 (C.A.A.F. 2011). Findings Argument (Art and Law) (1) To make sense of this statement, note that it applies when the defense presents its own evidence at trial. If the defense puts on some evidence, the government can generally say that the parts of its case that the defense did not respond to are unrebutted – unless the only way the defense could respond to the government’s case would be for the accused to testify, and the accused elected not to testify.
      United States v. Carter , 61 M.J. 30 (C.A.A.F. 2005); United States v. Paige
      , 67 M.J. 442, 454 (C.A.A.F. 2009) (Stucky, J., dissenting). (2) Note that even if an argument does not comment on the right to remain silent, the same comment may improperly imply that the accused has the burden of proof (see paragraph 5 below).
    3. United States v. Mobley , 31 M.J. 273 (C.M.A. 1990). Trial counsel’s use of rhetorical questions in argument which focused onunanswered questionswas improper indirect comment on accused’s failure to testify and failure to produce witnesses. These comments essentially amounted to a rhetorical cross-examination of a mute accused.
    4. United States v. Harris , 14 M.J. 728 (A.F.C.M.R. 1982). Trial counsel’s comment that case before court wasone-on-oneand that government case was uncontroverted was impermissible comment on accused’s election not to testify.
    5. United States v. Ashby , 68 M.J. 108 (C.A.A.F. 2009). Military judge ruled that trial counsel’s comments in opening improperly referenced the accused’s election of rights. The military judge issued curative instructions and polled the members. These corrective actions kept error harmless beyond a reasonable doubt.
  3. If the accused does speak at trial, then the trial counsel can make certain comments.
    1. Accused elects to testify on the merits.                                                                                       (1) If the accused elects to testify on the merits regarding an offense charged, and during that testimony, the accused does not deny or explain specific incrimination facts introduced by the government, the trial counsel may comment on that failure to explain those facts during closing argument on the findings. R.C.M. 919(b) discussion.              (2) The “mendacious accused.”                                                                                                   (a) If the accused elects to testify, the trial counsel may comment on the fact that the accused’s merits testimony differed from the ultimate findings. Here, the accused has testified on his own behalf on the merits and then the factfinder has found him guilty contrary to that testimony. Can the trial counsel state that the accused’s testimony was a lie and that he should get a greater sentence for lying?                                                          (b) Courts have held that the answer is yes, but only as an indication of the accused’s rehabilitative potential and Findings Argument (Art and Law) with a limiting instruction. Any over-emphasis by the trial counsel may be inflammatory argument. United States v. Warren , 13 M.J. 278 (C.M.A. 1982).                                        (c) The “mendacious accused” instruction is found in the Military Judge’s Benchbook in paras. 2-5-23 and 2-6-1, and for capital cases at para. 8-3-38.                                             (d) Military judges should act with caution when giving this instruction sua sponte over defense objection, but to do so is not error. United States v. Ryan , 21 M.J. 627 (A.C.M.R. 1985)                                                                                                                                (e) Trial counsel may should avoid language like “hasn’t accepted responsibility for his actions” and “hasn’t’ faced up to what he did” because that comes dangerously close to improper comment on accused’s exercise of fundamental rights. United States v. Standifer , 31 M.J. 742 (A.F.C.M.R. 1990). See also United States v. Jenkins , 54 M.J. 12 (C.A.A.F. 2000).
    2. Accused makes an unsworn statement. (1) If the accused elects to make an unsworn statement during the presentencing proceeding, trial counsel may comment on the
      nature of an accused’s unsworn statement. Trial counsel can point out that the unsworn statement has less evidentiary value than a sworn statement but cannot ask the court to draw an adverse inference against the accused for making an unsworn rather than a sworn statement. United States v. Breese , 11 M.J. 17 (C.M.A. 1981). See also United States v. Marsh , __ M.J. __ (C.A.A.F. 2011).
  4. In-court demeanor and lack of remorse.
    1. If the accused elects to speak at trial, trial counsel may comment on the accused’s demeanor and lack of remorse.                                                                                                    (1) Don’t confuse this type of demeanor (in-court physical responses to questioning) with the type of demeanor (out-of-court physical responses to questioning) described in United States v. Clark , 69 M.J. 438 (C.A.A.F. 2011).                                                         (2) Trial counsel may comment on the accused’s lack of remorse provided the trial counsel can do so without commenting on the accused’s exercise of a fundamental right. The argument must come from evidence that is before the court-martial and not arise because the accused did not do something while exercising a fundamental right.
      United States v. Edwards , 35 M.J. 351 (C.M.A. 1992).  See also United States v. Garren, 53 M.J. 142 (C.A.A.F. 2000).                                                                                        (3) The proper foundation for commenting on an accused’s lack of remorse is: the accused has either testified or made an unsworn statement, and has either expressed no remorse or his expressions of remorse can be arguably construed to be shallow, Findings Argument (Art and Law) artificial, or contrived. United States v. Edwards , 35 M.J. 351 (C.M.A. 1992).                                                                                                           (4) United States v. Toro , 37 M.J. 313 (C.M.A. 1993). Trial counsel’s comment that the accused did notacknowledge [the] finding of guiltyin his unsworn statement was not plain error. Such argument may be a proper comment on the accused’s lack of remorse. (5) United States v. Carroll , 34 M.J. 843 (A.C.M.R. 1992). Demeanor of an accused who does testify is evidence.
    2. However, the demeanor of non-testifying accused is not evidence.                                  (1) United States v. Kirks , 34 M.J. 646 (A.C.M.R. 1992). Trial counsel improperly referred to accused as theiceman. Commenting on the demeanor of a non-testifying accused can violate the rules against arguing facts not in evidence, the rules against using character evidence, and the rules against commenting on a fundamental right. Defense counsel should object on all grounds.                                                                       (2) See also United States v. Paxton,
      64 M.J. 484 (C.A.A.F. 2007) (when the accused does not testify or give an unsworn statement, a lack of remorse argument must be based on other evidence in the record);
      see generally United States v. Cook , 48 M.J. 64 (C.A.A.F. 1998).