Standard of review

uscourtmartiallawyers121United States v. Clark, 69 M.J. 438 (C.A.A.F. 2011).

  1. Whether there has been an improper reference to the exercise of a constitutional right is a question of law that is reviewed de novo.
  2. If the defense counsel objected at trial, the test for prejudice is harmless beyond a reasonable doubt.
  3. If the defense counsel did not object at trial, apply plain error analysis.
    United States v. Clark, 69 M.J. 438 (C.A.A.F. 2011). To find plain error, the appellant must show:

    1. Error;
    2. The error was plain or obvious; and
    3. The error material prejudiced the accused’s substantial rights.