Standard of review
United States v. Clark, 69 M.J. 438 (C.A.A.F. 2011).
- Whether there has been an improper reference to the exercise of a constitutional right is a question of law that is reviewed de novo.
- If the defense counsel objected at trial, the test for prejudice is harmless beyond a reasonable doubt.
- 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:
- The error was plain or obvious; and
- The error material prejudiced the accused’s substantial rights.