The Waiver Rule

The Waiver Rule

The Waiver Rule

  1. uscourtmartiallawyers97Failure to object to improper argument constitutes waiver. United States v. McPhaul , 22 M.J. 808 (A.C.M.R. 1986).
    1. If the defense counsel does not object, appellate courts will infer that the argument is not that offensive; if it was, the defense counsel would have objected. See United States v. Jenkins , 54 M.J. 12 (C.A.A.F. 2000).
    2. United States v. Kirks , 34 M.J. 646 (A.C.M.R. 1992). Where three possible objections to argument existed and defense counsel only made one, other two were waived.
    3. An objection by opposing counsel is the most appropriate response to an erroneous argument. See United States v. Espronceda , 36 M.J. 535 (A.F.C.M.R. 1992).
    4. United States v. Desiderio , 30 M.J. 894 (A.F.C.M.R. 1990). Defense counsel’s failure to object during trial counsel’s argument constituted waiver, even though defense counsel stated in his argument,Now I didn’t say anything during [trial counsel’s] argument as he stood up and talked about the impact of drug use on the mission and that kind of thing. It probably was objectionable.
  2. Findings. Failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection. R.C.M. 919(c).
  3. Sentencing. Failure to object to improper argument before the military judge begins to instruct the members on sentencing shall constitute waiver of the objection. R.C.M. 1001(g).