Silence at trial.30

  1. bestmilitarydefensedefenseattorneys10.06.46PMcopyGriffin v. California , 380 U.S. 609 (1965). Comment by the prosecutor on the accused not testifying violates the Fifth Amendment and due process.
  2. Portuondo v. Agard , 529 U.S. 61 (2000). A prosecutor’s comments about the defendant’s opportunity to watch other witnesses testify before he took the stand and to tailor his testimony accordingly, did not amount to a constitutional violation, but were instead a fair comment on factors effecting the defendant’s credibility. The Supreme Court held that “when [a defendant] assumes the role of a witness, the rules that generally apply to other witness — rules that serve the truth-seeking function of the trial — are generally applicable to him as well.”
  3. United States v. Robinson , 485 U.S. 25 (1988). Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, Griffin , holds that the privilege against compulsory self-incrimination is violated. But where the prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel, there is no violation of the privilege. 30 Mil. R. Evid. 301(f) sets forth the general rule:
    1. “fact that a witness has asserted the privilege against self-incrimination in refusing to answer a question cannot be considered as raising any inference unfavorable to either the accused or the government.” * * *
    2. “fact that the accused during official questioning and in exercise of rights . . . remained silent, refused to answer . . . , requested counsel, or requested that the questioning be terminated is inadmissible against the accused.”
  4. United States v. Cook , 48 M.J. 64 (C.A.A.F. 1998). During closing argument, trial counsel asked the members to consider the accused’s yawning during trial as being indicative of his guilt. The CAAF held that it was improper for the trial counsel to comment about the courtroom demeanor of the accused, but found the error to be harmless. The Court determined that the accused’s acts were non- testimonial and therefore not protected by the Fifth Amendment. Regardless, the acts were not relevant to the issue of guilt or innocence. See also United States v. Gray , 51 M.J. 1 (C.A.A.F. 1999).
  5. United States v. Mobley , 34 M.J. 527 (A.F.C.M.R. 1991), aff’d , 36 M.J. 34 (C.M.A. 1992) (summary disposition). Trial counsel asked rhetorical questions directed to accused during argument on findings, and then answered them himself in manner calculated to bring the accused’s silence to the members’ attention. “[A] trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense.” Harmless error despite legally inappropriate comments.
  6. United States v. Kirks , 34 M.J. 646 (A.C.M.R. 1992). Trial counsel improperly described non-testifying accused’s demeanor as “[t]he iceman.” Comments on a non-testifying accused’s demeanor are objectionable on three grounds: 1) argues facts not in evidence; 2) violates Mil. R. Evid. 404(a) by using character evidence solely to prove guilt; and, 3) violates the Fifth Amendment. Defense counsel only objected on third ground, which was cured by an instruction. Other grounds were waived and not plain error. See also United States v. Jackson , 40 M.J. 820 (N.M.C.M.R. 1994) (trial counsel’s argument on findings that accused’s tears in court were tears of remorse and guilt was harmless error even though the accused’s courtroom behavior off of the witness stand was legally irrelevant to the question of guilt).
  7. United States v. Carter , 61 M.J. 30 (C.A.A.F. 2005). The CAAF held that the trial counsel’s repeated comments about the “uncontroverted” and “uncontradicted” evidence during findings argument constituted an impermissible reference to the accused’s exercise of his Fifth Amendment right not to testify. The trial counsel’s comments on the defense’s failure to present contradicting evidence were not tailored to address any weaknesses in the defense’s cross-examination of the victim or the defense’s efforts to impeach her; rather, since only the accused could controvert the victim, the trial counsel’s comments in effect repeatedly drew the members’ attention to the accused’s failure to testify.
  8. United States v. Paige , 67 M.J. 442 (C.A.A.F. 2009). The trial counsel, during closing arguments, argued that the evidence of the victim’s condition was “uncontradicted.” The trial counsel also incorrectly argued that Paige had to assert that his mistake was honest in order to qualify for the mistake of fact as to consent defense. The CAAF held that as to the uncontradicted comment, this was neither plain nor obvious error. Paige was not the only one with the information that could contradict the victim’s condition because other witnesses saw her immediately before and during the rape. As to the mistake of fact defense comment, the error was plain and obvious, but it was harmless beyond a reasonable doubt.
  9. United States v. Ashby , 68 M.J. 108 (C.A.A.F. 2009). During opening statements, the trial counsel told the members that Ashby never told anyone about the videotape of the incident. The trial counsel also told the members that when Ashby met with the Italian prosecutor, he was told that he had a right to remain silent, similar to American law, and that he invoked that right. The defense moved for a mistrial, which was denied. The trial counsel was required to redact her statement to the members. The defense was allowed to voir dire the members, which was declined. A curative instruction was given by the military judge. The CAAF found the comments made by the trial counsel were error, but that they were harmless beyond a reasonable doubt due to the curative efforts made by the military judge.


United States v. Ashby