Counsel may not argue a personal opinion or belief
- Counsel should not express a personal belief or opinion as to the truth or falsity of any testimony or evidence. R.C.M. 919(b) discussion; United States v. Clifton , 15 M.J. 26 (C.M.A. 1983).
- Counsel should not phrase argument in personal terms. United States v. Horn , 9 M.J. 429 (C.M.A. 1980) (trial counsel’s repeated use of termI thinkduring argument was improper); United States v. Fletcher , 62 M.J. 175 (C.A.A.F. 2005). Sentencing Argument (Art and Law)
- Telling the panel members that a witness testified truthfully and using the word “clearly” is not improper. United States v. McClary , 68 M.J. 606 (C.G. Ct. Crim. App. 2010).
- Counsel may not express personal opinion as to guilt of accused. United States v. Knickerbocker , 2 M.J. 128 (C.M.A. 1977); United States v. Fletcher , 62 M.J. 175 (C.A.A.F. 2005).
- United States v. Terlep , 57 M.J. 344 (C.A.A.F. 2002). Appellant, charged with burglary and rape, pled to LIOs of the unlawful entry and battery. In his argument, trial counsel noted that the victim had to undergo a rape protocol kit at the hospital and suffer the feelings of being “violated” and “contaminated” on the night the appellant entered her home. In rebuttal, the trial counsel stated: “[the victim] has weathered the storm of this whole incident with dignity and with a courageous spirit to get up there and tell you what happened that night, to tell you the truth.” On appeal, the court found that the trial counsel’s argument did not constitute plain error. The court noted that the argument did not personally vouch for the victim’s credibility in general or with respect to her allegation of rape.
- Expression of personal opinion by defense counsel does not confer license on trial counsel to respond in kind. United States v. Young , 470 U.S. 1 (1985).
- Counsel may not disparage or malign the other counsel.
- United States v. Fletcher , 62 M.J. 175 (C.A.A.F. 2005).