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Defense opens the door – the “invited response” or “invited reply.” Sentencing Argument (Art and Law)
- If the defense says in opening statement that the accused will testify or produce certain evidence or call certain witnesses, places the issue before the members, or gives a disingenuous argument, the defense opens the door to government comment.
See generally United States v. Robinson , 485 U.S. 25 (1988).
- United States v. Gilley
, 56 M.J. 113 (C.A.A.F. 2001). The defense counsel defense counsel brought up the issue of why an interview with investigators ended and argued that it ended because the contents of the written statement were false. In fairness, the government was allowed to argue that the accused never saw the contents of the statement to even know if the contents were false and did not sign the statement because he invoked his right to counsel. The court was still troubled by the government’s repeated references to the invocation of rights.
- United States v. Espronceda , 36 M.J. 535 (A.F.C.M.R. 1992). When defense counsel proffers anticipated testimony of a potential witness and then does not call that witness, the defense opens the door to a proper government response.
- United States v. Webb , 38 M.J. 62 (C.M.A. 1993). Trial counsel properly commented that defense counsel did not live up to the promise he made during his opening statement to present an alibi witness.
- United States v. Haney , 64 M.J. 101 (C.A.A.F. 2006). Not plain error when government commented on accused’s invocation of right to silence and failure to seek counsel when those facts were introduced by the defense and integral to the defense theory.
- See also United States v. Carter , 61 M.J. 30, 34 (C.A.A.F. 2005); United States v. Lewis , 69 M.J. 379 (C.A.A.F. 2011); see generally United States v. Turner , 30 M.J. 1183, 1184 (A.F.C.M.R. 1990); Jenkins v. Anderson , 447 U.S. 231 (1980).