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The Waiver Rule
- Failure to object to improper argument constitutes waiver. United States v. McPhaul , 22 M.J. 808 (A.C.M.R. 1986).
- 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).
- 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.
- 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).
- 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.
- 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).
- 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).