Here’s the bottom line up front from today’s Clark opinion, No 10-0588/AF, from CAAF:
[W]e conclude that it was plain or obvious error for trial counsel to elicit testimony of Appellant’s failure to respond verbally to an accusation when apprehended and then rely on this testimony in his closing argument. We further conclude that the military judge committed constitutional error when he overruled Appellant’s objection during trial counsel’s improper rebuttal argument. However, we also conclude that these violations were harmless beyond a reasonable doubt.
Judge Baker wrote for a unanimous court.
Much of the opinion concerns the interplay between “demeanor evidence” and an accused’s right to silence. The opinion includes this helpful guidance:
Even where demeanor is nontestimonial, improper commentary on the accused’s silence in response to police questioning when presenting evidence of an accused’s demeanor may nevertheless implicate the same rights and protections as testimonial evidence. . . . Thus, where the evidence concerns testimonial demeanor or includes improper commentary on the accused’s silence, that demeanor evidence is generally inadmissible under the Fifth Amendment and its statutory and regulatory safeguards, unless the accused waives those rights or otherwise invites the evidence.
Based on the foregoing, a framework for assessing the admissibility of the evidence of an accused’s demeanor emerges. First, we must identify the demeanor at issue and ask whether the demeanor is itself testimonial or not testimonial in nature, or whether evidence of the demeanor at issue includes improper commentary on the accused’s silence. If evidence of an accused’s demeanor is testimonial or includes an improper comment on silence, we analyze the evidence under the Fifth Amendment or applicable statutory and regulatory safeguards. Where the evidence is neither testimonial nor an improper comment on silence, we then consider whether the accused’s demeanor was relevant under M.R.E. 404(b) or other evidentiary rules relating to relevance.