CAAF today granted review of these issues in a Marine Corps case:

I.   IN A CASE INVOLVING SEXUAL MISCONDUCT COMMITTED AGAINST A MALE VICTIM, THE MILITARY JUDGE ADMITTED EXTENSIVE EVIDENCE UNDER M.R.E. 404(b) AND M.R.E. 413 THAT RELATED TO APPELLANT’S PREVIOUS ACQUITTAL FOR SEXUAL MISCONDUCT  COMMITTED AGAINST TWO FEMALES, DESPITE ALIBI EVIDENCE THAT CONTRADICTED HIS INVOLVEMENT IN THE SEXUAL MISCONDUCT WITH THEM.  DID THE MILITARY JUDGE ABUSE HIS DISCRETION IN ADMITTING THE PRIOR SEXUAL MISCONDUCT EVIDENCE?

II.  DURING THE TRIAL COUNSEL’S CLOSING AND REBUTTAL ARGUMENT, HE EXPRESSED PERSONAL OPINIONS ON THE EVIDENCE, VOUCHED FOR THE VERACITY OF THE GOVERNMENT WITNESSES, RIDICULED THE DEFENSE’S CASE THEORY, ARGUED FACTS NOT IN EVIDENCE, AND CLAIMED THAT THE DEFENSE CROSS-EXAMINATIONS WERE DISINGENUOUS.  DID HIS IMPROPER CONDUCT CONSTITUTE PROSECUTORIAL MISCONDUCT AND DID IT MATERIALLY PREJUDICE APPELLANT’S SUBSTANTIAL RIGHTS?

United States v. Solomon, __ M.J. __, No. 13-0025/MC (C.A.A.F. Nov. 29, 2012).  NMCCA’s unpublished decision in the case is available here.

3 Responses to “CAAF grant on Mil. R. Evid. 413 issue”

  1. k fischer says:

    Wow…..this Marine may or may not be a freak. The one thing I do believe is that 413 evidence for which he was acquitted should not have been admitted.  

  2. Phil Cave says:

    Improper for prosecutor to impugn the Defense Counsel, particularly during rebuttal phase of argument.  (“Smoke and mirrors.”  “Red herring.”)  United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005).  I think this is what Judge Beal’s defense was talking about; and also this.
    Cline v. United States, 395 F.2d 138, 141 (8th Cir. 1968) (improper for a prosecutor to accuse defense counsel of dishonesty.  Such statements are improper because a prosecutor’s comment “carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.”

  3. Dew_Process says:

    “Harmless error” says the cynic . . . .