Improper argument

In United States v. Matti, No. 25-0148 (C.A.A.F. Feb. 27, 2026) (per Maggs, J.), the U.S. Court of Appeals for the Armed Forces attached the following Appendix concerning improper argument by counsel:

Because of the persistent problem of trial counsel using improper arguments during courts-martial, the Court offers the following non-exhaustive compendium of instances when this Court has identified areas of concern. Perhaps it will provide some helpful guidance regarding the types of improper argument that trial counsel must avoid, that defense counsel should consider objecting to, and that military judges ought to monitor.

Improper Arguments in General

1. Expressing Personal Beliefs and Opinions. “It is improper for a trial counsel to interject herself into the proceedings by expressing a ‘personal belief or opinion as to the truth or falsity of any testimony or evidence.’ ” United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (quoting United States v. Horn, 9 M.J. 429, 430 (C.M.A. 1980)). This is because “ ‘when the prosecutor conveys to the [members] his personal view that a witness spoke the truth, it may be difficult for them to ignore his views, however biased and baseless they may in fact be.’ ” Id. at 180-81 (quoting United States v. Modica, 663 F.2d 1173, 1178-79 (2d Cir. 1981)).

2. Engaging in Improper Vouching. Vouching may “occur[] when the trial counsel ‘plac[es] the prestige of the government behind a witness through personal assurances of the witness’s veracity,’ ” including “the use of personal pronouns in connection with assertions that a witness was correct or to be believed.” Id. at 180 (second alteration in original) (quoting United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)); see also United States v. Voorhees, 79 M.J. 5, 12 (C.A.A.F. 2019); Horn, 9 M.J. at 429-30 (improper to use phrase “I think” when “analyzing the evidence of record . . . and in suggesting what weight ought to be given by the court to various evidence” as such “opinions are merely a form of unsworn, unchecked testimony and tend to exploit the influence of his office” (citation modified)); United States v. Knickerbocker, 2 M.J. 128, 129 (C.M.A. 1977) (describing the following as “impermissible argument”: “ ‘I think that having listened to all of the evidence in this case, there is very little doubt, in fact in my mind there is no doubt whatsoever, that the man sitting over there at the defendant’s table . . . was in fact the individual who was involved in this matter as a principal.’ ”).

3. Offering Personal Views. Trial counsel cannot make “ ‘substantive commentary on the truth or falsity of testimony or evidence’ ” or “ ‘comment[] on the defendant’s guilt and offer[] unsolicited personal views on the evidence.’ ” Fletcher, 62 M.J. at 180 (first quoting United States v. Washington, 263 F. Supp. 2d 413, 431 (D. Conn. 2003); and then quoting United States v. Young, 470 U.S. 1, 7 (1985)). Such comments “may confuse the [members] and lead them to believe that the issue is whether or not the prosecutor is truthful instead of whether the evidence is to be believed.” Id. at 181 (citing Modica, 663 F.2d at 1181).

4. Referring to Matters Outside the Record. When trial counsel departs from record evidence, “an accused’s right of confrontation [is] abridged, and the opportunity to impeach the source [is] denied.” United States v. Clifton, 15 M.J. 26, 29 (C.M.A. 1983). This misconduct manifests in a variety of scenarios. See, e.g., United States v. Norwood, 81 M.J. 12, 21 (C.A.A.F. 2021) (“Arguing an inflammatory hypothetical scenario with no basis in evidence amounts to improper argument . . . .”); Clifton, 15 M.J. at 30 (critiquing “discours[ing] on the practices and fantasies of rapists, and . . . the attitudes of unrelated rape victims”).

5. Commenting on the Accused’s Invocation of Constitutional Rights. “[I]t is improper for a prosecutor to ask the court members to infer guilt because an accused has exercised his constitutional rights.” United States v. Carpenter, 51 M.J. 393, 393 (C.A.A.F. 1999).

Contemptuous words prosecution in Manila

A Philippine Army officer will face a general court-martial under the country's equivalent to Article 88 of the Uniform Code of Military Justice. According to this account in the Manila Bulletin, Colonel Audie Mongao (left) posted on social media his withdrawal of support from President Ferdinand Marcos Jr.

Lt. Gen. Antonio Nafarette, PA commanding general, said he already approved general court martial proceedings to try Mongao for alleged violation of Articles of War 63 which penalizes “disrespect toward the President, Vice-President, Congress of the Philippines, or Secretary of National Defense.”

Article of War 63 states that any officer who uses contemptuous or disrespectful words against the President, Vice-President, the Congress of the Philippines, or Secretary of National Defense, “shall be dismissed from the service or suffer such other punishment as a court-martial may direct.”

Yeye culture and the Malaysian armed forces

It's Sunday morning here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, and the weekend staff is trying to figure out the "Yeye culture" problem -- is it a problem? -- in the Malaysian armed forces. For readers' edification, consider this YouTube video from Victor Tan and this news report from the Straits Times. Watch the video first.

Reforming military obedience

Dr. Ellen Nohle's OpinioJuris essay, Reforming Military Obedience: Strengthening Vertical Checks on Trump's (Ab)use of War Powers, concludes:

Possible concerns that increasing soldiers’ legal privilege to refuse ultra vires orders would undermine a nation’s ability to defend itself militarily is belied by psychological research showing that soldiers fight primarily out of regard for their comrades and superiors, not out of a sense of legal compulsion . In fact, research on compliance with orders shows that ordinary people tend to err on the side of obedience rather than disobedience, even in the absence of a legal duty to obey. In light of that, the function of the law should be to help and incentivize soldiers to identify and challenge abuses of war powers, not punish those who have the moral courage to resist the potent socio-psychological pressures to comply with orders irrespective of their legality. 

Still, the redistribution of trust entailed by granting soldiers a right to disobey ultra vires orders will no doubt come up against some deep-rooted assumptions, and opposition to the proposal is to be expected. The assumption in the military has long been that trust must be distributed along the hierarchy of command. Absolute trust, in the form of decision-making power, is vested in the president as commander in chief, and subordinate commanders are trusted based on their relative position in the military hierarchy.  Although the military in many ways operates as a separate community, legally and socially, from the rest of society, the military’s existence and powers derive from the civilian government and its functions are defined by civilian-made laws and policies. The economy of trust in the military must therefore ultimately bend to the economy of trust in civilian society. A rule requiring absolute trust in the commander in chief is incompatible with the limited institutional trust, or decision-making powers, vested in the president as chief executive. If uncritical obedience has no place in a government ruled by law, then neither does it have a legitimate place in the government’s executive arm, the military.

Dr. Nohle is a senior legal advisor at the IHL Centre.

Reform in Lebanon

Military justice reform in Lebanon remains a challenge, particularly regarding judicial independence and jurisdiction over civilians. This article gives the history but is unclear as to precisely what changes are being made and when they may take effect. The Legal Agenda posted this worthwhile commentary earlier this month. The Cedar Centre for Legal Studies has issued this extensive report by Dr. Marie Kortam. According to the executive summary:

In the ongoing debate among politicians and human rights activists regarding the reform of the military justice and its jurisdiction, the law continues to allow civilians to be tried before military courts. Such trials deprive civilians of essential judicial safeguards, as military judges often fail to provide explanations for their decisions, thereby shielding the judiciary from meaningful legal oversight. This debate is divided between two main positions. One advocates for abolishing military justice in civilian cases entirely, limiting its scope to disciplinary matters involving military personnel (Legal Agenda, 2024).  The other argues for reconstituting military courts with justices of the peace, rather than military officers, to enhance fairness and transparency (Boutros, Saghiyeh, 2018).

This report discusses these paradoxes by contextualizing the debate within its historical and legal framework. It draws on desk reviews and interviews with lawyers and human rights defenders, alongside an analysis of four case studies highlighting violations and the lack of conformity within military courts. Based on these findings, the report proposes recommendations aimed at ensuring a minimum standard of fairness in military court proceedings. It is of note that civilians standing trial before military courts violate international standards.  The Decaux Principles (Callejon, 2006; Weill, Sharon, Robinson, Mitch (2017) prohibit the trial of civilians by military courts and extend to specific offenses committed by members of the military and security forces, even when performed in the line of duty.

 Any reader with knowledge of the precise state of play is welcome to comment.