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).

6. Referring to an Accused’s Right to Silence. Trial counsel may not comment on an accused’s exercise of the right to silence because silence cannot be used as evidence of guilt. United States v. Clark, 69 M.J. 438, 445-46 (C.A.A.F. 2011); Rule for Courts-Martial (R.C.M.) 919(b) Discussion; see also Doyle v. Ohio, 426 U.S. 610, 618 (1976) (Miranda [footnote omitted] warnings imply “that silence will carry no penalty”); United States v. Carter, 61 M.J. 30, 32, 34 (C.A.A.F. 2005) (repeated references to “ ‘uncontroverted evidence’ ” of guilt throughout closing argument was error where comments were not “tailored to the defense credibility argument”); United States v. Alameda, 57 M.J. 190, 198-99 (C.A.A.F. 2002) (concluding trial counsel’s argument that lack of response between apprehension and Miranda reflected consciousness of guilt violated Military Rule of Evidence (M.R.E.) 304).

7. Commenting on Invocation of the Right to Counsel. “By arguing that the accused’s invocation of his right to counsel was substantive evidence of his guilt, the statement violated [a]ppellant’s Fifth Amendment rights, M.R.E. 301(f)(3), and [R.C.M.] 919 . . . .” United States v. Moran, 65 M.J. 178, 186-87 (C.A.A.F. 2007). This is because “to many, even to those who ought [to] know better, the invocation by a suspect of his constitutional and statutory rights to silence and to counsel equates to a conclusion of guilt that a truly innocent accused has nothing to hide behind assertion of these privileges.” United States v. Moore, 1 M.J. 390, 391 (C.M.A. 1976).

8. Commenting on Failure to Testify. “It is black letter law that a trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense.” United States v. Mobley, 31 M.J. 273, 279 (C.M.A. 1990); see also Clifton, 15 M.J. at 30-31; United States v. Webb, 38 M.J. 62, 65-66 (C.M.A. 1993).

9. Using the Providence Inquiry to Prove Other Offenses. Trial counsel cannot use an accused’s “guilty plea and providence inquiry to bolster the [g]overnment’s argument that [the accused] was guilty” because, otherwise, it will “compel an accused to incriminate herself in the separate criminal proceeding.” United States v. Leipert, 85 M.J. 35, 42 (C.A.A.F. 2024) (citation modified).

10. Shifting the Burden to the Accused. “The Due Process Clause of the Fifth Amendment to the Constitution requires the [g]overnment to prove the defendant’s guilt beyond a reasonable doubt.” United States v. Czekala, 42 M.J. 168, 170 (C.A.A.F. 1995) (citing In re Winship, 397 U.S. 358, 363-64 (1970)). Therefore, it is impermissible for trial counsel to “switch[] the burden of proof” in findings argument. United States v. Vasquez, 48 M.J. 426, 430 (C.A.A.F. 1998). For instance, “[t]his Court generally has not permitted a trial counsel to comment on the failure of the defense to produce evidence.” United States v. Taylor, 47 M.J. 322, 324 (C.A.A.F. 1997).

11. Making Personal Attacks. It is error to make arguments that “unduly . . . inflame the passions or prejudices of the court members.” Clifton, 15 M.J. at 30; R.C.M. 919(b) Discussion.

12. Attacking Counsel. It is “plainly improper” to “encourage[] the members to decide the case based on the personal qualities of counsel” and “attempt to win favor with the members by maligning defense counsel.” Fletcher, 62 M.J. at 181-83. This risks “turning the trial into a ‘popularity contest’ and influencing the members such that they may not [be] able to objectively weigh the evidence.” Voorhees, 79 M.J. at 10 (quoting Fletcher, 62 M.J. at 181). An example of this type of improper arguments occurred in United States v. Andrews, 77 M.J. 393, 402 (C.A.A.F. 2018) (accusing “defense counsel of not believing [the accused’s] version of events”).

13. Attacking the Accused. “Disparaging comments are . . . improper when they are directed to the [accused] himself. For example, . . . calling the accused a liar is a ‘dangerous practice that should be avoided.’ ” Fletcher, 62 M.J. at 182 (quoting Clifton, 15 M.J. at 30 n.5); see also Voorhees, 79 M.J. at 11. Examples of improper disparagement include the following: Andrews, 77 M.J. at 402 (references to accused as a liar and “ ‘Don Juan’ ”); Knickerbocker, 2 M.J. at 129 (characterizing the accused’s testimony as a “ ‘fairy tale,’ ” “ ‘imaginative,’ ” and “ ‘foolishness’ ”).

14. Disparaging the Defense Theory. While trial counsel may make reasoned arguments based on the evidence, trial counsel may not use disparaging language to make “the defense theory of the case seem fantastical.” Voorhees, 79 M.J. at 10.

15. Public Reaction. Trial counsel may not “appeal to a court-martial to predicate its verdict upon the probable effect of its action on relations between the military and the civilian community.” United States v. Cook, 11 C.M.A. 99, 103, 28 C.M.R. 323, 327 (1959).

Misstating the Facts or the Law

16. Misstating the Facts. “ ‘[I]t is a fundamental tenet of the law that attorney[s] may not make material misstatements of fact in summation,’ ” United States v. Andrews, No. NMCCA 201600208, 2017 CCA LEXIS 283, at *16, 2017 WL 1506072, at *7 (N-M. Ct. Crim. App. Apr. 27, 2017) (unpublished) (second alteration in original) (quoting Davis v. Zant, 36 F.3d 1538, 1548 n.15 (11th Cir. 1994)).

17. Misstating the Law. Misstating legal principles during argument is improper. Andrews, 77 M.J. at 402 (misstatement of “the law when [counsel] analogized consenting to sex to enlisting in the Navy or having plastic surgery”).

Miscellaneous

18. Associating the Accused With Other Offensive Conduct or Persons. “It is also improper to associate the accused with other offensive conduct or persons, without justification of evidence in the record.” United States v. Nelson, 1 M.J. 235, 238 (C.M.A. 1975) (error to liken defense witness tactics to those employed by Hitler).

19. Citing Other Cases. “It is unquestionably improper for counsel to argue facts of other cases to a court-martial,” United States v. Bouie, 9 C.M.A. 228, 233, 26 C.M.R. 8, 13 (1958), or appellate opinions with facts that “closely parallel the facts” of the case being tried, United States v. McCauley, 9 C.M.A. 65, 66, 25 C.M.R. 327, 328 (1958); see also Fletcher, 62 M.J. at 183-84 (referring to Jesse Jackson, Jerry Falwell, Jim Bakker, Dennis Quaid, Matthew Perry and Robert Downey Jr. “improperly invited comparison to other cases, the facts of which were not admitted into evidence and which bore no similarity to the [accused’s] case”).

20. Citing Excluded Evidence. The practice of citing excluded evidence is “grossly improper,” Clifton, 15 M.J. at 30, because, as mentioned, trial counsel should limit their findings argument to the record evidence and the reasonable inferences fairly derived therefrom, United States v. Bodoh, 78 M.J. 231, 237 (C.A.A.F. 2019).

21. Citing Command Policy Directives. “ ‘A policy directive . . . must not be used as leverage to compel a certain result in the trial itself.’ ” United States v. Pope, 63 M.J. 68, 75 (C.A.A.F. 2006) (quoting United States v. Fowle, 7 C.M.A. 349, 351, 22 C.M.R. 139, 141 (1956)). Using a command policy in argument “brings the commander into the deliberation room.” United States v. Grady, 15 M.J. 275, 276 (C.M.A. 1983). This raises “the spectre of command influence.” Id. Similarly, during sentencing, “[t]rial counsel may not in argument purport to speak for the convening authority or any other higher authority.” R.C.M. 1001(h).

22. Diverting Members From the Evidence. Trial counsel cannot “ ‘divert’ a [panel] from the evidence in the case by predicting ‘the consequences of the [panel]’s verdict.’ ” United States v. Causey, 37 M.J. 308, 310-11 (C.M.A. 1993) (citation omitted) (holding it “inappropriate” to argue that “the innocent-ingestion defense should be rejected to discourage other soldiers from raising it” and “improper to prey upon the personal interests of the court members as members of the military community and their concerns about the impact this defense may have on them in that role”).