La. Admin. Code tit. 41 § II-614

Current through Register Vol. 50, No. 8, August 20, 2024

Section II-614 - Arguments

A. Types of Arguments

1. Opening Statements. The trial counsel may make an opening statement immediately before presenting the case in chief, and defense counsel may make an opening statement either after trial counsel or after the prosecution has rested its case. [See R.C.M. 913(b).]

2. Motions. Before action is taken on a contested motion, each side has the opportunity to present evidence and make an argument. The military judge, in his discretion, may limit or refuse to hear arguments which are trivial, mere repetition, or designed as a delay tactic. [See R.C.M. 905(h).]

3. Evidentiary objections and any others questions or matters presented to the Court for decision during the course of the court-martial.

4. Closing Arguments on Findings [R.C.M. 919] and Sentencings [R.C.M. 1001(g).]

B. Permissible Argument

1. Counsel may make reasonable comment on the evidence and may draw such inferences from the evidence as will support his theory of the case. [R.C.M. 919(b).]

2. Counsel may comment on the testimony, conduct, motives, and evidence of malice of the witnesses.

3. Counsel may argue as though the testimony of his witnesses conclusively established the facts related by them. Comments may be direct and forceful so long as they are fair and not unfairly prejudicial.

4. Counsel may argue that deterrence of others should be considered in adjudging a sentence, but may not argue this to the exclusion of all other sentencing factors.

5. Counsel may argue for the maximum sentence, or may argue for a specific sentence which is less than the maximum authorized by law.

6. Both trial and defense counsel may properly argue for a sentence they know cannot approved as a result of a pretrial agreement.

C. Impermissible Argument

1. Facts that are not properly before the court as evidence or have no foundation in the record. However, it is permissible to argue the ordinary experience of mankind, facts of contemporary history, and other matters which are common knowledge.

2. Misstatement of facts which are in evidence.

3. Personal belief of counsel.

4. Comment on the accused's failure to testify. Trial counsel may not characterize the evidence as "uncontroverted," where the accused is the only person who could have contradicted that evidence. However, trial counsel may properly review the available evidence and note that the trier of fact must decide the case based on the evidence presented.

5. Comment on effect of outcome of the case on "civilian-military" relations.

6. Placing court members in shoes of victim or victims' relatives.

7. Implication that a particular sentence is the view of the convening authority.

La. Admin. Code tit. 41, § II-614

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2403 (November 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).