Bulletproof1 Your Trial: How to Avoid Common Mistakes that Jeopardize Your Case on Appeal

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					                Bulletproof1 Your Trial: How to Avoid Common Mistakes that Jeopardize Your Case on Appeal

                                                             Colonel Louis J. Puleo, USMC2

                                                                         Introduction

     “Be careful that victories do not carry the seed of future defeats.”3 This article attempts to apply this sage advice by
examining some of the common seeds of appellate defeat sown during the course of a trial. The intent of this article is to
identify several of the more frequent trial errors with the expectation that counsel will recognize and thus avoid them or, at
the very least, mitigate any appellate impact. While even astute practitioners cannot avoid all the issues that may have a
potential impact on appeal, counsel can recognize common pitfalls and take appropriate measures to protect the record and
minimize the risk of appellate relief. While it would be presumptuous to assume that this article will cover all, or even mo
				
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Description: In order to cure any potential taint, curative instructions must focus on the impropriety and be given at a time when the curative instruction would have its intended effect.245 Trial counsel should not repeat the same error thus negating the curative nature of the instruction.246 If the trial counsel does comment, under the "invited response" doctrine, two essential factors should be present: (1) counsel should ensure that the record contains clear and unmistakable defense evidence or comment that would justify the invited reply doctrine or, in a Article 39(a), UCMJ, session, place on the record exactly what defense claim or evidence the comments seek to rebut; and, (2) trial counsel should ensure that the military judge gives the proper limiting instructions, subject to the objection of the defense,247 in order to avoid any allegation that the members placed improper or undue significance to the remarks.248 Conclusion While not a complete list of common appellate issues, the matters identified in this article represent frequent and easily avoided appellate issues.
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