Closing argument is supposed to be advocacy drawn from the record, not a vehicle for smuggling in facts the members never heard. When a trial counsel, the military prosecutor, argues matters not in evidence, the misstep can echo all the way to the appellate courts. Whether it actually reverses a conviction, however, depends on a structured analysis that turns heavily on one early decision at trial: did the defense object.
The rule trial counsel is breaking
Argument must be confined to the evidence admitted at trial and the fair inferences that flow from it. The Court of Appeals for the Armed Forces has been explicit that a trial counsel’s argument reciting facts not in evidence is improper. United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005), is the leading authority, holding that it is improper for trial counsel to argue facts not in evidence, among other prosecutorial excesses such as injecting personal opinion or inflaming the members. The prohibition protects the integrity of the factfinding process: members are sworn to decide on the evidence, and an argument that imports outside facts asks them to convict on something other than the proof.
The pivotal question: was there an objection
The standard of review on appeal is dictated by whether the defense objected at trial.
If the defense objected and the objection was overruled, the appellate court reviews the issue for an abuse of discretion and asks whether any error was harmful. If a constitutional dimension is implicated, the government may have to show the error was harmless beyond a reasonable doubt; for nonconstitutional error, the question is whether the error had a substantial influence on the findings or sentence.
If the defense did not object, the appellate court reviews only for plain error. Under that standard the appellant must show that there was an error, that the error was plain or obvious, and that the error materially prejudiced a substantial right. United States v. Halpin, 71 M.J. 477 (C.A.A.F. 2013), illustrates the point: because the appellant did not object to the trial counsel’s argument at trial, the court reviewed for plain error and placed the burden on the appellant to show the alleged error materially prejudiced a substantial right. The failure to object does not waive the claim entirely, but it shifts the burden onto the defense and raises the bar for relief.
Measuring prejudice: the Fletcher factors
Once improper argument is established, the decisive question is prejudice, and military courts apply a three-part balancing test drawn from Fletcher. The court weighs the severity of the misconduct, the measures adopted to cure the misconduct, and the weight of the evidence supporting the conviction. No single factor is dispositive; the court asks, on balance, whether the improper argument so infected the trial that the result is unreliable.
Severity of the misconduct. A fleeting, isolated reference to something outside the record is treated very differently from a sustained theme built on facts the members never received. Argument that invents a fact central to guilt, or that repeatedly invites the members to consider matters not in evidence, weighs heavily toward prejudice.
Curative measures. The most important curative tool is a prompt instruction. Where the military judge sustains an objection and instructs the members to disregard the improper statement and to decide the case only on the admitted evidence, courts presume the members follow that instruction, and the curative effect substantially reduces the risk of prejudice. The standard instruction that argument of counsel is not evidence also blunts the impact. Where no instruction was given, because no objection was raised, this factor offers the government far less protection.
Weight of the evidence. The strength of the properly admitted proof is often outcome-determinative on appeal. Where the admissible evidence of guilt is overwhelming, courts are reluctant to find that an improper remark tipped the balance, and they frequently hold the error harmless. Where the case was close and the verdict turned on credibility or thin proof, an improper argument that supplied the missing piece is far more likely to require relief.
The range of appellate outcomes
Putting the framework together, several outcomes are possible.
No relief. The most common result, especially where the defense did not object, is that the court finds the error did not materially prejudice a substantial right, or finds it harmless in light of strong evidence and curative instructions, and affirms.
Reassessment of the sentence. Where the improper argument occurred during the sentencing phase and affected only the punishment, an appellate court may set aside the sentence and either reassess a lower sentence itself or return the case for a sentence rehearing, while leaving the findings intact.
Reversal of findings. Where improper argument during the findings phase, weighed under the Fletcher factors, undermines confidence in the verdict, the court can set aside the affected findings and authorize a rehearing. This is the most serious consequence and is reserved for cases where the misconduct was significant, uncured, and married to weak evidence.
Dismissal. In rare cases, where a rehearing is not feasible or the prosecutorial overreach is severe enough, charges may be dismissed.
Why preservation matters so much
The single most consequential thing trial defense counsel can do is object contemporaneously and request a curative instruction. Objecting preserves the more favorable harmless-error standard, prompts an immediate instruction that itself reduces prejudice, and builds the record the appellate court needs. Staying silent relegates the claim to plain-error review, where the defense must carry the burden of showing material prejudice and where a strong government case will usually defeat the claim. The irony is that a timely objection both cures the problem at trial and strengthens the appeal if relief is later sought.
Bottom line
A trial counsel who argues facts not in evidence commits a recognized form of improper argument, and it can have real appellate consequences, including sentence reassessment, a rehearing, or reversal. But the path to relief is narrow and structured. The court first identifies the standard of review based on whether the defense objected, then weighs the severity of the misconduct, the curative measures taken, and the strength of the admissible evidence. Improper argument standing alone rarely overturns a conviction; improper argument that is serious, uncured, and paired with a weak record is what moves an appellate court to act.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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