In a single 2026 opinion, the Court of Appeals for the Armed Forces, the highest military court, identified 22 forms of prosecutorial misconduct in closing argument alone, catalogued decades of abuse, and then affirmed the conviction anyway. Which it has been doing for decades. CAAF has a long history of complaining about prosecutorial misconduct and doing nothing to put an end to it. Prosecutors can get away with almost anything, even calling the accused a pig. By affirming the conviction in this case while publishing a long list of the most egregious forms of abuse, CAAF sent a clear message to everyone currently under investigation: no one is coming to save you.
Courts See the Abuse, Get Mad, Fix Nothing
Prosecutors aren’t allowed to tell a panel when a witness should be believed, but they do it. Prosecutors are forbidden from suggesting the accused has an obligation to prove his innocence, but they do that too. They call the accused names, mock defense attorneys, misstate the law, misstate the evidence, and refer to evidence the judge told them not to. And they do it because they get away with it.
In United States v. Matti (2026), the highest military court identified 22 violations (a non-exhaustive list) prosecutors commit to increase their odds of getting a conviction. After cataloguing decades of abuse, and ranting at prosecutors and the judges who allow the abuse to continue, the court affirmed the conviction anyway.
But this isn’t an end-of-life problem for a case. The problem goes back to the womb. It begins the moment a suspect is read their rights. Our post on Article 31(b) and our Interrogation Survival Kit show how investigators use trickery, mind games, and institutional indifference to get people to sign away their rights without realizing it. If you’re under investigation for an Article 120 offense, a CSAM allegation, or any offense referred to the Office of Special Trial Counsel, the time to retain counsel is before you speak to anyone.
“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.” — Court of Appeals for the Armed Forces, February 2026
CAAF has documented these stunts for decades without doing anything to stop it. The court seems more concerned about bad manners than an unfair trial.
The Matti Appendix is a monument to how high the odds are stacked against an accused. The court calls the misconduct “troubling.” It has been troubled for decades. It recommends that prosecutors and judges read the appendix carefully, and actually asks judges to confirm on the record that counsel have done their homework before closing argument begins. And then it affirms the conviction.
Message to the accused: No one is coming to save you.
So what can you do? You can’t wait for CAAF. The institutional bias needs to be impeded from the start and at every opportunity. The first thing you need to do is grasp the size of the problem.
A note before we go further. The Office of Special Trial Counsel prosecutors we deal with regularly are professional, prepared, and play it straight with us. We have found them to be ethical and cooperative.
What follows is about the system, not the people we know. While we still hear stories and more cases will end up in the next CAAF jeremiad, the structural bias we describe here predates OSTC and runs deeper than any individual prosecutor’s conduct. CAAF’s non-exhaustive compendium, referred to here as the Matti Appendix, catalogs recurring categories of improper argument that keep happening because they rarely cost the government a conviction.
22 Forms of Prosecutorial Abuse in Closing Argument
- Expressing Personal Beliefs: Prosecutors aren’t allowed to tell the jury what they think about the case. Improper: Trial counsel improperly expressing a personal opinion by saying “it’s so clear from the urinalyses that [the accused] was doing it over and over” and the accused “clearly is a weekend cocaine user.” Panels might take those opinions as evidence.
- Improper Vouching: Often heard in sexual assault cases, comments like this: “She wouldn’t put herself through all of this if she was making it up. She’s not lying.” They can’t tell the panel a witness is telling the truth. That’s for the panel to decide. It doesn’t happen only in Article 120 cases, though. It can happen in any kind of case. The problem is the person doing the argument.
- Offering Personal Views: Trial counsel can tell the panel what the evidence shows. He can’t tell them it feels credible or “rings true.” That’s for the panel to decide. Items 1 through 3 are driving at the same problem: the prosecutor using his stature to persuade the panel.
- Matters Outside the Record: In addition to common sense and logic, which panels are expected to use, evidence admitted in court is what counts: “When trial counsel here discoursed on the practices and fantasies of rapists, and when he described the attitudes of unrelated rape victims he was not drawing upon legitimate inferences from evidence of record or appealing to the common sense of the court-martial. He was inviting the members to accept new information as factual, based on his authority.”
- Commenting on Constitutional Rights: A panel can’t be told to infer guilt because a person used their rights, like refusing to consent to a search. “What is he hiding?”
- Accused’s Right to Silence: Prosecutors sometimes use the phrase “uncontradicted evidence” to remind the panel that the accused didn’t talk to investigators.
- Right to Counsel: Asking for a lawyer isn’t a confession.
- “Failure” to Testify: Deciding not to testify (it might help if courts stopped calling it a “failure”) is a right. Prosecutors are prohibited from arguing it means the defense has something to hide. Items 5 through 8 are essentially the same: don’t use the accused’s rights against him.
- Misusing the Guilty Plea: An accused facing multiple charges has the right to plead guilty to some but fight others. Admissions made during a guilty plea for one charge can’t be used to prove a contested charge.
- Burden Shift: The government has to prove guilt. Any suggestion that the accused should be expected to prove innocence is improper.
- Personal Attacks: Insults meant to prejudice the panel against the accused.
- Attacking Defense Counsel: Insulting the defense attorney. “Just another slick defense counsel …”
- Attacking the Accused: Name-calling, like labeling the accused a predator.
- Disparaging the Defense: Characterizing the defense’s theory as a “conspiracy theory.” Items 11 through 14: preserve civility and decorum, no matter what kind of case it is.
- Asking a court-martial to base its verdict on the probable effect on relations between the military and the civilian community: “This is a tremendously important case. As I told you before, this case is important because we’re trying a man who is here accused of killing a Philippine national, at which we’re using mostly Filipino witnesses. I think that we can show everyone concerned, everyone concerned with this case, that we can ensure that justice will be done.”
- Misstating the Facts: Stick to the record. Again, panels can only consider what gets admitted into evidence.
- Misstating the Law: Attorneys misstate the law often. Not always on purpose. Example: Consenting to sex is analogous to enlisting in the Navy or getting plastic surgery. No it’s not.
- Guilt by Association: Look at the company he keeps. Is it any wonder?
- Citing Other Cases: Stick to the facts of this case and this accused.
- Citing Excluded Evidence: Referencing evidence the judge excluded.
- Citing Command Policy: A court-martial is not a tool for executing command policy.
- Diverting the Panel: Once again, stay in-universe. For example, it’s improper to argue in a drug case that the innocent-ingestion defense should be rejected to discourage other soldiers from raising it because drug use will run rampant and put the panel members’ own lives at risk.
The Matti Appendix is the judicial version of the old Robin Williams bit about the unarmed British constable: “Stop! Or… or I’ll say stop again!”
Decades of CAAF Inaction: Three Embarrassing Truths the Matti Appendix Reveals
The Court acknowledges the misconduct. It catalogues the abuse with great care and robust citations, and expresses frustration that it has to repeat itself. And then: it affirms the conviction.
Nearly every time, it affirms. In the 19 cases the Matti court lists as extreme instances of misconduct, it provided relief in just three.
The worst misconduct leads to consequences for the government just 15% of the time. With all the power it has, CAAF still can’t bring itself to let (what it believes to be) a guilty man go free, even if it means vindicating the rights it just finished calling fundamental and its own credibility.
Blackstone said that it’s better for ten guilty men to go free than for one innocent to suffer, which seems to be what CAAF is aiming for, and failing to hit. The remedy requires principled action by CAAF and the service courts. Let the guilty man go. Let another go. And another, as many as it takes. And explain why it’s being done. Call the prosecutors and trial judges out by name. Watch what prosecutors and judges do if that happens. Within a year or two the problem would be solved. But CAAF can’t bring itself to live out its stated ideals.
1. Unenforced rights aren’t real rights.
A court that spots a significant due process violation, finds the violation harmed the accused, and then affirms the conviction is saying the presumption of innocence is a fiction.
2. CAAF sacrifices Justice for Appearances.
By issuing a checklist instead of a reversal, CAAF is acting as a human resources department for the JAG Corps. They are managing the optics of misconduct (“You’re making us look bad, so please stop doing that”) rather than upholding the rights of the accused and everyone else targeted by the military justice system.
3. The Appendix is self-absolution.
The appendix is a strongly worded memo to people who have spent forty years ignoring strongly worded memos. CAAF gets to feel principled without paying the price of actually being principled.
Real-Life Examples of Prosecutorial Misconduct
In United States v. Voorhees, the trial counsel bragged about his rank, his travels, his commitment, and his expertise, while mocking the accused and his attorney.
Panel selection: self-credentialing: “I’m [—]. I’m a senior trial counsel assigned to [–] Air Force Base. In that capacity I travel around the world, between 200 and 250 days a year, prosecuting the Air Force’s most serious cases.”
Attacking defense counsel: “misplaced lying” “defense counsel’s imagination is not reasonable doubt.”
Attacking the accused: “perverted,” “sick,” “narcissistic, chauvinistic, joke of an officer” “Not an officer, not a gentleman, but a pig.” “Disgusting. Disgusting. Deplorable. Degrading. That’s the nature of the conduct that the accused committed. That’s the nature of this man.”
Vouching for witnesses: “Technical Sergeant [–] is an outstanding airman; an outstanding noncommissioned officer in the United States Air Force.” “That was his perception. That was the truth.” “rely entirely on Senior Airman [–’s] credibility. Hang your hat there, because you can. Because that airman is credible. She testified credibly; she told you what happened to her.” “[–‘s] not lying. It’s the truth. It’s what happened.”
Personal opinion on guilt: “[W]e win. Clearly.” “I’m not in the business of convicting innocent people, but this man is guilty.” “[Appellant] is without a doubt guilty.”
Rebuttal self-vouching: “Members, I don’t go TDY and leave my family 250 days a year to sell you a story. I don’t do that.” “I’m not going to apologize for becoming emotional when talking about a Major who sexually assaulted a Senior Airman.”
Every one of those was found to be a clear and obvious error. Relief given: none.
That’s an ugly but realistic view of the contestants in your case: You, the pig, versus Them, the angels.
Some of it is calculated to do more than persuade the panel. A prosecutor who knows a line is improper will cross it anyway to draw an objection from defense counsel. Every objection makes the defense look like it’s hiding something. Win-win for the prosecutor: if the objection isn’t made, he gets away with it. If the defense objects, the panel wonders what the defense is so afraid of. And ultimately there’s no penalty for this bullshit, as CAAF has abundantly shown.
CAAF’s Inaction is the Final Act of Bias That Begins at the Start
It’s not just prosecutors with “top cop” fever. Voorhees isn’t an outlier.
It’s a demonstration of what the system permits, because it’s what the system is designed to produce. For example, the SARC mindset drives the whole investigative process. It’s why Congress constantly rewrites Article 120 to make convictions easier. It’s why OSTC was created. Investigators are permitted to lie to you, it’s part of the routine, but if you lie to them you can be charged with a crime for it, even if it’s in reply to one of their lies.
The whole system is designed to pulverize you once you’ve been accused. You have rights and they’re enforceable, but you can’t place your faith in the other side to play fair.
This is why the first call after you learn of OSI, NCIS, CGIS, or CID being involved should be to a defense attorney. Don’t call your parents. Don’t call a friend. Call an attorney.
FAQs
What does prosecutorial misconduct mean for my case if I haven’t been charged yet?
It demonstrates the institutional mindset. The presumption of innocence is required under the law, but for most of your case that’s not how things will be. People ask if hiring a lawyer will make them look guilty; we remind them they already look guilty, which is why they’re calling us. Look at the investigative interview. Command tells the accused he has a “meeting.” The notice often comes on a Friday for a meeting on Monday to give him the weekend to sweat. He’s escorted to the investigators’ office by a member of his chain of command. He walks into a room with agents who have already decided he is guilty. They use a series of psychological tricks to get him to confess. When he’s released, it’s to his command escort. They don’t treat complaining witnesses this way. They give complaining witnesses extra benefits and an expedited transfer to their base of preference. And if you ultimately get vindicated, they don’t go back and prosecute your accuser.
What’s the best opportunity to head prosecutorial misconduct off before trial?
As early as possible but no later than the Article 32 hearing. Treat the Article 32 preliminary hearing like your trial, so you have the best odds of avoiding trial. You don’t want to be cited in the appendix the next time CAAF gets fed up.
Can a defense attorney actually do anything before trial?
Yes. Your attorney needs to be in regular contact with the prosecution, your command, and investigators, presenting favorable evidence and seeding doubt before decisions are made. If you and your attorney stay hidden and silent, your case will get charged. If you waive your Article 32 hearing, you’re just inviting them to charge you. The days of hiding out and hoping things will blow over are dead. OSTC cares about its winning percentage. Your attorney needs to make OSTC see a loss coming.
Why does it matter who I hire if the system is so stacked against me?
You don’t hire a lawyer to mitigate the damage of a rigged trial; you hire one to kill the case before the government refers it. Cases that get derailed never make it to a closing argument. You hire someone on day one so you never have to find out if CAAF thinks the violation of your rights was “harmless.”
What is the OSTC and does it fix this problem?
The Office of Special Trial Counsel handles the most serious UCMJ cases: Article 120 sexual assault allegations, child sexual abuse material, Article 128b domestic violence, and other covered offenses. Its independence is an improvement, but we still hear Matti-esque horror stories from the field.
Why hire civilian defense counsel when military defense counsel is free?
Service members facing Article 120 investigations or OSTC referrals need attorneys who have handled and won these cases, know how to communicate with OSTC, and have a long record of favorable recommendations from preliminary hearing officers. Detailed counsel are often early in their career, have military and training obligations, and also waive Article 32 hearings at an alarming rate.
What should I do if OSI, NCIS, CGIS, or CID contacts me?
They won’t contact you for an interview. That will come as an order from your commander. You have to go to the meeting but you can’t be compelled to talk or give up any other rights. If you’re told you have to meet with investigators, contact a civilian UCMJ defense attorney immediately. Don’t talk about your case with anyone else in the meantime, and be wary of calls and texts that come from an accuser or anyone else that seems to be a bit out of the blue. Those calls and texts will often be from someone sitting with investigators. We counsel our clients to have a healthy amount of paranoia.