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RCM 1001-1004

RCM 1001-1004

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Published by Philip D. Cave
millitary death penalty aggravation and sentencing.
millitary death penalty aggravation and sentencing.

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Published by: Philip D. Cave on Mar 21, 2012
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CHAPTER X. SENTENCING
Rule 1001. Presentencing procedure
(a)
 In general.
(1)
Procedure.
After findings of guilty have beenannounced, the prosecution and defense may presentmatter pursuant to this rule to aid the court-martialin determining an appropriate sentence. Such matters h a l l o r d i n a r i l y b e p r e s e n t e d i n t h e f o l l o w i n gsequence—(A) Presentation by trial counsel of:(i) service data relating to the accused takenfrom the charge sheet;(ii) personal data relating to the accused andof the character of the accused’s prior service asreflected in the personnel records of the accused;(iii) evidence of prior convictions, militaryor civilian;(iv) evidence of aggravation; and(v) evidence of rehabilitative potential.(B) Presentation by the defense of evidence inextenuation or mitigation or both.(C) Rebuttal.(D) Argument by the trial counsel on sentence.( E ) A r g u m e n t b y t h e d e f e n s e c o u n s e l o nsentence.(F) Rebuttal arguments in the discretion of themilitary judge.(2)
 Adjudging sentence.
A sentence shall be ad- judged in all cases without unreasonable delay.(3)
 Advice and inquiry.
The military judge shallpersonally inform the accused of the right to presentmatters in extenuation and mitigation, including theright to make a sworn or unsworn statement or toremain silent, and shall ask whether the accusedchooses to exercise those rights.(b)
 Matter to be presented by the prosecution.
( 1 )
S e v ic e d a t a f r o m t h e c h a r g e s h e e t .
T r i a lcounsel shall inform the court-martial of the data onthe charge sheet relating to the pay and service of the accused and the duration and nature of any pre-trial restraint. In the discretion of the military judge,this may be done by reading the material from thecharge sheet or by giving the court-martial a writtenstatement of such matter. If the defense objects tothe data as being materially inaccurate or incom-plete, or containing specified objectionable matter,the military judge shall determine the issue. Objec-tions not asserted are waived.(2)
Personal data and character of prior serviceof the accused.
Under regulations of the Secretaryconcerned, trial counsel may obtain and introducefrom the personnel records of the accused evidenceof the accused’s marital status; number of depend-ents, if any; and character of prior service. Suchevidence includes copies of reports reflecting thepast military efficiency, conduct, performance, andhistory of the accused and evidence of any discipli-nary actions including punishments under Article 15.“Personnel records of the accused” includes anyrecords made or maintained in accordance with de-partmental regulations that reflect the past militaryefficiency, conduct, performance, and history of theaccused. If the accused objects to a particular docu-m e nt as in acc ura t e o r i nc o m ple t e i n a sp e ciie d respect, or as containing matter that is not admissi-ble under the Military Rules of Evidence, the mattershall be determined by the military judge. Objec-tions not asserted are waived.(3)
 Evidence of prior convictions of the accused.
(A)
 In general.
The trial counsel may introduceevidence of military or civilian convictions of theaccused. For purposes of this rule, there is a “con-viction” in a court-martial case when a sentence hasbeen adjudged. In a civilian case, a “conviction”includes any disposition following an initial judicialdetermination or assumption of guilt, such as whenguilt has been established by guilty plea, trial, orplea of nolo contendere, regardless of the subsequentdisposition, sentencing procedure, or final judgment.However, a “civilian conviction” does not include adiversion from the judicial process without a findingor admission of guilt; expunged convictions; juven-ile ad judications; minor tr af ic vi olations ; oreign convictions; tribal court convictions; or convictionsreversed, vacated, invalidated or pardoned becauseof errors of law or because of subsequently discov-ered evidence exonerating the accused.
Discussion
A vacation of a suspended sentence (
see
R.C.M. 1109) is not aconviction and is not admissible as such, but may be admissibleunder subsection (b)(2) of this rule as reflective of the characterof the prior service of the accused.Whether a civilian conviction is admissible is left to thediscretion of the military judge. As stated in the rule, a civilian
II-120
 
“conviction” includes any disposition following an initial judicialdetermination or assumption of guilt regardless of the sentencingprocedure and the final judgment following probation or othersentence. Therefore, convictions may be admissible regardless of whether a court ultimately suspended judgment upon discharge of the accused ollowing probation, permitted withdrawal of the guilty plea, or applies some other form of alternative sentencing.Additionally, the term “conviction” need not be taken to mean afinal judgment of conviction and sentence.
(B)
Pendency of appeal.
The pendency of anappeal therefrom does not render evidence of a con-v i ct i on in ad m i ss i ble e x ce pt t h a t a c on vic t i o n by summary court-martial or special court-martial with-out a military judge may not be used for purposes of this rule until review has been completed pursuant toArticle 64 or Article 66, if applicable. Evidence of the pendency of an appeal is admissible.(C)
 Method of proof.
Previous convictions maybe proved by any evidence admissible under theMilitary Rules of Evidence.
Discussion
Normally, previous convictions may be proved by use of thepersonnel records of the accused, by the record of the conviction,or by the order promulgating the result of trial.
See
DD Form 493(Extract of Military Records of Previous Convictions).
(4 )
 E v i d e n ce in a g gr ava t i on .
T he tria l c ou nse l may present evidence as to any aggravating circum-stances directly relating to or resulting from the of-fenses of which the accused has been found guilty.Evidence in aggravation includes, but is not limitedto, evidence of financial, social, psychological, andmedical impact on or cost to any person or entitywho was the victim of an offense committed by theaccused and evidence of significant adverse impacton the mission, discipline, or efficiency of the com-mand directly and immediately resulting from theaccused’s offense. In addition, evidence in aggrava-tion may include evidence that the accused inten-tionally selected any victim or any property as theobject of the offense because of the actual or per-c eiv ed r ac e, c olo r, r e lig i on , n a tio na l o r i gi n , e t h - nicity, gender, disability, or sexual orientation of anyperson. Except in capital cases a written or oraldeposition taken in accordance with R.C.M. 702 isadmissible in aggravation.
Discussion
See also
R.C.M. 1004 concerning aggravating circumstances incapital cases.
( 5 )
 E v i d e n c e o f r e h a b i l i t a t i v e p o t e n t i a l .
Rehabilitative potential refers to the accused’s po-tential to be restored, through vocational, correction-a l , o r t h e r a p e u t i c t r a i n i n g o r o t h e r c o r r e c t i v em e a s u r e s t o a u s e f u l a n d c o n s t r u c t i v e p l a c e i nsociety.(A)
 In general.
The trial counsel may present,by testimony or oral deposition in accordance withR.C.M. 702(g)(1), evidence in the form of opinionsconcerning the accused’s previous performance as aservicemember and potential for rehabilitation.(B)
Foundation for opinion.
The witness or de-ponent providing opinion evidence regarding the ac-c u s e d ’ s r e h a b i l i t a t i v e p o t e n t i a l m u s t p o s s e s ssufficient information and knowledge about the ac-cused to offer a rationally-based opinion that is help-ful to the sentencing authority. Relevant informationand knowledge include, but are not limited to, infor-mation and knowledge about the accused’s charac-ter, performance of duty, moral fiber, determinationto be rehabilitated, and nature and severity of theoffense or offenses.
Discussion
See generally
Mil. R. Evid. 701, Opinion testimony by lay wit-nesses.
See also
Mil. R. Evid. 703, Bases of opinion testimony byexperts, if the witness or deponent is testifying as an expert. Thet y p e s o f i n f o r m a t i o n a n d k n o w l e d g e r e f l e c t e d i n t h i s s u b -paragraph are illustrative only.
(C)
 Bases for opinion.
An opinion regarding thea c c u s e d ’ s r e h a b i l i t a t i v e p o t e n t i a l m u s t b e b a s e dupon relevant information and knowledge possessedby the witness or deponent, and must relate to theaccused’s personal circumstances. The opinion of the witness or deponent regarding the severity ornature of the accused’s offense or offenses may notserve as the principal basis for an opinion of theaccused’s rehabilitative potential.( D )
S c o p e o f o p i n i o n .
A n o p i n i o n o f f e r e dunder this rule is limited to whether the accused hasrehabilitative potential and to the magnitude or qual-ity of any such potential. A witness may not offer anopinion regarding the appropriateness of a punitive
II-121
R.C.M. 1001(b)(5)(D)
 
discharge or whether the accused should be returnedto the accused’s unit.
Discussion
On direct examination, a witness or deponent may respond af-f i r ma t i v e l y o r ne g a t i v e l y r e g ar d i n g w h e t h e r t h e ac c u sed has rehabilitative potential. The witness or deponent may also opinesuccinctly regarding the magnitude or quality of the accusedrehabilitative potential; for example, the witness or deponent mayopine that the accused has “great” or “little” rehabilitative poten-tial. The witness or deponent, however, generally may not furtherelaborate on the accused’s rehabilitative potential, such as de-scribing the particular reasons for forming the opinion.
(E )
C r os s -e x am i na t i o n .
On c r os s - ex a m i na t i on , inquiry is permitted into relevant and specific in-stances of conduct.(F)
 Redirect.
Notwithstanding any other provi-sion in this rule, the scope of opinion testimonypermitted on redirect may be expanded, dependingupon the nature and scope of the cross-examination.
Discussion
For example, on redirect a witness or deponent may testify re-garding specific instances of conduct when the cross-examinationof the witness or deponent concerned specific instances of mis-conduct. Similarly, for example, on redirect a witness or deponentmay offer an opinion on matters beyond the scope of the ac-cused’s rehabilitative potential if an opinion about such matterswas elicited during cross-examination of the witness or deponentand is otherwise admissible.
(c)
 Matter to be presented by the defense.
(1)
 In general.
The defense may present mattersin rebuttal of any material presented by the prosecu-tion and may present matters in extenuation andmitigation regardless w hethe r the deense of er ed evidence before findings.(A)
 Matter in extenuation.
Matter in extenua-tion of an offense serves to explain the circum-stances surrounding the commission of an offense,including those reasons for committing the offensew h i c h d o n o t c o n s t i t u t e a l e g a l j u s t i f i c a t i o n o rexcuse.(B)
 Matter in mitigation.
Matter in mitigationof an offense is introduced to lessen the punishmentto be adjudged by the court-martial, or to furnishgrounds for a recommendation of clemency. It in-cludes the fact that nonjudicial punishment underArticle 15 has been imposed for an offense growingout of the same act or omission that constitutes theoffense of which the accused has been found guilty,particular acts of good conduct or bravery and evi-dence of the reputation or record of the accused int he serv ic e or eiciency , f i d el i ty , sub o r d i nati on, temperance, courage, or any other trait that is desira-ble in a servicemember.(2)
Statement by the accused.
(A)
 In general.
The accused may testify, makean unsworn statement, or both in extenuation, inmitigation or to rebut matters presented by the pros-ecution, or for all three purposes whether or not theaccused testified prior to findings. The accused maylimit such testimony or statement to any one or moreof the specifications of which the accused has beenfound guilty. This subsection does not permit thefiling of an affidavit of the accused.( B )
T e s t i m o n y o f t h e a c c u s e d .
T h e a c c u s e dmay give sworn oral testimony under this paragraphand shall be subject to cross-examination concerningit by the trial counsel or examination on it by thecourt-martial, or both.( C )
U n s w o r n s t a t e m e n t .
T h e a c c u s e d m a ymake an unsworn statement and may not be cross-examined by the trial counsel upon it or examinedupon it by the court-martial. The prosecution may,however, rebut any statements of facts therein. Theunsworn statement may be oral, written, or both, andmay be made by the accused, by counsel, or both.
Discussion
An unsworn statement ordinarily should not include what is prop-erly argument, but inclusion of such matter by the accused whenp erso nally ma in g an oral state m en t norma lly should n ot b e grounds for stopping the statement.
(3)
 Rules of evidence relaxed.
The military judgemay, with respect to matters in extenuation or miti-gation or both, relax the rules of evidence. This mayinclude admitting letters, affidavits, certificates of military and civil officers, and other writings of sim-ilar authenticity and reliability.(d)
 Rebuttal and surrebuttal.
The prosecution mayrebut matters presented by the defense. The defensein surrebuttal may then rebut any rebuttal offered bythe prosecution. Rebuttal and surrebuttal may con-tinue, in the discretion of the military judge. If theMilitary Rules of Evidence were relaxed under sub-
II-122
R.C.M. 1001(b)(5)(D)

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