TRIAL STAGES: Sentence and Punishment: Evidence

2013 (September Term)

United States v. Frey, 73 M.J. 245 (members are supposed to adjudicate a sentence based on the evidence presented and the military judge’s instructions, which define, among other things, the potential confinement exposure of the accused and relevant sentencing factors and philosophies; nowhere does the MCM or case law suggest that members are permitted to ignore this evidentiary requirement and replace it with their personal knowledge of the “ways of the world” to determine an appropriate sentence).

(whether or not a person convicted of a particular offense is more or less likely to offend again or become a serial recidivist is a question requiring expert testimony, empirical research, and scientific and psychological method, inquiry, and evidence; recidivism is not a matter resolved through appeal to common sense or a member’s knowledge of “the ways of the world”).

(members are expected to use their common sense in assessing the credibility of testimony as well as other evidence presented at trial).

(when determining a sentence, members are allowed to consider all evidence properly introduced before findings as well as the proffered sentencing evidence). 

United States v. Talkington, 73 M.J. 212 (sex offender registration operates independently of the sentence adjudged and is a collateral consequence of the conviction alone, not the sentence; while an accused may raise a collateral consequence in an unsworn statement, the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused). 

(RCM 1001 permits the presentation of matters in extenuation, mitigation, or rebuttal by an accused through an unsworn statement; despite the limits of this rule, the right to present an unsworn statement is generally considered unrestricted; however, an unsworn statement may be tempered by appropriate instructions from the military judge; while the right of allocution includes the right to present evidence that is not relevant as extenuation, mitigation, or rebuttal, the military judge may put the information in proper context by effectively advising the members to ignore it). 

(a collateral consequence is a  penalty for committing a crime, in addition to the penalties included in the criminal sentence; the general rule concerning collateral consequences is that courts-martial are to concern themselves with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty under consideration; the collateral consequences of a court-martial do not constitute RCM 1001 material, and while they may be referenced in an unsworn statement, they should not be considered for sentencing). 

(a matter in extenuation of an offense serves to explain the circumstances surrounding the commission of an offense, and a matter in mitigation is introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency; it includes the fact that nonjudicial punishment under Article 15 has been imposed for an offense growing out of the same act or omission that constitutes the offense of which the accused has been found guilty, particular acts of good conduct or bravery and evidence of the reputation or record of the accused in the service for efficiency, fidelity, subordination, temperance, courage, or any other trait that is desirable in a servicemember; all of the above examples of mitigation focus on particular traits of the accused, or prior punishment; the proper focus of sentencing is on the offense and the character of the accused, and to prevent the waters of the military sentencing process from being muddied by an unending catalogue of administrative information). 

(unlike the loss of retirement benefits, which would be a direct consequence of the imposition of a punitive discharge, there is no causal relation between the sentence imposed and the sex offender registration requirement; whether appellant received no punishment or the maximum available punishment, he would be required to register as a sex offender based on the fact of his conviction alone). 

(appellant is permitted to mention sex offender registration in his unsworn statement; in turn, the military judge has discretion to temper the unsworn statement with appropriate instructions). 

2010 (September Term)

United States v. Eslinger, 70 M.J. 193 (evidence that goes toward the accused’s rehabilitative potential is permissible at sentencing; under RCM 1001(b)(5)(A), trial counsel may present, by testimony or oral deposition in accordance with RCM 702(g)(1), evidence in the form of opinions concerning the accused’s previous performance as a servicemember and potential for rehabilitation; however, a prosecution witness may not offer an opinion regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit). 

(in sentencing, a witness, be he for the prosecution or the defense, should not be allowed to express an opinion whether an accused should be punitively discharged; appropriateness of punishment is an issue to be decided by the members and cannot be usurped by a witness).  

(RCM 1001(b)(5)(D), which prohibits the prosecution from presenting opinion evidence regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit, does not apply to defense mitigation evidence, and specifically does not preclude defense evidence that a witness would willingly serve with the accused again; retention evidence is classic matter in mitigation, which is expressly permitted to be presented by the defense; however, there can be a thin line between an opinion that an accused should be returned to duty and the expression of an opinion regarding the appropriateness of a punitive discharge; concerns raised with respect to this distinction can be addressed with a tailored instruction focusing on the distinction between a punitive discharge, which is for the members to decide, and the willingness of a servicemember to serve with an accused again; in addition, if the defense is allowed to admit such evidence, the prosecution is free to rebut it; where a party opens the door, principles of fairness warrant the opportunity for the opposing party to respond, provided the response is fair and is predicated on a proper testimonial foundation; as such, if an accused opens the door by bringing witnesses before the court who testify that they want him or her back in the unit, the prosecution is permitted to prove that that is not a consensus view of the command). 

(in this case, where the defense counsel opened the door in sentencing to rebuttal through testimony from its witnesses indicating that they would gladly serve with appellant again, the government was free to rebut with proper evidence that this was not the consensus of the command). 

(when the government’s evidence in rebuttal to defense retention evidence is testimony of the accused’s commander, it may well raise the specter of command influence; however, evidence that the defense witnesses’ views are not a consensus view of the command simply means that retaining the accused is not the view of every member of the command; it does not necessarily mean that the government may parade the commanding officer and the rest of the accused’s chain of command to have them give a command view on retention; that would depend on just how wide the defense opened the door; to be clear, a commander may testify, but it is essential for the military judge to be on guard for the possibility, intended or not, that a commander’s testimony could convey undue command influence to the members; while not an absolute requirement, a tailored instruction from the military judge can ameliorate these risks and clarify the scope of permissible opinions). 

(where the government calls a number of senior command representatives in sentencing to rebut defense retention evidence, the trial counsel should assess which and how many are necessary). 

(the Military Rules of Evidence are applicable to sentencing and provide procedural safeguards to ensure the reliability of evidence admitted during sentencing; thus, a lay witness must always have a proper foundation to offer an opinion). 

(rebuttal evidence of defense retention evidence is governed by RCM 1001(d), the rule permitting the prosecution to rebut matters in sentencing presented by the defense; this rule does not contain the same restrictions as RCM 1001(b)(5), the rule governing government evidence with respect to the accused’s rehabilitative potential; RCM 1001(b)(5) does not specifically apply to rebuttal evidence).

(any infirmity with the testimony in sentencing of appellant’s battalion command sergeant major that appellant should not be retained in the armed forces, which allegedly was not supported by an adequate foundation showing his personal knowledge of appellant, was cured by the military judge’s instruction to disregard the testimony). 

(any additional claimed infirmity based on lack of personal knowledge regarding the testimony in sentencing of appellant’s group command sergeant major that appellant should not be retained in the armed forces was affirmatively waived and was not subject to plain error review, where defense counsel only objected that the testimony was cumulative and did not object that the testimony lacked a proper foundation). 

(testimony in sentencing from one of appellant’s two team sergeants that appellant should not be retained in the armed forces was supported by a substantial personal foundation where the witness was appellant’s team sergeant for two years, trained with appellant, and deployed with him to Iraq). 

(the military judge did not commit plain error by admitting the testimony of appellant’s battalion executive officer who testified in sentencing that appellant should not be retained in the armed forces, where it was not evident that there was a clear and obvious basis to exclude his testimony for lack of foundation; absent objection to the witness’s testimony, it was not unreasonable for the military judge to infer that the executive officer of a Special Forces battalion would have direct and personal knowledge of appellant, a senior enlisted member in the command).  

(the military judge did not commit plain error by admitting the testimony in sentencing of appellant’s group commander who testified that appellant should not be retained in the armed forces, where it was not evident that there was a clear and obvious basis to exclude his testimony for lack of foundation; although the witness based his knowledge of appellant on his reputation in the command and he did not state that he had direct personal knowledge of appellant, the witness’s testimony was based on his standing as a Special Forces Group commander; in the context of plain error review and in the context of the tightly knit and relatively small units that comprise the Army Special Forces community, absent a record indicating otherwise, the military judge did not abuse his discretion in admitting the Group commander’s testimony).

2009 (September Term)


United States v. Ellis
, 68 M.J. 341 (during the presentencing hearing, an accused’s potential for rehabilitation is a proper subject of testimony by qualified experts). 

 

(RCM 1001(b)(5)(A) allows trial counsel to present opinion evidence in a presentencing hearing as to an accused’s potential for rehabilitation). 

 

(there can be no hard and fast rule as to what constitutes sufficient information and knowledge about the accused necessary for an expert’s opinion as to an accused’s rehabilitation potential; the sufficiency of the facts and data are analyzed on a case-by-case basis).


2008 (September Term)

United States v. Ashby, 68 M.J. 108 (at sentencing, trial counsel may present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty; evidence in aggravation includes evidence of psychological impact on any person who was the victim of an offense committed by the accused; even if admissible as aggravation under RCM 1001(b)(4), the evidence must pass the balancing test of MRE 403; MRE 403 states that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence). 

 

(admission of testimony of three family members of victims who died in gondola mishap, offered in support of government’s case in aggravation of conduct unbecoming an officer for concealing a videotape of the flight of the aircraft that severed the gondola’s cable, was not an abuse of discretion, where the testimony was limited to include only the effect that the missing videotape had on the witnesses’ ability to process his or her loss; while the testimony was prejudicial to the defense - after all that is the general purpose of evidence in aggravation - the evidence was not unfairly prejudicial; in its restricted form, the testimony was brief and rather straightforward; although the record reflects that the witnesses were visibly emotional during their testimony, they were not disruptively so). 

Loving v. United States, 68 M.J. 1 (evidence about an accused’s background and character is relevant in sentencing because of the belief, long held by this society, that an accused who commits criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than an accused who has no such excuse). 


United States v. Sanders, 67 M.J. 344 (during the sentencing phase of a court-martial, any error in the admission of a handwritten letter found in appellant’s pretrial confinement cell that contained a farrago of bequests, assertions, excuses, and advice, some of which attacked the military justice system and accused the military judge of favoring the prosecution, did not substantially influence the adjudged sentence and did not materially prejudice the substantial rights of appellant where the military judge stated that she would not consider the personal attack on her contained therein, where there is no indication that the military judge gave significant weight to the rest of the letter in arriving at the adjudged sentence, where appellant only received confinement for 14 years when the maximum sentence included confinement for life without eligibility for parole, and where appellant’s crimes were severe).

 

United States v. Stephens, 67 M.J. 233 (RCM 1001(b)(4) provides that the trial counsel may present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty; evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person who was the victim of an offense committed by the accused; testimony as to the effect of the process, including the trial, on the victim certainly comes within the rather broad ambit of this rule). 

 

(sentencing evidence is subject to the requirements of the balancing test of MRE 403). 

 

(permitting a child victim’s father to testify during the government’s sentencing case about the effect the investigation and court-martial had on the victim was not a constitutional violation, where there was no explicit comment by the trial counsel or the father concerning appellant’s invocation of his constitutional rights to plead not guilty, confront the witnesses against him, and put the government to its proof, but rather, there was only a brief reference to the effect of the entire proceeding on the victim). 

 

(under the MRE 403 balancing test, relevant evidence may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice; the overriding concern of MRE 403 is that evidence will be used in a way that distorts rather than aids accurate fact-finding). 

 

(the probative value of the testimony of a child victim’s father during the government’s sentencing case about the effect the investigation and court-martial had on the victim was not substantially outweighed by any danger of unfair prejudice to appellant, where the father’s testimony was probative because it showed specific psychological harm that the child suffered as a result of appellant’s offense (i.e., she was no longer able to enjoy sports and other activities and had changed significantly), where the possibility that the court members might misuse this testimony as a comment on appellant’s right to confront and cross-examine witnesses was remote, where the admission of this evidence did not distort accurate fact-finding, and where the evidence was relevant victim impact evidence and properly admitted under RCM 1001(b)(4)). 


(testimony from the child victim’s father during the government’s sentencing case about the effect the investigation and court-martial had on the victim, including testimony that the victim was no longer able to enjoy sports and other activities and had changed significantly, was relevant victim impact evidence and properly admitted under RCM 1001(b)(4)) in sentencing appellant for offenses related to his inappropriate touching of the victim). 


2007


United States v. Erickson
, 65 M.J. 221 (RCM 1001 allows the military judge to consider an accused’s admitted conduct with his children as well as the negative and continuing impact of that conduct as an aggravating factor; the sentence adjudged must be based on all relevant sentencing factors).


United States v. Green
, 64 M.J. 289 (an accused has a broad right during allocution to bring aspects of his or her personal life for consideration in extenuation or mitigation; an accused, for example, may attempt in sentencing to demonstrate repentance and readiness for rehabilitation). 


(an accused may attempt during sentencing to convince the military judge that that his or her religious practices and beliefs demonstrate repentance and readiness for rehabilitation; when the accused does so, the military judge may properly take into account the credibility and context of the accused’s statement; the military judge must ensure that the evidence is considered for the appropriate purpose, and that the military judge does not interject his or her personal religious beliefs into the sentencing process). 


United States v. Hardison, 64 M.J. 279 (there are two primary limitations on the admission of aggravation evidence under RCM 1001(b)(4); first, such evidence must be directly relating to the offenses of which the accused has been found guilty; this rule does not authorize introduction in general of evidence of uncharged misconduct and is a higher standard than mere relevance; the second limitation is that any evidence that qualifies as aggravation evidence must also pass the test of MRE 403, which requires balancing between the probative value of any evidence against its likely prejudicial impact).


(the meaning of directly related aggravating evidence under RCM 1001(b)(4) is a function of both what evidence can be considered and how strong a connection that evidence must have to the offenses of which the accused has been convicted; regarding the strength of the connection required between admitted aggravation evidence and the charged offense, the link between the RCM 1001(b)(4) evidence of uncharged misconduct and the crime for which the accused has been convicted must be direct as the rule states, and closely related in time, type, and/or often outcome, to the convicted crime).


2006


United States v. Tanner, 63 M.J. 445 (the prosecution’s sentencing evidence may include the accused’s service data from the charge sheet, personal data and evidence as to the character of the accused’s prior service, evidence of prior military or civilian convictions, evidence in aggravation, and evidence of rehabilitative potential). 


(for the purpose of admitting a prior conviction into evidence, a court-martial conviction occurs when a sentence has been adjudged; the prosecution may introduce evidence of a prior conviction during the pendency of an appeal therefrom). 


(the fact that information is inadmissible on sentencing as a record of conviction does not preclude its admission on other grounds if relevant and reliable). 


(during sentencing, the prosecution is authorized to present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty).  


(during sentencing, uncharged misconduct will often be admissible as evidence in aggravation as circumstances directly relating to or resulting from the offenses of which the accused has been found guilty). 


(MRE 404(b) does not provide a basis for admission of evidence during sentencing that is not otherwise admissible under RCM 1001(b)(4)).


(MRE 414 does not contain a prohibition against predisposition evidence; instead, in a court-martial for child molestation, MRE 414 provides a vehicle for the admissibility of other acts of child molestation committed by the accused; the rule reflects a presumption that other acts of child molestation constitute relevant evidence of predisposition to commit the charged offense; as such, in a child molestation case, evidence of a prior act of child molestation directly relates to the offense of which the accused has been found guilty and is therefore relevant during sentencing under RCM 1001(b)(4)). 

United States v. Pope, 63 M.J. 68 (a policy directive may be promulgated to improve discipline; however, it must not be used as leverage to compel a certain result in the trial itself; references to command policies or views which in effect bring the commander into the deliberation room are condemned; such a practice invades the province of the sentencing authority by raising the specter of command influence). 

 

(the military judge abused his discretion during presentencing in admitting in aggravation a letter from appellant’s commander provided to every recruiter which stated that “harsh adverse action” would follow violation of recruiting rules prohibiting sexual misconduct with potential recruits, as the letter improperly conveyed the command’s view that harsh action should be taken against the appellant, a recruiter found guilty of sexual harassment). 


United States v. Hill, 62 M.J. 271 (during a sentencing proceeding, it is appropriate to consider the rehabilitative potential of an accused; under RCM 1001(b)(5), the prosecution may present opinion testimony during sentencing as to potential of an accused to be restored to a useful and constructive place in society, with certain restrictions; such testimony is limited to whether the accused has rehabilitative potential and to the magnitude or quality of any such potential; the prosecution’s witness may not offer an opinion regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit).    


(the defense, which has broad latitude to present evidence in extenuation and mitigation under RCM 1001(c), is not subject to the limitations of RCM 1001(b)(5); if the defense, however, elicits evidence that could not be introduced by the prosecution under RCM 1101(b)(5), the door may be opened for the prosecution to present such evidence in rebuttal). 


(in this case, when the defense counsel opened the door in sentencing on the accused’s commander’s view that he would not want the accused back in his unit in a particular occupational specialty, the trial judge could properly consider that commander’s testimony, and could give that testimony such weight as the judge deemed appropriate in the sentencing proceeding, including how it might bear on the question of a punitive discharge). 


(in this case, where the trial judge expressly stated that the accused’s commander’s remarks on cross-examination about not retaining him in the service were not responsive and inadmissible, and where the post-trial Bridge the Gap comments of the same judge that he was thinking of keeping the accused in the service until his commander said he did not want him back were admissible when read in a certain context, in light of the presumption that a military judge adheres to his own evidentiary rulings, and under the circumstances of this case, the accused has not demonstrated that the trial judge relied upon inadmissible testimony in the course of adjudging the sentence).


United States v. Cary
, 62 M.J. 277 (an erroneous data entry to an Article 15, UCMJ, nonjudicial punishment on a personal data sheet admitted in aggravation in sentencing without objection did not meet the plain error standard where (1) the data entry only listed the numeral “1” after “Article 15,” without any reference to the nature of the offense or the type of punishment, and thus was not particularly informative; (2) the trial counsel did not introduce any record of an NJP proceeding or make mention of an NJP in his sentencing argument; (3) the military judge made no mention of an NJP; (4) the staff judge advocate’s recommendation described appellant’s prior service as “satisfactory” and did not mention an NJP; and (5) the adjudged and approved sentence was considerably less than the jurisdictional maximum; although this error may have been plain, appellant failed to demonstrate that the military judge or the convening authority considered this entry; the absence of any reliance on the erroneous information by the prosecution or the staff judge advocate underscored the absence of any prejudice under the plain error test). 


2005


United States v. Griggs
, 61 M.J. 402 (the prohibition expressed in RCM 1001(b)(5)(D) that a witness may not offer an opinion regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit applies to the government’s sentencing evidence but does not apply to defense sentencing evidence).


(RCM 1001(b)(5)(D) does not apply to defense mitigation evidence, and specifically does not preclude evidence that a witness would willingly serve with the accused again; so-called “retention evidence” is classic matter in mitigation, which is expressly permitted to be presented by the defense; however, there can be a thin line between an opinion that an accused should be returned to duty and the expression of an opinion regarding the appropriateness of a punitive discharge; obviously, an accused cannot return to serve in his unit if he receives a punitive discharge; but an explicit declaration that an accused should not receive a punitive discharge or that any such discharge should be of a certain severity is disallowed for the defense not because of RCM 1001(b)(5)(D), but because such evidence invades the province of the members to decide alone on punishment). 


(in sentencing, if the defense is allowed to admit retention evidence in mitigation, the government is free to rebut such evidence, consistent with historical concerns regarding command influence; thus, if an accused opens the door by bringing witnesses before the court who testify that the accused back in the unit, the government is permitted to prove that that is not a consensus view of the command). 


(RCM 1001(b)(5)(D) does not apply to defense evidence offered in mitigation under RCM 1001(c); however, the defense presentation is not boundless; like other opinion testimony, to establish relevance on sentencing, the witness must have a proper foundation for the opinion or view expressed; military judges shall exercise their discretion in determining whether such a foundation is laid, and whether the door to rebuttal swings open). 

(the erroneous exclusion of defense mitigation evidence in the form of character letters urging the accused’s retention in the service was prejudicial in light of the qualitative nature of the excluded statements and the potential impact they may have had upon the members in their sentencing decision; evidence from fellow servicemembers who would have stated that the accused should be retained because of his potential to the service may have had a significant impact on the members, given the value that military members place on respect from peers and superiors). 


2004

 

United States v. Saferite, 59 MJ 270 (the Military Rules of Evidence are applicable to sentencing, thus providing procedural safeguards to ensure the reliability of evidence admitted during sentencing; the military judge may exercise discretion to relax the evidentiary rules for the defense to present sentencing evidence; this relaxation of evidentiary rules goes more to the question of whether the evidence is authentic and reliable and otherwise inadmissible evidence still is not admitted at sentencing).

 

(MRE 403 applies to sentencing evidence).

 

United States v. Kahmann, 59 MJ 309 (admission of a prior summary court-martial conviction into evidence during the sentencing proceeding did not constitute plain error; there is no legal requirement that the document reflecting the prior conviction contain on its face a notation that the accused had an opportunity to speak with counsel before the summary court-martial and that there has been a compliance with the review requirements under Article 64, UCMJ; in the absence of a defense objection, the Government does not have an affirmative duty to present evidence on these matters as a condition of admissibility).

 

(the point at which a service member must decide whether to object to an informal proceeding is an important stage in the military justice process; in recognition of the key role that counsel can play in advising a service member at that point, our Court has limited the admissibility of such records when the accused has not had the opportunity to consult with counsel).

 

(in a sentencing proceeding, the prosecution may introduce certain personnel records of the accused, including records of punishment under Article 15; the defense may object to the admission of a record on the grounds that it is inaccurate, incomplete, not made or maintained in accord with departmental regulations, or that the record otherwise contains inadmissible evidence; the accused also may object on the grounds that he or she was not provided with the opportunity to confer with counsel before deciding whether to demand trial by court-martial).

 

(during sentencing, the prosecution also may introduce prior convictions of the accused, including convictions by summary court-martial; among the objections that may be made to the admissibility of a summary court-martial conviction, the accused may cite the absence of proof of review under Article 64, UCMJ; in addition, the accused may object to the admissibility of a summary court-martial conviction on the grounds that the accused was not provided with the opportunity to consult with counsel prior to deciding whether to object to the proceeding).

 

(under M.R.E. 103, a ruling admitting evidence will not be overturned on appeal unless there was an appropriate objection at trial, subject to consideration of plain error; in a case decided prior to the adoption of M.R.E. 103 that involved the admissibility of a prior summary court-martial conviction, our Court indicated that the military judge had an affirmative duty to ensure that the accused had been afforded an opportunity to consult with counsel and had affirmatively waived the right to object to trial by summary court-martial; in subsequent cases, we have suggested that M.R.E. 103 governs the admissibility of records reflecting summary court-martial convictions and nonjudicial punishment, although we have not expressly based a decision on that position; we do so today).

 

(a document that summarizes a summary court-martial conviction or nonjudicial punishment does not differ in significant respects from other records that are subject to M.R.E. 103; recognition of the importance of the opportunity to consult with counsel prior to an election concerning a nonjudicial punishment proceeding or a summary court-martial does not require differential treatment with respect to plain error analysis; accordingly, we hold that admissibility of the record from such a proceeding is governed by the objection and plain error provisions of M.R.E. 103).

 

(the placement on the record of summary court-martial conviction of a statement that the accused had been afforded an opportunity to consult with counsel prior to electing to proceed with the summary court-martial may be desirable as a matter of policy, particularly in view of the fact that an objection to the document requires the Government to prove that the accused was afforded the opportunity to consult with counsel, and the Government must do so without compelling the accused to provide such evidence; the admissibility of such a record, however, does not depend upon the placement of such a statement on the face of the document, and the prosecution may prove that the accused was afforded the opportunity to consult with counsel through other evidence; absent objection by the defense, the prosecution is under no obligation to introduce such evidence).

 

(with respect to appellant’s contention that the military judge erred by admitting the record of a summary court-martial conviction when the document did not contain a notation that review had been completed under Article 64, appellant has not identified any statutory, regulatory, or judicial requirement to place such a notation on a document summarizing a conviction by summary court-martial; if the defense objects to the admissibility of a document summarizing a summary court-martial conviction on the grounds that there is no evidence of review under Article 64, the burden is on the prosecution to demonstrate that such review has been completed; the opportunity to object is sufficient to protect appellant’s rights under R.C.M. 1001(b)(3)(B), and the military judge is not required to inquire on his or her own motion whether such review has been completed). 

 

2003

United States v. Gogas, 58 MJ 96 (the fact that evidence may be inadmissible under one rule does not preclude its admissibility under a different rule).

(R.C.M. 1001(b)(4) permits the Government to introduce evidence of any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty; aggravation evidence may include evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused’s offense; aggravating evidence includes evidence which is directly related to the offense for which an accused is to be sentenced so that the circumstances surrounding that offense or its repercussions may be understood by the sentencing authority; counsel may present such evidence through a stipulation of fact, witness testimony, or the accused's own statements).

(appellant’s letter to his Congressman was a statement by the accused directly relating to the offenses of which he was found guilty and admissible under R.C.M. 1001(b)(4); the letter revealed an aggravating circumstance: appellant’s indifference to anything other than his own pleasure; indifference to the nature or consequences of criminal conduct is an aggravating factor that may be considered in determining an appropriate sentence for that misconduct).

United States v. Holt, 58 MJ 227  (MRE 807 requires that a statement offered for admissibility under the residual hearsay rule be more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts; the court below abused its discretion by misapplying this foundational requirement, looking at the evidence that was produced rather than at evidence that could have been produced on victim impact).

(MRE 807 requires notice sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it; this notice requirement has critical significance in light of the foundational requirements supporting residual hearsay; nothing in the record indicates that appellant was provided any notice pursuant to MRE 807 before trial or before appellate proceedings that would afford him an adequate opportunity to prepare to challenge the admissibility of this document as residual hearsay; accordingly, the court below abused its discretion by ignoring this foundational requirement).

(under MRE 803(3), a relevant state of mind may be proven by the person’s own, out-of-court, uncross-examined, concurrent statements as to its existence; documents and markings on the backs of the bad checks created by third parties cannot be used to reflect appellant’s state of mind).

2002

United States v. Harris, 56 MJ 480 (regarding RCM 1001(b)(2) and RCM 1107, a "Waiver of Enlistment Criteria" record was part of appellant’s Service Record Book, which is a repository of appellant’s personnel records and was something to which appellant had access).

(RCM 1001(b)(2) is a rule of admissibility intended to regulate the type of evidence submitted by counsel as part of the adversarial process during the presentencing hearing; it does not regulate the type of material submitted by counsel as part of the post-trial action by the convening authority).

United States v. Douglas, 57 MJ 270 (a stipulation of fact, previously created for and contained in the record of trial of a previous court-martial, and that was maintained in appellant’s personnel file does not qualify as “evidence of a conviction” under RCM 1001(b)(3)).

(a stipulation of fact, previously created for and contained in the record of trial of a previous court-martial, and that was properly maintained in appellant’s personnel file, reflected appellant’s conduct, and was the type of admissible personnel record envisioned by RCM 1001(b)(2)).

United States v. Terlep, 57 MJ 344 (the entrance of the Government and appellant into a plea bargain for a lesser charge than rape does not change the facts as to what happened to the victim that night in her view; the search for truth in the courtroom need not be dispensed with simply because a plea agreement exists outside it; absent an express provision in the pretrial agreement or some applicable rule of evidence or procedure barring such evidence, this important victim impact evidence was properly admitted).

2001

United States v. Hursey, 55 MJ 34 (Mil. R. Evid. 403 applies to sentencing evidence).

(military judge abused his discretion by admitting alleged rebuttal evidence on sentencing where: (1) the witness’ testimony had virtually no probative value because the witness lacked personal knowledge about the reason for appellant’s absence at the scheduled time for trial; (2) the evidence had the potential for wasting time by provoking a mini-trial on the reason for appellant’s absence; and (3) the evidence had the potential to mislead the members by suggesting, in a prejudicial manner and without basis, that appellant was so unreliable that he was absent without authority from his own court-martial).

United States v. McDonald, 55 MJ 173 (the Constitution requires that evidence admitted during sentencing must comport with the utilitarian purpose of the Due Process Clause, i.e. reliability, and procedural-due-process requirements).

(the President has provided rules to ensure “relevant and reliable” evidence on sentencing).

(the Due Process Clause requires that the evidence introduced in sentencing meet minimum standards of reliability).

(with respect to the prosecution’s evidence in aggravation, the Rules of Evidence may be relaxed only to the extent that the testimony is offered in “forms of evidence such as” an oral or written deposition; this rule does not prohibit taking testimony by telephone).

(the Sixth Amendment right of confrontation does not apply to the sentencing portion of a non-capital court-martial).

(permitting sentencing evidence from prosecution aggravation witness by telephone did not violate minimum standards of due process where:  (1) there was no evidence to suggest that the witness’s testimony was unreliable or that his identity was in question; (2) there was notice to the defense; (3) there was right to counsel; (4) there was right of cross-examination; (5) the evidence was presented to a military judge as sentencing authority; and (6) the record established that the practical difficulties of producing the witness, including the cost and timing, were such that the judge did not abuse his discretion in allowing the testimony to be taken by phone).

(although telephonic testimony during sentencing is not prohibited, it may not be appropriate in all cases, and the Manual’s guidance to the military judge during sentencing is sufficient to ensure the proper balance between obtaining needed testimony and safeguarding the rights of the accused).

United States v. Anderson, 55 MJ 182 (RCM 1001(b)(2) permits the prosecution to introduce information from the accused’s personnel records, but it does not provide blanket authority to introduce all information that happens to be maintained in the accused’s personnel records).

(even though it was a personnel record, a document purporting to approve an accused’s request for discharge in lieu of court-martial on other charges was inadmissible during sentencing under Mil. R. Evid. 410:  (1) the document reflected that appellant had bargained for disposition of the earlier charges without trial; (2) the request for discharge was tantamount to a statement because an admission of guilt was an integral part of the discharge process; and (3) because the administrative discharge was not executed and appellant had not received the benefit of his bargain in the earlier case, those earlier charges were still pending).

United States v. Luster, 55 MJ 67 (there is no per se rule precluding defense evidence of an accused’s estimated retirement pay at various ranks if he is not punitively discharged simply because he is not actually retirement eligible at the time of his court-martial; it may be a critical matter of which the members should be informed in certain cases before they decide to impose a punitive discharge).

(a military judge has a certain amount of discretion in determining to allow evidence regarding the loss of retirement benefits in a particular case, but the decision should not be based solely on the number of months until an accused’s retirement where other facts and circumstances indicate that the loss of these benefits is a significant issue in the case).

(defense evidence of an accused’s estimated retirement pay at various ranks if he is not punitively discharged (1) appellant was serving an enlistment which would normally result in his eligibility for retirement; (2) the probability of retirement was not otherwise shown to be remote; (3) the expected financial loss was substantial; (4) the military judge effectively established a guarantied retirement standard before the evidence could be admitted; (5) the military judge’s conclusion concerning appellant’s retirement chances was based on speculation; and (6) the members were fully capable of and responsible for determining the likelihood that appellant would not retire under prevailing regulations).

(appellant was prejudiced by military judge’s erroneous decision to exclude defense evidence of an accused’s estimated retirement pay at various ranks if he is not punitively discharged where:  (1) appellant needed only complete his current term of enlistment to be eligible to retire; (2) appellant had no record of prior convictions or nonjudicial punishment; (3) appellant had reliable evidence of projected loss; (4) the decision to award a punitive discharge was a close call; and (5) appellant was significantly disadvantaged when he was required to present a more general sentencing case relying on oblique references in voir-dire questions to the members and in counsel’s argument).

United States v. Washington, 55 MJ 441 (appellant, a senior airman with over 18 years of active military service and who could retire during her current enlistment, was prejudiced by the military judge’s refusal to admit a summary of expected lost retirement pay if appellant was awarded a punitive discharge).

(the military judge erred when she prevented the defense from presenting to the members a complete picture of the financial loss appellant, a senior airman with over 18 years of active military service and who could retire during her current enlistment, would suffer as a result of a punitive discharge).

United States v. Nourse, 55 MJ 229 (when uncharged misconduct is part of a continuous course of conduct involving similar crimes and the same victims, it is encompassed with the language “directly relating to or resulting from the offenses of which the accused has been found guilty” under RCM 1001(b)(4)).

(evidence regarding uncharged larcenies from the same victim was admissible as an aggravating circumstance under RCM 1001(b)(4) because it directly related to the charged offenses as part of a continuing scheme to steal from the same victim and showed the full impact of appellant’s crimes on that victim).

2000

United States v. George, 52 MJ 259 (during sentencing proceeding for offense of communicating indecent language to a 17-year-old female, evidence of the depths of the accused’s sexual problems and his future dangerousness are proper matters for consideration).

United States v. Latorre, 53 MJ 179 (although government did not lay an adequate foundation to support scientific evidence concerning recidivism and future conduct of pedophiles, appellant was not prejudiced on sentencing where: (1) the government’s case was strong; (2) the defense case for leniency was unremarkable; and (3) the quality and materiality of the evidence was not readily apparent).

United States v. Glover, 53 MJ 366 (military judge admitted evidence of two prior bad check convictions  which were over ten years old; if he did so in reliance on his conclusion that MRE 403 did not apply to evidence introduced at sentencing, he erred.  See RCM 1001(b)(3) and Analysis thereto).

United States v. Patterson, 54 MJ 74 (expert testimony on sentencing that “grooming” was a term that described certain activities of a pedophile and that “grooming” occurred in this case did not run afoul of military judge’s ruling that he would not consider the witness’ testimony on appellant’s psychiatric or psychological condition because the witness failed to personally examine appellant).

(the military judge did not abuse his discretion in admitting expert testimony on “grooming” during sentencing for the limited purpose of showing the psychological impact of appellant’s offenses on the victim).

(expert testimony that persons who groom children for sexual abuse are not capable of rehabilitation may have violated military judge’s ruling which precluded the expert from testifying about appellant’s individual psychiatric orders or disorders; however, admission of such testimony at sentencing was not plain error where:  (1) appellant was convicted of an extraordinary number of sexual offenses against his own minor daughter over a five-year period; (2) the inability-to-rehabilitate evidence was a small part of the government’s sentencing case which otherwise called for severe punishment on the basis of the outrageousness of the offenses and the terrible impact on appellant’s daughter; and (3) the military judge restricted consideration of the evidence to the impact of the offenses on the victim and the court was confident that he adhered to this ruling).

United States v. Manns, 54 MJ 164 (sentencing evidence, like all other evidence, is subject to the balancing test of Mil. R. Evid. 403).

(admissions by appellant that he committed adultery, used prostitutes, and obsessed over sex were admissible on sentencing in a case involving child sexual abuse to show the depth of the appellant’s sexual problems).

1999

United States v. Clemente, 50 MJ 36 (unfavorable information file, directly rebutting defense sentencing evidence, fit within RCM 1001 pre-sentencing rules; military judge did not abuse discretion in finding the evidence more probative than prejudicial).

(inadmissibility under one rule does not preclude admissibility under another rule).

United States v. Williams, 50 MJ 397 (it is improper sentencing evidence for a commanding officer to recommend a punitive discharge to a court-martial sentencing authority or to use euphemisms to that same effect; commander’s testimony that she had past intention of administratively discharging appellant could be rationally construed as an opinion that appellant should be punitively discharged and was, therefore, improper sentencing evidence).

United States v. Armon, 51 MJ 83 (RCM 1001(b)(5)(A) permits sentencing evidence consisting of opinions on the accused’s rehabilitative potential, but such opinions must be based on sufficient information and knowledge about the accused to offer a rationally based opinion that is helpful to the sentencing authority (RCM 1001(b)(5)(B)) and must be based on information and knowledge of the accused’s personal circumstances (RCM 1001(b)(5)(C)).

(opinion evidence on rehabilitative potential offered during sentencing may not be based principally on the severity or nature of the accused’s offenses).

(RCM 1001(b)(5)(D) prohibits testimony about the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit).

(pursuant to RCM 1001(b)(4), sentencing witness who did not personally know accused and was not familiar with his service record may testify about:  witness’s emotional reaction to the accused’s misconduct; how accused’s misconduct had been personally offensive to other soldiers; and how accused’s misconduct was detrimental to the trust and confidence required among soldiers in combat).

(comment by sentencing witness who did not personally know accused and was not familiar with his service record that he did not want accused around in a combat jump could be construed as an indirect way of saying he did not want accused in unit, and such testimony would violate RCM 1001(b)(5)(D) prohibition against testimony about whether the accused should be returned to the accused’s unit).

(sentencing witness’s description of the dangers caused by accused’s misrepresentation of his qualifications and experience was admissible under RCM 1001(b)(4), and witness’s opinion about accused’s ability to lead troops was permissible under RCM 1001(b)(5) where that witness supervised and knew accused).

(sentencing witness’s description of special bond among soldiers who jump into combat and his emotional reaction to accused’s misconduct were admissible under RCM 1001(b)(4)).

(sentencing witness’s comment about accused’s ability to lead troops was a reflection on accused’s status as a noncommissioned officer; witness stopped short of suggesting there was no place in the Army for the accused).

(sentencing witness’s comment that he would not want to serve in a unit with the accused facially runs afoul of the spirit, if not the letter, of RCM 1101(b)(5)(D); however, where this testimony was presented in the context of unit morale and discipline, in the context of the need for integrity and trust in the service, and referred to in terms of the emotional pain inflicted upon the witness by the accused’s misconduct, the testimony was admissible under RCM 1001(b)(4)).

United States v. Gammons, 51 MJ 169 (failure to object to government’s reference to nonjudicial punishment imposed for same serious offense tried at court-martial constituted waiver under RCM 1001(b)(2); CAAF rejects plain error argument).

(where nonjudicial punishment and a court-martial involve the same offense, Article 15(f), UCMJ requires that the defense, not the prosecution, determine whether the record of nonjudicial punishment should be presented).

(Article 15(f)’s purpose, to prevent an accused from being twice punished for the same offense, may be enforced in either of two ways by an accused:  (1) a motion to dismiss the charge on the grounds of former punishment for a minor offense; and (2) as the gatekeeper on the question of whether a nonjudicial punishment for a serious offense will be brought to the attention of the sentencing authority).

(as the gatekeeper on the question of whether a nonjudicial punishment for a serious offense which is also the subject of the instant court-martial will be brought to the attention of the sentencing authority, an accused may:  (1) choose not to introduce evidence of a prior nonjudicial punishment and thereby preclude the prosecution from introducing or commenting upon the record; or (2) choose to introduce evidence of the prior nonjudicial punishment and open the door to prosecution evidence, consistent with the rules of evidence, that is necessary to ensure that the information pertaining to the nonjudicial punishment is accurate).

United States v. Scott, 51 MJ 326 (expert testimony as to recidivism and the potential for rehabilitation of sexual offenders was proper sentencing evidence).

United States v. Roth, 52 MJ 187 (MRE 615 dealing with exclusion of witnesses from the court room is a rule of evidence which may be relaxed during the sentencing portion of the trial).


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