2023 (October Term)
United States v. Hasan, 84 M.J. 181 (in this capital murder trial, a victim's pregnancy was relevant for sentencing as evidence in aggravation; evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused).
(victim impact testimony is admissible in capital cases to inform the panel about 'the specific harm caused by the accused; and in this capital case, the death of a victim's unborn child was directly related to or resulted from the offense of her killing of which appellant was convicted).
(in this capital case, although the victim's father testified that he and his unborn grandchild were victims of appellant's crimes, the military judge instructed the members that they could only consider this as evidence of the emotional impact on the victim's family and were required to bear in mind that the accused was to be sentenced only for the offenses of which he had been found guilty; absent evidence to the contrary, it is presumed that the members understood and followed the military judge's instructions with respect to this evidence).
2021 (October Term)
United States v. Palacios Cueto, 82 M.J. 323 (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).
(a sex offender registration requirement 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).
(in sentencing, a court-martial may consider the possible loss of retirement benefits that follow from a punitive discharge).
(a court-martial certainly may consider the impact of the offense on the psychological well-being of any victim; but a court-martial should not consider how the sentence would affect the victim).
United States v. Edwards, 82 M.J. 239 (in Article 6b), UCMJ, Congress granted the victim of an offense under the UCMJ the right to be reasonably heard during any sentencing hearing related to that offense; the statute provides for the appointment of an individual to stand in for the victim if the victim is deceased; in RCM 1001A(e) (2016 ed) (crime victims and presentencing), the President authorized the victim (or the victim’s designee when appropriate) to make a sworn or unsworn statement; the rule further provides that unsworn statements may be oral, written, or both).
(unsworn victim statements are not evidence, but presentencing matters that may be presented to and considered by the panel).
(the victim’s right to make an unsworn statement is separate and distinct from the government’s right to offer victim impact statements in aggravation under RCM 1001(b)(4)).
2020 (October Term)
United States v. Tyler, 81 M.J. 108 (in 2013, Congress revised presentencing procedures by enacting Article 6b(a)(4)(B), UCMJ, 10 USC § 806b(a)(4)(B), to give a victim the right to be reasonably heard at a sentencing hearing concerning the offense of which he or she is the victim; the President promulgated RCM 1001A to facilitate the statutory right to be reasonably heard (now found in RCM 1001(c)); a victim may make a sworn or unsworn statement during sentencing in a noncapital case).
(RCM 1001(b)(4) governs what the prosecution may present as evidence in aggravation during presentencing, and permits trial counsel to present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty).
(RCM 1001(b)(4) governs what the prosecution may present as RCM 1001A (now RCM 1001(c)) belongs to the victim, and is separate and distinct from the government’s right to offer victim impact statements in aggravation, under RCM 1001(b)(4)).
(in this case, where the government did not offer the victim statements under RCM 1001(b)(4) and the statements were instead admitted as court exhibits by the military judge pursuant to RCM 1001A (now RCM 1001(c)), the military judge erred in reasoning that trial counsel could argue the content of the unsworn statements simply because they could have been admitted as substantive evidence under RCM 1001(b)(4); RCM 1001A (now RCM 1001(c)) belongs to the victim and is separate and distinct from RCM 1001(b)(4)).
(the Military Rules of Evidence are applicable to sentencing and thus provide procedural safeguards to ensure the reliability of evidence admitted during sentencing).
(the Military Rules of Evidence are inapplicable to unsworn victim statements).
(like an accused, a victim may, personally or through counsel, make an unsworn statement orally, in writing, or both, and may not be cross-examined or examined by the court upon it; like an accused’s unsworn statement, unsworn victim statements are not made under oath, and are thus not evidence).
(although the unsworn victim statement is not subject to the Military Rules of Evidence, a military judge is not powerless to restrict its contents; the military judge has an obligation to ensure the content of a victim’s unsworn statement comports with the parameters of victim impact or mitigation as defined by RCM 1001A (now RCM 1001(c)).
(an unsworn victim statement, although not evidence, can nevertheless be commented on by either party in presentencing argument; and counsel’s comments concerning a victim’s unsworn statement may include both references and arguments).
2018 (October Term)
United States v. Hamilton, 78 M.J. 335 (the MREs are applicable to sentencing, thus providing procedural safeguards to ensure the reliability of evidence admitted during sentencing).
2017(October Term)
United States v. Barker, 77 M.J. 377 (RCM 1001A sets forth the rules regarding the victim’s right to be reasonably heard at presentencing; it belongs to the victim, and is separate and distinct from the government’s right to offer victim impact statements in aggravation under RCM 1001(b)(4); under RCM 1001A(b)(1), a crime victim is an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilt). (RCM 1001A(b)(4)(B) effectuates the right to be heard at presentencing, and thus provides that, in noncapital cases, the victim has the right to be reasonably heard through a sworn or unsworn statement; the contents of the statements may include victim impact or matters in mitigation; the victim may use an unsworn statement that can be oral, written, or both, and the victim may not be cross-examined by the trial counsel or defense counsel upon it or examined upon it by the court-martial; indeed, victim testimony under RCM 1001A does not constitute witness testimony; however, the prosecution or defense may rebut any statements of fact in an unsworn statement).(the government admits aggravation evidence, to include victim impact statements, under RCM 1001(b)(4), and victims exercise their right to reasonably be heard at presentencing under RCM 1001A).
(the rights vindicated by RCM 1001A are personal to the victim in each individual case; therefore, the introduction of statements under this rule is prohibited without, at a minimum, either the presence or request of the victim, the special victim’s counsel, or the victim’s representative).(the RCM 1001A process belongs to the victim, not to the trial counsel).
(under the rules devised by the President to effectuate congressional intent, the crime victim has an independent right to be reasonably heard at a sentencing hearing, although the military judge may permit the victim’s counsel to deliver all or part of the victim’s unsworn statement; all of the procedures in RCM 1001A contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel; moreover, they assume the victim chooses to offer the statement for a particular accused, as they permit only the admission of information on victim impact directly relating to or arising from the offense of which the accused has been found guilty).
United States v. Jerkins, 77 M.J. 225 (the question of appropriateness of punishment is one which must be decided by the court-martial; it cannot be usurped by a witness).
(in this case, a military judge abused her discretion by admitting into evidence during sentencing rebuttal a general officer memorandum of reprimand that appellant received for engaging in an inappropriate relationship with an enlisted woman, where the memo contained an explicit suggestion that appellant was not fit for continued service in the Army and where the memo was admitted into evidence without the normal due process required by Army regulations, namely without allowing for appellant’s exercise of his right to rebuttal; the commander’s opinion that appellant was unfit for continued military service was essentially a recommendation that he be dismissed from the service, and that opinion invaded the province of the members of the court-martial).
2016 (October Term)
United States v. Chikaka, 76 M.J. 310 (the use of a commanding officer before a court-martial to influence the court members into returning a particular sentence implicates unlawful command influence; the question of appropriateness of punishment is one which must be decided by the court-martial; it cannot be usurped by a witness).
(a commander’s opinion as to an appropriate punishment invades the province of the court-martial and constitutes unlawful command influence).
United States v. Price, 76 M.J. 136 (although sworn admissions made during a providence inquiry can be admissible for sentencing purposes as aggravating evidence, the use of such admissions is restricted if the military judge has ranged far afield during the providence inquiry, such as when a military judge explores uncharged conduct that is not closely connected to the offense to which the accused has pleaded guilty).
United States v. Gomez, 76 M.J. 76 (in sentencing, the government may introduce evidence of aggravating circumstances pertaining to the medical impact on any person or entity who was the victim of an offense committed by the accused; these aggravating circumstances can include the effect of the process on the victim, and they also can encompass the harm inflicted on the victim’s family, such as a child).
(with respect to a victim of maltreatment and aggravated sexual contact by appellant who testified on sentencing about pregnancy complications caused by the crimes and the stress of the trial process, even assuming that there was clear or obvious error, appellant was not prejudiced by the admission of this testimony, where (1) the government presented a strong sentencing case in aggravation, (2) the witness’s testimony about the premature birth of her baby was not particularly aggravating, and (3) the members’ ultimate sentencing decision, which was closer to the recommendation of the defense than to that of the prosecution, indicated that they were not influenced the testimony; not only was there an insufficient basis to conclude that the witness’s testimony about her pregnancy complications substantially influenced the members’ sentencing decision, appellant failed to meet his burden under the third prong of the plain error test because he did not establish that any error that occurred regarding the admission of this testimony materially prejudiced a substantial right).
(with respect to a victim of abusive sexual contact by appellant who testified on sentencing that the stress from the trial process may have affected her pregnancy, appellant failed to met his burden under the second prong of the plain error test by not demonstrating a clear and obvious error in the admission of the testimony where the testimony was patently ambiguous; even after analyzing her testimony at length on the written page, it was difficult to discern what the witness was trying to convey; on one hand, she may have been seeking to make the point that the trial process caused her stress and this stress caused her to miscarry a twin; if so, this point would likely have been highly damaging to appellant’s sentencing case and there would have been a question as to whether there an appropriate evidentiary basis to admit such medical testimony; on the other hand, she may instead have been reporting that she had miscarried one twin due to reasons unconnected to appellant’s conduct or to the trial process, and she was worried that the stress associated with the case might harm her remaining unborn child; if she intended to convey this latter point, it was not error for the military judge to admit her testimony; accordingly, because her testimony was subject to two plausible interpretations — one of which rendered the testimony admissible — the military judge did not clearly or obviously err in admitting it).
2014 (September Term)
United States v. Akbar, 74 M.J. 364 (in determining what presentation to make concerning penalty, counsel should consider whether any portion of the defense case will open the door to the prosecution’s presentation of otherwise inadmissible aggravating evidence).
(evidence about an accused’s background and character is relevant because of the belief, long held by this society, that those accused who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than those who have no such excuse).
United States v. Carter, 74 M.J. 204 (the admission of sentencing evidence is subject to the MRE 403 balancing test and the substantive law and procedures set forth in RCM 1001).
(when there is evidence of an Article 13, UCMJ, violation, that evidence can be presented to the military judge for confinement credit and then subsequently to the panel in connection with the issue of sentence mitigation).
(the law does not create a per se rule against the accused being allowed to present evidence of an Article 13, UCMJ, violation to the military judge and also to the panel, so long as that evidence is otherwise admissible pursuant to the relevant rules of evidence and procedure; presenting Article 13, UCMJ, evidence in these two different contexts serves two distinct purposes; a military judge considers evidence of Article 13, UCMJ, violations to determine, as a matter of law, whether the accused is entitled to credit for the government's conduct; however, when a panel considers that same evidence properly admitted as mitigation on sentencing, it is doing so for the purpose of determining an appropriate sentence for an appellant's conduct; as with other evidence offered in sentence mitigation, this evidence is subject to MRE 403 balancing, rebuttal, and instruction).
(when and whether to raise Article 13, UCMJ, is a matter of trial tactics; in choosing to present the Article 13, UCMJ, evidence to the panel, including the number of days already credited the accused, defense counsel may even risk that the panel members consider that factor in favor of a harsher sentence than would have been assessed without knowledge of the credit; it is for that same reason, however, that allowing a military judge to first determine whether Article 13, UCMJ, violations occurred as a matter of law and awarding confinement credit where relevant, and subsequently allowing a panel to consider the totality of the evidence - including that there was an Article 13, UCMJ, violation - does not provide defense counsel two bites at the apple; rather, the evidence is at play in two different stages of the trial, and presented for different purposes).
(should members take Article 13, UCMJ, evidence into account when assessing a sentence, the accused is not receiving credit twice for the same conduct).
(after a guilty finding, defense counsel may present matters in mitigation which is evidence introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency; however, the opportunity to do so remains subject to the rules of evidence and procedure; although the rules of evidence can be relaxed by a military judge during sentencing, RCM 1001(c)(3), mitigation evidence also remains subject to MRE 402 and MRE 403; additionally, if defense counsel chooses to present the Article 13, UCMJ, violations to the panel for purposes of sentence mitigation, trial counsel may rebut the evidence, subject to the same rules of 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)).
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).
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).
(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).
(
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).
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).