Deliberations and voting on sentence

(a) In general. With respect to charge(s) and specification(s) for which a sentence of death may be determined and in all other cases in which the accused elects sentencing by members under R.C.M. 1002(b), the members shall deliberate and vote after the military judge instructs the members on sentence. Only the members shall be present during deliberations and voting. Superiority in rank shall not be used in any manner to control the independence of members in the exercise of their judgment. (b) Deliberations. Deliberations require a full and free discussion of the sentence to be imposed in the case. Unless otherwise directed by the military judge, members may take with them in deliberations their notes, if any, any exhibits admitted in evidence, and any written instructions. Members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced. The military judge may, in the exercise of discretion, grant such requests. (c) Proposal of sentences. Any member may propose a sentence. Each proposal shall be in writing and shall contain the complete sentence proposed. The junior member shall collect the proposed sentences and submit them to the president. (d) Voting. (1) Duty of members. Each member has the duty to vote for a proper sentence for the offenses of which the court-martial found the accused guilty, regardless of the member’s vote or opinion as to the guilt of the accused. (2) Secret ballot. Proposed sentences shall be voted (6) A statement that the members shall consider the on by secret written ballot. sentencing guidance set forth in R.C.M. 1002(f); and (7) Such other explanations, descriptions, or directions that the military judge determines to be necessary, whether properly requested by a party or determined by the military judge sua sponte. (f) Failure to object. Failure to object to an instruction or to omission of an instruction before the members close to deliberate on the sentence shall constitute forfeiture of the objection. The military judge may require the party objecting to specify in what respect the instructions were improper. The parties shall be (3) Procedure. (A) Order. All members shall vote on each proposed sentence in its entirety beginning with the least severe and continuing, as necessary, with the next least severe, until a sentence is adopted by the concurrence of the number of members required under paragraph (d)(4) of this rule. The process of proposing sentences and voting on them may be repeated as necessary until a sentence is adopted. (B) Counting votes. The junior member shall collect the ballots and count the votes. The president II-95 shall check the count and inform the other members of the result. (4) Number of votes required. (A) Death. A sentence may include death only if the members unanimously vote for the sentence to include death. (B) Other. Any sentence other than death may be determined only if at least three-fourths of the members vote for that sentence. (5) Mandatory sentence. When a mandatory minimum is prescribed for an offense under the UCMJ, the members shall vote on a sentence in accordance with this rule. (6) Plea agreements. When the military judge accepts a plea agreement with a sentence limitation, the members shall vote on a sentence in accordance with the sentence limitation. (7) Effect of failure to agree. If the required number of members do not agree on a sentence after a reasonable effort to do so, a mistrial may be declared as to the sentence and the case shall be returned to the convening authority, who may order a rehearing on sentence only or order that a sentence of no punishment be imposed. (e) Action after a sentence is reached. After the members have agreed upon a sentence by the required number of votes in accordance with this rule, the court- martial shall be opened and the president shall inform the military judge that the members have determined a sentence. The military judge may, in the presence of the parties, examine any writing used by the president to state the determination and may assist the members in putting the sentence in proper form. If the members voted unanimously for a sentence of death, the writing shall indicate which aggravating factors under R.C.M. 1004(c) the members unanimously found to exist beyond a reasonable doubt. Neither that writing nor any oral or written clarification or discussion concerning it shall constitute announcement of the sentence.