Presentencing procedure

(a) In general. (1) Procedure. After findings of guilty have been announced, and the accused has had the opportunity to make a sentencing forum election under R.C.M. 1002(b), the prosecution and defense may present matters pursuant to this rule to aid the court-martial in determining an appropriate sentence. Such matters shall ordinarily be presented the following sequence— in (A) Presentation by trial counsel of: (i) service data relating to the accused taken from the charge sheet; (ii) personal data relating to the accused and of the character of the accused’s prior service as reflected in the personnel records of the accused; (iii) evidence of prior convictions, military or civilian; (iv) evidence of aggravation; and (v) evidence of rehabilitative potential. (B) Crime victim’s right to be reasonably heard. (C) Presentation by the defense of evidence in extenuation or mitigation or both. (D) Rebuttal. (E) Argument by trial counsel on sentence. (F) Argument by defense counsel on sentence. (G) Rebuttal arguments in the discretion of the military judge. (2) Adjudging sentence. A sentence shall be adjudged in all cases without unreasonable delay. (3) Advice and inquiry. (A) Crime victim. At the beginning of the presentencing proceeding, the military judge shall announce that any crime victim who is present at the presentencing proceeding has to be reasonably heard, including the right to make a sworn statement, unsworn statement, or both. Prior to the conclusion of the presentencing proceeding, the military judge shall ensure that any such crime victim was afforded the opportunity to be reasonably heard. right the (B) Accused. The military judge shall personally inform the accused of the right to present matters in extenuation and mitigation, including the right to make a sworn or unsworn statement or to remain silent, and II-84 shall ask whether the accused chooses to exercise those rights. (b) Matters to be presented by the prosecution. (1) Service data from the charge sheet. Trial counsel shall inform the court-martial of the data on the charge sheet relating to the pay and service of the accused and the duration and nature of any pretrial restraint. In the discretion of the military judge, this may be done by reading the material from the charge sheet or by giving the court-martial a written statement of such matter. If the defense objects to the data as being materially inaccurate or incomplete, or containing specified objectionable matter, judge shall determine the issue. Objections not asserted are forfeited. the military (2) Personal data and character of prior service of the accused. Under regulations of the Secretary concerned, trial counsel may obtain and introduce from the personnel records of the accused evidence of the accused’s marital status; number of dependents, if any; and character of prior service. Such evidence includes copies of reports reflecting the past military efficiency, conduct, performance, and history of the accused and evidence of any disciplinary actions including punishments under Article 15. “Personnel records of the accused” includes any records made or maintained in accordance with departmental regulations that reflect the past military efficiency, conduct, performance, and history of the accused. If the accused objects to a particular document as inaccurate or incomplete in a specified respect, or as containing matter that is not admissible under the Military Rules of Evidence, the matter shall be determined by the military judge. Objections not asserted are forfeited. (3) Evidence of prior convictions of the accused. (A) In general. Trial counsel may introduce evidence of prior military or civilian convictions of the accused. For purposes of this rule, there is a “conviction” in a court-martial case when a sentence has been adjudged. In a civilian case, a “conviction” includes any disposition following an initial judicial determination or assumption of guilt, such as when guilt has been established by guilty plea, trial, or plea of nolo contendere, regardless of the subsequent disposition, sentencing procedure, or final judgment. A “conviction” does not include a diversion from the judicial process without a finding or admission of guilt; expunged convictions; juvenile adjudications; minor traffic violations; foreign convictions; tribal court convictions; or convictions reversed, vacated, invalidated, or pardoned. to, information and knowledge about the accused’s character, performance of duty, moral fiber, determination to be rehabilitated, and nature and severity of the offense or offenses. (B) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible except that a finding of guilty by summary court-martial may not be used for purposes of this rule until review has been completed pursuant to Article 64. Evidence of the pendency of an appeal is admissible. (C) Method of proof. Previous convictions may be proved by any evidence admissible under the Military Rules of Evidence. (4) Evidence in aggravation. 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 or entity who was the victim of an offense committed by the accused and evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused’s offense. In addition, evidence in aggravation may include evidence that the accused intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person. Except in capital cases a written or oral deposition taken in accordance with R.C.M. 702 is admissible in aggravation. rehabilitative potential. “Rehabilitative potential” refers to the accused’s potential through vocational, correctional, or therapeutic training or other corrective measures to a useful and constructive place in society. (A) In general. Trial counsel may present, by testimony or oral deposition in accordance with R.C.M. 702(g)(1), evidence in the form of opinions concerning the accused’s previous performance as a servicemember and potential for rehabilitation. Evidence restored, to be (5) of (B) Foundation for opinion. The witness or deponent providing opinion evidence regarding the rehabilitative potential must possess accused’s sufficient the information and knowledge about accused to offer a rationally-based opinion that is helpful sentencing authority. Relevant information and knowledge include, but are not limited the to (C) Bases for opinion. An opinion regarding the accused’s rehabilitative potential must be based upon relevant information and knowledge possessed by the witness or deponent, and must relate to the accused’s personal circumstances. The opinion of the witness or deponent regarding the severity or nature of the accused’s offense or offenses may not serve as the principal basis for an opinion of the accused’s rehabilitative potential. (D) Scope of opinion. An opinion offered under this rule is limited to whether the accused has rehabilitative potential and to the magnitude or quality of any such potential. 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. (E) Cross-examination. On cross-examination, inquiry is permitted into relevant and specific instances of conduct. (F) Redirect. Notwithstanding any other provision in this rule, the scope of opinion testimony permitted on redirect may be expanded, depending upon the nature and scope of the cross-examination. (c) Crime victim’s right to be reasonably heard. (1) In general. After presentation by trial counsel, a crime victim of an offense of which the accused has been found guilty has the right to be reasonably heard at the presentencing proceeding relating to that offense. A crime victim who makes an unsworn statement under subsection (c)(5) is not considered a witness for the purposes of Article 42(b). If the crime victim exercises the right to be reasonably heard, the crime victim shall be called by the court-martial. The exercise of the right is independent of whether the crime victim testified during findings or is called to testify by the government or defense under this rule. (2) Definitions. (A) Crime victim. For purposes of this subsection, 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 guilty or the individual’s lawful representative or designee appointed by the military judge under these rules. II-85 impact (B) Victim impact. For purposes of this subsection, victim social, psychological, or medical impact on the crime victim directly relating to or arising from the offense of which the accused has been found guilty. includes any financial, the purposes of (C) Mitigation. For this subsection, mitigation includes any matter that may lessen the punishment to be adjudged by the court- martial or furnish grounds for a recommendation of clemency. (D) Right to be reasonably heard. (i) Capital cases. In capital cases, for purposes of this subsection, the “right to be reasonably heard” means the right to make a sworn statement. (ii) Non-capital cases. In non-capital cases, for purposes of this subsection, the “right to be reasonably heard” means the right to make a sworn statement, an unsworn statement, or both. (3) Contents of statement. The content of statements made under paragraphs (4) and (5) may only include victim impact and matters in mitigation. The statement may not include a recommendation of a specific sentence. (4) Sworn statement. The crime victim may make a sworn statement and shall be subject to cross- examination concerning it by trial counsel and defense counsel or examination on it by the court-martial. (5) Unsworn statement. (A) In general. The crime victim may make an unsworn statement and may not be cross-examined by trial counsel or defense counsel, or examined upon it by the court-martial. The prosecution or defense may, however, rebut any statements of fact therein. The unsworn statement may be oral, written, or both. (B) Procedure. After the announcement of findings, a crime victim who elects to present an unsworn statement shall provide a written proffer of the matters that will be addressed in the statement to trial counsel and defense counsel. The military judge may waive this requirement for good cause shown. Upon good cause shown, the military judge may permit the crime victim’s counsel, if any, to deliver all or part of the crime victim’s unsworn statement. (C) New factual matters in unsworn statement. If during the presentencing proceeding a crime victim makes an unsworn statement containing factual matters not previously disclosed under subparagraph (5)(B), the military judge shall take appropriate action within the military judge’s discretion. II-86 (d) Matter to be presented by the defense. (1) In general. The defense may present matters in rebuttal of any material presented by the prosecution and the crime victim, if any, and may present matters in extenuation and mitigation regardless whether the defense offered evidence before findings. (A) Matter in extenuation. Matter in extenuation of an offense serves to explain the circumstances surrounding the commission of an offense, including those reasons for committing the offense which do not constitute a legal justification or excuse. (B) Matter in mitigation. Matter in mitigation of an offense 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. (2) Statement by the accused. to in extenuation, rebut matters presented by (A) In general. The accused may testify, make an in unsworn statement, or both mitigation, the prosecution, or to rebut statements of fact contained in any crime victim’s sworn or unsworn statement, whether or not the accused testified prior to findings. The accused may limit such testimony or statement to any one or more of the specifications of which the accused has been found guilty. The accused may make a request for a specific sentence. This subsection does not permit the filing of an affidavit of the accused. (B) Testimony of the accused. The accused may give sworn oral testimony and shall be subject to cross- examination concerning trial counsel or examination on it by the court-martial, or both. it by (C) Unsworn statement. The accused may make an unsworn statement and may not be cross-examined by trial counsel upon it or examined upon it by the court- martial. The prosecution may, however, rebut any statements of facts therein. The unsworn statement may be oral, written, or both, and may be made by the accused, by counsel, or both. (3) Rules of evidence relaxed. The military judge may, with respect to matters in extenuation or mitigation or both, relax the rules of evidence. This may include admitting letters, affidavits, certificates of military and civil officers, and other writings of similar authenticity and reliability. (e) Rebuttal and surrebuttal. The prosecution may rebut matters presented by the defense. The defense in surrebuttal may then rebut any rebuttal offered by the prosecution. Rebuttal and surrebuttal may continue, in the discretion of the military judge. If the Military Rules of Evidence were relaxed under paragraph (d)(3) of this rule, they may be relaxed during rebuttal and surrebuttal to the same degree. (f) Production of witnesses. (1) testimony presented In general. During the presentencing proceedings, there shall be much greater latitude than on the merits to receive information by means other than the personal appearance of witnesses. Whether a witness shall be produced to testify during presentencing proceedings is a matter within the discretion of the military judge, subject to the limitations in paragraph (2). through (2) Limitations. A witness may be produced to testify during presentencing proceedings through a subpoena or travel orders at Government expense only if— (A) the testimony of the witness is necessary for consideration of a matter of substantial significance to a determination of an appropriate sentence; (B) the weight or credibility of the testimony is of substantial significance to the determination of an appropriate sentence; (C) the other party refuses to enter into a stipulation of fact containing the matters to which the witness in an to extraordinary case when such a stipulation of fact would be an insufficient substitute for the testimony; testify, except is expected (D) other forms of evidence, such as oral depositions, written interrogatories, former testimony, or testimony by remote means would not be sufficient to meet the needs of the court-martial in the determination of an appropriate sentence; and (E) the significance of the personal appearance of the witness to the determination of an appropriate the practical sentence, when balanced against difficulties of producing the witness, favors production of the witness. Factors to be considered include the costs of producing the witness, the timing of the request for production of the witness, the potential delay in the presentencing proceeding that may be caused by the production of the witness, and the likelihood of significant interference with military operational deployment, mission accomplishment, or essential training. (g) Additional matters to be considered. In addition to matters introduced under this rule, the court-martial may consider— (1) That a plea of guilty is a mitigating factor; and (2) Any evidence properly introduced on the merits before findings, including: (A) Evidence of other offenses or acts of misconduct even if introduced for a limited purpose; and (B) Evidence relating to any mental impairment or deficiency of the accused. (h) Argument. After introduction of matters relating to sentence under this rule, counsel for the prosecution and defense may argue for an appropriate sentence. Trial counsel may not in argument purport to speak for the convening authority or any higher authority, or refer to the views of such authorities or any policy directive relative to punishment or to any punishment or quantum of punishment greater than the court- martial may adjudge. Trial counsel may, however, recommend a specific lawful sentence and may also refer to the sentencing considerations set forth in improper R.C.M. 1002(f). Failure begins argument before deliberations, or before the military judge instructs the members on sentencing, shall constitute forfeiture of the objection. the military to judge to object