RCMs: Sentencing Flashcards
After the announcement of the findings in a case, what occurs next?
The accused make a sentencing forum selection of members or judge.
After the accused has made a sentencing forum selection, what occurs?
The government and the accused may submit matters for consideration in sentencing.
What matters shall the trial counsel introduce at the accused’s sentencing hearing?
Service data relating to the accused taken from the charge sheet;
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; and
Evidence of prior convictions, either military or civilian.
May evidence of a prior conviction be introduced by the government at the accused’s sentencing if the prior conviction is currently on appeal?
Yes, except for a conviction at summary court-martial is not admissible until after the review of the summary court-martial is completed.
What evidence may the defense introduce when evidence of a prior conviction is introduced by the government and the conviction is currently being appealed?
Evidence of the appeal.
What matters may the trial counsel introduce at the accused’s sentencing hearing?
Evidence in aggravation directly relating to or resulting from the charges of which the accused has been convicted;
Evidence of rehabilitative potential of the accused;
What form may evidence of rehabilitative potential take?
Evidence of rehabilitative potential may take the form of an opinion by a witness.
What qualifications must the witness who is testifying as to the accused’s potential for rehabilitation possess?
The witness does not need any official qualifications. The witness need only have sufficient information and knowledge about the accused to offer a rationally-based opinion that is helpful to the sentencing authority.
Can a witness base their opinion as to the accused’s potential for rehabilitation be based solely on the severity of the offense?
No. A witness cannot simply state that an accused has little or no rehabilitative potential simply because they are accused of a serious offense.
What things can a sentencing witness testify to in regards to the accused’s rehabilitative potential?
Only whether the accused has a potential for rehabilitation and how much potential the accused has.
May a witness testify as to whether a punitive discharge or whether the accused should be returned to the unit is appropriate?
No
Can a sentencing witness explain their reasons for believing the accused has rehabilitative potential?
Not unless the witness is subject to redirect examination because the accused has opened the door to that subject on their cross-examination of the witness.
When is the victim of a crime allowed to be reasonably hearing during the presentencing hearing?
Immediately following the government’s evidence presented during the presentencing hearing.
In a capital case, the crime victim has the right to make what kind of statement?
A sworn statement. They have no right to make an unsworn statement in a capital case.
In a non-capital case, the crime victim has the right to make what kind of statement?
Sworn, unsworn, or both.
What is the permitted contents of a victim’s statement?
Only victim impact information and matters in mitigation.
Can the victim make a recommendation as to a particular sentence or punishment?
No.
If a crime victim makes a sworn statement, what may the defense do?
Cross-examine the victim on their statement.
If a crime victim makes an unsworn statement, what may the defense do?
The defense or the government may introduce matters to rebut the assertions made in the victim’s unsworn statement.
If a victim intends to make an unsworn statement at the pre-sentencing hearing, what must the victim do before giving the statement?
They must make a proffer of the statement and the subject matter included to the government and the defense in order to allow the parties to prepare to rebut any assertions made therein.
What form can a victim’s sworn statement take?
Oral only, because they must be capable of being cross-examined by the other side.
What form can a victim’s unsworn statement take?
Oral, written, or both.
Who may make the unsworn statement of the victim?
The victim is the only one who can make an unsworn statement unless the judge finds good cause to allow their VLC to read the statement for the victim.
Does the victim have a right to make arguments on a sentence?
No. Only the parties have the right to make arguments on the sentence.
What kind of matters may the defense introduce at a pre-sentencing hearing?
Rebuttal to any material presented by the government or victim; and
Matters in mitigation or extenuation regardless of whether the defense offered evidence before findings.
What kind of statements may the accused make at a pre-sentencing hearing?
A sworn statement, an unsworn statement, or both.
