Military Law – Week 8 Jay Canham

1. Military Law – Week 8Jay Canham The Court-Martial Process

2. The Court-Martial Process: Trial and Sentencing Chronology of a Trial • Review of counsel rights with the Defendant. • VoirDire of the Military Judge? • Review Forum Rights with the Defendant • Request for any motions, Military Judge then takes final pleas. • The Providency Inquiry! • Review the charges with the Defendant. • Review the Pre-trial agreement with the Defendant. • Enter a judgment (Guilty/Not Guilty) on the charges.

3. Providency of a Guilty Plea Before a plea of guilty may be accepted, the Military Judge must determine by personal inquiry of the Accused, whether the plea is provident….that is…it is voluntary and intelligent.

4. The Sentencing Phase of a Court-Martial • Initially, sentencing evidence presented by the Trial Counsel for the Government • Service and Personal Data: The government may present evidence from any of the Defendant’s service records. • Evidence of Prior Civilian or Military Convictions: Evidence of past uncharged misconduct is only admissible to help the sentencing authority gauge the Defendant’s rehabilitative potential. • Rehabilitation Potential: The government may introduce opinion testimony concerning the Defendant’s rehabilitation potential, but cannot recommend a specific sentence to the court. • Evidence in Aggravation

5. Evidence in Aggravation Aggravation evidence is the circumstances surrounding the convicted offense that cause an adverse impact on unit readiness, the unit’s mission, or upon a victim.

6. Defense Evidence in Sentencing: Really unrestricted! • The Defendant’s favorable duty performance; and • Community service, education, or family responsibilities; and • Opinion testimony of the Defendant’s favorable rehabilitation potential; and • Statement by the Defendant; and • The defense may present evidence in extenuation and mitigation. ******The defense may not continue to contest the fact that he committed a crime.******

7. Defense Evidence: Extenuation and Mitigation • Matters in Extenuation: Any circumstances serving to explain the commission of the offense, including the reasons that motivated the accused, but not extending to a legal justification • Matters in Mitigation: Any circumstances having for it’s purpose the lessening of the punishment to be awarded by the court and the furnishing of grounds for a recommendation of clemency.

8. Statement by the Defendant • The Defendant is allowed to remain silent; or • The Defendant is allowed to testify under oath; or • The Defendant is allowed to submit an unsworn statement from the accused; The court or the government may not cross-examination the Defendant’s unsworn testimony, but may offer evidence to rebut it.

9. Sentencing Argument: Trial Counsel/Government • May make a specific sentencing recommendation. • The government may not comment upon the accused’s failure to plead guilty or the accused’s failure to testify. • May comment upon the accused’s lack of remorse in an unsworn statement during the defense’s sentencing case. • May comment upon the low rehabilitative potential of the accused

10. Sentencing Argument: Trial Counsel/Government May argue generally accepted sentencing philosophies: • Specific deterrence is accomplished when a sentence is imposed that prevents the offender from repeating his offense. • General deterrence is accomplished when the accused’s sentence sends a message to other persons in the community that crime doesn’t pay. • Social retribution is punishment for the sake of punishment.

11. Deliberation Procedures • Military members vote in closed deliberations to protect the court members from outside influences. • Every court member has an equal vote regardless of rank. • A senior member of the court may not use his rank to influence the vote of junior ranking members. • Commanders of court-members are not permitted to comment on a court-member’s participation at a court in military in performance evaluations. • Communications during deliberations are privilege, court-members are not permitted to disclose the statements or the vote of another court-member.

12. Voting requirements vary • For a finding of guilt: A two-thirds majority of the court. • For an imposed sentence: A two-thirds majority of the court. • For an imposed sentence of 10 years confinement or more: A three-fourths majority of the court. • To impose a death sentence: The vote must be unanimous.

13. Death Penalty in the Military • Dated punishment…but in the modern era, fairly rare. • Has a civilian political element: • President, as the Commander-In-Chief, has to approve the order to execute a military member.

14. How common are executions? • Since the beginning of the Civil War, about 465 executions have been held, most for mutiny and desertion in Wartime. • From 1950 to 1961, only 10 service-members have been executed. • Since 1984, 80% of all the death sentences have been reversed during the appeals process…usually commuted to life sentences. • Since 2008, we’ve had 6-9 service-members on death row.

15. Military Law – Week 8Jay Canham The Court-Martial Process