The Court-Martial Process Military Law Week 8 Jay Canham
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The Court-Martial Process: Trial and Sentencing Chronology of a
Trial Review of counsel rights with the Defendant. Voir Dire 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.
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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 isit is voluntary
and intelligent.
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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 Defendants service records. Evidence of Prior Civilian or
Military Convictions: Evidence of past uncharged misconduct is only
admissible to help the sentencing authority gauge the Defendants
rehabilitative potential. Rehabilitation Potential: The government
may introduce opinion testimony concerning the Defendants
rehabilitation potential, but cannot recommend a specific sentence
to the court. Evidence in Aggravation
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Aggravation evidence is the circumstances surrounding the
convicted offense that cause an adverse impact on unit readiness,
the units mission, or upon a victim.
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Defense Evidence in Sentencing: Really unrestricted! The
Defendants favorable duty performance; and Community service,
education, or family responsibilities; and Opinion testimony of the
Defendants 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.******
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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 its purpose the lessening of the
punishment to be awarded by the court and the furnishing of grounds
for a recommendation of clemency.
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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
Defendants unsworn testimony, but may offer evidence to rebut
it.
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Sentencing Argument: Trial Counsel/Government May make a
specific sentencing recommendation. The government may not comment
upon the accuseds failure to plead guilty or the accuseds failure
to testify. May comment upon the accuseds lack of remorse in an
unsworn statement during the defenses sentencing case. May comment
upon the low rehabilitative potential of the accused
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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 accuseds sentence sends a message to other persons in the
community that crime doesnt pay. Social retribution is punishment
for the sake of punishment.
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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-members 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.
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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.
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Death Penalty in the Military Dated punishmentbut 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.
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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 processusually commuted to life
sentences. Since 2008, weve had 6-9 service-members on death
row.
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The Court-Martial Process Military Law Week 8 Jay Canham
