Louisiana Administrative Code › Title 41 - MILITARY FORCES OF THE STATE › Part II - Military Justice › Chapter 6 - Trial Procedures › Section II-616 - Sentence

Current through Register Vol. 50, No. 6, June 20, 2024
A. General. When
				the court returns a finding of not guilty, the accused is acquitted and the
				proceedings terminate. When the court returns a finding of guilty, the
				court-martial proceeds to the sentencing phase. During the sentencing phase,
				the trial counsel has the first opportunity to present the "case in
				aggravation." Then the defense counsel has an opportunity to present a "case in
				extenuation and mitigation." Thereafter, counsel for both sides present their
				case in rebuttal and surrebuttal as appropriate. At the conclusion of the
				evidence and counsel arguments, the military judge announces the sentence (or,
				in a case with members, instructs members who then deliberate, vote, and
				announce their sentence).
B. The
				Case in Aggravation. The trial counsel's case in aggravation consists of
				matters which the sentencing authority may consider in arriving at an
				appropriate sentence. These matters can be presented by the trial counsel, and
				can be considered by the sentencing authority, regardless of what defense
				counsel decides to present during the case in extenuation and mitigation. The
				government's right to present presentencing evidence is the same in a contested
				case as it is in a guilty plea case. The M.R.E.. are not relaxed for the
				government during the case in aggravation, which necessitates that data must be
				properly authenticated and satisfy the requirements regarding hearsay
				testimony, if applicable. The case in aggravation consists of five enumerated
				categories of information:
1. Service data
				relating to the accused taken from the charge sheet concerning the accused's
				pay, time in service, and prior restraint. This information should be verified
				for accuracy with defense counsel. This may be read orally into the record.
				[See R.C.M. 1001(b).]
2. Previous
				convictions, military or civilian. Unless stipulated, documentary evidence used
				to prove a conviction must be properly authenticated. Courts-martial result in
				a "conviction" once sentence is adjudged in the case. To determine whether a
				civilian adjudication has resulted in a criminal conviction, refer to the law
				of the civilian jurisdiction where the proceeding took place. A juvenile
				adjudication is not a conviction for these purposes. The conviction must
				antedate the commencement of the presentencing proceeding in which it is
				offered; however, with the exception of SCM convictions, there is no
				requirement that the conviction be "final" to be admissible. [See R.C.M.
				1001(b)(A).]
3. Personal data and
				character of prior service of the accused. Trial counsel may present to the
				military judge copies of any personnel records that reflect the past military
				efficiency, conduct, performance, and history of the accused, prepared and
				maintained according to departmental regulations. [See R.C.M.
				1001(b).]
4. Matters in
				aggravation. The trial counsel may present evidence directly related to the
				circumstances surrounding the offense and evidence concerning the repercussions
				of the offense. It must be in a form admissible under the M.R.E.. (e.g.
				relevant, non hearsay, properly authenticated, etc.) and must satisfy the
				balancing test of M.R.E.. 403 (i.e. probative value outweighs prejudicial
				effect). [See R.C.M. 1001(b).]
5.
				Opinion evidence of rehabilitative potential and past duty performance. Any
				opinion testimony should be based on personal observation, but may also be
				based on reports and other information provided by subordinates. The government
				cannot use this as an opportunity to influence the court to punish the accused
				by imposing a punitive discharge. Also, the trial counsel cannot explore
				specific incidents of misconduct during direct examination, but if defense
				counsel "opens the door" by inquiring specific instances of conduct during
				cross-examination, redirect examination on that subject is appropriate. The
				military judge has broad discretion in limiting collateral inquiries into
				specific instances of conduct.