What does it mean to relax the rules of evidence during the sentencing phase of a court-martial?

If a servicemember is found guilty at his court-martial during the findings phase of the trial, the court-martial will then have a sentencing phase.  This is the phase of the court-martial where the panel or military judge determines what sentence the servicemember will receive for the offenses for which he was found guilty.  If a sentencing phase occurs in a court-martial, the servicemember needs an attorney representing him who really understands what to present that will minimize his punishment.  Having an experienced attorney during the sentencing phase could mean the difference between spending years in confinement and no confinement at all.  A servicemember who has been found guilty of offenses, may present quite a bit during the sentencing phase.  He may present evidence and witnesses that explain that his role in the offense was actually quite minimal or show that the circumstances of the offense demonstrate that the servicemember should not be severely punished.  Additionally, a servicemember can present evidence about himself and his service that help the panel or the military judge see that he is a good individual who simply made a mistake.  All of this evidence can help minimize a servicemember’s sentence.  During the sentencing phase, witnesses may testify on behalf of the servicemember.  The servicemember also gets to present either a sworn or unsworn statement.  Often, the servicemember will choose to present an unsworn statement so that the government may not cross examine him.  During this statement, the servicemember has wide latitude to discuss just about anything.  For example, the servicemember may talk about his childhood or how sorry he is that he committed the offense.  The servicemember may also use this time to plead with the panel or military judge not to punish him too severely.  Recently, the Army Court of Criminal Appeals (ACCA) in United States v. Martinez reviewed a military judge’s decision to stop a servicemember from reading a letter from his pastor during his unsworn statement.  In this case, after the servicemember provided an unsworn statement about himself, he went on to read a letter written by his pastor.  The government objected to the letter based on hearsay.  The military judge sustained the objection stating that while the servicemember has wide latitude during his unsworn statement, he may not simply read hearsay to the decisionmaker.  The military judge did tell Martinez’s defense counsel that they may ask for the rules of evidence to be relaxed during sentencing so that the letter could simply be admitted to the panel.  When an accused with counsel asks for the evidentiary rules to be relaxed during sentencing, they are doing so in order to allow letters of support and other type evidence to be viewed by the decisionmaker despite them being full of hearsay and other evidentiary problems.  This is a nice benefit for a servicemember facing a sentencing phase of a court-martial.  However, the negative side to this relaxation of the rules is that it applies to the government as well.  Therefore, with the rules relaxed the government may present negative evidence about the servicemember without having to jump difficult evidentiary hurdles as well.  For this reason, a servicemember facing a sentencing phase of a court-martial must have experienced counsel by their side to know what should be presented in the unsworn statement and whether they should request to relax the rules or not.  In Martinez, despite the military judge hinting that the defense counsel should ask for a relaxation of the rules, the defense team chose not to ask for the rules to be relaxed.  This could have been because they did not want the government to present some piece of negative evidence.  These are all strategic decisions that must be well thought out prior to trial.  An experienced attorney can help you know how to best present your case at all phases of the trial.   If you or your loved one is facing a court-martial or is looking to appeal one, you need an advocate by your side with experience.  I have a huge amount of experience litigating at the court-martial and appellate level.  Don’t hesitate to call and we can talk your situation over.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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