The Defense Superpower of Specific Acts Evidence in Court-Martial Sentencing

Defense attorney using the tips in this blog post.

Important Disclaimer: Please be aware that the information presented in this blog post is intended for general informational purposes only and should not be construed as legal advice. While we aim to provide valuable resources for military justice attorneys and the public, no blog post can replace personalized legal counsel from a qualified attorney. If you are experiencing legal issues or need specific guidance, we strongly encourage you to consult a legal professional who can address your circumstances.

In military justice, the sentencing phase is often a case's most critical and challenging aspect. As defense attorneys, we must be prepared for our clients' conviction, even with our diligent work at trial. This reality underscores the importance of shifting gears during sentencing. The focus is no longer on disproving allegations but on minimizing the consequences of a conviction and advocating for fair and just treatment. To do this effectively, attorneys must move beyond generic opinions and instead show, not just tell, the military judge why the accused deserves a chance at rehabilitation and reintegration. 

Stop "Telling" and Start "Showing" 

One of the most common mistakes defense attorneys make during sentencing is relying on opinion-based testimony, such as calling the accused a "good soldier," "good husband," or "good father." While well-intentioned, these generic statements carry limited weight. They lack the specificity needed to persuade the military judge and are vulnerable to pitfalls in cross-examination. 

Instead of simply "telling" the court about the accused’s character or rehabilitative potential, leverage the procedural tools available to “show” evidence that paints a vivid and compelling picture of the accused’s humanity, contributions, and potential for growth. 

The Rule Every Defense Attorney Should Use 

Rule for Court-Martial (RCM) 1001(d)(1)(B) provides a powerful foundation for presenting mitigation evidence during sentencing. It allows defense attorneys to introduce "particular acts of good conduct or bravery and evidence of the reputation or record of the accused in the service for efficiency, fidelity, subordination, temperance, courage, or any other trait that is desirable in a servicemember." 

This rule allows you to go beyond vague opinions and present concrete examples of your client’s positive traits. Use it to your full advantage by building a narrative highlighting their value to society, their potential for rehabilitation, and the context behind their actions. 

Why Specific Evidence Matters 

Specific evidence is far more persuasive than generalized statements. It not only strengthens your case but also captivates the factfinder in a way that opinion testimony cannot. A detailed narrative allows the military judge to see the accused as a multidimensional person rather than simply through the lens of their misconduct. 

For example: 

- Instead of saying, "He’s a good Soldier," provide examples of commendable behavior. 

  - "During his deployment, he went above and beyond to organize a supply chain for critical medical resources, earning the respect of his unit." 

  - "He volunteered to mentor junior servicemembers, helping three soldiers qualify for promotions under his guidance." 

- Instead of stating, "She has high rehabilitative potential," demonstrate it with evidence. 

  - "Since the incident, she has completed an anger management program, enrolled in higher education, and volunteered at a local veterans’ organization, showing her commitment to self-improvement." 

Positive Examples of Rehabilitative Potential 

Here are additional ways to present specific evidence of rehabilitative potential: 

1. Community Involvement 

   - Highlight the accused’s volunteer work, such as organizing charity events, mentoring youth, or assisting community programs. 

2. Professional Growth 

   - Show their efforts to improve professionally, such as completing training programs, earning certifications, or taking on leadership roles in their unit. 

3. Commitment to Rehabilitation 

   - Provide evidence of their participation in counseling or treatment programs for issues like substance abuse, anger management, or PTSD-related challenges. 

4. Future Plans 

   - Present detailed plans for their future, such as pursuing a specific career path, furthering military service, or contributing to their community in meaningful ways. 

5. Family Contributions 

   - Demonstrate their role as a supportive spouse, parent, or caregiver, emphasizing their importance to their family’s well-being. 

6. Mentorship and Leadership 

   - Showcase instances where the accused has positively influenced junior servicemembers or colleagues, such as mentoring others or leading by example. 

7. Acts of Bravery or Service 

   - Highlight moments of courage or selflessness, such as aiding in dangerous missions, stepping up during emergencies, or going above and beyond their duties. 

8. Character Testimonials 

   - Introduce testimonials from superiors, peers, or community members that provide specific examples of the accused’s reliability, integrity, and positive impact. 

Avoiding Cross-Examination Pitfalls 

One risk of opinion testimony is that it can "open the door" to cross-examination, allowing the government to bring up specific misconduct to test the witness's foundation for his or her opinion. Focusing instead on objective evidence minimizes this risk while presenting a stronger, more credible case. 

Conclusion: The Power of Specific Evidence 

Sentencing advocacy is more than just mitigating punishment; it’s an opportunity to reshape your client’s life narrative. This is a chance to guide the court away from retribution and toward the potential for redemption. By presenting evidence of your client’s rehabilitative journey, you can reveal their true character beyond past mistakes. Show the judge your client's capacity for positive change. To achieve this, focus on concrete evidence rather than opinion testimony, allowing for a more nuanced portrayal of your client.

As defense attorneys, we must utilize every available tool to advocate effectively during sentencing. By leveraging RCM 1001(d)(1)(B) and adopting a "show, don’t tell" approach, we enhance our advocacy and secure better outcomes for those we represent.