U.S. v. McNutt, 62 M.J. 16

Core Criminal Law Subjects: Evidence: Privileges › Generally

1. MRE 606(b), the military evidence rule protecting deliberations of court members from post-trial disclosure, only applies to court members, and thus does not apply to protect the post-trial statements of a military judge who voluntarily disclosed that he considered improper information in determining an accused’s sentence; this holding in no way implies that the mental deliberations of military judges are not protected or that the decision-making processes of military judges are more open to scrutiny than the decision-making processes of members; the court holds only that MRE 606(b) is not the vehicle to protect those mental processes of military judges; to the extent that United States v. Rice, 25 MJ 35 (CMA 1987) and United States v. Gonzalez, 42 MJ 373 (CAAF 1995), conflict with this holding, they are overruled

Trial Stages: Sentence and Punishment: Instructions

1. although military judges and members should not generally consider collateral consequences in assessing a sentence, this is not a bright-line rule; in certain circumstances, it may be appropriate for the military judge to instruct on collateral matters
2. in deciding whether the military judge erred in giving instructions on collateral matters in sentencing, an appellate court will take a flexible approach, focusing on the military judge’s responsibility to give legally correct instructions that are tailored to the facts and circumstances of the case
3. the availability of parole and rehabilitation programs are issues of general knowledge and concern, and as such they may be instructed upon, especially when requested by the members; however, in such a situation, the military judge should then instruct the members that although the possibility of parole exists in the military justice system, they cannot consider it in arriving at an appropriate sentence for the accused

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. the possibility of good-time credit should not be considered by the members or the military judge when deciding what sentence is appropriate; in this case, the military judge erred in considering the Army’s good-time credit policy when he assessed appellant’s sentence

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the military judge’s error in considering the Army’s good-time credit policy in assessing the accused’s sentence to confinement was prejudicial where it lengthened the accused’s sentence by ten days for an improper reason