U.S. v. Carter, 74 M.J. 204

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the question of whether an accused was unlawfully punished under Article 13, UCMJ, is one that includes a finding of law, and thus is a question that must be answered by the military judge; if the military judge is convinced by the evidence presented that it is more likely than not the accused suffered from illegal pretrial punishment, then the accused would be entitled to credit against any sentence
2. the military judge should, as necessary, give tailored instructions to the panel members to distinguish between Article 13, UCMJ credit addressed to the government's conduct, and the use of such evidence in mitigation; the evidence of Article 13, UCMJ, violations coupled with the number of days of confinement credit already awarded can thereby be weighed as part of the totality of the evidence the panel members consider when determining the appropriate sentence for the accused

Military Justice Personnel: Military Judge: Discretion

1. with respect to a military judge's decision to admit or exclude evidence at sentencing, a military judge is given wide discretion and more deference if he or she properly conducts a MRE 403 balancing test and articulates his or her reasoning on the record
2. in this case, the military judge did not abuse her discretion when, based upon her reasoned interpretation of case law, she determined that appellant could not present the Article 13, UCMJ, violations to the panel members as mitigation evidence after already being awarded confinement credit by the military judge based upon that same evidence; at the time, she was presented with what was expressly acknowledged as an unsettled question of law and, relying on the relevant cases, she provided on the record sound reasoning to support her ruling

Military Justice Personnel: Military Judge: Instructions

1. the military judge should, as necessary, give tailored instructions to the panel members to distinguish between Article 13, UCMJ credit addressed to the government's conduct, and the use of such evidence in mitigation; the evidence of Article 13, UCMJ, violations coupled with the number of days of confinement credit already awarded can thereby be weighed as part of the totality of the evidence the panel members consider when determining the appropriate sentence for the accused

Core Criminal Law Subjects: Evidence: Balancing

1. the admission of sentencing evidence is subject to the MRE 403 balancing test and the substantive law and procedures set forth in RCM 1001

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Pretrial Punishment

1. the question of whether an accused was unlawfully punished under Article 13, UCMJ, is one that includes a finding of law, and thus is a question that must be answered by the military judge; if the military judge is convinced by the evidence presented that it is more likely than not the accused suffered from illegal pretrial punishment, then the accused would be entitled to credit against any sentence

Trial Stages: Pretrial: Pretrial Punishment

1. the question of whether an accused was unlawfully punished under Article 13, UCMJ, is one that includes a finding of law, and thus is a question that must be answered by the military judge; if the military judge is convinced by the evidence presented that it is more likely than not the accused suffered from illegal pretrial punishment, then the accused would be entitled to credit against any sentence

Trial Stages: Sentence and Punishment: Evidence

1. the admission of sentencing evidence is subject to the MRE 403 balancing test and the substantive law and procedures set forth in RCM 1001
2. when there is evidence of an Article 13, UCMJ, violation, that evidence can be presented to the military judge for confinement credit and then subsequently to the panel in connection with the issue of sentence mitigation
3. the law does not create a per se rule against the accused being allowed to present evidence of an Article 13, UCMJ, violation to the military judge and also to the panel, so long as that evidence is otherwise admissible pursuant to the relevant rules of evidence and procedure; presenting Article 13, UCMJ, evidence in these two different contexts serves two distinct purposes; a military judge considers evidence of Article 13, UCMJ, violations to determine, as a matter of law, whether the accused is entitled to credit for the government's conduct; however, when a panel considers that same evidence properly admitted as mitigation on sentencing, it is doing so for the purpose of determining an appropriate sentence for an appellant's conduct; as with other evidence offered in sentence mitigation, this evidence is subject to MRE 403 balancing, rebuttal, and instruction
4. when and whether to raise Article 13, UCMJ, is a matter of trial tactics; in choosing to present the Article 13, UCMJ, evidence to the panel, including the number of days already credited the accused, defense counsel may even risk that the panel members consider that factor in favor of a harsher sentence than would have been assessed without knowledge of the credit; it is for that same reason, however, that allowing a military judge to first determine whether Article 13, UCMJ, violations occurred as a matter of law and awarding confinement credit where relevant, and subsequently allowing a panel to consider the totality of the evidence - including that there was an Article 13, UCMJ, violation - does not provide defense counsel two bites at the apple; rather, the evidence is at play in two different stages of the trial, and presented for different purposes
5. should members take Article 13, UCMJ, evidence into account when assessing a sentence, the accused is not receiving credit twice for the same conduct
6. after a guilty finding, defense counsel may present matters in mitigation which is evidence introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency; however, the opportunity to do so remains subject to the rules of evidence and procedure; although the rules of evidence can be relaxed by a military judge during sentencing, RCM 1001(c)(3), mitigation evidence also remains subject to MRE 402 and MRE 403; additionally, if defense counsel chooses to present the Article 13, UCMJ, violations to the panel for purposes of sentence mitigation, trial counsel may rebut the evidence, subject to the same rules of evidence

Trial Stages: Sentence and Punishment: Credits

1. the question of whether an accused was unlawfully punished under Article 13, UCMJ, is one that includes a finding of law, and thus is a question that must be answered by the military judge; if the military judge is convinced by the evidence presented that it is more likely than not the accused suffered from illegal pretrial punishment, then the accused would be entitled to credit against any sentence
2. Article 13, UCMJ, credit is distinct from NJP credit and should not be treated in the same way; Article 13, UCMJ credit is provided for conduct in which the government has already engaged; in other words, it is relief for the government's conduct, not a sentencing factor related to the accused's offense
3. when there is evidence of an Article 13, UCMJ, violation, that evidence can be presented to the military judge for confinement credit and then subsequently to the panel in connection with the issue of sentence mitigation
4. the law does not create a per se rule against the accused being allowed to present evidence of an Article 13, UCMJ, violation to the military judge and also to the panel, so long as that evidence is otherwise admissible pursuant to the relevant rules of evidence and procedure; presenting Article 13, UCMJ, evidence in these two different contexts serves two distinct purposes; a military judge considers evidence of Article 13, UCMJ, violations to determine, as a matter of law, whether the accused is entitled to credit for the government's conduct; however, when a panel considers that same evidence properly admitted as mitigation on sentencing, it is doing so for the purpose of determining an appropriate sentence for an appellant's conduct; as with other evidence offered in sentence mitigation, this evidence is subject to MRE 403 balancing, rebuttal, and instruction
5. when and whether to raise Article 13, UCMJ, is a matter of trial tactics; in choosing to present the Article 13, UCMJ, evidence to the panel, including the number of days already credited the accused, defense counsel may even risk that the panel members consider that factor in favor of a harsher sentence than would have been assessed without knowledge of the credit; it is for that same reason, however, that allowing a military judge to first determine whether Article 13, UCMJ, violations occurred as a matter of law and awarding confinement credit where relevant, and subsequently allowing a panel to consider the totality of the evidence - including that there was an Article 13, UCMJ, violation - does not provide defense counsel two bites at the apple; rather, the evidence is at play in two different stages of the trial, and presented for different purposes
6. should members take Article 13, UCMJ, evidence into account when assessing a sentence, the accused is not receiving credit twice for the same conduct

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge's decision to admit or exclude evidence at sentencing is reviewed for an abuse of discretion
2. with respect to a military judge's decision to admit or exclude evidence at sentencing, a military judge is given wide discretion and more deference if he or she properly conducts a MRE 403 balancing test and articulates his or her reasoning on the record