Chapter X · Sentencing
R.C.M. 1001. Presentencing procedure
2024 Manual for Courts-Martial, United States
Recent revisions Summary of changes Cited by (32)(a) In general.
(1) Procedure. After findings of guilty have been announced, the Government and defense may present matters pursuant to this rule to aid the court-martial in determining an appropriate sentence. Such matters shall ordinarily be presented in the following sequence:
(A) Presentation by the trial counsel of:
(i) service data relating to the accused taken from the charge sheet;
(ii) personal data relating to the accused and of the character of the accused’s prior service as reflected in the personnel records of the accused.
(B) Crime victim’s right to be reasonably heard.
(C) Presentation by the defense of evidence in extenuation or mitigation or both.
(D) Rebuttal.
(E) Argument by the trial counsel on sentence.
(F) Argument by the defense counsel on sentence.
(G) Rebuttal argument in the discretion of the military judge.
(2) Adjudging sentence. A sentence shall be adjudged in all cases without unreasonable delay.
(3) Advice and inquiry.
(A) Crime victim. At the beginning of the presentencing proceeding, the military judge shall announce that any crime victim who is present at the presentencing proceeding has the right to be reasonably heard, including the right to make a sworn statement, unsworn statement, or both. Prior to the conclusion of the presentencing proceeding, the military judge shall ensure that any such crime victim was afforded the opportunity to be reasonably heard.
Discussion
In capital cases, the right to be reasonably heard does not include the right to make an unsworn statement. See R.C.M. 1001(c)(2)(D)(i).
(B) Accused. The military judge shall personally inform the accused of the right to present matters in extenuation and mitigation, including the right to make a sworn or unsworn statement or to remain silent, and shall ask whether the accused chooses to exercise those rights.
(b) Matters to be presented by the prosecution.
(1) Service data from the charge sheet. Trial counsel shall inform the court-martial of the data on the charge sheet relating to the pay and service of the accused and the duration and nature of any pretrial restraint. In the discretion of the military judge, this may be done by reading the material from the charge sheet or by giving the court-martial a written statement of such matter. If the defense objects to the data as being materially inaccurate or incomplete, or containing specified objectionable matter, the military judge shall determine the issue. Objections not asserted are forfeited.
(2) Personal data and character of prior service of the accused. Under regulations of the Secretary concerned, the trial counsel may obtain and introduce from the personnel records of the accused evidence of the accused’s marital status; number of dependents, if any; and character of prior service. Such evidence includes copies of reports reflecting the past military efficiency, conduct, performance, and history of the accused and evidence of any disciplinary actions, including punishments under Article 15 and summary courts-martial after review has been completed pursuant to Article 64. “Personnel records of the accused” includes any records made or maintained in accordance with departmental regulations that reflect the past military efficiency, conduct, performance, and history of the accused. If the accused objects to a particular document as inaccurate or incomplete in a specified respect, or as containing matter that is not admissible under the Military Rules of Evidence, the matter shall be determined by the military judge. Objections not asserted are forfeited.
Discussion
Defense counsel may also, subject to the Military Rules of Evidence and this rule, present personnel records of the accused not introduced by trial counsel in accordance with R.C.M. 1001(b). A forfeited matter may be subject to review for plain error.
(3) Evidence of prior convictions of the accused.
(A) In general. Trial counsel may introduce evidence of prior military or civilian convictions of the accused. For purposes of this rule, there is a “conviction” in a court-martial case when a sentence has been adjudged. In a civilian case, a “conviction” includes any disposition following an initial judicial determination or assumption of guilt, such as when guilt has been established by guilty plea, trial, or plea of nolo contendere, regardless of the subsequent disposition, sentencing procedure, or final judgment. A “conviction” does not include a diversion from the judicial process without a finding or admission of guilt; expunged convictions; juvenile adjudications; minor traffic violations; foreign convictions; tribal court convictions; or convictions reversed, vacated, invalidated, or pardoned.
Discussion
A vacation of a suspended sentence ( see R.C.M. 1108) is not a conviction and is not admissible as such, but may be admissible under R.C.M. 1001(b)(2) as reflective of the character of the prior service of the accused. An accused may only be punished for the offenses of which he or she was convicted in that same court-martial.
(B) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
(C) Method of proof. Previous convictions may be proved by any evidence admissible under the Military Rules of Evidence.
Discussion
Normally, previous convictions may be proved by use of the personnel records of the accused, by the record of the conviction, or by the judgment. See R.C.M. 1111 or DD Form 493 (Extract of Military Records of Previous Convictions).
(4) Evidence in aggravation. The trial counsel may present evidence as to any aggravating circumstance directly relating to or resulting from the offenses of which the accused has been found guilty. Evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused and evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused’s offense. In addition, evidence in aggravation may include evidence that the accused intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, sex (including pregnancy), gender (including gender identity), disability, or sexual orientation of any person. Except in capital cases, a written or oral deposition taken in accordance with R.C.M. 702 is admissible in aggravation.
Discussion
See also R.C.M. 1004 concerning aggravating factors in capital cases.
(5) Evidence of rehabilitative potential. “Rehabilitative potential” refers to the accused’s potential to be restored, through vocational, correctional, or therapeutic training or other corrective measures to a useful and constructive place in society.
(A) In general. Trial counsel may present, by testimony or oral deposition in accordance with R.C.M. 702(g)(1), evidence in the form of opinions concerning the accused’s previous performance as a servicemember and potential for rehabilitation.
(B) Foundation for opinion. The witness or deponent providing opinion evidence regarding the accused’s rehabilitative potential must possess sufficient information and knowledge about the accused to offer a rationally-based opinion that is helpful to the sentencing authority. Relevant information and knowledge include, but are not limited to, information and knowledge about the accused’s character, performance of duty, moral fiber, determination to be rehabilitated, and nature and severity of the offense or offenses.
(C) Bases for opinion. An opinion regarding the accused’s rehabilitative potential must be based upon relevant information and knowledge possessed by the witness or deponent, and must relate to the accused’s personal circumstances. The opinion of the witness or deponent regarding the severity or nature of the accused’s offense or offenses may not serve as the principal basis for an opinion of the accused’s rehabilitative potential.
(D) Scope of opinion. An opinion offered under this rule is limited to whether the accused has rehabilitative potential and to the magnitude or quality of any such potential. A witness may not offer an opinion regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit.
Discussion
On direct examination, a witness or deponent may respond affirmatively or negatively regarding whether the accused has rehabilitative potential. The witness or deponent may also opine succinctly regarding the magnitude or quality of the accused’s rehabilitative potential; for example, the witness or deponent may opine that the accused has “great” or “little” rehabilitative potential. The witness or deponent, however, generally may not further elaborate on the accused’s rehabilitative potential, such as describing the particular reasons for forming the opinion.
(E) Cross-examination. On cross-examination, inquiry is permitted into relevant and specific instances of conduct.
(F) Redirect. Notwithstanding any other provision in this rule, the scope of opinion testimony permitted on redirect may be expanded, depending upon the nature and scope of the cross-examination.
Discussion
For example, on redirect a witness or deponent may testify regarding specific instances of conduct when the cross-examination of the witness or deponent concerned specific instances of misconduct. Similarly, for example, on redirect a witness or deponent may offer an opinion on matters beyond the scope of the accused’s rehabilitative potential if an opinion about such matters was elicited during cross-examination of the witness or deponent and is otherwise admissible.
(c) Crime victim’s right to be reasonably heard.
(1) In general. After presentation by the trial counsel, a crime victim of an offense of which the accused has been found guilty has the right to be reasonably heard at the presentencing proceeding relating to that offense. A crime victim who makes an unsworn statement under R.C.M. 1001(c)(5) is not considered a witness for the purposes of Article 42(b). If the crime victim exercises the right to be reasonably heard, the crime victim shall be called by the court-martial. The exercise of the right is independent of whether the crime victim testified during findings or is called to testify by the Government or defense under this rule.
Discussion
If there are numerous victims, the military judge may reasonably limit the form of the statements provided. See R.C.M. 801(a)(3). The method by which the opportunity to be reasonably heard was provided to any crime victim present at the proceedings should be included in the record orally or in writing.
(2) Definitions.
(A) Crime victim. For purposes of R.C.M. 1001(c), a crime victim is an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilty or the individual’s lawful representative or designee appointed by the military judge under these rules.
(B) Victim impact. For purposes of R.C.M. 1001(c), victim impact includes any financial, social, psychological, or medical impact on the crime victim relating to or arising from the offense of which the accused has been found guilty.
(C) Mitigation. For the purposes of R.C.M. 1001(c), mitigation includes any matter that may lessen the punishment to be adjudged by the court-martial or furnish grounds for a recommendation of clemency.
(D) Right to be reasonably heard.
(i) Capital cases. In capital cases, for purposes of R.C.M. 1001(c), the “right to be reasonably heard” means the right to make a sworn statement. The statement may not recommend a specific sentence.
Discussion
See Booth v. Maryland , 482 U.S. 496, 501-502, 507, n.10 (1987) (“the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence that does not relate to the circumstances of the crime.”). See also Bosse v. Oklahoma , 580 U.S. 1, 3 (2016) (per curiam) (holding that a state court of appeals “remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless this Court reconsiders that ban.”).
(ii) Noncapital cases. In noncapital cases, for purposes of R.C.M. 1001(c), the “right to be reasonably heard” means the right to make a sworn statement, an unsworn statement, or both. This right includes the right to be heard on any objection to any unsworn statement.
(3) Contents of statement. The content of statements made under R.C.M. 1001(c)(4) or (5) may only include victim impact and matters in mitigation, except that, in a noncapital case, the victim may recommend a specific sentence.
(4) Sworn statement. The crime victim may make a sworn statement and shall be subject to cross-examination concerning it by the trial counsel and the defense counsel or examination on it by the court-martial.
(5) Unsworn statement. The crime victim may make an unsworn statement and may not be cross-examined by the trial counsel or the defense counsel or examined upon it by the court-martial. The Government or defense may, however, rebut any statements of fact therein. The unsworn statement may be oral, written, or both, and may be made by the crime victim, by counsel representing the crime victim, or both.
Discussion
A victim’s statement should not exceed what is permitted under R.C.M. 1001(c)(3). A crime victim may also testify as a witness during presentencing proceedings in order to present evidence admissible under a rule other than R.C.M. 1001(c)(3). Upon objection by either party or sua sponte , a military judge may stop or interrupt a victim’s statement that includes matters outside the scope of R.C.M. 1001(c)(3). A victim, victim’s counsel, or designee has no separate right to present argument under R.C.M. 1001(h). When the military judge waives the notice requirement under this rule, the military judge may conduct a session under Article 39(a) to ascertain the content of the victim’s anticipated unsworn statement. If the victim intends to submit a written statement, a copy of the statement satisfies the requirement for a written proffer.
(d) Matter to be presented by the defense.
(1) In general. The defense may present matters in rebuttal of any material presented by the prosecution and the crime victim, if any, and may present matters in extenuation and mitigation regardless whether the defense offered evidence before findings.
(A) Matter in extenuation. Matter in extenuation of an offense serves to explain the circumstances surrounding the commission of an offense, including those reasons for committing the offense which do not constitute a legal justification or excuse.
(B) Matter in mitigation. Matter in mitigation of an offense is introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency. It includes the fact that nonjudicial punishment under Article 15 has been imposed for an offense growing out of the same act or omission that constitutes the offense of which the accused has been found guilty, 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.
(2) Statement by the accused.
(A) In general. The accused may testify, make an unsworn statement, or both in extenuation, in mitigation, to rebut matters presented by the prosecution, or to rebut statements of fact contained in any crime victim’s sworn or unsworn statement, whether or not the accused testified prior to findings. The accused may limit such testimony or statement to any one or more of the specifications of which the accused has been found guilty. The accused may make a request for a specific sentence. This subsection does not permit the filing of an affidavit of the accused.
(B) Testimony of the accused. The accused may give sworn oral testimony and shall be subject to cross-examination concerning it by trial counsel or examination on it by the court-martial, or both.
(C) Unsworn statement. The accused may make an unsworn statement and may not be cross-examined by trial counsel upon it or examined upon it by the court-martial. The prosecution may, however, rebut any statements of facts therein. The unsworn statement may be oral, written, or both, and may be made by the accused, by counsel, or both.
Discussion
An unsworn statement ordinarily should not include what is properly argument, but inclusion of such matter by the accused when personally making an oral statement normally should not be grounds for stopping the statement.
(3) Rules of evidence relaxed. The military judge may, with respect to matters in extenuation or mitigation or both, relax the rules of evidence. This may include admitting letters, affidavits, certificates of military and civil officers, and other writings of similar authenticity and reliability.
(e) Rebuttal and surrebuttal. The prosecution may rebut matters presented by the defense. The defense in surrebuttal may then rebut any rebuttal offered by the prosecution. Rebuttal and surrebuttal may continue, in the discretion of the military judge. If the Military Rules of Evidence were relaxed under paragraph (d)(3) of this rule, they may be relaxed during rebuttal and surrebuttal to the same degree.
(f) Production of witnesses.
(1) In general. During the presentencing proceedings, there shall be much greater latitude than on the merits to receive information by means other than testimony presented through the personal appearance of witnesses. During presentencing proceedings, a dispute as to the production of a witness at Government expense is a matter within the discretion of the military judge to resolve subject to the limitations in R.C.M. 1001(f)(2).
Discussion
See R.C.M. 703 concerning the procedures for production of witnesses for presentencing proceedings.
(2) Limitations. A witness may be produced to testify during presentencing proceedings through a subpoena or travel orders at Government expense only if—
(A) the testimony of the witness is necessary for consideration of a matter of substantial significance to a determination of an appropriate sentence;
(B) the weight or credibility of the testimony is of substantial significance to the determination of an appropriate sentence;
(C) the other party refuses to enter into a stipulation containing the matters to which the witness is expected to testify, except in an extraordinary case when such a stipulation would be an insufficient substitute for the testimony;
(D) other forms of evidence, such as oral depositions, written interrogatories, former testimony, or testimony by remote means would not be sufficient to meet the needs of the court-martial in the determination of an appropriate sentence; and
(E) the significance of the personal appearance of the witness to the determination of an appropriate sentence, when balanced against the practical difficulties of producing the witness, favors production of the witness. Factors to be considered include the costs of producing the witness, the timing of the request for production of the witness, the potential delay in the presentencing proceeding that may be caused by the production of the witness, and the likelihood of significant interference with military operational deployment, mission accomplishment, or essential training.
Discussion
The procedures for receiving testimony via remote means and the definition thereof are contained in R.C.M. 914B.
(g) Additional matters to be considered. In addition to matters introduced under this rule, the court-martial may consider—
(1) That a plea of guilty is a mitigating factor; and
(2) Any evidence properly introduced on the merits before findings, including:
(A) Evidence of other offenses or acts of misconduct even if introduced for a limited purpose; and
(B) Evidence relating to any mental impairment or deficiency of the accused.
Discussion
The fact that the accused is of low intelligence or that, because of a mental or neurological condition, the accused’s ability to adhere to the right is diminished, may be extenuating. On the other hand, in determining the severity of a sentence, the court-martial may consider evidence tending to show that an accused has little regard for the rights of others.
(h) Argument. After introduction of matters relating to the sentence under this rule, counsel for the Government and defense may argue for an appropriate sentence. The trial counsel may not in argument purport to speak for the convening authority or any other higher authority or refer to the views of such authorities or any policy directive relative to punishment or to any punishment or quantum of punishment greater than the court-martial may adjudge. The trial counsel may, however, recommend a specific lawful sentence and may also refer to the sentencing considerations set forth in R.C.M. 1002(f). Failure to object to improper argument before the military judge begins deliberations, or before the military judge instructs the members on sentencing, shall constitute forfeiture of the objection.
Discussion
A victim, victims’ counsel, or designee has no right to present argument under this rule. A forfeited matter may be subject to review for plain error.
Cross-referencesCited by 32Cites 15Elsewhere 1
Cited by
Provisions elsewhere in the Manual whose text cites R.C.M. 1001. Each link opens the citing provision.
Rules for Courts-Martial
Discussion under R.C.M. 502(d)(4) — Qualifications and duties of personnel of courts-martial (1001(h))
…of witnesses; and prepare to make final argument on the findings and, if necessary, on sentencing ( see R.C.M. 919, 1001(h)). (F) Trial . The trial counsel should bring to the attention of the military judge any substantial…
…information of the witnesses the trial counsel intends to call at the presentencing proceedings under R.C.M. 1001(b).
…contact information of any witnesses whom the defense intends to all at the presentencing proceedings under R.C.M. 1001(d); and
R.C.M. 702(a)(4) — Depositions
…party except when the deposition is ordered solely in lieu of producing a witness for sentencing under R.C.M. 1001 and the authority ordering the deposition determines that the interests of the parties and the court-martial…
Discussion under R.C.M. 702(a)(5) — Depositions
…Military Rules of Evidence may be used in presentencing proceedings as substantive evidence as provided in R.C.M. 1001. DD Form 456 (Interrogatories and Deposition) may be used in conjunction with this rule. See Article…
R.C.M. 702(f)(1)(B)(iii) — Depositions
the deposition is ordered in lieu of production of a witness on sentencing under R.C.M. 1001 and the authority ordering the deposition determines that the interests of the parties and the court-martial…
…Each party is entitled to the production of a witness whose testimony on sentencing is required under R.C.M. 1001(f).
…and the reasons why the witness’ personal appearance will be necessary under the standards set forth in R.C.M. 1001(f).
Discussion under R.C.M. 803 — Court-martial sessions without members under Article 39(a)
…pleas, enter findings of guilty upon an accepted plea of guilty, and conduct presentencing proceedings under R.C.M. 1001 without the members present. Evidence may be admitted and process, including a subpoena, may be issued to…
R.C.M. 804(a)(3)(B) — Presence at court-martial proceedings
…a plea inquiry under R.C.M. 910(d), (e) and (f), and presentencing proceedings before a military judge under R.C.M. 1001, only when there are exceptional circumstances that interfere with the normal administration of military…
…32 preliminary hearings and depositions. An accused making an unsworn statement is not a “witness.” See R.C.M. 1001(d)(2)(C). A victim of an offense for which the accused has been found guilty is not a “witness” when making an…
See R.C.M. 703, 1001(f).
See R.C.M. 701 concerning discovery. See R.C.M. 703, 914, and 1001(f) concerning production of evidence and witnesses.
…either in support of the factual basis for the plea, or, after findings are entered, in aggravation. See R.C.M. 1001(b)(4).
R.C.M. 1002(d)(1) — Sentencing determination
Any evidence admitted by the military judge during the presentencing proceeding under R.C.M. 1001; and
Discussion under R.C.M. 1003(d)(3) — Punishments
…used to increase the maximum punishment under this rule. However, they may be admitted and considered under R.C.M. 1001.
R.C.M. 1004(a) — Capital cases
In general. In addition to the provisions in R.C.M. 1001, the provisions in this rule shall apply in capital cases. Death may be adjudged only when—
Aggravating factors. The trial counsel may present evidence in accordance with R.C.M. 1001(b)(4) tending to establish one or more of the aggravating factors enumerated below. Death may be adjudged only if…
See R.C.M. 1001(d).
…all matters in aggravation, whether introduced before or after findings, and matters introduced under R.C.M. 1001(b)(1), (2), (3), and (5);
R.C.M. 1004(f)(3)(F)(i) — Capital cases
Any evidence admitted by the military judge during the presentencing proceeding under R.C.M. 1001; and
R.C.M. 1004(g)(4)(B)(iv) — Capital cases
…be returned to the military judge for imposition of a sentence of a lesser punishment in accordance with R.C.M. 1001.
R.C.M. 1004(g)(4)(C)(ii) — Capital cases
…be returned to the military judge for imposition of a sentence of a lesser punishment in accordance with R.C.M. 1001.
…and mitigating circumstances are substantially outweighed by any aggravating circumstances admissible under R.C.M. 1001(b)(4), including the factors under R.C.M. 1004(c), if at least one member votes to reconsider. In all other…
Successful vote. If a vote to reconsider succeeds, the members will revote in accordance with R.C.M. 1001(g)(3) and (4).
For the definition of “crime victim,” see R.C.M. 1001(c)(2)(A). However, in this provision, a copy of the Statement of Trial Results shall be provided to any crime victim…
…military judge, the parties, and any person who, at the time of sentencing, was a crime victim as defined by R.C.M. 1001(c)(2)(A), with an opportunity to make a submission addressing the statement of reasons in the Government’s request.
To be reasonably heard during sentencing in accordance with R.C.M. 1001(c); and
Discussion under R.C.M. 1304(b)(2)(E)(iv) — Trial procedure
See R.C.M. 703 and 1001.
R.C.M. 1304(b)(2)(G)(ii) — Trial procedure
The summary court-martial shall follow the procedures in R.C.M. 1001 and 1002 and apply the principles in the remainder of Chapter X in determining a sentence, except as follows:
Military Rules of Evidence
Mil. R. Evid. 1101(b) — Applicability of these rules
Rules Relaxed. The application of these rules may be relaxed in presentencing proceedings as provided under R.C.M. 1001 and otherwise as provided in this Manual.
UCMJ Punitive Articles
…particular purpose. It may be an aggravating circumstance that the kidnapping was for ransom, however. See R.C.M. 1001(b)(4).
R.C.M. 1001 cites
Provisions named in the text of R.C.M. 1001. Where the cited provision is on this site, the link opens it.