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:

Presentation by the trial counsel of:

service data relating to the accused taken from the charge sheet;

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.

Crime victim’s right to be reasonably heard.

Presentation by the defense of evidence in extenuation or mitigation or both.

Rebuttal.

Argument by the trial counsel on sentence.

Argument by the defense counsel on sentence.

Rebuttal argument in the discretion of the military judge.

A sentence shall be adjudged in all cases without unreasonable delay.

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.

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).

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.

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.

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.

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.

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.

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.

The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Previous convictions may be proved by any evidence admissible under the Military Rules of Evidence.

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).

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.

See also R.C.M. 1004 concerning aggravating factors in capital cases.

“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.

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.

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.

See Mil. R. Evid. 701 . See also Mil. R. Evid. 703 if the witness or deponent is testifying as an expert. The types of information and knowledge reflected in this subparagraph are illustrative only.

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.

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.

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.

On cross-examination, inquiry is permitted into relevant and specific instances of conduct.

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.

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.

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.

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.

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.

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.

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.

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.

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.”).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

See R.C.M. 703 concerning the procedures for production of witnesses for presentencing proceedings.

A witness may be produced to testify during presentencing proceedings through a subpoena or travel orders at Government expense only if—

the testimony of the witness is necessary for consideration of a matter of substantial significance to a determination of an appropriate sentence;

the weight or credibility of the testimony is of substantial significance to the determination of an appropriate sentence;

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;

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

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.

The procedures for receiving testimony via remote means and the definition thereof are contained in R.C.M. 914B.

In addition to matters introduced under this rule, the court-martial may consider—

That a plea of guilty is a mitigating factor; and

Any evidence properly introduced on the merits before findings, including:

Evidence of other offenses or acts of misconduct even if introduced for a limited purpose; and

Evidence relating to any mental impairment or deficiency of the accused.

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.

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.

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.