Proving Character In Sentencing

In sentencing, an accused may introduce matters in extenuation or mitigation to lessen the punishment received at a court martial.  Matters in extenuation include circumstances surrounding the commission of the offense, while matters in mitigation are personal factors concerning the accused.  An accused may introduce such evidence either through the testimony of witnesses, documentary evidence, or a sworn or unsworn statement.

In most sentencing cases, a defense attorney will try to introduce favorable aspects of their client’s character.  The favorable character evidence is typically introduced through letters from family and friends.  Recently, a defense attorney attempted to introduce a character letter from a client’s pastor through their client’s unsworn statement.  The prosecution objected to reading the letter as part of the unsworn statement, and the military judge sustained the objection.  The issue was briefed on appeal.  The Army Court of Criminal Appeals affirmed the military judge’s ruling and the Court of Appeals for the Armed Forces denied review.  See United States v. Martinez, 76 M.J. 541 (ACCA 2017), rev. denied.

In reaching its conclusion, the Army Court of Criminal Appeals noted that Rule for Court Martial 1001(c)(3) allows an accused to relax the rules “to introduce sentencing evidence without strict adherence to the rules of evidence.”  The military judge in Martinez gave the defense the opportunity to relax the rules to admit the pastor’s letter, but the defense declined to do so.  The defense likely declined the request since if the rules of evidence were relaxed, then in rebuttal, the rules would similarly be relaxed for the prosecution.

If a defense attorney wants to avoid a Martinez issue, the simple work around is having the letters from family or friends qualify for admission under Military Rule of Evidence 405(c).  Under that rule, a defense attorney may introduce affidavits or other written statements of persons concerning the character of the accused.  If letters introduced by the defense are independently admissible under Military Rule of Evidence 405, then a defense attorney does not have to request the rules of evidence to be relaxed to admit them.

If you are going to try to admit character letters under Military Rule of Evidence 405(c), you should do the following:

  1. Remember that in most cases you cannot reference specific instances of conduct in an affidavit.  If your affidavit contains specific instances of conduct, and the prosecution objects, you should request to redact the objectionable information.
  2. The prosecution may, in rebuttal, also introduce affidavits or other written statements regarding the character of the accused.  The prosecution will most likely not be prepared to do admit any affidavits in rebuttal. If the prosecution tries to admit written statements in rebuttal, the defense attorney should object if the written statement would not otherwise be admissible under the rules.
  3. You must include the following to qualify as an affidavit at the end of any statement: “I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.”
  4. The affidavit must be signed and dated.

By thinking through the presentation of sentencing evidence, a defense attorney can ensure their client receives the very best possible outcome at a court martial.

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