2008 edition - Fort Sam Houston - U.S. Army

R.C.M. 1001(b)(5)(D)
discharge or whether the accused should be returned
to the accused’s unit.
Discussion
On direct examination, a witness or deponent may respond aff
i r m a t i v e l y o r n e g a t i v e l y r e g a r d i n g w h e t h e r t h e a c c u s e d h a s
rehabilitative potential. The witness or deponent may also opine
succinctly regarding the magnitude or quality of the accused
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 ) C r o s s - e x a m i n a t i o n . O n c r o s s - e x a m i n a t i o n ,
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) 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 may present matters in extenuation and
m i t i g a t i o n r e g a r d l e s s w h e t h e r t h e d e f e n s e o f f e r e d
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
w h i c h d o n o t c o n s t i t u t e a l e g a l j u s t i f i c a t i o n o r
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
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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
t h e s e r v i c e f o r e f f i c i e n c y , f i d e l i t y , s u b o r d i n a t i o n ,
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 or to rebut matters presented by the prosecution,
or for all three purposes 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. This subsection does not permit the
filing of an affidavit of the accused.
( B ) T e s t i m o n y o f t h e a c c u s e d . T h e a c c u s e d
may give sworn oral testimony under this paragraph
and shall be subject to cross-examination concerning
it by the trial counsel or examination on it by the
court-martial, or both.
( C ) U n s w o r n s t a t e m e n t . T h e a c c u s e d m a y
make an unsworn statement and may not be crossexamined
by the 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
p e r s o n a l l y m a k i n g a n o r a l s t a t e m e n t n o r m a l l y s h o u l d n o t b e
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.
(d) 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 sub-