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

much information as the military judge determines is relevant in
order to craft an appropriate sentence for the accused.
Unlike most civilian courts, this rule does not allow admission
of more extensive criminal history information, such as arrests.
Use of such additional information is not appropriate in the military
setting where court-martial members, not a military judge,
often decide the sentence. Such information risks unnecessarily
confusing the members.
The present rule clarifies the term “conviction” in light of the
complex and varying ways civilian jurisdictions treat the subject.
The military judge may admit relevant evidence of civilian convictions
without necessarily being bound by the action, procedure,
or nomenclature of civilian jurisdictions. Examples of judicial
determinations admissible as convictions under this rule include
accepted pleas of nolo contendere, pleas accepted under North
Carolina v. Alford, 400 U.S. 25 (1970), or deferred sentences. If
relevant, evidence of forfeiture of bail that results in a judicial
determination of guilt is also admissible, as recognized in United
States v. Eady, 35 M.J. 15, 16 (C.M.A. 1992). While no time
limit is placed upon the admissibility of prior convictions, the
m i l i t a r y j u d g e s h o u l d c o n d u c t a b a l a n c i n g t e s t t o d e t e r m i n e
whether convictions older than ten years should be admitted or
excluded on the basis of relevance and fundamental fairness.
The two central factors in this rule are (1) judicial determination
of guilt and (2) assumption of guilt. Assumption of guilt is
an all-inclusive term meaning any act by the accused in a judicial
proceeding accepting, acknowledging, or admitting guilt. As long
as either factor is present, the “conviction” is admissible, if relevant.
Consequently, this rule departs from the holding in United
States v. Hughes, 26 M.J. 119, 120 (C.M.A. 1988), where the
accused pleaded guilty in a Texas court, but the judge did not
enter a finding of guilty under state law allowing “deferred adjudications.”
Under the present rule, the “conviction” would be
a d m i s s i b l e b e c a u s e t h e a c c u s e d p l e a d e d g u i l t y i n a j u d i c i a l
proceeding, notwithstanding the fact that the state judge did not
enter a finding of guilty.
In contrast, “deferred prosecutions,” where there is neither an
admission of guilt in a judicial proceeding nor a finding of guilty,
would be excluded. The rule also excludes expunged convictions,
juvenile adjudications, minor traffic violations, foreign convictions,
and tribal court convictions as matters inappropriate for or
unnecessarily confusing to courts-martial members. What constitutes
a æminor traffic violationÆ within the meaning of this rule
is to be decided with reference only to federal law, and not to the
laws of individual states. See U.S. Sentencing Guidelines Manual
Sec. 4A1.2(c)(2); ’What ConstitutesÆ Minor Traffic Infraction’
Excludable From Calculation of Defendant’s Criminal History
under United States Sentencing Guideline Sec. 4A1.2(c)(2),’ 113
A.L.R. Fed. 561 (1993).
Additionally, because of the lack of clarity in the previous rule,
courts sometimes turned to Mil. R. Evid. 609 for guidance. See,
e.g., Slovacek, 24 M.J. at 141. We note that because the policies
behind Mil. R. Evid. 609 and the present rule differ greatly, a
conviction that may not be appropriate for impeachment purposes
under Mil. R. Evid. 609, may nevertheless be admissible under
the present rule.
The Federal Sentencing Guidelines were consulted when drafting
the present rule. Although informed by those guidelines, the
present rule departs from them in many respects because of the
ANALYSIS
App. 21, R.C.M. 1001(b)
wide differences between the courts-martial process and practice
in federal district court.
Subsection (4) makes clear that evidence in aggravation may be
introduced whether the accused pleaded guilty or not guilty, and
whether or not it would be admissible on the merits. This is
c o n s i s t e n t w i t h t h e i n t e r p r e t a t i o n o f p a r a g r a p h 7 5 b ( 3 ) ( l a t e r
amended to be paragraph 75 b(4) of MCM, 1969 (Rev.) by Exec.
Order No. 12315 (July 29, 1981)) in United States v. Vickers, 13
M.J. 403 (C.M.A. 1982). See also U.S. Dep’t of Justice, Attorney
General’s Task Force on Violent Crime, Final Report Recommendation
14 (1981); Fed. R. Crim. P. 32(c)(2)(B) and (C). This
subsection does not authorize introduction in general of evidence
of bad character or uncharged misconduct. The evidence must be
of circumstances directly relating to or resulting from an offense
of which the accused has been found guilty. See United States v.
R o s e , 6 M . J . 7 5 4 ( N . C . M . R . 1 9 7 8 ) , p e t . d e n i e d , 7 M . J . 5 6
(C.M.A. 1979); United States v. Taliaferro, 2 M.J. 397 (A.C.M.R.
1975); United States v. Peace, 49 C.M.R. 172 (A.C.M.R. 1974).
1999 Amendment: R.C.M. 1001(b)(4) was amended by elevating
to the Rule language that heretofore appeared in the Discussion
to the Rule. The Rule was further amended to recognize that
evidence that the offense was a hate crime may also be presented
to the sentencing authority. The additional hate crime language
was derived in part from section 3A1.1 of the Federal Sentencing
Guidelines, in which hate crime motivation results in an upward
adjustment in the level of the offense for which the defendant is
sentenced. Courts-martial sentences are not awarded upon the
basis of guidelines, such as the Federal Sentencing Guidelines,
but rather upon broad considerations of the needs of the service
and the accused and on the premise that each sentence is individually
tailored to the offender and offense. The upward adjustment
used in the Federal Sentencing Guidelines does not directly translate
to the court-martial presentencing procedure. Therefore, in
o r d e r t o a d a p t t h i s c o n c e p t t o t h e c o u r t - m a r t i a l p r o c e s s , t h i s
amendment was made to recognize that ’’hate crime’’ motivation
is admissible in the court-martial presentencing procedure. This
amendment also differs from the Federal Sentencing Guideline in
that the amendment does not specify the burden of proof required
regarding evidence of ’’hate crime’’ motivation. No burden of
proof is customarily specified regarding aggravating evidence admitted
in the presentencing procedure, with the notable exception
of aggravating factors under R.C.M. 1004 in capital cases.
Subsection (5) is new. (Paragraph 75b(5) of MCM, 1969
(Rev.) is deleted here, as it is now covered in R.C.M. 701(a)(5).
Cf. Fed. R. Crim. P. 32(c)(3).) Subsection (5) authorizes the trial
counsel to present, in the form of opinion testimony (see Mil. R.
Evid., Section VII), evidence of the accused’s character as a
servicemember and rehabilitative potential. Note that inquiry into
specific instances of conduct is not permitted on direct examination,
but may be made on cross-examination. Subsection (5) will
allow a more complete presentation of information about the
accused to the court-martial. The accused’s character is in issue
as part of the sentencing decision, since the sentence must be
tailored to the offender. Cf. United States v. Lania, 9 M.J. 100
(C.M.A. 1980). Therefore, introduction of evidence of this nature
should not be contingent solely upon the election of the defense.
Information of a similar nature, from the accused’s employer or
neighbors, is often included in civilian presentencing reports. See,
e.g., Fed. R. Crim. P. 32(c)(2). Subsection (5) guards against
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