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

the first of two “thresholds” before death may be adjudged; the
accused must have been found guilty of an offense for which
death is authorized.
1986 Amendment: Subsection (2), referred to below in the
original Analysis, was redesignated as subsection (3), and a new
subsection (2) was added. The new subsection requires a unanimous
verdict on findings before the death penalty may be considered.
Nothing in this provision changes existing law under which
a finding of guilty may be based upon a vote of two-thirds of the
members, and a finding based upon a two-thirds vote will continue
to provide the basis for sentencing proceedings in which any
sentence other than death may be imposed. This is an exercise of
the President’s powers as commander-in-chief, and is not intended
to cast doubt upon the validity of the sentence in any
capital case tried before the effective date of the amendments.
Subsection (2) refers to the remaining tests in subsections (b)
and (c) of the rule; the prosecution must prove, beyond a reasonable
doubt, the existence of one or more aggravating circumstances
listed in subsection (c) of the rule. Only if this second threshold is
passed may the members consider death. If the members reach
this point, their sentencing deliberations and procedures would be
like those in any other case, except that the members must apply
an additional specific standard before they may adjudge death.
See subsection (b)(3) of this rule.
This rule thus combines two preliminary tests which must be
met before death may be adjudged with a standard which must be
applied before death may be adjudged. Cf. Barclay v. Florida and
Zant v. Stephens, both supra. The Working Group considered the
capital punishment provisions of those states which now authorize
capital punishment, as well as the ALI Model Penal Code §
201.6(3), (4) (Tent. Draft No. 9, 1959) (quoted at Gregg. v.
Georgia, supra at 193 n.44). The ABA Standards do not include
specific provisions for capital punishment. See ABA Standards,
Sentencing Alternatives and Procedures § 18–1.1 (1979). This
rule is not based on any specific state statue. It should be noted,
however, that this rule provides a greater measure of guidance for
members than does the Georgia procedure which has been upheld
by the Supreme Court. In Georgia, once a statutory aggravating
factor has been proved, the statute leaves the decision whether to
a d j u d g e d e a t h e n t i r e l y t o t h e j u r y . S e e G a . C o d e A n n . § §
17–10–30, 17–10–31 (1982). (In Georgia, once an aggravating
factor has been proved, the burden may effectively be on the
defendant to show why death should not be adjudged. See Coker
v. Georgia, supra at 590-91.) Subsection (b)(4)(B) of this rule
supplies a standard for that decision. Many state statutes adopt a
similar balancing test, although the specific standard to be applied
varies. See e.g., Ark. Stat. Ann. § 41–1302 (1977). Cf. Barclay v.
Florida, supra. See also Analysis, subsection (b)(4)(B), infra.
(b) Procedure. Subsection (1) is intended to avoid surprise and
trial delays. Cf. Ga. Code Ann. § 17–10 2(a)(1982). Consistent
with R.C.M. 701, its purpose is to put the defense on notice of
issues in the case. This permits thorough preparation, and makes
possible early submission of requests to produce witnesses or
evidence. At the same time, this subsection affords some latitude
to the prosecution to provide later notice, recognizing that the
exigencies of proof may prevent early notice in some cases. This
is permissible as long as the defense is not harmed; ordinarily a
continuance or recess will prevent such prejudice.
There is no requirement to plead the aggravating circumstances
ANALYSIS
App. 21, R.C.M. 1004(b)
under subsection (c). (Statutory aggravating circumstances are
elements of the offense, and must be pleaded and proved; see
e.g., Article 85 (time of war); Article 118(1) (premeditation)).
Notice of the aggravating circumstances under this subsection
may be accomplished like any other notice in these rules. Note
that under R.C.M. 701(a)(5) trial counsel is required to inform the
defense of evidence the prosecution intends to introduce at sentencing.
Subsection (2) makes clear that the prosecution may introduce
evidence in aggravation under R.C.M. 1001(b)(4). Note that depositions
are not admissible for this purpose. See Article 49(d).
Subsection (3) is based on Eddings v. Oklahoma and Lockett v.
Ohio, both supra, Cf. Jurek v. Texas, supra. The accused in
courts-martial generally has broad latitude to introduce matters in
extenuation and mitigation ( see R.C.M. 1001(c)) although the
form in which they are introduced may depend on several circumstances
(see R.C.M. 1001(e)). This subsection reemphasizes that
latitude. The rule is not intended to strip the military judge of
authority to control the proceedings. Eddings and Lockett should
not be read so broadly as to divest the military judge of the power
to determine what is relevant (see Mil. R. Evid. 401, 403) or so
decide when a witness must be produced ( see R.C.M. 1001(e)).
Those cases, and this subsection, stand for the proposition that the
defense may not be prevented from presenting any relevant circumstances
in extenuation or mitigation.
S u b s e c t i o n ( 4 ) ( A ) e s t a b l i s h e s t h e s e c o n d “ t h r e s h o l d ” w h i c h
must be passed before death may be adjudged. The requirement
that at least one specific aggravating circumstance be found bey
o n d a r e a s o n a b l e d o u b t i s c o m m o n t o m a n y s t a t e s t a t u t o r y
schemes for capital punishment. See, e.g., Del. Code Ann. tit. 11,
§ 4209(d)(1977); Ark. Stat. Ann. § 41–1302(1977); Ill. Ann. Stat.
Ch. 38, § 9–1(f) (Smith-Hurd 1979), La. Code Crim. Proc. §
905.3 (West Supp 1982); Md. Ann. Code Art. 27 § 413(d)(1982);
I n d . C o d e A n n . § 3 5 – 5 0 – 2 – 9 ( a ) ( B u r n s 1 9 7 9 ) . S e e g e n e r a l l y
United States v. Matthews, supra.
Subsection (4)(B) establishes guidance for the members in determining
whether to adjudge death, once one or more aggravating
factors have been found.
Note that under this subsection any aggravating matter may be
considered in determining whether death or some other punishment
is appropriate. Thus, while some factors may alone not be
sufficient to authorize death they may be relevant considerations
to weigh against extenuating or mitigating evidence. See Barclay
v. Florida and Zant v. Stephens, both supra. See generally R.C.M.
1001(b)(4).
The rule does not list extenuating or mitigating circumstances
as do some states. Some mitigating circumstances are listed in
R.C.M. 1001(c)(1) and (f)(1). See also R.C.M. 1001(f)(2)(B). No
list of extenuating or mitigating circumstances can safely be considered
exhaustive. See Eddings v. Oklahoma and Lockett v. Ohio,
both supra; cf.Jurek v. Texas, supra. Moreover, in many cases,
whether a matter is either extenuating or mitigating depends on
other factors. For example, the fact that the accused was under
the influence of alcohol or drugs at the time of the offense could
be viewed as an aggravating or an extenuating circumstance.
Whether a matter is extenuating or mitigating is to be determined
by each member, unless the military judge finds that a matter is
extenuating or mitigating as a matter of law (see e.g., R.C.M.
1001(c)(1) and (f)(1)) and so instructs the members. In contrast to
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