One of the unfortunate parts of military justice practice is that every defense attorney has to prepare for the possibility that his client will be found guilty of at least something. Preparing for a sentencing case is one of the most difficult tasks (emotionally) for any practitioner whose focus is obtaining the not guilty verdict. No matter how hard it is to face, there is an art to building a case in extenuation and mitigation. A key component to trying to soften the blow of any punishment is the presentation of evidence describing the military accused’s rehabilitative potential. What does that even mean?
We are providing this blog post for the military accused / client to best understand so he can give his attorneys the best witness candidates for this type of evidence and to be an educated part of his defense team. This post is also for the military justice practitioner who wants to be better at presenting evidence during the presentencing phase.
Unlocking the Power of Defense Strategies: A Smarter Approach to Rehabilitative Potential
In the realm of military defense, the quest for eliciting opinion testimony on an accused’s rehabilitative potential is a common challenge faced by defense attorneys. However, there’s a perilous pitfall lurking in the form of potential cross-examination pitfalls, which can inadvertently open the door to damaging revelations. Let’s explore a smarter and safer way to showcase rehabilitative potential without risking the sting of unwanted revelations.
**First Things First**
What is “rehabilitative potential?” According to Rule for Court-Martial (RCM) 1001(b), 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.”
**The Prosecution’s Limitations: Matters to be Presented**
As we delve further into the Manual for Courts-Martial (RCM 1001(b)), we encounter a restriction on the prosecution’s ability to delve into the specifics of an accused’s rehabilitative potential. The witness, although allowed to express an opinion, is generally prohibited from elaborating on the particular reasons behind forming that opinion.
Often, military defense counsel will use this same rule to provide their own rehabilitation potential evidence in the form of opinion testimony from either a leader in the Accused’s unit, fellow servicemember or close relative. Unfortunately, this tactic is fraught with danger.
**The Danger of Opening the Door: Cross-Examination Woes**
The ominous “opening the door” phenomenon arises during cross-examination, where trial counsel can inquire into relevant and specific instances of conduct. This inevitably leads to a precarious situation where specific acts of misconduct become fair game for the government during their pre-sentencing case. An outcome no defense attorney wishes to encounter – an “OUCH” moment indeed.
**A Better and Safer Way: Defense Strategies Unleashed**
Fear not, for there exists a more effective and secure approach. Let’s harness the power of defense strategies to showcase an accused’s rehabilitative potential without inadvertently inviting cross-examination pitfalls.
When confronted with the challenge of presenting lay witness opinion testimony, the key lies in the effectiveness of your evidence. Instead of resorting to generic conclusions like labeling someone “drunk” or a “good Soldier,” consider a more compelling approach.
In these situations, such conclusions might be perceived as ordinary, lacking the robust foundation of “scientific, technical, or other specialized knowledge” (MRE 701(c)). Even if opinions are rationally based on a witness’s perception (MRE 701(a)) and contribute to determining a fact in issue (MRE 701(b)), their impact on the factfinder can be limited.
**The Power of Specifics: Show, Don’t Just Tell**
Picture the impact of providing intricate details that led to those conclusions instead of presenting the conclusions themselves. Shift from merely telling to showing, offering specific facts that vividly paint the picture for the factfinder. Whether it’s describing bloodshot eyes, recounting the consumption of 5 shots of tequila in 20 minutes, detailing slurred speech, stumbling, or expressive emotional outbursts – specificity is your ally.
Similarly, when tasked with portraying a servicemember as a “good Soldier,” delve into the possibilities outlined in RCM 1001(d)(1)(B). Showcase “particular acts of good conduct” or bravery, spotlighting evidence of efficiency, fidelity, subordination, temperance, courage, and other commendable qualities. Let the actions of your client, embodying a commendable Soldier, resonate louder than mere conclusory statements made by others.
**Conclusion: Strengthen Your Case, Engage Your Factfinder**
In calling witnesses to provide details and context to the contributions the client has made, the emphasis shifts from telling the factfinder the conclusions (of their rehabilitative potential) to showing them the concrete evidence. This not only fortifies your case but also captivates the factfinder in a more compelling and convincing manner. The factfinder, empowered by tangible evidence, naturally concludes the accused is a “good Soldier” without the need for direct statements from others.
In the intricate dance of defense strategies, leverage the strength of specifics to navigate the challenge of presenting rehabilitative potential without the risk of cross-examination pitfalls. It’s not just about what you say; it’s about how you strategically show it.
Ensure that you are an advocate who understands the pitfalls, the leverage points, and the best practices if you end up in pre-sentencing. If you are a military accused, verify that your gladiator in the arena understands how to best leverage a case in mitigation. Putting your faith in the right lawyer can make all the difference.
