Sentencing in Military Court-Martial

After the panel closes to deliberate on the merits (guilt versus innocence stage) during a military court-martial, the military judge will hold a session on the record to discuss with you your rights during any sentencing session that could become necessary if any finding of guilty is reached.

The Military Judge will say, “When the members return from their deliberations, if you are acquitted of all charges and specifications, that will terminate the trial. On the other hand, if you are convicted of any offense, then the court will determine your sentence. During that part of the trial, you have the opportunity to present evidence in extenuation and mitigation of the offenses of which you have been found guilty, that is, matters about the offense(s) or yourself which you want the court to consider in deciding your sentence. In addition to the testimony of witnesses and the offering of documentary evidence, you may, yourself, testify under oath as to these matters or you may remain silent, in which case the court will not draw any adverse inference from your silence. On the other hand, you may make an unsworn statement. Because the statement is unsworn, you cannot be cross-examined on it. However, the government may offer evidence to rebut any statement of fact contained in an unsworn statement. The unsworn statement may be made orally, or in writing, or both. It may be made by you, or by your counsel on your behalf, or by both. Do you understand these rights that you have?”

[Please note, we provide separate information to help guide you on drafting a potential unsworn statement.]

The purpose of this information is to assist you in formulating ideas about the kinds of documentary materials you should be gathering together in the event that you are found guilty of any offense. Understand that by asking you for these items, the firm and its attorneys are not making any judgment on or speaking to any opinion about whether or not we believe you are guilty or the chances or odds we see you could be found guilty. We ask clients to assist in preparing a packet of documentary evidence in every case, and we sincerely hope that we never have to use it. Even still, we would not be doing our job unless we prepare for every possibility, including the potential for a finding of guilty as to any charged offense or to any lesser-included offense.

This list of examples of potentially relevant and / or helpful documents is not meant to discourage or to limit you in your search. Keep in mind, however, that there may be strategic reasons why we omit one or more documents from consideration so please flexible if the attorney eliminates a suggested submission [e.g. a certificate of completing a course on anger management if you are being court-martialed for domestic violence]:

Military Service – it is important to fairly capture all the totality of your military service.

  1. Military awards (with their accompanying write up / recommendation)
  2. Promotion orders
  3. Deployment orders
  4. Evaluations (EPRs / NCOERs or OPRs / OERs, etc.
  5. Special recognition for outstanding service – Coins, etc.
  6. Selection for specialized secondary duties
  7. Certificates of completion training
  8. Photographs or News Articles about training, awards, or any other special recognition

Community Service – Though not required, demonstrating that you have helped to enrich your community can be valuable in providing a whole person perspective.

  1. Documentation of Volunteer Work (Letter of appreciation, certificate, etc.)
  2. Participation in Big Brothers / Big Sisters (unless being court-martialed for child sex abuse etc.)
  3. Other Community Outreach

Education – As a consideration for what opportunities may exist for you within and / or outside the military, it is crucial to provide evidence of the level of education already reached and the potential for future employability.

  1. GT Score
  2. Academic Transcript(s)
  3. Degree certificate

Family & Background – As part of the emphasis to humanize you during the court-martial, it is important for the sentencing authority to know that you are part of a family, whether it is your spouse and / or children, your biological parents, or the family that raised you.

  1. Letters of Support from family members
  2. Religious upbringing, if any – baptism certificate, marriage certificate, first communion, etc. (if it is an important part of your life)
  3. Childhood awards and achievements, as appropriate (e.g., participation in junior ROTC programs, National Honor Society, leadership roles in student government)

Photographs – With regard to any of the above, documenting promotions, service, deployment, a photograph can help your court-martial sentencing authority to trust that you value the events and people you are now emphasizing.

  1. Photographs of family
  2. Photographs taken during deployment (that are not of your classified work station, etc.)
  3. Photographs during promotion ceremonies, during training, etc.

Financial Obligations – Your ability to meet your obligatory and / or volunteer financial obligations will be impacted by any court-martial sentence given by either the trial sentencing authority (judge or panel) and ordered executed by the convening authority. Provide information about child support payments, alimony, or financial support sent to family and loved ones that you give voluntarily.

  1. Divorce decree / order for child support
  2. LES that reflect any voluntary draft allotments (e.g. to support your parent or loved one)

Letters of Support – It is important to provide perspective supporters to your attorney so that the lawyer can solicit letters / memoranda of support. These letters should not make statements that contradict the potential verdict in your court-martial, such as “it is an injustice if SGT X is found guilty” but instead should speak to the achievements and attributes the witness sees in the client and in some cases, to ask for a certain (realistic) particular punishment or lack of it with a stated reason (e.g., please retain SGT X in the service so that he may continue to Y, or please consider reduced confinement so he can find a job and support his family as soon as possible).

  1. Memoranda of Support from prior bosses / supervisors
  2. Memoranda of Support from current chain of command (to attest to continued strong work ethic)
  3. Memoranda of Support from peers
  4. Letters of Support from civilian friends, pastor / clergy member

Remember that every case is unique and that this blog post is for general informational purposes only and should not be construed as legal advice in any given case.

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