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TC is allowed to make another argument, rebutting
anything that was brought up by the DC. After all
arguments are complete and if the trial is composed of
members, the military judge instructs the members on
findings. The members withdraw from the courtroom
for deliberation on findings.
If the court is composed of members, the presi-
dent of the court will announce the findings. If no
members, the judge announces findings. At an SPCM,
two-thirds of the members present at trial must agree
on each finding of guilty. In computing the necessary
number of votes to convict, a resulting fraction is
counted as one. Thus, on a court of five members, the
number of voters required to convict is three and
one-third or, applying the rule, four votes. In a trial by
military judge alone, the required number of votes is
one—the judge’s.
Presentencing Procedure
After findings of guilty have been announced, the
prosecution and defense may present matters to aid
the court-martial in determining an appropriate sen-
tence.
in the
l
l
l
l
Such matters are ordinarily presented by the TC
following sequence:
Service record data relating to the accused
taken from the charge sheet
Personal data relating to the accused and of the
character of the accused’s prior service as taken
from the service record
Evidence of prior convictions, military or civil-
ian
Evidence of rehabilitative potential
Extenuation and Mitigation
The defense may present matters in rebuttal of
any material presented by the prosecution and may
present matters in extenuation and mitigation. Matter
in extenuation of an offense serves to explain the
circumstances surrounding the commission of an of-
fense, including those reasons for committing the of-
fense that do not constitute a legal justification or
excuse. Matter in mitigation of an offense is intro-
duced to lessen the punishment to be adjudged by the
court-martial, or to furnish grounds for a recommen-
dation of clemency.
The accused may testify, make an unsworn state-
ment, or both in extenuation, in mitigation or to rebut
matters presented by the prosecution, or for all three
purposes. The accused may limit such testimony or
statement to any one or more of the specifications of
which the accused has been found guilty.
Argument on Sentence and Sentence
After introduction of matters relating to sentenc-
ing, counsel for the prosecution and defense may
argue for an appropriate sentence. Again, if it is a
members’ trial, the military judge will instruct the
members on sentencing. As with findings, two-thirds
of the members must be in concurrence for a particu-
lar sentence. In a members’ trial, the president of the
court will announce sentence, otherwise the military
judge announces it. Immediately after sentencing the
military judge informs the accused of posttrial and
appellate rights.
Adjournment
The military judge adjourns the court-martial at
the end of the trial of an accused or proceeds to trial
of other cases referred to that court-martial.
Clemency
After trial, any or all court members and/or the
military judge may recommend that the CA exercise
clemency to reduce the sentence, notwithstanding
their vote on the sentence at trial.
SPECIAL COURT-MARTIAL
PUNISHMENTS
Articles 19, 55, and 56, UCMJ, and R.C.M. 1003
are the primary references concerning the punishment
authority of the SPCM. Appendix 12 and part IV,
MCM, 1984, also address punishment power. Part IV
of the MCM contains the maximum permissible pun-
ishment for a particular offense. The other references
further limit punitive authority, depending on the
level of court-martial and type of punishment being
considered.
Prohibited Punishments
Article 55, UCMJ, flatly prohibits flogging,
branding, marking, tattooing, the use of irons (except
for safekeeping of prisoners), and any other cruel and
unusual punishment. Other punishments not recog-
nized by service customs include shaving the head,
tying up by hands, carrying a loaded knapsack, plac-
ing in stocks, loss of good conduct time (a strictly
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