Can the government admit my old Article 15 or NJP during the sentencing phase of my court-martial for a different offense?
Yes, many times they can. After an accused is convicted of an offense at his court-martial, he enters the sentencing phase of his court-martial. During this phase, the servicemember convicted can present evidence of mitigation and extenuation in an effort to convince a court-martial panel or military judge to give him a lighter sentence for the offense or offenses. This evidence might include testimony from other servicemembers or friends describing his positive character traits and commendable service in the military. It also could include evidence presented about what occurred during the commission of the offense or offenses in an effort to explain the servicemember’s limited role in the offense. Just like the defense can submit evidence during this phase of the court-martial, so can the government. The government often submits aggravation evidence. This evidence might include testimony from a victim of an offense(s) or testimony about the offense(s) that demonstrates that the convicted servicemember was more culpable than others involved in the offense(s). During the sentencing phase of the court-martial, the government may also admit “personnel records of the accused.” These records may reflect past “military efficiency, conduct, performance, and history of the accused and evidence of any disciplinary actions including punishments under Article 15.” (Rule for Court-Martial (R.C.M.) 1001(b)(2)). Based on R.C.M. 1001(b)(2), an Article 15 or NJP can be admitted as aggravation during sentencing. However, as a defense counsel, you must pay attention, because there are exceptions to this. For instance, a summarized Article 15 is not admissible. Additionally, if the Article 15 or NJP is not maintained in accordance with regulation it may be excluded. Finally, an Article 15 or NJP may not be admitted if the defense can show that its “probative value” is outweighed by prejudice to the accused or possible confusion by the panel. Recently, in U.S. v. Heyward, the Army Court of Criminal Appeals (ACCA) ruled that a military judge erred when he admitted the allied papers (supporting evidence) that were attached to an Article 15. In that case, the military judge admitted the allied papers along with the Article 15 based on a “rule of completeness” without reading them or ruling on their admissibility. ACCA found that the allied papers should have been severed from the Article 15 by regulation. The Court further found that because the papers contained inadmissible hearsay and derogatory material about the accused, the military judge should have made a separate ruling regarding admissibility of the allied papers. If a past Article 15 or NJP is admitted during the sentencing phase of an unrelated court-martial, it can be very damaging to a convicted servicemember. The military judge or panel in that court-martial might punish a servicemember more harshly based on that Article 15 or NJP. Therefore, a servicemember needs a defense counsel by his or her side who has the experience and knowledge to know when an Article 15 or NJP and/or its allied papers are admissible. I have the experience to know when to object and when to appeal a court-martial. There are many errors that can occur during a court-martial and a convicted servicemember may appeal those errors and may get some relief based on them. Call me now, I can help you or your loved one with an upcoming court-martial or court-martial appeal. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.