courtmartialdefenselawyer91Required Instructions. R.C.M. 1005(e).

Required Instructions. R.C.M. 1005(e)

Required Instructions. R.C.M. 1005(e)

  1. Maximum punishment.
    1. Military judge must instruct on the correct maximum punishment, but not how the amount was reached (unitary sentencing). United States v. Purdy , 42 M.J. 666 (A. Ct. Crim. App. 1996). See also United States v. Reyes , 63 M.J. 265 (2006) (reversing where the military judge incorrectly instructed that a dishonorable discharge was available).
    2. Punishments other than the maximum. The military judge has no sua sponte duty to instruct on other punishments. Instruction on the maximum punishment plus a proper sentence worksheet is sufficient. United States v. Brandolini , 13 M.J. 163 (C.M.A. 1982).
  2. A statement of the effect any sentence announced that includes a punitive dischargeand confinement, or confinement in excess of six months, will have on the accused’s entitlement to pay and allowances.
  3. Procedures for deliberations and voting .
    1. Failure to give instruction that members are to begin voting with the lightest proposed sentence is not plain error. United States v. Fisher , 21 M.J. 327 (C.M.A. 1986). However, in capital cases, this is error. United States v. Thomas , 46 M.J. 311 (C.A.A.F. 1997); United States v. Simoy , 50 M.J. 1 (C.A.A.F. 1999).
    2. Collecting and counting votes.
      1. United States v. Truitt , 32 M.J. 1010 (A.C.M.R. 1991). Failure to instruct that junior member collects and counts the votes and the president shall check the count was harmless in the absence of evidence that the panel actually voted incorrectly .
      2. But see United States v. Harris , 30 M.J. 1150 (A.C.M.R. 1990). Failure to give instructions that voting was to be by secret written ballot and that the junior member was to collect and count the ballots was error. The court declined to presume that the correct procedures were followed and reversed.
  4. The members are solely responsible for selecting the sentence and they cannot relyupon mitigating action by the convening authority.
  5. Members must consider all matters in extenuation, mitigation and aggravation.R.C.M. 1005(e)(5). If the accused states irrelevant matters in her unsworn statement, the military judge may give a Friedmann instruction (based on United States v. Friedmann , 53 M.J. 800 (A. F. Ct. Crim. App. 2000)); see also United States v. Barrier , 61 M.J. 482 (C.A.A.F. 2005).