uscourtmartiallawyers117Sentencing Argument

  1. Trial counsel argues first, then defense counsel. R.C.M. 1001(a)(1), (g).
  2. The military judge has the discretion to permit rebuttal sentencing arguments. R.C.M. 1001(a)(1)(F), (d).
    1. As a general rule, there is no right of government counsel to present rebuttal argument because the government does not have a burden of proof during presentencing proceedings in non-capital cases. United States v. McGee , 30 M.J. 1086 (N.M.C.M.R. 1989). The propriety of permitting such argument is dependent upon the need to address matters newly raised by the defense in its sentencing argument. Id .
  3. Absentgood causethe military judge should not permit departure from the order of argument set forth in R.C.M. 1001(a)(1).
    1. United States v. Budicin , 32 M.J. 795 (N.M.C.M.R. 1990). Military judge erred by allowing trial counsel to argue last but defense counsel waived error by not objecting.
    2. United States v. Martin , 36 M.J. 739 (A.F.C.M.R. 1993). Trial counsel should not be routinely permitted to choose whether to argue first or last on sentencing.