Deliberations and Voting. RCM 1006
Notes of the members.
- Any exhibits.
- Any written instructions.
- Instructions must have been given orally.
- Written copies, or any part thereof, may also be given to the members unless either party objects.
- Pretrial agreement (PTA) terms.
- RCM 705(e). Except in a court-martial without an MJ, no member of a court-martial shall be informed of the existence of a PTA.
- United States v. Schnitzer , 41 M.J. 603 (Army Ct. Crim. App. 1994), aff’d 44 MJ 380 (1996). Mention of sentencing limitation in co-actor’s PTA constituted unlawful command influence and plain error. Rehearing on sentencing required. See United States v. Royster , 9400201 (Army Ct. Crim. App. 15 June 1995) (unpub.), limiting Schnitzer to its facts.
- Deliberations and Voting on Sentence.
Number of votes required:
- Death – unanimous.
- Confinement for more than ten years – at least three-fourths of the members.
- All other sentences – at least two-thirds of the members.
- Garrett v. Lowe , 39 M.J. 293 (C.M.A. 1994). Members must vote on sentences in their entirety. Accordingly, it was error for the court to instruct jurors that only two-thirds of the members were required to vote for sentence for felony murder, where that sentence must, by law, include confinement for life.
- United States v. Weatherspoon , 44 M.J. 211 (1996). Court-martial panel asked if must impose confinement for life, or merely vote for life, in premeditated murder conviction. The military judge advised the members that sentence must include confinement for life, but they could, collectively or individually, recommend clemency. The judge made clear individual rights of members to recommend clemency.
- United States v. Thomas , 46 M.J. 311 (1997). In capital sentencing procedures under RCM 1004(b)(7), the President extended to capital cases the right of having a vote on the least severe sentence first. At sentencing phase of accused’s capital court-martial, the judge instructed the panel first to vote on a death sentence, and if not unanimous, then to consider a sentence of confinement for life and other types of punishments. The CAAF held RCM 1006(d)(3)(A) required voting on proposed sentences “ beginning with the least severe .” See also United States v. Simoy , 50 M.J. 1 (1998) (holding that the military judge committed plain error when he fails to advise a panel to vote on the sentences in order of least severe to most severe).