Impeachment of Sentence. RCM 1008

uscourtmartiallawyers163Policy: Strong policy against the impeachment of verdicts.

  1. Promotes finality.
  2. Encourages full and free deliberation.
  • General rule: Deliberative privilege – court deliberations are privileged (MRE 509). United States v. Langer , 41 M.J. 780 (A.F. Ct. Crim. App. 1995) (observing that post-trial questionnaire purportedly intended for feedback to counsel improperly invaded members’ deliberative process).
  • Exceptions: Court members’ testimony or affidavits cannot be used to impeach the verdict except in three limited situations. RCM 1008; MRE 606. See United States v. Loving , 41 M.J. 213 (C.M.A. 1994).
    1. Outside influence (e.g. bribery, jury tampering).
    2. Extraneous prejudicial information.
      1. United States v. Witherspoon , 16 M.J. 252 (C.M.A. 1983) (holding that it was improper for court member visit to crime scene).
      2. United States v. Almeida , 19 M.J. 874 (A.F.C.M.R. 1985) (finding no prejudice where court member talked to witness about Thai cooking during a recess in the trial).
      3. United States v. Elmore , 33 M.J. 387 (C.M.A. 1991) (holding that blood expert witness who had dinner with the members was not err because extensive voir dire established the lack of taint).
      4. United States v. McNutt , 62 M.J. 16 (2005). The military judge improperly considered the collateral administrative effect of the “good-time” policy in determining Appellant’s sentence and this error prejudiced Appellant. “Courts-martial [are] to concern themselves with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty under consideration.” United States v. Griffin , 25 M.J. 423, 424 (C.M.A. 1998). The general preference for prohibiting consideration of collateral consequences is applicable to the military judge’s consideration of the Army “good-time” credits.1
    3. Unlawful command influence.
      1. United States v. Carr , 18 M.J. 297 (C.M.A. 1984) (holding that it was unlawful command control for president to order a re-vote after a finding of not guilty had been reached).
      2. United States v. Accordino , 20 M.J. 102 (C.M.A. 1985) (observing that president of court can express opinions in strong terms and call for a vote when discussion is complete or further debate is pointless; but improper for him to use superiority of rank to coerce a subordinate to vote in a particular manner).
      3. United States v. Dugan , 58 M.J. 253 (2003). Post-trial, member submitted RCM 1105/6 memorandum to defense counsel expressing several concerns, two of which raised potential UCI during the sentencing phase: that some members believed a punitive discharge was “a given” and that mention was made of a commanders call and that the commander (i.e., convening authority) would review the sentence in the case and know what they decided to do. On receipt of the memorandum, the defense counsel sought a post-trial 39a session, which the military judge denied, citing the deliberative privilege, and finding no UCI. The lower court affirmed. The CAAF directed a DuBay hearing to examine the allegation of UCI in the sentencing phase with the following limitations: questions regarding the objective manifestation of the members during deliberations was permitted whereas questions surrounding the subjective manifestations were not.
  • Threshold relatively high. See United States v. Brooks , 41 M.J. 792 (Army Ct. Crim. App. 1995) (observing that there must be colorable allegations to justify judicial inquiry, and even then the judge must be very cautious about inquiring into voting procedures).
  • United States v. McConnell , 46 M.J. 501 (A.F. Ct. Crim. App. 1997). To impeach a sentence that is facially proper, the claimant must show that extraneous prejudicial information, outside influence, or command influence had an impact on the deliberations. Accused asserted in post-trial submissions that the panel was confused over how the period of confinement and BCD would affect his retirement. The court noted unique personal knowledge of a court member might 1 See United States v. Howell , 16 M.J. 1003 (A.C.M.R. 1983) (Naughton, J. concurring) (finding it improper for the trial counsel to argue that the appellant would not serve the full confinement time adjudged by the members because of “good-time” credit). constitute extraneous prejudicial information, but “general and common knowledge that a court member brings to deliberations is an intrinsic part of the deliberative process.”
  • United States v. Combs , 41 M.J. 400 (C.M.A. 1994). Court member’s statement that accused would have received a lighter sentence if there had been evidence of cooperation did not reflect consideration of extraneous prejudicial information which could be subject of inquiry into validity of sentence.

RCM 1008

United States v. Combs