RCM 1001(b)(5)

uscourtmartiallawyers77United States v. Williams , 41 M.J. 134 (C.M.A. 1994). Psychiatric expert’s prediction of future dangerousness was proper matter for consideration in sentencing under rule providing for admission of evidence of accused’s potential for rehabilitation under RCM 1001(b)(5).

  • United States v. Davis , 39 M.J. 281 (C.M.A. 1994). Victim’s testimony as to how he would feel if the accused received no punishment was not admissible as evidence of accused’s rehabilitative potential under RCM 1001(b)(5).
  • Foundation for opinion testimony.
    The witness must possess sufficient information and knowledge about the accused’s “character, performance of duty, moral fiber, determination to be rehabilitated, and nature and severity of the offenses” in order to offer a “helpful,” rationally based opinion., codifying United States v. Ohrt , 28 M.J. 301 (C.M.A. 1989).
  • United States v. Powell , 49 M.J. 460 (1998). In laying a foundation for opinion evidence of an accused’s rehabilitative potential, a witness may not refer to specific acts.
  • Quality of the opinion depends on the foundation. United States v. Boughton , 16 M.J. 649 (A.F.C.M.R. 1983). Opinions expressed should be based on personal observation, but may also be based on reports and other information provided by subordinates.
  • United States v. Sylvester , 38 M.J. 720 (A.C.M.R. 1994). Opinion evidence regarding rehabilitative potential is not per se inadmissible merely because defense counsel establishes on cross-examination that witness’s assessment goes only to potential for military service. Once proper foundation for opinion has been established, such cross examination goes to weight to be given evidence, not to its admissibility.
  • United States v. McElhaney , 54 M.J. 120 (2000). Error for the military judge to allow testimony of psychiatrist regarding future dangerousness of the accused as related to pedophilia, where witness had not examined the accused or reviewed his records, and had testified that he was unable to diagnose the accused as a pedophile. Compare with United States v. Patterson , 54 M.J. 74 (2000).
  • What’s a proper basis of opinion testimony?
    Opinion evidence of rehabilitative potential may not be based solely on the severity of the offense; must be based upon relevant information and knowledge possessed by the witness of the accused’s personal circumstances. RCM 1001(b)(5)(C); United States v. Horner , 22 M.J. 294 (C.M.A. 1986).
  • United States v. Armon, 51 M.J. 83 (1999). Accused wrongfully wore SF tab, SF combat patch, CIB, and combat parachutist badge. COL answered negatively the question, “based upon what you’ve seen of the accused, if you were jumping into combat tomorrow, would you want him around?” COL did not know accused and was not familiar with his service record. The CAAF held testimony may have violated 1001(b)(5) but was not plain error and would be permissible in this context (to show the detrimental effect this misconduct had on other soldiers) under 1001(b)(4).
  • What’s the proper scope of opinion testimony?
    The scope “is limited to whether the accused has rehabilitative potential and to the magnitude or quality of any such potential. A witness may not offer an opinion regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit.” RCM 1001(b)(5)(D).
  • It is improper for a witness to use a euphemism for a punitive discharge in commenting on an accused’s rehabilitative potential. United States v. Ohrt , 28 M.J. 301 (C.M.A. 1989).
    1. United States v. Aurich , 31 M.J. 95 (C.M.A. 1990). The commander’s opinion that he does not want the accused back in his unit “proves absolutely nothing.”
    2. United States v. Yerich , 47 M.J. 615 (Army Ct. Crim. App. 1997). Senior NCO testified that he could “form [an opinion] as to his military rehabilitation,” and that accused did not have any such rehabilitative potential. The Army Court noted difficulty of grappling with claimed “euphemisms.” Whether the words used by a witness constitute a euphemism depends on the circumstantial context. The court also noted that a noncommissioned officer is normally incapable of exerting improper command influence over an officer panel.
    3. United States v. Warner , 59 M.J. 590 (C.G. Ct. Crim. App. 2003). On cross-examination of appellant’s supervisor (whom the defense called to establish that the appellant had rehabilitation potential), the government asked the witness about the appellant’s rehabilitative potential “ in the Coast Guard , given his drug abuse.” The government’s questions were improper because they linked the witness’ opinion on rehabilitative potential with award of a punitive discharge.
    4. “There can be a thin line between an opinion that an accused should be returned to duty and the expression of an opinion regarding the appropriateness of a punitive discharge. Obviously, an accused cannot return to serve in his unit if he receives a punitive discharge. But an explicit declaration that an accused should not receive a punitive discharge or that any such discharge should be of a certain severity is disallowed for the defense not because of RCM 1001(b)(5)(D), but because such evidence invades the province of the member to decide alone on punishment.” United States v. Griggs , 61 M.J. 402, 409 (C.A.A.F. 2005). But see United States v. Eslinger , 70 M.J. 193 (C.A.A.F. 2011)(finding no error (3-2 decision) when defense witnesses said the accused should stay in the Army, the government did not object, and the government’s rebuttal witnesses said the accused should not stay in the Army).
  • Same rules may apply to the defense? “The mirror image might reasonably be that an opinion that an accused could ‘continue to serve and contribute to the United States Army’ simply is a euphemism for, ‘I do not believe you should give him a punitive discharge.’” United States v. Ramos , 42 M.J. 392, 396 (1995).
    1. United States v. Hoyt , No. ACM 33145, 2000 CCA LEXIS 180 (A.F. Ct. Crim. App. July 5, 2000), pet. denied, 54 M.J. 365 (2000), held that defense witnesses cannot comment on the inappropriateness of a punitive discharge. But see United States v. Bish , 54 M.J. 860 (A.F. Ct. Crim. App. 2001) (noting that since the rule prohibiting euphemism falls under prosecution evidence (RCM 1001(b)(5)(D)), “it does not appear to prohibit the defense from offering evidence that a member of the accused’s unit wants him back.”
    2. United States v. Griggs , 61 M.J. 402 (2005). Appellant tried and convicted of various drug-related offenses. On sentencing, the DC offered six letters with opinions on to appellant’s rehabilitative potential in the Air Force rather than as a productive member of society. The TC objected on the grounds that the statements were recommendations for retention and would confuse the members. The military judge ordered the disputed language redacted. The AFCCA held that the MJ did not abuse his discretion by ordering the redaction and, even if he did, the error was harmless (i.e., there was no prejudice to the appellant). The court cited confusion in this area of law as to whether such evidence is proper from the accused as a basis for its conclusion. The court also noted that the DC conceded that RCM 1001(b)(5) applied to the defense letters. CAAF granted review and concluded “the better view is that R.C.M. 1001(b)(5)(D) does not apply to defense mitigation evidence, and specifically does not preclude evidence that a witness would willingly serve with the accused again.” However, CAAF further restated, as in Aurich , “if an accused ‘opens the door’ by bringing witnesses before the court to testify that they want him or her backing the unit, the Government is permitted to prove that that is not a consensus view of the command.” 31 M.J. at 96-97.
    3. United States v. Hill , 62 M.J. 271 (2006). During the defense sentencing case, the appellant’s battalion commander was called to testify about his rehabilitative potential. Before a military judge alone, he testified that he did not think he could come back to the unit as a physician’s assistant. He further testified, “[i]f I was sitting in that panel over there as a juror would I allow him [Appellant] to remain in the Army? No-.” The military judge promptly stated that the battalion commander’s remarks were “not responsive” and consisted of testimony “that a witness is not allowed to make.” However, following trial during a “Bridge the Gap” session, the military judge commented, “I was thinking of keeping him until his commander said he didn’t want him back,” or words to that effect. The CAAF determined from the record that the military judge was referring to back as a “physician’s assistant” as opposed to “back in the Army.”
  • Specific acts? RCM 1001(b)(5)(E) and (F).
    1. On direct, government may not introduce specific acts of uncharged misconduct that form the basis of the opinion. See United States v. Rhoads , 32 M.J. 114 (C.M.A. 1991).
    2. If the defense opens the door during cross-examination, on redirect the trial counsel should also be able to address specific incidents of conduct. United States v. Clarke , 29 M.J. 582 (A.F.C.M.R. 1989). See also United States v. Gregory , 31 M.J. 236 (C.M.A. 1990) (RCM 1001(b)(5) witness cannot testify about specific instance of misconduct as basis for opinion until cross-examined on specific good acts).
  • Future Dangerousness.
    1. United States v. Williams , 41 M.J. 134 (C.M.A. 1994). Psychiatric expert’s prediction of future dangerousness was proper matter for consideration in sentencing under rule providing for admission of evidence of accused’s potential for rehabilitation under RCM 1001(b)(5).
    2. United States v. Scott, 51 M.J. 326 (1999). During the presentencing phase of trial, the government offered an expert to testify about the accused’s future dangerousness. Defense objected to the witness on the basis that the witness had never interviewed his client so he lacked an adequate basis to form an opinion. The judge overruled the objection. Defense’s failure to object at trial that there was a violation of the accused’s Fifth and Sixth Amendment rights at trial forfeited those objections, absent plain error. Although there was no evidence to indicate that the government witness had examined the full sanity report regarding the accused, the court concluded there was no plain error in this case where the doctor testified that based on the twenty offenses the accused had committed in the last two years, he was likely to re-offend.
    3. United States v. George, 52 M.J. 259 (2000). A social worker testified that the “accused’s prognosis for rehabilitation was ‘guarded’ and ‘questionable.’” The CAAF noted that evidence of future dangerousness is a proper matter under RCM 1001(b)(5).
  • Rebuttal Witnesses. United States v. Pompey , 33 M.J. 266 (C.M.A. 1991). The Ohrt/Horner rules apply to government rebuttal witnesses to keep unlawful command influence out of the sentencing proceedings (a rational basis for expressing opinion is still required). But see United States v. Aurich , 32 M.J. 95 (C.M.A. 1990) (observing that where defense witnesses testify they want accused back in unit, the government may prove that that is not a consensus of the command).
  • Absence of rehabilitative potential is a factor for consideration in determining a proper sentence; that absence is NOT a matter in aggravation. United States v. Loving , 41 M.J. 213 (C.M.A. 1994), aff’d, 517 U.S. 748 (1996). MJ’s characterization of accused’s disciplinary record and his company commander’s testimony about accused’s duty performance as aggravating circumstances was error since lack of rehabilitative potential is not an aggravating circumstance.

Foundation for opinion testimony.

Future Dangerousness.