Rehab potential 101: a primer on the use of rehabilitative potential evidence in sentencing.

• Author: Wiedie, Jr., Charles E.

1. INTRODUCTION II. THE FRAMEWORK FOR ADMISSIBLE SENTENCING EVIDENCE III. WHAT IS REHABILITATIVE POTENTIAL EVIDENCE? IV. APPLICATION OF THE RULES GOVERNING REHABILITATIVE POTENTIAL EVIDENCE AT TRIAL A. Foundation for Opinion B. Basis for Opinion C. Opinion Based on Severity of Offense D. Specific Instances of Misconduct E. Euphemisms for a Punitive Discharge F. Future Dangerousness G. Mendacity H. Trial Counsel Use of Rehabilitative Potential Evidence V. CONCLUSION We are not engaged in a game where the score is counted by the "toughness" of the sentence or whether trial counsel "got the discharge." We are engaged in an aspect of national defense, which has a legitimate and ethical purpose--to maintain good order and discipline in our armed forces ... We would urge the military community to remain faithful to the role of the court-martial as a tool o f justice and discipline, a tool which encourages men and women to obey lawful orders and the law, and not give the system over to personnel administration. (1)

1. INTRODUCTION

   Courts-martial may involve findings and sentencing phases but a high percentage will only involve a sentencing phase. As such the importance of presenting a proper sentencing case cannot be over emphasized. Both sides in this adversarial proceeding have an interest in ensuring that only legally admissible evidence is presented to the sentencing body. As trial counsel, you do not want your case overturned on appeal because inadmissible evidence was admitted. As defense counsel, you want to make sure you zealously advocate for your client's rights.

   Both the prosecution and the defense rely heavily on rehabilitative potential evidence to strengthen their sentencing cases. The rules may seem straightforward in theory, but their actual application in courts-martial often proves problematic. Both sides need to know how the rules apply to their side (in order to maximize the use of rehabilitative potential evidence) and how they apply to the other side (to prevent the introduction of otherwise inadmissible evidence). This analysis of the rules governing rehabilitative potential evidence will begin with a look at the legal framework for analyzing any sentencing evidence. Next, it will look at the definition of rehabilitative potential evidence. Finally, it will conclude by addressing areas where the application of the rules governing admission of rehabilitative potential evidence has often proven particularly troublesome. These areas include: the foundation for an opinion on rehabilitation potential; the basis for a rehabilitation potential opinion; opinions on rehabilitation potential based on the severity of offense; the introduction of specific instances of misconduct; the use of "euphemisms" for a punitive discharge in the context of rehabilitation potential evidence; testimony concerning the "future dangerousness" of an accused; issues related to mendacity; and trial counsel use of rehabilitation potential evidence.

2. THE FRAMEWORK FOR ADMISSIBLE SENTENCING EVIDENCE

   An analysis of the admissibility of rehabilitative potential evidence should begin with the same analysis to which all sentencing evidence is subject: Military Rule for Courts-Martial (RCM) 1001. (2) RCM 1001 provides the framework for determining whether evidence is admissible during the sentencing phase of a trial.

   In applying an RCM 1001(b) analysis, three questions must be answered. First, does the evidence fall into one of the specific categories outlined in RCM 1001(b)? Second, is the evidence in an admissible form? (3) And finally, is the probative value substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence? (4)

   If the evidence offered is proper rehabilitative potential evidence, then the first hurdle to admission of the evidence is easily overcome. Evidence on rehabilitative potential is clearly admissible. (5) In seeking to admit evidence relating to rehabilitative potential, the proponent must next ensure that the evidence is in proper form. For trial counsel, such evidence may be introduced via the testimony of a witness or an oral deposition. (6) Defense counsel may also offer live witness or an oral deposition. The defense, however, has the additional option of offering character letters attesting to the accused's rehabilitative potential provided the rules of evidence are relaxed (or the government fails to object). If the military judge relaxes the rules of evidence based on a defense request, the prosecution can offer letters to rebut defense offered rehabilitative potential evidence. Lastly, rehabilitative potential evidence, like all evidence, must be subjected to a balancing test under Military Rule of Evidence (MRE) 403 to determine its admissibility. Assuming the rehabilitative potential evidence sought to be admitted complies with all of the other rules governing such evidence, survival of a MRE 403 balancing test generally will not be an issue.

3. WHAT IS REHABILITATIVE POTENTIAL EVIDENCE?

   Any analysis of rehabilitative potential evidence must begin by clearly identifying what qualifies as rehabilitative potential evidence. Specifically, rehabilitative potential "refers to the accused's potential to be restored, through vocational, correctional, or therapeutic training or other corrective measures to a useful and constructive place in society." (7) Before a witness may offer an opinion as to an accused's rehabilitative potential, it must be established that the witness has "sufficient information and knowledge about the accused to offer a rationally-based opinion that is helpful to the sentencing authority." (8) Once a proper foundation has been laid, the witness may offer an opinion as to the accused's previous performance as a service member and potential for rehabilitation. (9) Such an opinion must, however, be based on information known to the witness and the accused's personal circumstances. (10) The offense of which the accused has been convicted may not serve as the principal basis for the witness' opinion concerning the accused's rehabilitative potential. (11)

   On direct examination, the witness is limited to answering whether the accused has rehabilitative potential and offering a brief quantification of the degree of the accused's rehabilitative potential. (12) Generally, the witness is not allowed to further elaborate on the accused's rehabilitative potential or describe the reasons why they hold such an opinion. (13) However, on cross-examination, the witness may be asked about relevant, specific instances of conduct. (14) Furthermore, the scope of the cross-examination may open the door to specific instances of conduct on redirect. (15)

   The general concept of what does and what does not constitute rehabilitative potential evidence appears somewhat straightforward in the abstract. It is in the application of this definition and in the rules further established by court decisions that prove to make it more difficult in actual practice. To better understand how the definition of rehabilitative potential evidence is applied and how the various court decision effect this definition, one must look closer at the definition and the interpretation of that definition by the courts.

4. APPLICATION OF THE RULES GOVERNING REHABILITATIVE POTENTIAL EVIDENCE AT TRIAL

   1. Foundation for Opinion

      An opinion from a witness who does not know an accused very well clearly would not be helpful to the sentencing body in determining an appropriate sentence. Therefore, a 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. (16)

      It must be recognized that the testimony of a witness as to their opinion of an accused's rehabilitative potential is limited by RCM 1001(b)(5). (17) This Rule does not allow a witness to provide an explanation as to why they hold such an opinion unless the door is opened on cross-examination. (18) Essentially, RCM 1001(b)(5) allows just one question: "What is the accused's potential for rehabilitation?" (19) Likewise, the answer to that question is limited by the Rule, requiring the witness to limit their answer to whether the accused has such potential. (20) The only leeway given the witness in answering that question is that they may use an adjective to describe their assessment of the accused's rehabilitative potential. (21) Even though a witness is prohibited, on direct examination, from providing the justification or basis for their opinion, they still are required to have a proper foundation for their opinion. (22)

      Prior to the 1994 Amendments to the Manual for Courts-Martial, RCM 1001(b)(5) was silent on the need for a witness to have a proper foundation before expressing an opinion on the rehabilitative potential of an accused. (23) Rule 1001(b)(5) was amended to include a foundational requirement based on a line of cases that included United States v. Ohrt. (24)

      In Ohrt, the accused was a noncommissioned officer with over 12 years of unblemished service in the Army and the Air Force. At trial, he was convicted of wrongful use of marijuana. During sentencing, the government called the accused's commander to testify concerning his opinion of the accused's potential for rehabilitation. Specifically, he was asked by trial counsel if he had an opinion on the accused's "potential for continued service in the United States Air Force." (25) The witness was permitted, over defense objection, to respond. He stated: "I believe he does not have potential." (26) In response to questions by a court member, the witness stated that the accused had not been offered nonjudicial punishment under Article 15, Uniform Code of Military Justice...