During the sentencing phase of a court-martial, counsel sometimes wants to tell the panel what counsel personally noticed about a witness, that the witness seemed nervous, evasive, defiant, or remorseless. The short answer is that an attorney’s own observations of a witness’s demeanor are not admissible evidence, in rebuttal or otherwise. Counsel may comment on demeanor through argument that draws on what the members themselves observed, but counsel cannot become a witness and inject personal observations into the record as proof.
The difference between evidence and argument
The military sentencing process under the Rules for Courts-Martial follows a defined order. Trial counsel presents matters such as service data, prior convictions, and evidence in aggravation; the defense presents matters in extenuation and mitigation; and then the parties may offer rebuttal of matters the other side introduced. Everything in this sequence is evidence, presented through sworn witnesses, documents, or recognized substitutes. Counsel’s closing argument is something different. It is advocacy about the evidence, not evidence itself. An attorney’s personal impression of how a witness behaved does not fit into either category as admissible proof.
Why counsel cannot testify to demeanor
An advocate is not a witness. The rules of professional responsibility, reflected in the lawyer-as-witness principle, bar an attorney from acting as both advocate and witness in the same proceeding except in narrow circumstances. Beyond the ethics rule, the rules of evidence require that testimony come from a witness with personal knowledge who is placed under oath and subjected to cross-examination. If counsel were allowed to assert personal observations of a witness’s demeanor, the opposing party could not cross-examine those assertions, and the attorney’s credibility would improperly become an issue. For these reasons, counsel’s demeanor observations are not admissible evidence.
Demeanor is for the trier of fact to assess
Demeanor occupies a special place in the law. The members who sit on the panel observe each witness directly, and assessing demeanor, the witness’s calmness or anxiety, hesitation, evasiveness, or candor, is a core function of the trier of fact. That is one reason the right to confront witnesses face to face matters so much. Because the panel sees the witness firsthand, it does not need, and the rules do not permit, an attorney to narrate or characterize that demeanor as evidence. The members draw their own conclusions from what they saw.
What counsel may permissibly do in argument
This does not mean demeanor is off limits in advocacy. In closing or sentencing argument, counsel may ask the members to recall how a witness appeared and to weigh that observation in assessing credibility or in deciding on an appropriate sentence. The key is that counsel is inviting the members to rely on their own observations, not supplying counsel’s personal observations as fact. Argument such as asking the panel to consider whether a witness seemed forthright is proper; an assertion that counsel personally watched the witness lie crosses into improper personal vouching and unsworn testimony by the advocate.
The limits even in rebuttal
Rebuttal during sentencing is meant to respond to matters the opposing party put before the court. It does not create an exception that lets counsel introduce personal observations. If the defense offers evidence of the accused’s good character or remorse, the government may rebut with admissible evidence, such as a properly qualified witness or document, not with the prosecutor’s own commentary presented as fact. The form of rebuttal must still satisfy the rules of evidence.
How opposing counsel and the judge respond
If counsel attempts to put personal demeanor observations before the panel, opposing counsel can object that counsel is testifying, vouching, or arguing facts not in evidence. The military judge can sustain the objection, instruct the members to disregard, and remind them that statements of counsel are not evidence. Persisting can become prosecutorial or defense misconduct and, in serious cases, a basis for relief on appeal.
Bottom line
An attorney’s personal observations of a witness’s demeanor are not admissible evidence at sentencing, and rebuttal does not change that. Demeanor is something the panel evaluates for itself based on what it directly observed, an advocate may not serve as a witness, and the rules of evidence require sworn, cross-examinable testimony. Counsel may legitimately argue about demeanor by pointing the members to their own observations, but the line between proper argument and improper personal testimony is firm. Service members with questions about how sentencing evidence and argument are handled should consult experienced military defense counsel.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.