(concurring):
In my view, the Government and the accused may expressly agree that all the facts recited in a stipulation may be considered by the sentencing authority, without regard to the rules that, absent such agreement, would govern admissibility of evidence of those facts. This agreement may be enforced if it is clear and voluntary, and if the accused’s defense counsel is competent.
If, however, no such agreement has been entered — preferably within the body of the stipulation itself — no fact contained in the stipulation may be considered by the court-martial in sentencing, unless evidence of that fact would otherwise be admissible. Accordingly, if a stipulation recites facts that are irrelevant or are more prejudicial than probative, then, on defense motion, they should be excluded from consideration. No inconsistency exists between entering a stipulation of facts and then objecting to consideration of some or all of those facts by reason of the prohibitions contained in the Military Rules of Evidence. Moreover, making such an objection successfully does not violate a pretrial agreement requiring the accused to enter into a particular stipulation of fact and does not entitle the Government to abrogate the pretrial agreement.
Accordingly, appellant’s defense counsel was free to move that the court-martial not consider the facts stated in the stipulation as to which no evidence could have been offered if there had been no stipulation. However, as Judge Cox points out, the military judge properly denied the defense motion here, because all of these facts were admissible under the rules prescribed by the Manual for Courts-Martial. Thus, I join in affirming the decision of the court below.