2020 (October Term)

United States v. Tyler, 81 M.J. 108 (in 2013, Congress revised presentencing procedures by enacting Article 6b(a)(4)(B), UCMJ, 10 USC § 806b(a)(4)(B), to give a victim the right to be reasonably heard at a sentencing hearing concerning the offense of which he or she is the victim; the President promulgated RCM 1001A to facilitate the statutory right to be reasonably heard (now found in RCM 1001(c)); a victim may make a sworn or unsworn statement during sentencing in a noncapital case).    

(if unsworn victim statements are part of the evidence of record, they can be commented on by counsel in presentencing argument). 

(the Military Rules of Evidence are inapplicable to unsworn victim statements).

(like an accused, a victim may, personally or through counsel, make an unsworn statement orally, in writing, or both, and may not be cross-examined or examined by the court upon it; like an accused’s unsworn statement, unsworn victim statements are not made under oath, and are thus not evidence). 

(although the unsworn victim statement is not subject to the Military Rules of Evidence, a military judge is not powerless to restrict its contents; the military judge has an obligation to ensure the content of a victim’s unsworn statement comports with the parameters of victim impact or mitigation as defined by RCM 1001A (now RCM 1001(c)).    

(an unsworn victim statement, although not evidence, can nevertheless be commented on by either party in presentencing argument; and counsel’s comments concerning a victim’s unsworn statement may include both references and arguments). 

2017 (October Term)

United States v. Barker, 77 M.J. 377 (RCM 1001A sets forth the rules regarding the victim’s right to be reasonably heard at presentencing; it belongs to the victim, and is separate and distinct from the government’s right to offer victim impact statements in aggravation under RCM 1001(b)(4); under RCM 1001A(b)(1), a crime victim is an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilt). 

(RCM 1001A(b)(4)(B) effectuates the right to be heard at presentencing, and thus provides that, in noncapital cases, the victim has the right to be reasonably heard through a sworn or unsworn statement; the contents of the statements may include victim impact or matters in mitigation; the victim may use an unsworn statement that can be oral, written, or both, and the victim may not be cross-examined by the trial counsel or defense counsel upon it or examined upon it by the court-martial; indeed, victim testimony under RCM 1001A does not constitute witness testimony; however, the prosecution or defense may rebut any statements of fact in an unsworn statement).   

(victims exercise their right to reasonably be heard at presentencing under RCM 1001A). 

(the rights vindicated by RCM 1001A are personal to the victim in each individual case; therefore, the introduction of statements under this rule is prohibited without, at a minimum, either the presence or request of the victim, the special victim’s counsel, or the victim’s representative). 

(in this case, the military judge abused his discretion by allowing the government to introduce victim impact statements under RCM 1001A in presentencing without either the knowledge, presence, or request of the victim, the special victim’s counsel, or the victim’s representative). 

(the RCM 1001A process belongs to the victim, not to the trial counsel). 

(under the rules devised by the President to effectuate congressional intent, the crime victim has an independent right to be reasonably heard at a sentencing hearing, although the military judge may permit the victim’s counsel to deliver all or part of the victim’s unsworn statement; all of the procedures in RCM 1001A contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel; moreover, they assume the victim chooses to offer the statement for a particular accused, as they permit only the admission of information on victim impact directly relating to or arising from the offense of which the accused has been found guilty). 

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