2022 (October Term)
United States v. Harrington, 83 M.J. 408 (presentation of the victim’s unsworn statement via a question-and-answer format with trial counsel violates the Rules for Courts-Martial because it contravenes the principle that an unsworn victim statement belongs solely to the victim or the victim’s designee).
(in this case, the military judge abused his discretion in permitting the victim’s parents to deliver their unsworn statements through a question-and-answer format with trial counsel because trial counsel’s participation in the presentation of the unsworn victim statements was incompatible with the principle that unsworn victim statements are the sole province of the victim or the victim’s designees).
(among the rights granted by Congress to victims of an offense in the military justice system is the right to be reasonably heard at the court-martial sentencing hearing related to that offense; in noncapital cases, the President has authorized a victim (or the victim’s lawful representative or designee) to exercise that right by making a sworn statement, an unsworn statement, or both; if a victim elects to make an unsworn statement, the unsworn statement may be delivered orally, or in writing, or in a combination of both formats; the President has expressly authorized the victim’s counsel to deliver all or part of the victim’s unsworn statement on behalf of the victim for good cause shown).
(unsworn victim statements belong solely to the victim or the victim’s designee, and the government may not use unsworn victim statements to supplement its own sentencing arguments, nor may it misappropriate the victim’s statutory right to be heard; in this case, by participating in the delivery of the victim statements, the trial counsel in this case violated that principle).
(unsworn victim statements are not sentencing evidence, but vindication of the victim’s statutory right to be reasonably heard; unsworn victim statements are not delivered under oath, the victim making the unsworn statement is not considered a “witness” for the purposes of Article 42(b), UCMJ, the victim may not be cross-examined by either trial or defense counsel, and unsworn statements are not subject to the Military Rules of Evidence).
(in this case, trial counsel’s participation in the presentation of the victim’s unsworn statement—especially in a question-and-answer format that closely resembles the presentation of actual evidence during every other phase of the trial—unnecessarily blurred the distinction between actual sentencing evidence and the unsworn victim statement).
(Article 6b(a)(5), UCMJ, grants the victim the right to seek the advice or opinion of trial counsel in preparation for making an unsworn statement; however, it does not provide trial counsel with the unconditional right to participate in the delivery of the unsworn statement when a victim’s own counsel cannot do so absent a showing of good cause; the right to confer does not, therefore, encompass a one-sided exchange of questions for answers, given for the purpose of informing a separate listener).
(in this case, trial counsel’s participation in the delivery of the victim’s unsworn statement via a question-and-answer format violated the principle that an unsworn victim statement belongs solely to the victim; and accordingly, the military judge abused his discretion by permitting trial counsel and the victim’s parents to present the unsworn victim statements in this format).