TRIAL STAGES: Sentence and Punishment: Unsworn Statements

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)). 

(while the military judge is the gatekeeper for unsworn victim statements, an accused nonetheless has a duty to state the specific ground for objection in order to preserve a claim of error on appeal).

(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). 

2018 (October Term)

United States v. Hamilton, 78 M.J. 335 (Article 6b, UCMJ, provides victims of UCMJ offenses the right to be reasonably heard at a sentencing hearing related to the crime in which they were the victim; giving this statute effect, the President promulgated RCM 1001A (now incorporated into RCM 1001(c)); this rule facilitates the statutory right to be reasonably heard and permits a victim to make an unsworn statement in non-capital cases; a victim making an unsworn statement may not be cross-examined on the statement, but the defense is permitted to rebut any statement of facts therein; the right to be reasonably heard requires that the victims be contacted, given the choice to participate in a particular case, and, if they choose to make a statement, offer the statement themselves, through counsel, or through a victim’s designee where appropriate). 

(the rights vindicated by RCM 1001A (now incorporated in RCM 1001(c)) 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; all of the procedures in the rule contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel or representative; 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). 

(unsworn victim impact statements as defined by RCM 1001A (now incorporated into RCM 1001(c)) are not government exhibits and, in order to be presented at sentencing, they must comply with the dictates of the rule; under the rule, a victim exercises the right to be reasonably heard by either offering an unsworn victim impact statement in person, or through a designated advocate as the rule requires).

(RCM 1001A(e) (now incorporated into RCM 1001(c)) permits a victim’s designee appointed under RCM 801(a)(6) to make an unsworn statement on the victim’s behalf if the victim is under 18 years of age, incompetent, incapacitated, or deceased). 

(it is indisputable that RCM 1001A (now incorporated into RCM 1001(c)) reflects the emphasis on a victim’s right to be reasonably heard regarding the impact directly relating to or arising from the offense of which the accused has been found guilty; this requires, pursuant to Article 6b, UCMJ, that victims be contacted and have the choice to participate and be consulted in cases where they are victims).

(both Article 6b, UCMJ and RCM 1001A (now incorporated into RCM 1001(c)) envision actual victim participation in the trial proceedings and assume that a victim offers an impact statement for a particular accused at a specific court-martial; for that reason, admission of information on victim impact must directly relate to or arise from the offense of which the accused has been found guilty). 

(RCM 1001A(e) (now incorporated into RCM 1001(c)) provides victims the right to make an unsworn statement, and not to be cross-examined; however, the rule does not encompass an unsworn statement from an unidentified victim who is unaware of the case at hand; such statements are virtually irrebuttable and inconsistent with the rule’s mandate that the defense may rebut any statements of fact contained in unsworn statements; furthermore, the right to be reasonably heard provided by the rule belongs to the victim, not to the trial counsel; this is not a mechanism whereby the government may slip in evidence in aggravation that that would otherwise be prohibited by the MREs, or information that does not relate to the impact from the offense of which the accused is convicted).

(unsworn victim impact statements are uniquely situated in the substrate of the sentencing process; the plain language of RCM 1001A (now incorporated into RCM 1001(c)) clearly contemplates that at least some of the MREs are inapplicable to victim impact statements; unlike, for instance, the testimony of an expert witness at sentencing — which must be sworn and subject to cross-examination — an unsworn victim’s statement is just that, unsworn, and the rule provides that the victim cannot be cross-examined). 

(to the extent that the provisions of the MREs contradict the crime victim’s right to be heard under RCM 1001A (now incorporated into RCM 1001(c)), the clear intent of Congress and the President dictate that the latter controls). 

(in this case, the military judge abused his discretion by admitting victim impact statements offered as government exhibits and authenticated by members of law enforcement absent any indication either that the victims intended their statements to be used in this particular prosecution or that a designee was appropriate under the RCM 1001A (now incorporated into RCM 1001(c)). 

2013 (September Term)

United States v. Talkington, 73 M.J. 212 (sex offender registration operates independently of the sentence adjudged and is a collateral consequence of the conviction alone, not the sentence; while an accused may raise a collateral consequence in an unsworn statement, the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused). 

(RCM 1001 permits the presentation of matters in extenuation, mitigation, or rebuttal by an accused through an unsworn statement; despite the limits of this rule, the right to present an unsworn statement is generally considered unrestricted; however, an unsworn statement may be tempered by appropriate instructions from the military judge; while the right of allocution includes the right to present evidence that is not relevant as extenuation, mitigation, or rebuttal, the military judge may put the information in proper context by effectively advising the members to ignore it). 

(a collateral consequence is a  penalty for committing a crime, in addition to the penalties included in the criminal sentence; the general rule concerning collateral consequences is that courts-martial are to concern themselves with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty under consideration; the collateral consequences of a court-martial do not constitute RCM 1001 material, and while they may be referenced in an unsworn statement, they should not be considered for sentencing; the proper focus of sentencing is on the offense and the character of the accused, and to prevent the waters of the military sentencing process from being muddied by an unending catalogue of administrative information). 

(unlike the loss of retirement benefits, which would be a direct consequence of the imposition of a punitive discharge, there is no causal relation between the sentence imposed and the sex offender registration requirement; whether appellant received no punishment or the maximum available punishment, he would be required to register as a sex offender based on the fact of his conviction alone). 

(appellant is permitted to mention sex offender registration in his unsworn statement; in turn, the military judge has discretion to temper the unsworn statement with appropriate instructions). 

(in instructing the court members on how to make use of appellant’s unsworn statement in sentencing for sex offenses, the military judge did not abuse his discretion by placing the sex offender registration mentioned during appellant’s unsworn statement in its proper context, by informing the members that appellant was permitted to address sex offender registration in his unsworn statement, while also informing them that possible collateral consequences should not be part of their deliberations in arriving at a sentence). 

2005


United States v. Barrier
, 61 M.J. 482 (during sentencing proceedings, an accused has a right to testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution; an unsworn statement may be oral, written, or both; it may be presented to the court by the accused or by counsel at the direction of the accused; the unsworn statement is not subject to cross-examination; however, it is subject to rebuttal, comment during the Government’s closing argument, and it may be tempered by appropriate instructions from the military judge; thus, while the scope of an unsworn statement may include matters that are otherwise inadmissible under the rules of evidence, the right to make an unsworn statement is not wholly unconstrained; an accused, for example, may not use the unsworn statement as a vehicle to show disrespect or a defiance of authority).


(it has long been the rule of law that the sentences in other cases cannot be given to court-martial members for comparative purposes; this rule seeks to keep courts-martial from becoming engrossed in collateral issues and recognizes the UCMJ’s emphasis on individualized consideration of punishment; proper punishment should be determined on the basis of the nature and seriousness of the offense and the character of the offender, not on many variables not susceptible of proof; here, in his unsworn statement on sentencing, the accused brought the sentence from another case to the attention of the members for comparative purposes; case law precludes such comparison; thus, the military judge acted within his discretion in instructing the members that the comparative sentencing information offered by the accused was irrelevant; this is so even though the military judge’s instruction effectively nullified this portion of the accused’s statement; because the information in question was not otherwise relevant as mitigation, extenuation, or rebuttal, it was beyond the scope of RCM 1001, and the military judge could correctly advise the members that the comparative sentencing information was irrelevant; there is a general preference for contextual instruction rather than outright preclusion).

(a military judge might appropriately preclude the introduction of information in an unsworn statement that in context is outside the scope of RCM 1001, if the military judge determines that an instruction would not suffice to place the statement in proper context for the members; in summary, the right to allocution is broad, and largely unfettered, but it is not without limits).

United States v. Johnson
, 62 M.J. 31 (the right of an accused to make an unsworn statement is long-standing, predating adoption of the UCMJ; among other things, the unsworn statement is an opportunity for an accused to bring information to the attention of the members or a military judge, including matters in extenuation, mitigation, and rebuttal, without ordinary evidentiary constraints; such a right is consistent with the UCMJ’s individualized approach to sentencing; the right of allocution has been described as broadly construed and largely unfettered).


(although the right of allocution is largely unfettered and generally considered unrestricted, it is not wholly unrestricted; the unsworn statement remains a product of RCM 1001(c) and thus remains defined in scope by the rule’s reference to matters presented in extenuation, mitigation, and rebuttal).


(presenting exculpatory polygraph evidence in an unsworn statement raises particular concerns on sentencing; first, such evidence squarely implicates the admonition against impeaching or relitigating the verdict on sentencing; this admonition is based on the principle that an accused is entitled to vigorously contest his innocence on findings, but is not entitled to do so on sentencing; sentencing is intended to afford the members the opportunity to focus on and address matters appropriate for individualized consideration of an accused’s sentence; the exculpatory polygraph evidence presented in this case could not reasonably have been offered for any reason other than to suggest to the members that their findings of guilty were wrong; second, this information does not qualify in any way as extenuation, mitigation, or rebuttal under RCM 1001(c); thus, the military judge did not err by precluding the accused from referencing the results of the polygraph test during his unsworn statement).


United States v. Sowell, 62 M.J. 150 (with respect to presentencing procedure, RCM 1001(c)(2)(A) provides an accused with the right to make an unsworn statement in extenuation, in mitigation, or to rebut matters presented by the prosecution).


(an accused’s traditional right to make an unsworn statement has been described as broadly construed and largely unfettered; however, while the scope of an unsworn statement may include matters that are otherwise inadmissible under the rules of evidence, the right to make an unsworn statement is not wholly unconstrained). 


(the right to rebuttal on sentencing should extend to allowing comment upon trial counsel’s characterization of that evidence during findings; after all, RCM 1001(c)(2)(A) affords an accused the right in his unsworn statement to rebut matters presented by the prosecution, suggesting a somewhat broader reading than one limiting the right only to rebut evidence).


(in this case, the military judge erred by not allowing the accused from mentioning in her unsworn statement the fact of her co-conspirator’s acquittal on the grounds that this information was irrelevant and direct impeachment of the verdict; the trial counsel had implied during her findings argument that the co-conspirator was guilty of the same offense as the accused, thereby opening the door to explain the co-conspirator’s true status as proper rebuttal; the accused should have been permitted an opportunity to fairly respond in her unsworn statement to the implications of trial counsel’s argument on findings).


2004

 

United States v. Marcum, 60 MJ 198 (military law is clear that the decision to make an unsworn statement is personal to the accused; during the sentencing proceedings, an accused may testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution; if an accused chooses to make an unsworn statement, he may not be cross-examined by the trial counsel upon it or examined upon it by the court-martial; the unsworn statement may be oral, written, or both, and may be made by the accused, by counsel, or both; this right of allocution by a military member convicted of a criminal offense is a fundamental precept of military justice). 

 

(because an accused’s right to make an unsworn statement is a valuable right that has long been recognized by military custom and that has been generally considered unrestricted, this Court will not allow it to be undercut or eroded; as this Court has previously indicated, an accused elects to make an unsworn statement; thus, regardless of whether the unsworn statement is made by the accused or presented for the accused by his counsel, the right to make the unsworn statement is personal to the accused). 

 

(if an accused is absent without leave, his right to make an unsworn statement is forfeited unless prior to his absence he authorized his counsel to make a specific statement on his behalf; although defense counsel may refer to evidence presented at trial during his sentencing argument, he may not offer an unsworn statement containing material subject to the attorney-client privilege without waiver of the privilege by his client). 

 

(even though appellant waived his right to be present during sentencing by being voluntarily absent, he did not waive his attorney-client privilege; appellant’s affidavit demonstrates that defense counsel never asked appellant for permission to use the written summary; thus, by submitting appellant’s written summary as an unsworn statement, defense counsel revealed material subject to the attorney-client privilege without receiving an appropriate waiver of this privilege from appellant). 

 

(civilian defense counsel violated MRE 502 (Lawyer-client privilege) when he submitted a lengthy, unsworn, pretrial statement as a sentencing exhibit without appellant’s consent; this statement was prepared by appellant for his defense counsel to use in preparation for trial, and it depicted in graphic detail appellant’s sexual encounters with members of his Air Force unit; although appellant’s trial testimony recounted much of the same information, this Court concludes that appellant did not waive his right to confidentiality through his trial testimony where the tone and substance of the privileged communication in the unsworn statement was more explicit than his testimony; this Court also concludes that appellant was prejudiced during sentencing when the trial counsel repeatedly used the statement against him in his sentencing argument and defense counsel did not refer to it at all).

 

2003

United States v. Edwards, 58 MJ 49 (the right to make an unsworn statement is not unlimited; R.C.M. 1001(c)(2)(A) provides that an unsworn statement may be made "in extenuation, in mitigation, or to rebut matters presented by the prosecution, or for all three purposes whether or not the accused testified prior to findings"; the fact that an accused was interrogated outside the presence of counsel, even if not justified or excusable, does not serve to "explain the circumstances" of the offense, tend to "lessen the punishment to be adjudged," or rebut anything presented by the prosecution; voluntarily waiving the right to raise this issue in an unsworn statement does not deprive an accused of a "complete sentencing proceeding").

United States v. Tschip, 58 MJ 275 (during sentencing proceedings in a court-martial, the accused has the right to testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution).

(under R.C.M. 1001(c)(2)(C), the unsworn statement may be either oral or written, and it may be presented either by the accused or by counsel; the accused may not be cross-examined by the prosecution or questioned by the court-martial upon it, but the prosecution may introduce evidence to rebut statements of facts therein; although the scope of an unsworn statement may include matters that are otherwise inadmissible under the rules of evidence, the right to make an unsworn statement is not wholly unconstrained).

(military judges have broad authority to give instructions on the meaning and effect of the accused’s unsworn statement, both to ensure that the members place such a statement in the proper context and to provide an appropriate focus for the members’ attention on sentencing).

(in the present case, appellant made a passing, vague reference in his unsworn statement to the possibility that his commander might initiate administrative discharge proceedings against him; he did not specifically ask the members to take or refrain from any specific action in light of his comment, and defense counsel did not raise the subject of an administrative discharge during closing argument; under these circumstances, we decline to speculate as to the message that appellant was intending to convey to the members through a reference to an administrative discharge).

(the military judge instructed the members that the subject of an administrative discharge was a collateral matter, that they should give that aspect of appellant’s unsworn statement due consideration, and that they had discretion to disregard the reference to an administrative discharge if they saw fit to do so; in view of appellant’s unfocused, incidental reference to an administrative discharge, the military judge did not err by providing instructions that placed appellant’s statement in the appropriate context for purposes of their decision-making process).

2002

United States v. Hopkins, 56 MJ 393 (an unsworn statement on sentencing is not made under oath, is not subject to cross-examination, and is not subject to the normal restrictions of the rules of evidence -- all of which argues for broad discretion in the military judge when determining how to tailor instructions to address an unsworn statement).

2001

United States v. Satterley, 55 MJ 168 (there may be other circumstances beyond legitimate surrebuttal which may warrant an additional unsworn statement; whether such circumstances exist in a particular case is a matter properly imparted to the sound discretion of the military judge).

(where court members asked questions concerning the disposition of certain stolen property after appellant had completed an unsworn statement, the military judge did not abuse his discretion in refusing to allow appellant to make an additional limited statement, not sworn under oath or subject to cross-examination, to answer the questions: (1) appellant had already exercised his right to make an unsworn statement and elected not to particularly disclose the whereabouts of the stolen property; (2) appellant also had rested his case, both sides had made closing arguments, and the military judge had given final instructions to the court-martial panel members; (3) the military judge gave protective instructions that the requested information was not available and no adverse inference could be drawn against appellant; (4) whether the four computers were placed in off-base dumpsters, as asserted by appellant in his post-trial affidavit, raised a question of fact that could have been disputed by the prosecution, thus belatedly protracting this litigation; and (5) the military judge offered appellant reasonable alternatives [stipulation or sworn testimony] to promptly evidence the whereabouts of the stolen property).

2000

United States v. Manns, 54 MJ 164 (RCM 1001(c)(2)(C) prohibits cross-examination of the accused about an unsworn statement, but permits the prosecution to rebut any statement of fact therein; appellant’s unsworn statement that he “tried . . . to stay within the laws and regulations of this country” was an assertion of fact that he had tried to obey the law and that assertion was subject to rebuttal evidence demonstrating that appellant had not tried, or at least had not tried very hard, to obey the law).

(admissions by appellant that he had used marijuana, committed adultery, used prostitutes, and obsessed over sex  rebutted appellant’s factual assertion in his unsworn statement that he had tried to obey the law all his life).

United States v. McElhaney, 54 MJ 120 (evidence presented at sentencing may include evidence of rehabilitative potential, but such evidence must be based on a proper foundation; the witness must possess sufficient information and knowledge about the accused to offer a rationally-based opinion that is helpful to the sentencing authority).

(military judge erred by allowing expert to testify about the future dangerousness of appellant as related to pedophilia:  (1) the witness was a child psychiatrist, not a forensic psychiatrist; (2) the expert had not examined appellant or reviewed his medical or personnel records; (3) the expert indicated he could not render a diagnosis of pedophilia without examining appellant; (4) testimony that appellant’s behavior was consistent with pedophilia amounted, for all practical purposes, to labeling appellant as a pedophiliac because the expert’s prognosis for rehabilitative potential was premised on that assumption; (5) the witness gave generalized testimony about the rehabilitative potential of pedophiles, but did not indicate the source of his information; and (6) the witness did little to make a specific link with appellant).


Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site