2022 (October Term)
United States v. Cunningham, 83 M.J. 367 (under the plain text of RCM 1001A(e) (now RCM 1001(c)(5)(A)), unsworn victim impact statements may be “oral, written, or both;” because in this case the unsworn statement contained elements that were neither “oral” nor “written,” namely, music and photographs, the admission of the victim impact statement was error).
2021 (October Term)
United States v. Palacios Cueto, 82 M.J. 323 (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).
United States v. Edwards, 82 M.J. 239 (RCM 1001A(e) (2016 ed) (crime victims and presentencing) authorizes a victim or the victim’s designee to make an unsworn statement, may be oral, written, or both).
(the right to make an unsworn statement solely belongs to the victim or the victim’s designee and cannot be transferred to trial counsel).
(unsworn victim statements are not evidence, but presentencing matters that may be presented to and considered by the panel).
(the victim’s right to make an unsworn statement is separate and distinct from the government’s right to offer victim impact statements in aggravation under R.C.M. 1001(b)(4)).
(during presentencing, the military judge abused his discretion by allowing a video as an unsworn victim statement under RCM 1001A(e) (2016 ed) (crime victims and presentencing), which authorizes a victim or the victim’s designee to make an unsworn statement that may be oral, written, or both, where this video was produced by the trial counsel and included an interview with the victim’s parents and a slideshow of photographs of the victim set to acoustic background music; a video that includes acoustic music and pictures is neither oral nor written and thus violates the rule; and because the trial counsel produced the video on behalf of the victim’s family, the video was, at least in part, trial counsel’s statement rather than theirs).
(unsworn victim statements are not a vehicle by which the government can supplement its sentencing arguments by putting its own statements -- oral, written, artistic, or otherwise -- into the victim’s mouth; of course, victims may confer with trial counsel in preparation for their unsworn statements, but trial counsel may not misappropriate the victim’s right to be heard, as trial counsel did here when she created a video on the victim’s family’s behalf).
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).
(
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).