That’s the title of my essay published today in the Columbia Law Review Sidebar and available here.

4 Responses to “Not Helping: How Congressional Tinkering Harms Victims during the Post-Trial Phase of a Court-Martial”

  1. Peter E. Brownback III says:

    For the purposes of ‘Article 60(b)(5), are the matters contained in an unsworn statement, no matter how submitted, considered “evidence”?

  2. Zachary D Spilman says:

    “[T]he ‘unsworn statement is not evidence.’” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (quoting United States v. Breese, 11 M.J. 17, 23 (C.M.A. 1981)).

  3. Phil Cave says:

    No CA is going to take the position that a sexual assault victim can say anything she likes up until the time she signs the action – that’s the environment.  And, based on how CA actions are done these days, no one would know anyway, unless the CA is fool enough to say she didn’t consider it because it was untimely or  . . . . ..
    DEB has a great point.  But I suspect most CA’s will continue to consider the unsworn.  And, per the paragraph above, in today’s non legal review fill in the blanks CA action no-one will know if she did or didn’t.
    I agree, good analysis.  The issues may get some litigation, but not to the extent anticipated.

  4. Peter E. Brownback III says:

    I agree.  Likewise, statements made by the accused during a providence inquiry are not “testimony”.  Oops, how wrong can one person be?  See US v. Langston, CAAF, 20 August 2000.
    My point really is that I will be interested to see how this plays out when the defense has inserted matters in the unsworn statement, the matters are not rebutted at trial, and the victim is not allowed to rebut them before the CA.