The Army CCA suggests that an accused should be prohibited from mentioning sex offender registration during an unsworn statement in sentencing
In United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2014) (CAAFlog case page), CAAF held that because sex offender registration is a collateral consequence of the conviction and not the sentence, a military judge did not err in instructing the members that they could disregard the appellant’s discussion of sex offender registration in his unsworn statement during the sentencing phase of the court-martial.
Talkington was a significant decision, but also a limited one. In particular, the unsworn statement was the only source of information about registration in Talkington, meaning that the issue was a fact not in evidence because “the ‘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)).
After CAAF decided Talkington, military judges began to give instructions that functionally told members to disregard registration when determining a sentence. However, in a recent unpublished decision the Army CCA suggests that military judges should go further and “limit unsworn statements to the matters allowed under the rules.” United States v. Feliciano, No. 20140766, slip op. at 9 (A. Ct. Crim. App. Aug. 22, 2016) (link to slip op.).
A footnote elaborates:
Consider the following: Were a military judge to prevent an accused from mentioning sex offender registration during an unsworn statement, such an action will almost certainly be harmless error. Since the panel may be instructed to ignore the information during deliberations, there cannot be prejudice from excluding in the first instance what the panel would be told to ignore in the second.
Id., slip op. at 9 n.4.