Rule for Courts-Martial 1001A addresses victim-impact statements, which are sworn or unsworn statements given by a victim during the sentencing phase of a court-martial. Upon a showing of good cause the statement may be given by counsel for the victim. R.C.M. 1001A(e)(2).
In United States v. Barker, __ M.J. __, No. 39086 (A.F. Ct. Crim. App. Jul. 7, 2017) (link to slip op.), a three-judge panel of the Air Force CCA finds that a military judge improperly admitted two unsworn written victim-impact statements during sentencing because:
None of the unsworn statements are self-authenticating and the Prosecution offered no evidence, other than the redacted statements them-selves (with their redacted titles), to establish that the statements are relevant to Appellant’s court-martial, to authenticate them as letters written by one of his victims, or to indicate that the victims desired to exercise their right to be reasonably heard at Appellant’s sentencing hearing through the statements.
Slip op. at 9.
The statements were allegedly written by people who were depicted in the images of child pornography that the appellant pleaded guilty to possessing and viewing, and the CCA acknowledges that “the Supreme Court has recognized that child pornography is a continuing crime and a child depicted in the images is victimized each time the images are downloaded and viewed.” Slip op. at 6 (citing Paroline v. United States, 134 S. Ct. 1710, 1716–17 (2014)). The CCA also acknowledges that:
Victim impact evidence is a form of aggravation evidence that, with a proper foundation, the Prosecution may introduce during a sentencing hearing under R.C.M. 1001(b)(4). Victim impact is also an appropriate topic for a sworn or (in the case of non-capital cases) unsworn statement offered by a victim in exercising his or her right to be reasonably heard during a sentencing hearing under R.C.M. 1001A(c).
Slip op. at 7-8. Nevertheless:
The Prosecution did not attempt to lay the necessary foundation for admission of hearsay victim impact statements under R.C.M. 1001(b)(4) and it appears that, sub silentio, the Prosecution was offering the statements under R.C.M. 1001A. An obvious and necessary foundational predicate for a statement offered under R.C.M. 1001A is that the victim (not just the Prosecution) wishes the court to consider the statement.
Slip op. 8. The CCA also addresses the rather-unique fact that the statements were written before the appellant’s crimes:
[T]he fact that a victim impact statement was authored before an accused’s criminal acts does not necessarily make the statement irrelevant to the accused’s offenses. However, there must be some evidence establishing a foundational nexus between the victim impact described in the statement and the subsequent offenses committed by the accused. The evidence must establish that the accused’s offenses impacted the victim at some point in the manner described in the statement, whether or not the victim continues to be impacted to the same degree, or even it all, by the time of trial. The fact that the victim may be suffering a lesser impact at the time of trial does not necessarily make the statement stale, but it may be a matter in mitigation. However, in conducting the required Mil. R. Evid. 403 balancing test, the military judge should consider the length of time since the statement was authored and the degree of lessened victim impact (if any) by the time of trial to ensure that the probative value of a statement prepared in advance of the trial is not substantially outweighed by a danger of unfair prejudice, misleading the sentencing authority, or any of the other listed factors.
Slip op. at 8.
The CCA finds the improper admission of two statements to be harmless.