I didn’t cover it at the time, but back in March a three-judge panel of the Army CCA published a significant opinion about unsworn statements in United States v. Martinez, 76 M.J. 541 (A. Ct. Crim. App. Mar. 13, 2017), rev. denied. 76 M.J. __ (C.A.A.F. Jun. 22, 2017) (link to slip op.).
Unsworn statements are a unique feature of military law. “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.” United States v. Johnson, 62 M.J. 31, 37 (C.A.A.F. 2005) (citing United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998)).
An unsworn statement, however, “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)). See also United States v. Provost, 32 M.J. 98, 99 (C.M.A. 1991) (quoting W. Winthrop, Military Law and Precedents at 300 (2d ed.1920 reprint) (It must be remembered that, if an accused elects to make an unsworn statement, he is not offering evidence)); United States v. Briggs, 69 M.J. 648, 651 (A.F. Ct. Crim. App. 2010), rev. denied, 69 M.J. 177 (C.A.A.F. 2010) (“an unsworn statement. . . is not evidence”).
As Winthrop explained:
the statement is not evidence but a personal declaration or defen[s]e, and cannot legally be acted upon as evidence either by the court or reviewing authority. Nor can it be a vehicle of evidence, or properly embrace documents or other writings, or even averments of material facts, which, if duly introduced, would be evidence; and if such are embraced in it, they are no more evidence than any other part.
W. Winthrop, Military Law and Precedents at 300.
In Martinez, the accused pleaded guilty and stipulated to the relevant facts of his offenses. Then:
At the conclusion of the defense’s sentencing case, the defense attorney informed the military judge that appellant would be making an unsworn statement which would come in two parts. One part would be an oral statement from appellant. The other part would be given by counsel. Counsel’s statement, however, consisted of reading a letter from appellant’s pastor into the record.
Slip op. at 2. The prosecution objected to reading the letter as part of the unsworn statement, the military judge sustained the objection, and the Army CCA affirmed.
Writing for the panel, Judge Wolfe explained that:
The issue this case presents is that the unsworn statement being offered was not authenticated, was hearsay, and was not from the accused.
Simply stated, appellant’s argument is that the nearly unfettered right of an accused to make an unsworn statement includes the right to introduce the statements of others. There would not appear to be any logical limitation to this understanding.
Slip op. at 3 (emphasis in original). And he concluded:
If appellant is correct and counsel may read the statement of a third person into the record as part of an accused’s unsworn statement without moving to relax the rules of evidence, then the entire balance struck by the architecture of R.C.M. 1001 becomes unhinged. Many an accused would choose to introduce the entire defense sentencing case through their accused’s unsworn statement. Such statements are not subject to cross-examination and as “statements by the accused” are not even subject to discovery. See R.C.M. 701. We find that whatever the exceptions to the Military Rules of Evidence and Rules for Courts-Martial that might apply to an accused’s unsworn statement, they are not so large as to swallow the rules themselves.
Slip op. at 5 (emphasis added).
In reaching this conclusion Judge Wolfe noted that R.C.M. 1001(c)(2) specifically addresses an unsworn statement “by the accused,” slip op. at 3, that CAAF has applied limits to unsworn statements, slip op. at 4 (citing cases), and that R.C.M. 1001(c)(3) allows an accused to relax the rules “to introduce sentencing evidence without strict adherence to the rules of evidence,” slip op. at 4. The military judge in Martinez gave the defense the opportunity to relax the rules to admit the pastor’s letter, but the defense declined to do so. Slip op. at 2.
This is an important decision because it’s easy to imagine the absurdity that would result if an unsworn statement were not limited to matters from the accused himself. Allowing an unsworn statement to include third-party materials would radically transform the nature of court-martial sentencing. The commentary accompanying Rule for Courts-Martial 1001 rightly observes that:
Sentencing procedures in Federal civilian courts can be followed in courts-martial only to a limited degree. Sentencing in courts-martial may be by the military judge or members. The military does not have – and it is not feasible to create – an independent, judicially supervised probation service to prepare presentence reports. [R.C.M. 1001] allows the presentation of much of the same information to the court-martial as would be contained in a presentence report, but it does so within the protections of an adversarial proceeding, to which rules of evidence apply, although they may be relaxed for some purposes.
Manual for Courts-Martial (2016 ed.), App. 21 at 71 (analysis of R.C.M. 1001) (citations omitted).
Furthermore, with the recent Code and Rules changes that give alleged victims the ability to make unsworn statements, if an accused can smuggle in other materials then so can an alleged victim. An alleged victim actually has a stronger claim of right to make an unsworn statement than an accused, as a victim’s right to be reasonably heard in a sentencing hearing is statutory, see Article 6b(a)(4)(B), while an accused’s right to make an unsworn statement is merely rule-based.
Finally, there’s the matter of rebuttal. The prosecution may rebut statement of facts contained in an accused’s unsworn statement. See R.C.M. 1001(c)(2)(C). In Martinez, the defense wanted to read “a letter from appellant’s pastor” into the record. Slip op. at 2. That almost certainly would have waived any privilege applying to communications to clergy, allowing the prosecution to call the pastor as a witness in rebuttal to determine whether Martinez was really honest (and repentant) about his sexual assault of his own stepdaughter. See slip op. at 1-2.; Mil. R. Evid. 503; United States v. Jasper, 72 M.J. 276 (C.A.A.F. 2013) (CAAFlog case page). It’s easy to imagine how dramatically that could have backfired on the defense, particularly considering that they made a tactical decision in this case to not relax the rules of evidence (suggesting that there were concerned about what the prosecution might presented if the rules were relaxed). See slip op. at 2 n.3.