Article 6b states that a crime victim has a “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” Article 6b(a)(4)(B). It does not, however, say precisely how the victim may be heard.

Article 42(b) states that “each witness before a court-martial shall be examined on oath.”

R.C.M. 1001A states that a victim may make a sworn or unsworn statement during the sentencing phase of the court-martial “independent of whether the victim testified during findings or is called to testify [in sentencing].” R.C.M. 1001A(a).

In United States v. Hamilton, __ M.J. __, No. 39085 (A.F. Ct. Crim. App. Dec. 20, 2017) (en banc) (link to slip op.), the Air Force CCA reconciles the Article 42(b) requirement for testimony under oath with the Article 6b(a)(4)(B) right to be heard in sentencing and concludes:

unsworn victim impact statements offered pursuant to R.C.M. 1001A are not evidence. See also United States v. Provost, 32 M.J. 98, 99 (C.M.A. 1991) (if an accused elects to make an unsworn statement, he is not offering evidence). Both R.C.M. 1001(c)(2)(C) and R.C.M. 1001A(e) allow facts in an unsworn statement to be contradicted or rebutted. This does not change the character of the right to speak.

Slip op. at 5 (emphasis added). Furthermore, because a victim’s unsworn statement is not evidence, the Military Rules of Evidence (including the balancing test in Mil. R. Evid. 403) “do not apply to victim unsworn statements.” Slip op. at 9.

The majority specifically “does not address the application of the Mil. R. Evid. to sworn victim impact statements.” Slip op. at 5 n.3.

The conclusion that an unsworn statement from a victim is not evidence is consistent with precedent explaining that an accused’s 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)) (last discussed here). But it is not unanimous. Three judges dissent, with Senior Judge Harding writing:

As R.C.M. 1001A victim statements, sworn or unsworn, are presented to the court-martial for use and consideration on the determination of sentence, in addition to empowering a victim to speak, I would treat them as sentencing “evidence” by any other name and follow the Military Rules of Evidence, absent an exception otherwise provided.

Slip op. at 15 (Harding, S.J. dissenting).

Writing for the majority, Chief Judge Mayberry explains that since the rules of evidence do not apply to unsworn statements, the appropriateness of the statement is governed by R.C.M. 1001A:

Mil. R. Evid. 403 addresses “legal relevance” and provides that “evidence” may be excluded notwithstanding its logical relevance. In the decision to allow a victim to exercise their right to be heard on sentencing, a military judge is neither making a relevance determination nor ruling on the admissibility of otherwise relevant evidence. Instead, the military judge assesses the content of a victim’s unsworn statement not for relevance, but for scope as defined by R.C.M. 1001A.

Slip op. at 10. This results in a partial reversal of the CCA’s opinion in United States v. Barker, 76 M.J. 748, 755 (A.F. Ct. Crim. App. 2017) (discussed here), which required Mil. R. Evid. 403 balancing of a victim’s statement.

Chief Judge Mayberry then provides some practical advice:

Application in the field.

Trial practitioners must recognize the distinction between evidence offered and admitted during presentencing by the prosecution and defense under R.C.M. 1001 and victim impact statements offered under R.C.M. 1001A. The victim “shall be called by the court-martial” as their right to be heard is “independent of whether they testify during findings or are called to testify under R.C.M. 1001.” R.C.M. 1001A(a) (emphasis added).

We reemphasize that R.C.M. 1001(a) was modified when R.C.M. 1001A was added, and that it now establishes a general sequence of presentencing matters. Specifically[:]

[1.] the prosecution starts by providing service data and personal data relating to the accused and the character of his or her prior service (taken from the charge sheet and personnel records), evidence of prior convictions, evidence of aggravation, and evidence of rehabilitative potential. R.C.M. 1001(a)(1)(A).

[2.] The prosecution’s sentencing case is followed by the victim’s right to be reasonably heard pursuant to R.C.M. 1001A. R.C.M. 1001(a)(1)(B).

[3.] Finally, the defense presents evidence in extenuation or mitigation. R.C.M. 1001(a)(1)(C).

This change is noteworthy because it recognizes there are three distinct categories of matters that may be presented during presentencing. It is critical that all practitioners are familiar with the specific authority for and process by which to offer each type.

In this case, the unsworn victim impact statements were marked, offered, and admitted as prosecution exhibits. This was an error. We recommend these types of exhibits be marked as court exhibits in accordance with the Uniform Rules of Military Practice Before Air Force Courts-Martial, Rule 7.1(C) (1 Jan. 2017).

Finally, counsel and trial judges must ensure that the specific authority relied upon for the offer of unsworn victim impact statements is clearly reflected in the transcript. As this opinion has demonstrated, the inadvertent inclusion or omission of a lower case or upper case “A” after R.C.M. 1001 impacts appellate review.

Slip op. at 10-11 (paragraphing added).

24 Responses to “The Air Force CCA holds that a victim’s unsworn statement “is not evidence””

  1. Dew_Process says:

    Hogwash!
     

    The fundamental unfairness and prejudice associated with punishing a defendant based on un-cross-examined testimonial statements is no less compelling at sentencing than at trial.

     
    Source Link.
     

    Testing the veracity of testimonial statements that are material to punishment is as compelling at felony sentencing as at trial, because felony sentencing courts have discretion to increase punishment based on un-cross-examined testimonial statements about several categories of unproven criminal conduct.Thus, such findings of fact are as qualitatively vital as those made during trial. (footnotes omitted).
     

    Source Link.
     
    The dissent got it right. The legal fiction that a purported “Victim Impact Statement,” is not evidence simply because it is not sworn to, is simply ludicrous. And, it certainly has nothing to do with an Accused’s right to make an unsworn statement prior to sentencing — a process long-recognized in both civilian and military practice.

  2. Bill Cassara says:

    My first question is “If it isn’t evidence, what is it, and why is it allowed.”  What do you tell the members:  The evidence you just heard, is not evidence, but just something you are required to hear.  Huh?  So in a DP case, when family members make “victim impact statements” is that not evidence that can be considered?  So if the family says “We forgive him, and we don’t want him executed” does the judge simply ignore that?  

  3. stewie says:

    So clearly the court is attempting to equate an accused’s unsworn statement with a victim’s unsworn statement.
     
    I like where their head is at, but saying “it’s not evidence” is confusing, but apparently because we have precedent that the accused’s unsworn is also “not evidence” then that’s the box we are in.
     
    But both are, for practical purposes, evidence, and will be considered like evidence by the fact-finder.

  4. Tom Booker says:

    I’ve been out of court-martial practice for several years now.  Members used to receive an instruction regarding the accused’s (by that point, convict’s) unsworn statement to the effect that they could consider that it was not under oath and should consider its inherent probability or improbability.  They were instructed that it was an authorized means of allocution.
    The victim’s right is not one of allocution, of course.  But do the members receive similar instruction (not under oath, inherent probability, etc.) if it is an unsworn statement?
    And if it’s written, why is it not treated (as Col Mayberry “advises”) the same as a stipulation of expected testimony, i.e., marked as an Appellate Exhibit and read (but not physically given) to the members?
    And for any of you who are curious, yes, I have studied grammar along the way . . . .
     
    Respectfully, LTB

  5. TC says:

    Tom,
    Studied grammar at Harvard, no less.

  6. Tom Booker says:

    TC:  You said it, not me.  No rings knocking here.
     
    Respectfully, LTB

  7. Zachary D Spilman says:

    The Benchbook provides the following instruction for an accused’s unsworn statement:

    An unsworn statement is an authorized means for an accused to bring information to the attention of the court, and must be given appropriate consideration. The accused cannot be cross-examined by the prosecution or interrogated by court members or me upon an unsworn statement, but the prosecution may offer evidence to rebut statements of fact contained in it. The weight and significance to be attached to an unsworn statement rests within the sound discretion of each court member. You may consider that the statement is not under oath, its inherent probability or improbability, whether it is supported or contradicted by evidence in the case, as well as any other matter that may have a bearing upon its credibility. In weighing an unsworn statement, you are expected to use your common sense and your knowledge of human nature and the ways of the world.

    ¶ 2–5–23.

    Defense counsel should ask for a similar instruction regarding an alleged victim’s unsworn statement, with additional language emphasizing that “the alleged victim’s unsworn statement is not evidence.” 

  8. stewie says:

    What’s the purpose of adding that it’s not evidence, other than confusing the panel as to what they are supposed to do with it?
     
    Simply give the same exact instruction and substitute accused with victim.

  9. Alfonso Decimo says:

    I think Zack has it right for the defense and that’s what I would do were I the MJ, per Chief Judge Mayberry’s advice. The statement should be read to the members and marked as an appellate exhibit, and the members should be instructed about the victim’s statement almost exactly as they are instructed about an accused’s (if that’s the choice made). P.S. I didn’t go to Harvard, except to visit.

  10. Nathan Freeburg says:

    Of course it’s “evidence!”  (Yeah, I know what Winthrop and the case law says…it’s just absurd.)  To add to the chorus, any information put in front of a tribunal is “evidence.”  Full stop.  That it is unsworn goes to weight.  Otherwise, why would the government have the opportunity to rebut the unsworn of the accused?  Again, if it is not “evidence” that affects the decisions of the tribunal, why is there (potentially) a rebuttal?

  11. Tami a/k/a Princess Leia says:

    I also don’t like saying “it’s not ‘evidence,'” because then why bother bringing it up.  Why not just say this is an authorized way of bringing information to your attention and you give it whatever consideration you feel it deserves?

  12. Charlie Gittins says:

    Bill Cassara:  In the lone DP case I tried, the family testified under oath at sentencing.  Not that it mattered because the DP was already off the table and the choice was LWOP or Life.  But, no way we were going to cross-examine those people.  It would have only made us look bad and pissed the members off.  I totally agree that if it isn’t evidence, there is no reason to allow the fact-finders to hear it.  Article 6b is a bad law enacted without sufficient forethought. 
     

  13. jagaf says:

    It would be the, “the alleged (strike “alleged”) victim’s unsworn statement is not evidence” at the point of the victim providing an unsworn, right?

  14. (Former) ArmyTC says:

    Bill and Charlie
     
    RCM 1001A, by its own terms, makes the right to be reasonably heard in capital cases be only through a sworn statement. RCM 1001A(b)(4). 

  15. Zachary D Spilman says:

    the alleged (strike “alleged”) victim’s unsworn statement

    My fault. Military judges shouldn’t use the word victim, alleged or otherwise. They should use the person’s name.

    Trial counsel too. Especially trial counsel.

  16. Charlie Gittins says:

    (Former):  Now that you say that, I remember that was what we prepared for.  But I wonder if it matters once the DP was not an authorized punishment (non-unanimous verdict).  It’s no longer a capital case after the non-unanimous verdict. 

  17. Tom Booker says:

    Okay, what is it with the “open season on Harvard” comments here?  It was my safety school, for crying out loud (Yale and Stanford rejected me).  Just among us bloggers, today’s Harvard is very different from the one I attended.  Fun fact:  I once had to inform counsel at a court-martial that the CA and I had been teammates.  What was interesting was that my acquaintance with the CA had begun before the counsel or the accused had been born.
     
    One of the things I liked about our sentencing was that it was adversarial.  I’ve never practiced in civilian courts, but my understanding is that most (maybe much) sentencing is non-adversarial.  Of course, the “audience” is different in many cases, a judge instead of a jury, and I imagine that judges have developed “pigeonholes” for various categories of information, but I still prefer the adversarial (which need not be, as Charlie more eloquently than I puts it, “ugly”) approach to sentencing.
     
    Very respectfully, LTB

  18. stewie says:

    At sentencing? I have no issues with using the word victim on sentencing, that’s literally what they are, the fact-finder has legally so determined. I concur go with their name during the merits and leave out victim, alleged or otherwise.

  19. Alfonso Decimo says:

     
    U.S. v. Quinn, 537 F. Supp. 2d  99 (D.C. Circuit 2008). Rather than rely on defense counsel to make a specific motion, a judge might include this requirement as a standard part of the procedural order. Query: If the victim’s statement, “is not evidence,” would it still be a Brady violation to fail to provide mitigating evidence (including evidence contrary to any details in the statement) before sentencing?
     

  20. Alfonso Decimo says:

    Apologies. U.S. v. Quinn simply held that the obligation of the prosecutor to search for and turn over Brady material extends to the sentencing process.
     

  21. k fischer says:

    Oh wise one, 
     
    The failure of the Government to disclose Brady evidence regarding what the victim says during her unsworn, if error, would be harmless error because nobody ever crosses the vic on sentencing, do they?
     
    I have found on many occasions that the victim’s unsworn not to be evidence as it is typically a diatribe of embellishments in which the every problem in the vic’s life is attributed to what she says the accused did to her to which it is in bad form for defense counsel to cross examine said victim on said embellishments.

  22. Alfonso Decimo says:

    Fisher King – You are so right as usual and the defense probably won’t offer evidence to contradict the victim. However, if there’s a motion or an order about sentencing Brady material, the appellate trolls may find a tasty nugget to signal the hugging hour and they can break into happily singing, “Can’t Stop the Feeling.” – AD(ES)

  23. stewie says:

    I’d say many accused say some iffy stuff that TC let go too. Both sides tend to stay away from anything other than the really egregious in these unsworn statements.

  24. DCGoneGalt says:

    You can take the crazy out of a written unsworn but there’s no telling what is going to come out of the mouth of some of these folks.  Any time a client goes off-script I tense up because “clients say the darndest things”.

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