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, 77 M.J. 579, 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).