CAAF will hear oral argument in the Air Force case of United States v. Hamilton, No. 18-0135/AF (CAAFlog case page), on Tuesday, October 23, 2018, at 9:30 a.m. Last term, in United States v. Barker, 77 M.J. 377 (C.A.A.F. May 21, 2018) (CAAFlog case page), CAAF outlined the requirements for admission of a statement by a crime victim under R.C.M. 1001A (the President’s implementation of the Article 6b right to be reasonably heard) during the sentencing phase of a court-martial. Now CAAF will review whether such statements are evidence that must be evaluated under the rules of evidence, with the following two granted issues:

I. Are victim impact statements admitted pursuant to R.C.M. 1001A evidence subject to the Military Rules of Evidence?

II. Whether the military judge erred in admitting prosecution exhibits 4, 5, and 6.

In a published, en banc opinion (analyzed here), the Air Force CCA reconciled the Article 42(b) requirement for testimony under oath with the Article 6b(a)(4)(B) right to be heard in sentencing and concluded:

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.

United States v. Hamilton, 77 M.J. 579, 583 (A.F. Ct. Crim. App. Dec. 20, 2017). Furthermore, the CCA reasoned, 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.” 77 M.J. at 586.

CAAF will determine if that’s right. Maybe.

Senior Airman (E-4) Hamilton pleaded guilty to wrongful possession and distribution of child pornography, and a military judge sentenced him to confinement for two years, reduction to E-1, total forfeitures, and a bad-conduct discharge.

But during the sentencing phase of the court-martial the prosecution offered three exhibits as either evidence in aggravation or statement of a victim under R.C.M. 1001A. They were:

Prosecution Exhibit 4: A statement from the child (identified as B) depicted in some of the images possessed by Hamilton, and also a statement from her mother.

Prosecution Exhibit 5: A video of a speech given by B at a conference about crimes against children.

Prosecution Exhibit 6: A written statement from another child (identified as J) depicted in other images possessed by Hamilton.

According to Hamilton’s brief, the military judge did not specifically rule on whether those exhibits were admitted as prosecution evidence in aggravation (under R.C.M. 1001(b)(4)) or as statements of a crime victim under R.C.M. 1001A. But the military judge did reference R.C.M. 1001, and the Air Force CCA concluded – and the Government Division’s brief highlights – that those references were “to R.C.M. 1001A because the victim impact statements were unsworn and could not have been admitted under R.C.M. 1001(b)(4).” Gov’t Div. Br. at 7 n.5 (quoting Hamilton, 77 M.J. at 583 n.5).

Or maybe the military judge was just wrong…

But looking beyond questions about what rule the military judge really used to admit the three exhibits, Hamilton’s argument is based on due process:

In order to protect an accused’s due process rights, the rules of evidence must be applied to unsworn victim impact statements presented under R.C.M. 1001A. Without rules of evidence, there will be no safeguards to ensure victim impact statements, at a minimum, are reliable or what they purport to be. Unchecked, unsworn victim impact statements would become unfettered, leaving an accused without the ability to challenge its contents or challenge its authenticity.

App. Br. at 8. Hamilton’s brief does not, however, address why due process allows a victim to give an unsworn statement in the first place. Rather, the brief implies – without actually asserting – that victim impact evidence should be treated the same as any other sentencing phase evidence:

Because victim impact statements have the potential to significantly increase an accused’s sentence, safeguards must be applied to ensure due process and an appropriate sentence.

App. Br. at 10. One would think that such safeguards include the statutory requirement of Article 42(b) that “each witness before a court-martial shall be examined on oath,” but Hamilton doesn’t go that far.

The Air Force Appellate Government Division’s brief takes a different approach:

Tautology notwithstanding, an unsworn statement is not evidence because it is unsworn.

Gov’t Div. Br. at 11. Not so convincing, but the Government Division also explains that the ability of a crime victim to give an unsworn statement under R.C.M. 1001A is a proper implementation of the statutory mandate of Article 6b because:

This interpretation is consistent with the plain language of Article 6b(a)(4), UCMJ which says victims have “the right to be reasonably heard.” (emphasis added). Article 6b, UCMJ does not say victims have the right to present evidence,14 just to be heard. Hamilton, 77 M.J. at 585. What “to be heard” means is axiomatic; it means to be listened to, to be heard out, or as Degenhardt put it, “to have [one’s] say.” Degenhardt, 405 F. Supp. 2d 1341, 1349 (D. Utah 2005). Any other interpretation would exceed the plain meaning of the text. In fact, “every time that the M.R.E. and the R.C.M. use the term ‘to be heard,’ it refers to occasions when the parties can provide argument through counsel to the military judge on a legal issue, rather than an occasion when a witness testifies.” LRM v. Kastenberg, 72 M.J. 364, 370 (C.A.A.F. 2013) (emphasis added). Moreover, as the AFCCA rightly notes “[w]hen R.C.M. 1001A was implemented, R.C.M. 1001 was also modified” to “explicitly distinguish[] between evidence and other matters.” Hamilton, 77 M.J. at 583 (emphasis added). Victim statements are among those other matters explicitly contemplated in the changes.

Gov’t Div. Br. at 14-15. That seems very persuasive, except for the last part that supports R.C.M. 1001A by reference to R.C.M. 1001. The President’s creation or modification of a Rule for Courts-Martial isn’t made more valid by multiplication.

Yet the Government Division’s brief contains what seems to be a remarkable error: it asserts that Congress – not the President – created Rule for Courts-Martial 1001A:

Unsworn victim statements are not evidence subject to the M.R.E.s because Congress created separate rules to govern their admission. Cf. United States v. Sowell, 62 M.J. 150, 152 (C.A.A.F. 2005) (“the [accused’s] unsworn statement remains a product of R.C.M. 1001(c) and thus remains defined in scope by the rule’s reference,” i.e. not the M.R.E.s.) (emphasis added). R.C.M. 1001A limits the content, form, notice, and presentation of unsworn victim statements. . . .

Congress removed judicial discretion on this matter saying simply: “[i]f a victim exercises the right to be reasonably heard, the victim shall be called by the court-martial.” R.C.M. 1001A(a) (emphasis added). Thus, the military judge has little discretion over whether a victim may present an impact statement. So long as the individual qualifies as a victim and the statement relates to impact or mitigation, “the victim shall be called.”

Gov’t Div. Br. at 17-18 (emphases added). Executive Order 13,696 of June 17, 2015 (discussed here) – that established R.C.M. 1001A – proves otherwise.

Hamilton’s reply brief, however, joins the Government Division in this error:

Though the government is correct in its assertion that “Congress created separate rules to govern their admission” (Gov. Ans. at 17). . .

Reply Br. at 3.

It’s also worth noting that the original proposal for R.C.M. 1001A (discussed here) provided that a victim’s Article 6b right to be reasonably heard during sentencing hearings means the right to testify under oath. After receiving public comments, the JSC changed the proposed rule to permit unsworn statements from victims (discussed here).

As for the second granted issue (whether the three exhibits were admissible as victim statements), Hamilton’s brief primarily argues that the exhibits were not admissible because the victims did not personally appear or otherwise participate in the proceedings. Hamilton analogizes his case to Barker, where the victim’s statement was deemed inadmissible because the victim did not actually participate in (and possibly didn’t even know about) the proceeding. The Government Division, however, relies on testimony of civilian detectives that the victims wanted their statements used in all cases involving images of them:

Testimony from law enforcement agents who knew both victims established that those victims desired their impact statements to be presented at any criminal proceedings involving their images.

Gov’t Div. Br. at 32. The notion that a victim can express such a preference once and have it apply forever and in all cases seems to eliminate any requirement for actual participation by a victim in a court-martial.

After briefing, this case looks more like a Barker trailer – merely providing another case study in how to handle victim statements – than a vehicle to litigate the true nature of victim statements. CAAF obviously wants to determine if victim impact statements are evidence, but it will have to address a lot of other issues before it can get there in this case.

Case Links:
AFCCA decision
Blog post: CCA opinion analysis
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Air Force App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

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