Article 6b – which codifies rights for victims and was first enacted as part of the 2013 changes to the UCMJ, and then modified the following year – was the #6 Military Justice Story of 2016 and the #9 Military Justice Story of 2018. The provision remains a developing area of military law, with CAAF’s decision this term in United States v. Hamilton, 78 M.J. 335 (C.A.A.F. Feb. 28, 2019) (CAAFlog case page), that avoided deciding whether a statement by a crime victim admissible under R.C.M. 1001A (the President’s implementation of the Article 6b right to be reasonably heard) (moved to R.C.M. 1001(c) in the 2019 MCM) is evidence that is subject to any of the Military Rules of Evidence.

A three-judge panel of the Air Force CCA recently issued a published decision addressing the Article 6b(a)(4)(B) right to be reasonably heard at a sentencing hearing, in United States v. Shoup, __ M.J. __, No. 39487 (A.F. Ct. Crim. App. Aug 23, 2019) (link to slip op.). Senior Airman Shoup pleaded guilty to possession and distribution of child pornography and attempted sexual abuse of a child. During the sentencing phase of the court-martial, the prosecution offered three exhibits as victim impact statements under Article 6b and R.C.M. 1001A. The military judge admitted the exhibits over defense objection, and the CCA finds that to be error. Considering the nature of the statements and the seriousness of the underlying misconduct, however, the CCA finds the error to be harmless.

Writing for the panel, Judge Key explains that:

During presentencing proceedings, the Government offered and the military judge admitted under Rule for Courts-Martial (R.C.M.) 1001A—over defense objection—statements from three of the victims in images possessed by Appellant. The first statement, Court Exhibit 3, is an unsigned and unsworn document consisting of four questions and answers dated 8 February 2015, prior to Appellant’s charged offenses. Court Exhibit 5 is an unsigned, unsworn, and undated narrative statement. Court Exhibit 8 consists of a series of three signed, sworn, and dated narrative statements from one victim along with a declaration from the victim’s attorney. The attorney’s declaration is dated 11 April 2018 and specifically identifies Appellant by name in the declaration header. Although the attorney attests the statements included in Court Exhibit 8 are from her client, the attorney does not indicate whether she discussed Appellant’s case with her client, nor does she request the statements be used for any particular purpose; instead she explains,

We produce redacted Victim Impact Statements for all of [sic] clients who are victims of internet child pornography to protect their identities and their locations. This is true for prosecutions by the military, the U.S. Department of Justice and state law enforcement and law enforcement agencies. . . . Our first priority is to protect our clients including Lily [a pseudonym].

Each of the three statements in Court Exhibit 8 is dated prior to Appellant’s charged offenses, and each indicates the victim was an adult when she signed them.

Slip op. at 2-3. Those three exhibits are problematic for two reasons.

First, for Court Exhibits 3 and 5, Judge Key explains that the prosecution had no contact with those victims and neither of them participated in the court-martial in any way. CAAF’s decision this term in Hamilton (and last term’s decision United States v. Barker, 77 M.J. 377 (C.A.A.F. 2018) (CAAFlog case page)), explained that “the rights vindicated by [Article 6b and] R.C.M. 1001A (2016) are personal to the victim in each individual case.” Hamilton, 78 M.J. at 341 (quoting Barker, 78 M.J. at 382). Accordingly, a victim must actually participate in the proceeding in some way in order to exercise their rights. Because that didn’t happen with Court Exhibits 3 and 5, the exhibits were improperly admitted.

Second, Court Exhibit 8 “presents a different question” because it contains sworn statements and “victims in non-capital cases may exercise their right to be heard through sworn or unsworn statements.” Slip op. at 3-4 (citing R.C.M. 1001A(b)(4) (2016) (moved to 1001(c)(2)(D)(ii) in 2019 ed.)). The rule does not, however, necessarily permit sworn written statements, particularly considering that under the rule a sworn statement “shall be subject to cross-examination.” R.C.M. 1001A(d) (2016); R.C.M. 1001(c)(4) (2019). Accordingly:

Even assuming arguendo that R.C.M. 1001A(d) authorizes sworn statements to be given in writing as opposed to by in-court testimony, Court Exhibit 8 was inadmissible under R.C.M. 1001A as a sworn statement because the victim was not subject to examination by the court-martial or cross-examination by the trial counsel or defense counsel, as required by R.C.M. 1001A(d). The admission of a sworn statement by a declarant unavailable for examination, in the absence of circumstances not presented here, violated the plain language of R.C.M. 1001A(d) and was an abuse of discretion.

Slip op. at 4.

The errors are harmless, however, because the substance of the victim-impact materials (addressing the constant re-victimization caused by child pornography) “is settled law.” Slip op. at 5. Furthermore, because the statements all pre-dated the charged offenses, they had limited materiality. Id. Therefore the panel is “convinced the improperly admitted victim impact statements did not substantially influence [the] sentence.” Id.

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