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).