Opinion Analysis: CAAF won’t say – in this case – whether a victim’s unsworn statement is evidence, in United States v. Hamilton
CAAF decided the Air Force case of United States v. Hamilton, 78 M.J. 335, No. 18-0135/AF (CAAFlog case page) (link to slip op.), on Thursday, February 28, 2019. Concluding that the military judge erred in admitting three victim impact statements into evidence during the sentencing phase of the court-martial – because they were not admissible under any rule – the court avoids answering the separate question of 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) is evidence that is subject to any of the Military Rules of Evidence. Nevertheless, despite finding error, CAAF finds no prejudice and it affirms the findings ans sentence as affirmed by the Air Force CCA.
Judge Ryan writes for a unanimous court.
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. During the sentencing phase of the court-martial, the prosecution offered three exhibits as either evidence in aggravation (admissible under R.C.M. 1001(b)(4) (2016)) or statements of victims (admissible under R.C.M. 1001A (2016)). The exhibits 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.
Hamilton’s defense counsel objected but the military judge overruled the objection. His ruling, however, did not clearly identify the basis for admission of the exhibits. Hamilton renewed his objection on appeal, but the Air Force CCA rejected it. The CCA concluded that the exhibits were admissible as statements of a victim under R.C.M. 1001A and that such statements “are not evidence” and so the Military Rules of Evidence “do not apply” to them. United States v. Hamilton, 77 M.J. 579, 584–86 (A.F. Ct. Crim. App. 2017) (analyzed here).
CAAF then granted review of two 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.
Finding that the military judge erred in admitting the exhibits under any rule, CAAF does answer not address whether a R.C.M. 1001A statement is evidence subject to the Military Rules of Evidence (though it does give some hints) because to decide that question “would constitute an advisory opinion.” Slip op. at 11.
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 during the sentencing phase of a court-martial. Those requirement include, “at a minimum, either the presence or request of the victim, R.C.M. 1001A(a), the special victim’s counsel, id., or the victim’s representative, R.C.M. 1001A(d)-(e).” Barker, 77 M.J. at 382. Both Barker and Hamilton address the Rules of Courts-Martial as they existed in the 2016 edition of the Manual for Courts-Martial, but equivalent rules are found in the 2019 edition of the MCM at R.C.M. 1001(b) (evidence in aggravation) and R.C.M. 1001(c) (victim statements).
The victims in Hamilton did not participate in the court-martial – either personally or through representatives – as required by Barker and R.C.M. 1001A. Writing for the unanimous court, Judge Ryan explicitly acknowledges that they are victims of Hamilton’s child pornography offenses as the term applies to courts-martial, slip op. at 7 (citing Paroline v. United States, 572 U.S. 434, 457 (2014)), but their lack of participation precluded admission of their written statements and the video:
the right to be reasonably heard provided by R.C.M. 1001A (2016) belongs to the victim, not to the trial counsel. See R.C.M. 1001A(a) (2016) (“A crime victim of an offense of which the accused has been found guilty has the right to be reasonably heard at a sentencing hearing relating to that offense.” (emphasis added)). This is not a mechanism whereby the government may slip in evidence in aggravation that that would otherwise be prohibited by the Military Rules of Evidence, or information that does not relate to the impact from the offense of which the accused is convicted. See R.C.M. 1001(b)(4) (2016). Here, as in Barker and Machen, “trial counsel appropriated the victims’ rights under R.C.M. 1001A in order to admit the Government’s evidence in aggravation.” Machen, 2018 CCA LEXIS 419, at *10, 2018 WL 4440395 at *4 (emphasis in original). The victim impact statements in this case do not comply with the requirements of R.C.M. 1001A (2016), and, thus, were improperly admitted.
Slip op. at 10-11 (emphasis added). Judge Ryan does not elaborate on the characterization of these exhibits as prohibits matters that were slipped in by the prosecution – something that implies a conscious disregard for the rights of the accused – but her opinion for the unanimous court does outline how the exhibits were inadmissible under the rules of evidence:
Assuming R.C.M. 1001(b) (2016) provided the basis for the military judge’s admission of the exhibits as prosecution exhibits (which is how they were offered and marked), they do not comply with the Military Rules of Evidence and should have been excluded. All three exhibits constituted out of court statements offered for their truth and were inadmissible hearsay. Moreover, witnesses are required to swear an oath or affirmation before testifying. Testimony that the statements were prepared by B, B’s mother, and J, cures none of these problems. These statements, absent a stipulation by the defense as part of a pretrial agreement or otherwise, were not admissible as government evidence in aggravation.
Slip op. at 7-8 (citations omitted).
Having determined that the exhibits were not admissible under any rule, Judge Ryan then turns to “the altogether different question whether such R.C.M. 1001A (2016) statements are otherwise subject to the Military Rules of Evidence.” Slip op. at 11. That question, however, won’t get answered in this case because:
given that the victim impact evidence as offered was wholly inadmissible in this case, resolution of the question whether such statements are otherwise subject to the Military Rules of Evidence or not is rendered moot. . . .
[T]o decide it would constitute an advisory opinion.
Slip op. at 11. Nevertheless, Judge Ryan gives us some hints about the direction CAAF might take on this issue in a future case. For example, she writes:
Although this Court previously determined that “the Military Rules of Evidence are applicable to sentencing . . . thus providing procedural safeguards to ensure the reliability of evidence admitted during sentencing,” Saferite, 59 M.J. at 273 (citations omitted), unsworn victim impact statements are uniquely situated in the substrate of the sentencing process. The plain language of R.C.M. 1001A (2016) clearly contemplates that at least some of the Military Rules of Evidence are inapplicable to victim impact statements. Unlike, for instance, the testimony of an expert witness at sentencing—which must be sworn, M.R.E. 603, and subject to cross-examination, M.R.E. 614(a)—an unsworn victim’s statement is just that, unsworn, and R.C.M. 1001A(e) (2016) provides that the victim cannot be cross-examined
Slip op. at 11. Additionally, a footnote contains the observation that:
to the extent that provisions of the Military Rules of Evidence contradict the crime victim’s right to be “reasonably heard” under R.C.M. 1001A (2016), see, e.g., M.R.E. 603, the clear intent of Congress and the President dictate that the latter controls. See Article 6b, UCMJ.
Slip op. at 12 n.9.
Having decided that the exhibits were improperly admitted, CAAF must determine whether that affected the adjudged sentence. It didn’t, explains Judge Ryan. Considering the circumstances of this case and the nature of the exhibits, Judge Ryan explains that CAAF “see[s] no indication that the military judge gave significant weight to the impermissible aspects of the statements.” Slip op. at 13. Furthermore:
while Appellant faced a maximum of thirty years of confinement, he agreed to a confinement cap of five years and he was sentenced to just two years.
Slip op. at 14. Accordingly, despite the improperly-admitted sentencing exhibits, the sentence is affirmed.
• 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
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis