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, __ M.J. __, 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.