Victim statements

Victim impact statements in sexual offense cases are a challenge for you and your military defense counsel. In the Monday, April 23, 2018, Orders Granting Petition for Review we find this case.

No. 18-0135/AF. U.S. v. Darion A. Hamilton. CCA 39085. [S]aid petition is hereby granted on the following 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.

The Air Force Court of Criminal Appeals decision is at United States v. Hamilton, 77 M.J. 579 (A. F. Ct. Crim. App. 2017). This is an important issue for military defense counsel at trial. When an accused makes an unsworn statement during sentencing at court-martial, that is not evidence. That means the unsworn statement is not subject to the rules of evidence. There are some limitations on the unsworn discussed elsewhere. The prosecution can introduce evidence to rebut statements made.

When Article 6b, UCMJ and RCM 1001A where put in place, it was intended to allow the victim of a sexual assault to make a statement to the jury about the impact or effects of the alleged assaults. The idea was to allow them to do the same as the accused: give sworn testimony, or give unsworn statements orally, in writing, or read by her counsel. (See United States v. Barker, 77 M.J. 377 (C.A.A.F. 2017), if you have a CP case. The right to make a statement is “independent of whether the victim testified during findings or is called to testify [in sentencing].” R.C.M. 1001A(a).

The Court of Appeals for the Armed Forces decided that these statements are not evidence, just like unsworn statements of the accused. Compare United States v. Provost, 32 M.J. 98 (C.M.A. 1991); United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011); United States v. Breese, 11 M.J. 17, 23 (C.M.A. 1981).

So, what if something she says is not true? What if it’s based on something someone else said (hearsay), or some other reason which if under oath would be objectionable under the rules of evidence? This is important to military defense counsel at trial. It seems the only option is a delay to consider if you have some rebuttal—like the prosecution situation.

It is the Air Force court’s dissenters that seem to be the underlying reason for the CAAF to grant the petition and sort out various rules. The dissenters seek to elevate the unsworn victim’s statement as evidence which may be considered when adjudging a sentence, and they go on to argue that the unsworn is then subject to the rules of evidence. It is the idea that a victim’s unsworn statement is evidence and the accused are not that should be very concerning to military defense counsel. Such a rule would substantially tilt the playing field even more against the accused.

For the accused pending trial, the Air Force court’s opinion lays out well how you can expect part of the sentencing phase of trial proceeds and what you should discuss with your military defense counsel.

• The prosecution announces the service data and personal data relating to the accused and the character of his or her prior service (taken from the charge sheet and personnel records), evidence of prior convictions, evidence of aggravation, and evidence of rehabilitative potential. R.C.M. 1001(a)(1)(A). You should count on most prosecutors failing to introduce any positive information about you, so it’s on you and your military defense counsel to have that ready.
• The prosecution is followed by the victim’s right to be reasonably heard—sworn, unsworn, or written. See R.C.M. 1001A. R.C.M. 1001(a)(1)(B).
• The defense presents evidence in extenuation or mitigation. R.C.M. 1001(a)(1)(C), including a rebuttal to the victim’s statement if they have it. And here’s the problem and why there is unequal access by the defense. The prosecution knows in advance of the trial who the defense witnesses will be or have copies of their statements. They can then interview the persons and have time to find and prepare a rebuttal. Not so the defense—because the defense had not had a chance to interview the victim pretrial and only gets their written statement after the findings are announced. This seems ripe as an area to challenge for military defense counsel and possibly military appellate defense counsel.
• he prosecution presents evidence in rebuttal to the defense case.

There are some administrative, but important, reminders to counsel.

• “T[here] are three distinct categories of matters that may be presented during presentencing. It is critical that all practitioners are familiar with the specific authority for and the process by which to offer each type. In this case, the unsworn victim impact statements were marked, offered, and admitted as prosecution exhibits. This was an error. We recommend these types of exhibits be marked as court exhibits in accordance with the Uniform Rules of Military Practice Before Air Force Courts-Martial, Rule 7.1(C) (1 Jan. 2017).” “
• Finally, counsel and trial judges must ensure that the specific authority relied upon for the offer of unsworn victim impact statements is clearly reflected in the transcript. As this opinion has demonstrated, the inadvertent inclusion or omission of a lower case or upper case “A” after R.C.M. 1001 impacts appellate review.”

The general approach to victim testimony for the military defense counsel is not to ask questions on cross-examination. There are many valid reasons not to do that. However, for every ‘rule’ there is an exception. I recently tried an assault case where one of the victims testified. I decided to risk it and asked a couple of questions that I felt needed an answer. The victim had testified to the common post-event effects of the misconduct: that she’d been ridiculed by a friend of her boyfriend and that she’d had an emotional outburst to another servicemember because of stress. On cross-examination, we effectively showed that these so-called effects were completely unrelated to any misconduct by the accused, and that showed in the sentence. The idea that a friend of her boyfriend ridiculed her about the assault in front of the boyfriend and the boyfriend said nothing is not an effect caused by the accused.

In United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001), the court ruled that there is no right of Sixth Amendment confrontation during a non-capital case sentencing hearing. Is CAAF wrong?

A friend, a colleague has provided two articles worth-the-read for a new challenge in sentencing where there is a victim present at trial.

• Shaakirrah R. Sanders, Unbranding Confrontation as Only a Trial Right. 65 HASTINGS L. J. 1257 (2014).
• Shaakirrah R. Sanders, Making the Right Call for Confrontation at Felony Sentencing, 47 U. MICH. J.L. REFORM 791 (2014).