U.S. v. Hopkins, 56 M.J. 393

Trial Stages: Sentence and Punishment: Unsworn Statements

1. an unsworn statement on sentencing is not made under oath, is not subject to cross-examination, and is not subject to the normal restrictions of the rules of evidence -- all of which argues for broad discretion in the military judge when determining how to tailor instructions to address an unsworn statement

Trial Stages: Sentence and Punishment: Instructions

1. the military judge must give the members appropriate instructions on sentence, including a statement that the members should consider certain designated matters, including all matters in extenuation and mitigation, and the judge must tailor his instructions on the sentence to the law and the evidence, just as in the case of prefindings advice
2. the military judge has considerable discretion in tailoring instructions to the evidence and law, and the decision as to how that discretion should be applied to statements of an accused, such as expressions of remorse, regret, or apology, depends on the facts and circumstances of each particular case
3. military judge did not abuse is discretion in tailoring sentencing instructions concerning appellant’s expression of remorse by making a general reference to his unsworn statement, rather than through a more particularized instruction, where: (1) appellant's remarks were made in the course of an unsworn statement; (2) appellant was the only defense witness on sentencing, and his statement was relatively brief; (3) his expressions of remorse, regret, and apology were clear and direct and did not refer to unique or unusual facts that might have been overlooked by the members during sentencing deliberations; (4) neither the prosecution nor the defense placed significant reliance on appellant’s unsworn statement; and (5) military judge specifically mentioned appellant's unsworn statement as something the members should consider in their deliberations
4. an unsworn statement on sentencing is not made under oath, is not subject to cross-examination, and is not subject to the normal restrictions of the rules of evidence -- all of which argues for broad discretion in the military judge when determining how to tailor instructions to address an unsworn statement

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the sentencing instructions of a military judge are reviewed for abuse of discretion