U.S. v. Tschip, 58 M.J. 275

Trial Stages: Sentence and Punishment: Unsworn Statements

1. during sentencing proceedings in a court-martial, the accused has the right to testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution
2. under R.C.M. 1001(c)(2)(C), the unsworn statement may be either oral or written, and it may be presented either by the accused or by counsel; the accused may not be cross-examined by the prosecution or questioned by the court-martial upon it, but the prosecution may introduce evidence to rebut statements of facts therein; although the scope of an unsworn statement may include matters that are otherwise inadmissible under the rules of evidence, the right to make an unsworn statement is not wholly unconstrained
3. military judges have broad authority to give instructions on the meaning and effect of the accused’s unsworn statement, both to ensure that the members place such a statement in the proper context and to provide an appropriate focus for the members’ attention on sentencing
4. in the present case, appellant made a passing, vague reference in his unsworn statement to the possibility that his commander might initiate administrative discharge proceedings against him; he did not specifically ask the members to take or refrain from any specific action in light of his comment, and defense counsel did not raise the subject of an administrative discharge during closing argument; under these circumstances, we decline to speculate as to the message that appellant was intending to convey to the members through a reference to an administrative discharge
5. the military judge instructed the members that the subject of an administrative discharge was a collateral matter, that they should give that aspect of appellant’s unsworn statement due consideration, and that they had discretion to disregard the reference to an administrative discharge if they saw fit to do so; in view of appellant’s unfocused, incidental reference to an administrative discharge, the military judge did not err by providing instructions that placed appellant’s statement in the appropriate context for purposes of their decision-making process

Trial Stages: Sentence and Punishment: Instructions

1. military judges have broad authority to give instructions on the meaning and effect of the accused’s unsworn statement, both to ensure that the members place such a statement in the proper context and to provide an appropriate focus for the members’ attention on sentencing
2. the military judge instructed the members that the subject of an administrative discharge was a collateral matter, that they should give that aspect of appellant’s unsworn statement due consideration, and that they had discretion to disregard the reference to an administrative discharge if they saw fit to do so; in view of appellant’s unfocused, incidental reference to an administrative discharge, the military judge did not err by providing instructions that placed appellant’s statement in the appropriate context for purposes of their decision-making process

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

1. whether the right to give an unsworn statement was impermissibly impaired by a reference to administrative discharges in the military judge’s instructions is a question of law, which we review de novo; in the absence of an objection, we review deficiencies in the instruction for plain error