U.S. v. Barrier, 61 M.J. 482

Trial Stages: Sentence and Punishment: Unsworn Statements

1. during sentencing proceedings, an accused has a right to testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution; an unsworn statement may be oral, written, or both; it may be presented to the court by the accused or by counsel at the direction of the accused; the unsworn statement is not subject to cross-examination; however, it is subject to rebuttal, comment during the Government’s closing argument, and it may be tempered by appropriate instructions from the military judge; thus, while 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; an accused, for example, may not use the unsworn statement as a vehicle to show disrespect or a defiance of authority
2. it has long been the rule of law that the sentences in other cases cannot be given to court-martial members for comparative purposes; this rule seeks to keep courts-martial from becoming engrossed in collateral issues and recognizes the UCMJ’s emphasis on individualized consideration of punishment; proper punishment should be determined on the basis of the nature and seriousness of the offense and the character of the offender, not on many variables not susceptible of proof; here, in his unsworn statement on sentencing, the accused brought the sentence from another case to the attention of the members for comparative purposes; case law precludes such comparison; thus, the military judge acted within his discretion in instructing the members that the comparative sentencing information offered by the accused was irrelevant; this is so even though the military judge’s instruction effectively nullified this portion of the accused’s statement; because the information in question was not otherwise relevant as mitigation, extenuation, or rebuttal, it was beyond the scope of RCM 1001, and the military judge could correctly advise the members that the comparative sentencing information was irrelevant; there is a general preference for contextual instruction rather than outright preclusion
3. a military judge might appropriately preclude the introduction of information in an unsworn statement that in context is outside the scope of RCM 1001, if the military judge determines that an instruction would not suffice to place the statement in proper context for the members; in summary, the right to allocution is broad, and largely unfettered, but it is not without limits

Trial Stages: Sentence and Punishment: Instructions

1. an instruction may not suggest that the members may consider the possibility of convening authority action in determining an accused’s sentence
2. if a military judge has not limited an accused’s unsworn statement that invokes sentence comparison, a military judge may instruct the members that in the military justice system: (1) the members are required to adjudge a sentence based upon their evaluation of the evidence without regard to the disposition of other cases; (2) to the extent that the system provides for sentence comparison, that function is not part of the members’ deliberations; it is a power assigned to the convening authority and Court of Criminal Appeals; and (3) in the course of determining an appropriate punishment, the panel may not rely upon the possibility of sentence reduction by the convening authority or the Court of Criminal Appeals
3. it has long been the rule of law that the sentences in other cases cannot be given to court-martial members for comparative purposes; this rule seeks to keep courts-martial from becoming engrossed in collateral issues and recognizes the UCMJ’s emphasis on individualized consideration of punishment; proper punishment should be determined on the basis of the nature and seriousness of the offense and the character of the offender, not on many variables not susceptible of proof; here, in his unsworn statement on sentencing, the accused brought the sentence from another case to the attention of the members for comparative purposes; case law precludes such comparison; thus, the military judge acted within his discretion in instructing the members that the comparative sentencing information offered by the accused was irrelevant; this is so even though the military judge’s instruction effectively nullified this portion of the accused’s statement; because the information in question was not otherwise relevant as mitigation, extenuation, or rebuttal, it was beyond the scope of RCM 1001, and the military judge could correctly advise the members that the comparative sentencing information was irrelevant; there is a general preference for contextual instruction rather than outright preclusion

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

1. an appellate court reviews a military judge’s decision to give a sentencing instruction for an abuse of discretion; however, the military judge has considerable discretion in tailoring instructions to the evidence and law