U.S. v. Barker, 77 M.J. 377

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses his discretion when he admits evidence based on an erroneous view of the law
2. in this case, the military judge abused his discretion by allowing the government to introduce a victim impact statements under RCM 1001A in presentencing without either the presence or request of the victim, the special victim’s counsel, or the victim’s representative

Military Justice Personnel: Victim: Generally

1. Article 6b, UCMJ, outlines the rights of a victim within the military justice system, including the right to reasonable, accurate, and timely notice of a range of proceedings related to an accused; these rights include the reasonable right to confer with the counsel representing the Government in any such proceeding, Article 6b(a)(5), UCMJ, and the right to be reasonably heard in public hearings related to pretrial confinement, a sentencing hearing, the public proceeding of the service clemency, and a parole relating to the offense; provision is also made for the appointment of an individual to assume the Article 6b, UCMJ, rights of a victim who is under the age of eighteen, or “incompetent, incapacitated, or deceased

Military Justice Personnel: Victim: Evidence

1. RCM 1001A sets forth the rules regarding the victim’s right to be reasonably heard at presentencing; it belongs to the victim, and is separate and distinct from the government’s right to offer victim impact statements in aggravation under RCM 1001(b)(4); under RCM 1001A(b)(1), a crime victim is an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilt
2. RCM 1001A(b)(4)(B) effectuates the right to be heard at presentencing, and thus provides that, in noncapital cases, the victim has the right to be reasonably heard through a sworn or unsworn statement; the contents of the statements may include victim impact or matters in mitigation; the victim may use an unsworn statement that can be oral, written, or both, and the victim may not be cross-examined by the trial counsel or defense counsel upon it or examined upon it by the court-martial; indeed, victim testimony under RCM 1001A does not constitute witness testimony; however, the prosecution or defense may rebut any statements of fact in an unsworn statement
3. victims exercise their right to reasonably be heard at presentencing under RCM 1001A
4. the rights vindicated by RCM 1001A are personal to the victim in each individual case; therefore, the introduction of statements under this rule is prohibited without, at a minimum, either the presence or request of the victim, the special victim’s counsel, or the victim’s representative
5. in this case, the military judge abused his discretion by allowing the government to introduce victim impact statements under RCM 1001A in presentencing without either the knowledge, presence, or request of the victim, the special victim’s counsel, or the victim’s representative
6. the RCM 1001A process belongs to the victim, not to the trial counsel
7. under the rules devised by the President to effectuate congressional intent, the crime victim has an independent right to be reasonably heard at a sentencing hearing, although the military judge may permit the victim’s counsel to deliver all or part of the victim’s unsworn statement; all of the procedures in RCM 1001A contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel; moreover, they assume the victim chooses to offer the statement for a particular accused, as they permit only the admission of information on victim impact directly relating to or arising from the offense of which the accused has been found guilty

Core Criminal Law Subjects: Crimes: Article 134 -- Child Pornography (para 68b, MCM, *** Post-2012 Amendment) Pre-2019 offenses

1. child pornography is a continuing crime: it is a permanent record of the depicted child’s abuse, and the harm to the child is exacerbated by its circulation

Trial Stages: Sentence and Punishment: Evidence

1. RCM 1001A sets forth the rules regarding the victim’s right to be reasonably heard at presentencing; it belongs to the victim, and is separate and distinct from the government’s right to offer victim impact statements in aggravation under RCM 1001(b)(4); under RCM 1001A(b)(1), a crime victim is an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilt
2. RCM 1001A(b)(4)(B) effectuates the right to be heard at presentencing, and thus provides that, in noncapital cases, the victim has the right to be reasonably heard through a sworn or unsworn statement; the contents of the statements may include victim impact or matters in mitigation; the victim may use an unsworn statement that can be oral, written, or both, and the victim may not be cross-examined by the trial counsel or defense counsel upon it or examined upon it by the court-martial; indeed, victim testimony under RCM 1001A does not constitute witness testimony; however, the prosecution or defense may rebut any statements of fact in an unsworn statement
3. the government admits aggravation evidence, to include victim impact statements, under RCM 1001(b)(4), and victims exercise their right to reasonably be heard at presentencing under RCM 1001A
4. the rights vindicated by RCM 1001A are personal to the victim in each individual case; therefore, the introduction of statements under this rule is prohibited without, at a minimum, either the presence or request of the victim, the special victim’s counsel, or the victim’s representative
5. in this case, the military judge abused his discretion by allowing the government to introduce victim impact statements under RCM 1001A in presentencing without either the knowledge, presence, or request of the victim, the special victim’s counsel, or the victim’s representative
6. the RCM 1001A process belongs to the victim, not to the trial counsel
7. under the rules devised by the President to effectuate congressional intent, the crime victim has an independent right to be reasonably heard at a sentencing hearing, although the military judge may permit the victim’s counsel to deliver all or part of the victim’s unsworn statement; all of the procedures in RCM 1001A contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel; moreover, they assume the victim chooses to offer the statement for a particular accused, as they permit only the admission of information on victim impact directly relating to or arising from the offense of which the accused has been found guilty

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when there is error in the admission of sentencing evidence, the test for prejudice is whether the error substantially influenced the adjudged sentence; when determining whether an error had a substantial influence on a sentence, an appellate court considers the following four factors: (1) the strength of the government's case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; an error is more likely to be prejudicial if the fact was not already obvious from the other evidence presented at trial and would have provided new ammunition against an appellant
2. in this military judge-alone case, the error in admitting victim impact statements did not substantially influence the sentence, where (1) the government's case was exceptionally strong and appellant's guilt was laid out in vivid detail in the stipulation of fact, (2) appellant faced confinement for twenty years, had a PTA to cap confinement at four years, and only received two and a half years; (3) the case was tried before a military judge, who is presumed to know the law; and (4) many of the themes and harms contained in the improperly admitted letters are well known to the law, and thus are presumed to have been known by the military judge

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

1. interpreting RCM 1001A is a question of law that is reviewed de novo
2. an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; a military judge abuses his discretion when he admits evidence based on an erroneous view of the law
3. when there is error in the admission of sentencing evidence, the test for prejudice is whether the error substantially influenced the adjudged sentence; when determining whether an error had a substantial influence on a sentence, an appellate court considers the following four factors: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; an error is more likely to be prejudicial if the fact was not already obvious from the other evidence presented at trial and would have provided new ammunition against an appellant

Trial Stages: Appeals: Waiver

1. a waive all waivable motions provision entered at pretrial does not provide the government carte blanche to introduce at sentencing information that does not conform to the rules, or to make arguments that are prohibited by the law; the CAAF declines to adopt a reading of a waive all waivable motions provision in a pretrial agreement that either shields the government from the requirements of RCM 1001A (crime victims and presentencing) or restricts the accused ex ante from objecting to any and all future infirmities unrelated to the plea; the government remains free to negotiate pretrial specific provisions related to sentencing, such as stipulations of expected testimony, and waiver of foundational requirements, etc; however, RCM 705(c)(1)(B) proscribes the enforcement of terms in a pretrial agreement that would deprive an accused of certain rights, including the right to complete sentencing proceedings; certain matters cannot be bargained away because to give up such matters would leave no substantial means to ensure judicially that the sentencing proceedings met acceptable standards