U.S. v. Hamilton, 78 M.J. 335

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 admitting victim impact statements offered as government exhibits and authenticated by members of law enforcement absent any indication either that the victims intended their statements to be used in this particular prosecution or that a designee was appropriate under the RCM 1001A (now incorporated into RCM 1001(c))
3. (in this case, if the military judge permitted the introduction of the victim impact statements as government aggravation evidence under RCM 1001(b)(4), he abused his discretion because they did not comply with the MREs and should have been excluded where the constituted out of court statements offered for their truth and were inadmissible hearsay and the witnesses did not swear an oath or make an affirmation before testifying

Trial Stages: Sentence and Punishment: Evidence

1. the MREs are applicable to sentencing, thus providing procedural safeguards to ensure the reliability of evidence admitted during sentencing

Trial Stages: Sentence and Punishment: Unsworn Statements

1. Article 6b, UCMJ, provides victims of UCMJ offenses the right to be reasonably heard at a sentencing hearing related to the crime in which they were the victim; giving this statute effect, the President promulgated RCM 1001A (now incorporated into RCM 1001(c)); this rule facilitates the statutory right to be reasonably heard and permits a victim to make an unsworn statement in non-capital cases; a victim making an unsworn statement may not be cross-examined on the statement, but the defense is permitted to rebut any statement of facts therein; the right to be reasonably heard requires that the victims be contacted, given the choice to participate in a particular case, and, if they choose to make a statement, offer the statement themselves, through counsel, or through a victim’s designee where appropriate
2. the rights vindicated by RCM 1001A (now incorporated in RCM 1001(c)) 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; all of the procedures in the rule contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel or representative; 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
3. unsworn victim impact statements as defined by RCM 1001A (now incorporated into RCM 1001(c)) are not government exhibits and, in order to be presented at sentencing, they must comply with the dictates of the rule; under the rule, a victim exercises the right to be reasonably heard by either offering an unsworn victim impact statement in person, or through a designated advocate as the rule requires
4. RCM 1001A(e) (now incorporated into RCM 1001(c)) permits a victim’s designee appointed under RCM 801(a)(6) to make an unsworn statement on the victim’s behalf if the victim is under 18 years of age, incompetent, incapacitated, or deceased
5. it is indisputable that RCM 1001A (now incorporated into RCM 1001(c)) reflects the emphasis on a victim’s right to be reasonably heard regarding the impact directly relating to or arising from the offense of which the accused has been found guilty; this requires, pursuant to Article 6b, UCMJ, that victims be contacted and have the choice to participate and be consulted in cases where they are victims
6. both Article 6b, UCMJ and RCM 1001A (now incorporated into RCM 1001(c)) envision actual victim participation in the trial proceedings and assume that a victim offers an impact statement for a particular accused at a specific court-martial; for that reason, admission of information on victim impact must directly relate to or arise from the offense of which the accused has been found guilty
7. RCM 1001A(e) (now incorporated into RCM 1001(c)) provides victims the right to make an unsworn statement, and not to be cross-examined; however, the rule does not encompass an unsworn statement from an unidentified victim who is unaware of the case at hand; such statements are virtually irrebuttable and inconsistent with the rule’s mandate that the defense may rebut any statements of fact contained in unsworn statements; furthermore, the right to be reasonably heard provided by the rule belongs to the victim, not to the trial counsel; this is not a mechanism whereby the government may slip in evidence in aggravation that that would otherwise be prohibited by the MREs, or information that does not relate to the impact from the offense of which the accused is convicted
8. unsworn victim impact statements are uniquely situated in the substrate of the sentencing process; the plain language of RCM 1001A (now incorporated into RCM 1001(c)) clearly contemplates that at least some of the MREs are inapplicable to victim impact statements; unlike, for instance, the testimony of an expert witness at sentencing — which must be sworn and subject to cross-examination — an unsworn victim’s statement is just that, unsworn, and the rule provides that the victim cannot be cross-examined
9. to the extent that the provisions of the MREs contradict the crime victim’s right to be heard under RCM 1001A (now incorporated into RCM 1001(c)), the clear intent of Congress and the President dictate that the latter controls
10. (in this case, the military judge abused his discretion by admitting victim impact statements offered as government exhibits and authenticated by members of law enforcement absent any indication either that the victims intended their statements to be used in this particular prosecution or that a designee was appropriate under the RCM 1001A (now incorporated into RCM 1001(c))

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if an error occurs in the admission of evidence at sentencing, the test for prejudice is whether the error substantially influenced the adjudged sentence
2. when determining whether an error substantially influenced 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
3. in this case, the military judge’s error in admitting unsworn victim impact statements that did not comply with RCM 1001A (now incorporated into RCM 1001(c)) did not have a substantial impact on the adjudged sentence and there was no prejudice to the substantial rights of the accused under Article 59, UCMJ; here, the case presented by the government at sentencing was strong and the appellant’s sentencing case was relatively weak; additionally, while the content of the victim impact statements was material for sentencing purposes, it lacked the quality necessary to affect appellant’s sentence; first, this was a military judge alone trial and the military judge is presumed to know what portions of argument are impermissible, absent clear evidence to the contrary; while the military judge erroneously allowed the government to introduce the victim impact statements, he specifically reiterated that he would give them only the weight they deserve and there is no indication in the record that the military judge gave significant weight to the impermissible aspects of the statements; second, irrespective of whether the statements were admitted, the government’s argument related to revictimization through the continued circulation of pornographic images was permissible, as it is settled law that appellant’s conduct in possessing and distributing child pornography sustained and aggravated the victimization of the child victims; finally, while appellant faced a maximum of thirty years of confinement, he agreed to a confinement cap of five years and he was sentenced to just two years

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

1. an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion
2. interpreting the interplay between unsworn victim impact statements under RCM 1001A (now incorporated as RCM 1001(c)) and the MREs is a question of law and reviewed by an appellate court de novo
3. if an error occurs in the admission of evidence at sentencing, the test for prejudice is whether the error substantially influenced the adjudged sentence
4. when determining whether an error substantially influenced 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