U.S. v. Tyler, 81 M.J. 108

Military Justice Personnel: Military Judge: Generally

1. if a military judge arrives at the correct result, even if for the wrong reason, an appellate court may affirm the ruling
2. although the military judge erred in his reasoning that the trial counsel could comment on the contents of the unsworn victim statement admitted under RCM 1001A (now 1001(c)) simply because they could have been admitted as substantive evidence under RCM 1001(b)(4), such error was harmless because either party may comment on properly admitted unsworn victim statements under RCM 1001A (now 1001(c))

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. (although the unsworn victim statement is not subject to the Military Rules of Evidence, a military judge is not powerless to restrict its contents; the military judge has an obligation to ensure the content of a victim’s unsworn statement comports with the parameters of victim impact or mitigation as defined by RCM 1001A (now RCM 1001(c))

Military Justice Personnel: Victim: Generally

1. in 2013, Congress revised presentencing procedures by enacting Article 6b(a)(4)(B), UCMJ, 10 USC § 806b(a)(4)(B), to give a victim the right to be reasonably heard at a sentencing hearing concerning the offense of which he or she is the victim; the President promulgated RCM 1001A to facilitate the statutory right to be reasonably heard (now found in RCM 1001(c)); a victim may make a sworn or unsworn statement during sentencing in a noncapital case
2. if unsworn victim statements are part of the evidence of record, they can be commented on by counsel in presentencing argument
3. an unsworn victim statement, although not evidence, can nevertheless be commented on by either party in presentencing argument; and counsel’s comments concerning a victim’s unsworn statement may include both references and arguments

Military Justice Personnel: Victim: Evidence

1. in 2013, Congress revised presentencing procedures by enacting Article 6b(a)(4)(B), UCMJ, 10 USC § 806b(a)(4)(B), to give a victim the right to be reasonably heard at a sentencing hearing concerning the offense of which he or she is the victim; the President promulgated RCM 1001A to facilitate the statutory right to be reasonably heard (now found in RCM 1001(c)); a victim may make a sworn or unsworn statement during sentencing in a noncapital case
2. if unsworn victim statements are part of the evidence of record, they can be commented on by counsel in presentencing argument
3. the Military Rules of Evidence are inapplicable to unsworn victim statements
4. like an accused, a victim may, personally or through counsel, make an unsworn statement orally, in writing, or both, and may not be cross-examined or examined by the court upon it; like an accused’s unsworn statement, unsworn victim statements are not made under oath, and are thus not evidence
5. (although the unsworn victim statement is not subject to the Military Rules of Evidence, a military judge is not powerless to restrict its contents; the military judge has an obligation to ensure the content of a victim’s unsworn statement comports with the parameters of victim impact or mitigation as defined by RCM 1001A (now RCM 1001(c))
6. an unsworn victim statement, although not evidence, can nevertheless be commented on by either party in presentencing argument; and counsel’s comments concerning a victim’s unsworn statement may include both references and arguments

Trial Stages: Merits: Argument

1. typically, trial counsel is prohibited from injecting into argument irrelevant matters, such as personal opinions and facts not in evidence; however, trial counsel is entitled to argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence

Trial Stages: Sentence and Punishment: Evidence

1. in 2013, Congress revised presentencing procedures by enacting Article 6b(a)(4)(B), UCMJ, 10 USC § 806b(a)(4)(B), to give a victim the right to be reasonably heard at a sentencing hearing concerning the offense of which he or she is the victim; the President promulgated RCM 1001A to facilitate the statutory right to be reasonably heard (now found in RCM 1001(c)); a victim may make a sworn or unsworn statement during sentencing in a noncapital case
2. RCM 1001(b)(4) governs what the prosecution may present as evidence in aggravation during presentencing, and permits trial counsel to present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty
3. RCM 1001(b)(4) governs what the prosecution may present as RCM 1001A (now RCM 1001(c)) 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)
4. in this case, where the government did not offer the victim statements under RCM 1001(b)(4) and the statements were instead admitted as court exhibits by the military judge pursuant to RCM 1001A (now RCM 1001(c)), the military judge erred in reasoning that trial counsel could argue the content of the unsworn statements simply because they could have been admitted as substantive evidence under RCM 1001(b)(4); RCM 1001A (now RCM 1001(c)) belongs to the victim and is separate and distinct from RCM 1001(b)(4)
5. the Military Rules of Evidence are applicable to sentencing and thus provide procedural safeguards to ensure the reliability of evidence admitted during sentencing
6. the Military Rules of Evidence are inapplicable to unsworn victim statements
7. like an accused, a victim may, personally or through counsel, make an unsworn statement orally, in writing, or both, and may not be cross-examined or examined by the court upon it; like an accused’s unsworn statement, unsworn victim statements are not made under oath, and are thus not evidence
8. (although the unsworn victim statement is not subject to the Military Rules of Evidence, a military judge is not powerless to restrict its contents; the military judge has an obligation to ensure the content of a victim’s unsworn statement comports with the parameters of victim impact or mitigation as defined by RCM 1001A (now RCM 1001(c))
9. an unsworn victim statement, although not evidence, can nevertheless be commented on by either party in presentencing argument; and counsel’s comments concerning a victim’s unsworn statement may include both references and arguments

Trial Stages: Sentence and Punishment: Unsworn Statements

1. in 2013, Congress revised presentencing procedures by enacting Article 6b(a)(4)(B), UCMJ, 10 USC § 806b(a)(4)(B), to give a victim the right to be reasonably heard at a sentencing hearing concerning the offense of which he or she is the victim; the President promulgated RCM 1001A to facilitate the statutory right to be reasonably heard (now found in RCM 1001(c)); a victim may make a sworn or unsworn statement during sentencing in a noncapital case
2. if unsworn victim statements are part of the evidence of record, they can be commented on by counsel in presentencing argument
3. the Military Rules of Evidence are inapplicable to unsworn victim statements
4. like an accused, a victim may, personally or through counsel, make an unsworn statement orally, in writing, or both, and may not be cross-examined or examined by the court upon it; like an accused’s unsworn statement, unsworn victim statements are not made under oath, and are thus not evidence
5. (although the unsworn victim statement is not subject to the Military Rules of Evidence, a military judge is not powerless to restrict its contents; the military judge has an obligation to ensure the content of a victim’s unsworn statement comports with the parameters of victim impact or mitigation as defined by RCM 1001A (now RCM 1001(c))
6. while the military judge is the gatekeeper for unsworn victim statements, an accused nonetheless has a duty to state the specific ground for objection in order to preserve a claim of error on appeal
7. an unsworn victim statement, although not evidence, can nevertheless be commented on by either party in presentencing argument; and counsel’s comments concerning a victim’s unsworn statement may include both references and arguments

Trial Stages: Sentence and Punishment: Argument

1. typically, trial counsel is prohibited from injecting into argument irrelevant matters, such as personal opinions and facts not in evidence; however, trial counsel is entitled to argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence
2. in this case, where the government did not offer the victim statements under RCM 1001(b)(4) and the statements were instead admitted as court exhibits by the military judge pursuant to RCM 1001A (now RCM 1001(c)), the military judge erred in reasoning that trial counsel could argue the content of the unsworn statements simply because they could have been admitted as substantive evidence under RCM 1001(b)(4); RCM 1001A (now RCM 1001(c)) belongs to the victim and is separate and distinct from RCM 1001(b)(4)
3. if unsworn victim statements are part of the evidence of record, they can be commented on by counsel in presentencing argument
4. an unsworn victim statement, although not evidence, can nevertheless be commented on by either party in presentencing argument; and counsel’s comments concerning a victim’s unsworn statement may include both references and arguments

Trial Stages: Appeals: Harmless / Prejudicial Error

1. although the military judge erred in his reasoning that the trial counsel could comment on the contents of the unsworn victim statement admitted under RCM 1001A (now 1001(c)) simply because they could have been admitted as substantive evidence under RCM 1001(b)(4), such error was harmless because either party may comment on properly admitted unsworn victim statements under RCM 1001A (now 1001(c))

Trial Stages: Appeals: Preservation of Error / Plain Error

1. while the military judge is the gatekeeper for unsworn victim statements, an accused nonetheless has a duty to state the specific ground for objection in order to preserve a claim of error on appeal

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

1. improper argument involves a question of law that an appellate court reviews de novo.
2. if a military judge arrives at the correct result, even if for the wrong reason, an appellate court may affirm the ruling

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. ordinary rules of statutory construction apply in interpreting the RCM
2. it is a general rule of statutory construction that if a statute is clear and unambiguous—that is, susceptible to only one interpretation—an appellate court uses its plain meaning and apply it as written
3. an appellate court may also resort to case law to resolve any ambiguity in a statute, although fundamentally case law must comport with the statute, not vice versa
4. an appellate court assumes that Congress is aware of existing law when it passes legislation