U.S. v. Edwards, 82 M.J. 239

Military Justice Personnel: Military Judge: Discretion

1. during presentencing, the military judge abused his discretion by allowing a video as an unsworn victim statement under RCM 1001A(e) (2016 ed) (crime victims and presentencing), which authorizes a victim or the victim’s designee to make an unsworn statement that may be oral, written, or both, where this video was produced by the trial counsel and included an interview with the victim’s parents and a slideshow of photographs of the victim set to acoustic background music; a video that includes acoustic music and pictures is neither oral nor written and thus violates the rule; and because the trial counsel produced the video on behalf of the victim’s family, the video was, at least in part, trial counsel’s statement rather than theirs
2. (a military judge abuses his discretion when his legal findings are erroneous or when he makes a clearly erroneous finding of fact),

Trial Stages: Sentence and Punishment: Evidence

1. (in Article 6b), UCMJ, Congress granted the victim of an offense under the UCMJ the right to be reasonably heard during any sentencing hearing related to that offense; the statute provides for the appointment of an individual to stand in for the victim if the victim is deceased; in RCM 1001A(e) (2016 ed) (crime victims and presentencing), the President authorized the victim (or the victim’s designee when appropriate) to make a sworn or unsworn statement; the rule further provides that unsworn statements may be oral, written, or both)
2. unsworn victim statements are not evidence, but presentencing matters that may be presented to and considered by the panel
3. the victim’s right to make an unsworn statement is separate and distinct from the government’s right to offer victim impact statements in aggravation under RCM 1001(b)(4)

Trial Stages: Sentence and Punishment: Unsworn Statements

1. RCM 1001A(e) (2016 ed) (crime victims and presentencing) authorizes a victim or the victim’s designee to make an unsworn statement, may be oral, written, or both
2. the right to make an unsworn statement solely belongs to the victim or the victim’s designee and cannot be transferred to trial counsel
3. unsworn victim statements are not evidence, but presentencing matters that may be presented to and considered by the panel
4. the victim’s right to make an unsworn statement is separate and distinct from the government’s right to offer victim impact statements in aggravation under R.C.M. 1001(b)(4)
5. during presentencing, the military judge abused his discretion by allowing a video as an unsworn victim statement under RCM 1001A(e) (2016 ed) (crime victims and presentencing), which authorizes a victim or the victim’s designee to make an unsworn statement that may be oral, written, or both, where this video was produced by the trial counsel and included an interview with the victim’s parents and a slideshow of photographs of the victim set to acoustic background music; a video that includes acoustic music and pictures is neither oral nor written and thus violates the rule; and because the trial counsel produced the video on behalf of the victim’s family, the video was, at least in part, trial counsel’s statement rather than theirs
6. unsworn victim statements are not a vehicle by which the government can supplement its sentencing arguments by putting its own statements -- oral, written, artistic, or otherwise -- into the victim’s mouth; of course, victims may confer with trial counsel in preparation for their unsworn statements, but trial counsel may not misappropriate the victim’s right to be heard, as trial counsel did here when she created a video on the victim’s family’s behalf

Trial Stages: Appeals: Harmless / Prejudicial Error

1. when an appellate court finds error in the admission of sentencing evidence or sentencing matters, the test for prejudice is whether the error substantially influenced the adjudged sentence
2. the government bears the burden of demonstrating that the admission of erroneous evidence was harmless
3. an appellate court uses a four-factor test to evaluate prejudice when there is a nonconstitutional presentencing error; in deciding whether an error substantially influenced an appellant’s sentence, an appellate court considers de novo (1) the strength of the government’s case, (2) the strength of the defense’s case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
4. a sentencing evidentiary error is more likely to have prejudiced an appellant if the information conveyed as a result of the error was not already obvious from what was presented at trial
5. it is harder for the government to meet its burden of showing that a sentencing error did not have a substantial influence on a sentence than it is to show that an error did not have a substantial influence on the findings where the panel has a binary decision to make with respect to findings (guilty or not guilty), but with respect to sentencing, it has a broad spectrum of lawful punishments that it may adjudge
6. in this case, the admission in sentencing of a video as an unsworn victim statement prejudiced appellant where the materiality and quality of the evidence weighed in his favor; the government-produced video contained a slideshow of pictures accompanied by background music, including pictures of the victim as a child, throughout his life, and finally, of his gravestone; all but one of these pictures had not been admitted into evidence and would not have been seen by the panel members but for the military judge’s error in allowing the video to be shown and taken into the panel deliberations; the pictures, coupled with the background music, were no doubt intended to evoke a strong emotional response from the panel; seeing the victim’s father cry into the uniform of his deceased son was likely heart-wrenching; and it was the type of emotionally moving content that had the potential to influence the sentencing decision of the panel; finally, not only did the trial counsel play the video during sentencing, but she played part of the video -- the portion where the victim’s father cried into his son’s uniform -- again at the crescendo of her sentencing argument, immediately before asking the panel to adjudge the maximum possible sentence; trial counsel’s decision to replay the video in that moment was compelling evidence that the government believed the video was not only material and of high quality, but possibly the most powerful aspect of their sentencing case

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

1. a military judge’s interpretation of RCM 1001A (2016 ed) (crime victims and presentencing) is a question of law that an appellate court reviews de novo
2. an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; and a military judge abuses his discretion when his legal findings are erroneous or when he makes a clearly erroneous finding of fact
3. (abuse of discretion is the proper standard of review for determining whether a military judge erroneously admitted an unsworn victim statement under RCM 1001A (2016 ed) (crime victims and presentencing)
4. whether an accused has waived an issue is a question of law that an appellate court reviews de novo
5. when an appellate court finds error in the admission of sentencing evidence or sentencing matters, the test for prejudice is whether the error substantially influenced the adjudged sentence
6. the government bears the burden of demonstrating that the admission of erroneous evidence was harmless
7. an appellate court uses a four-factor test to evaluate prejudice when there is a nonconstitutional presentencing error; in deciding whether an error substantially influenced an appellant’s sentence, an appellate court considers de novo (1) the strength of the government’s case, (2) the strength of the defense’s case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
8. it is harder for the government to meet its burden of showing that a sentencing error did not have a substantial influence on a sentence than it is to show that an error did not have a substantial influence on the findings where the panel has a binary decision to make with respect to findings (guilty or not guilty), but with respect to sentencing, it has a broad spectrum of lawful punishments that it may adjudge

Trial Stages: Appeals: Waiver

1. waiver is the intentional relinquishment or abandonment of a known right
2. in this case, where the defense counsel objected to a video as an unsworn victim statement under RCM 1001A (e) (2016 ed) (crime victims and presentencing), but indicated to the military judge that there was no dispute over the factual question of how the video was produced, those statements did not waive the legal question raised by the military judge about whether the video improperly included statements beyond those of the victim’s family

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. ordinary rules of statutory construction apply in interpreting the Rules for Courts-Martial

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

1. ordinary rules of statutory construction apply in interpreting the Rules for Courts-Martial