Victim impact input prior to sentencing

The Air Force Court of Criminal Appeals (AFCCA) has issued an interesting en banc (5-3) opinion in United States v. Hamilton, 76 M.J. ___ (A. F. Ct. Crim. App. 2017), about victim impact evidence or statements.

The accused pleaded guilty to the possession and distribution of child pornography.  On sentencing, as we often see in these cases, the prosecution introduced unsworn statements of the victims, all of which predated the accused’s date of offenses.  For those who haven’t been exposed to these statements, generally, they review the abuse that occurred at the time the video or image was taken and the subsequent life and health effects on the victim.  We know that courts allow such information because of the idea that a victim is re-victimized each time a person views or distributes the images–it’s essentially an ongoing crime.  Slip op. at 7-8.

I think there are several takeaways for practitioners.

  1. If a victim testifies in sentencing, that testimony is subject to all the rules of evidence and R.C.M. 1001, which include Mil. R. Evid. 403.  The testimony is evidence “directly relating to or resulting from the offenses,” under R.C.M. 1001(b)(4).
  2. If the victim does not testify and provides an oral or written impact statement, the statement is not subject to the rules of evidence, only R.C.M. 1001, because it is not evidence, similar to the accused’s unsworn statement.  Slip op. at 5, 9, United States v. Provost, 32 M.J. 98 (C.M.A. 1991), but see the dissent.  The information is provided pursuant to Article 6b, UCMJ, and R.C.M. 1001A.  Keep in mind there are already some limitations on what an accused can say in an unsworn (e.g. sex offender registration), so why should there not be limits on a victim?  Does the military judge have to instruct members to disregard parts of a victim unsworn?
  3. Trial counsel, defense counsel, and the military judge need to be very clear on what legal basis a victim input is given to ensure the proper consideration at trial and on appeal.

So, the Trial-Craft point.

Trial practitioners must recognize the distinction between evidence offered and admitted during presentencing by the prosecution and defense under R.C.M. 1001 and victim impact statements offered under R.C.M. 1001A. The victim “shall be called by the court-martial” as their right to be heard is “independent of whether they testify during findings or are called to testify under R.C.M. 1001.” R.C.M. 1001A(a) (emphasis added).

We reemphasize that R.C.M. 1001(a) was modified when R.C.M. 1001A was added, and that it now establishes a general sequence of presentencing matters. Specifically, the prosecution starts by providing service data and personal data relating to the accused and the character of his or her prior service (taken from the charge sheet and personnel records), evidence of prior convictions, evidence of aggravation, and evidence of rehabilitative potential. R.C.M. 1001(a)(1)(A). The prosecution’s sentencing case is followed by the victim’s right to be reasonably heard pursuant to R.C.M. 1001A. R.C.M. 1001(a)(1)(B). Finally, the defense presents evidence in extenuation or mitigation.  R.C.M. 1001(a)(1)(C). This change is noteworthy because it recognizes there are three distinct categories of matters that may be presented during presentencing. It is critical that all practitioners are familiar with the specific authority for and process by which to offer each type.

In this case, the unsworn victim impact statements were marked, offered, and admitted as prosecution exhibits. This was an error. We recommend these types of exhibits be marked as court exhibits in accordance with the Uniform Rules of Military Practice Before Air Force Courts-Martial, Rule 7.1(C) (1 Jan. 2017).

Finally, counsel and trial judges must ensure that the specific authority relied upon for the offer of unsworn victim impact statements is clearly reflected in the transcript. As this opinion has demonstrated, the inadvertent inclusion or omission of a lower case or upper case “A” after R.C.M. 1001 impacts appellate review.

Judge Harding concurs and dissents in part and is joined by Drew, C.J., and Mink, and says:

 The right of victim allocution is not, however, without reasonable limitations on the content of those statements and nothing in Article 6b or R.C.M. 1001A suggests the victim’s right to be heard is beyond the scope of the procedural and evidentiary rules of presentencing. In fact, R.C.M. 1001A is silent as to whether the Military Rules of Evidence apply. The majority, by holding “that unsworn victim impact statements offered pursuant to R.C.M. 1001A are not evidence,” finds the rules of evidence inapplicable. The rules, however, are silent as to whether a victim statement introduced under R.C.M. 1001A, sworn or unsworn, is “evidence” and I disagree that a plain reading of the rules shows them not to be evidence. .

Slip op. at 14.  The dissenters would apply the rules of evidence even to information provided under R.C.M. 1001A.  I expect we will hear from CAAF about this case and its analysis and application of R.C.M. 1001A.