Many accused, with halting eloquence, effectively demonstrate remorse and plead for leniency, while others squander the opportunity by engaging in malevolent recriminations and remorseless refusals to accept responsibility. The wisdom or folly that an accused evinces in deciding what to say in an unsworn statement does not diminish his or her right to say it.
United States v. Macias, 53 M.J. 728, 729 (A.C.C.A. 1999).
Actually that's not completely true, there are limits to what can be said in an unsworn statement. This came up for us recently in wanting to tell the members that the client's conviction at special court-martial of a domestic violence charge subjected him to Lautenberg issues and concerns. [n.1] The military judge allowed it.
During sentencing proceedings, an accused has a right to "testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution." R.C.M. 1001(c)(2)(A). An unsworn statement may be oral, written, or both. R.C.M. 1001(c)(2)(C). It may be presented to the court by the accused or by counsel at the direction of the accused. Id. The unsworn statement is not subject to cross-examination; however, it is subject to rebuttal, comment during the Government's closing argument, and it may be tempered by appropriate instructions from the military judge. Id.; Grill, 48 M.J. at 133. Thus, while "the scope of an unsworn statement may include matters that are otherwise inadmissible under the rules of evidence, the right to make an unsworn statement is not wholly unconstrained." United States v. Tschip, 58 M.J. 275, 276 (C.A.A.F. 2003); United States v. Jeffery, 48 M.J. 229, 230 (C.A.A.F. 1998). An accused, for example, may not use the unsworn statement as a vehicle to show disrespect or a defiance of authority. United States v. Rosato, 32 M.J. 93, 96 (C.M.A. 1991). Appellant now tests the apparent tension between the rationale of Rosato and Grill, and this Court's stated view in United States v. Mamaluy, 10 C.M.A. 102, 106, 27 C.M.R. 176, 180 (1959), that "sentences in other cases cannot be given to court-martial members for comparative purposes."
United States v. Barrier, 61 M.J. 482, 484 (C.A.A.F. 2005).
n.1. See e.g. Capt. E. John Gregory, The Lautenberg Amendment – Gun Control in the U.S. Army, The Army Lawyer, October 2000; Congressional Research Service, Firearms Prohibitions and Domestic Violence: The Lautenberg Amendment,October 1, 2001.
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