Statement by the accused. RCM 1001(c)(2)
Sworn statement. RCM 1001(c)(2)(B).
- Subject to cross-examination by trial counsel, military judge, and members.
- Rebuttable by:
- Opinion and reputation evidence of character for untruthfulness. RCM 608(a).
- Evidence of bias, prejudice, or any motive to misrepresent. RCM 608(c).
- Extrinsic evidence of prior inconsistent statements. RCM 613.
- Unsworn statement by accused.
May be oral, written, or both.
- May be made by accused, counsel, or both.
- Matters covered in unsworn statement.
- United States v. Grill , 48 M.J. 131 (1998). The right of an accused to make a statement in allocution is not wholly unfettered, but must be evaluated in the context of statements in specific cases. It was error to sustain the government’s objection to the accused making any reference to his co-conspirators being treated more leniently by civilian jurisdictions ( i.e ., not prosecuted, deported, probation). “The mere fact that a statement in allocution might contain matter that would be inadmissible if offered as sworn testimony does not, by itself, provide a basis for constraining the right of allocution.”
- United States v. Jeffery , 48 M.J. 229 (1998). An accused’s rights in allocution are broad, but not wholly unconstrained. The mere fact, however, that an unsworn statement might contain otherwise inadmissible evidence – e.g ., the possibility of receiving an administrative rather than punitive discharge – does not render it inadmissible.
- United States v. Britt , 48 M.J. 233 (1998). There are some limits on an accused’s right of allocution, but “comments that address options to a punitive separation from the service . . . are not outside the pale.” Error for the military judge to redact portion of the accused’s unsworn statement telling panel that commander intended to discharge him administratively if no punitive discharge imposed by court-martial.
- United States v. Tschip , 58 M.J. 275 (2003). Appellant, in his unsworn, told the panel “I know my commander can discharge me even if I do not receive a bad conduct discharge today.” The military judge advised the panel that an unsworn was an authorized means of conveying information; they were to give the appellant’s comments regarding an administrative discharge the consideration they believed it was due, to include none; administrative discharge information is generally not admissible at trial; and they were free to disregard any reference to the appellants comment made by counsel. The court held that the instruction was appropriate because the judge placed the appellant’s comments “in context” for the decision makers. The court noted that the instruction was proper in light of appellant’s “unfocused, incidental reference to an administrative discharge.” The court left for another day whether it would be proper if the unsworn was specific and focused.
- United States v. Sowell , 62 M.J. 150 (2005). A military judge’s decision to restrict an accused’s sentencing statement is reviewed for abuse of discretion. In following United States v. Grill , 48 M.J. 132, although the right of allocution is “ generally considered unrestricted,” it is not “ wholly unrestricted.” However, CAAF distinguished this case, citing the Government’s argument on findings opened the door to proper rebuttal during Appellant’s unsworn statement on sentencing. The Court focused on the fact that trial counsel was aware of FC3 Elliott’s acquittal the previous week. Her references to FC3 Elliott as a co-conspirator, implying criminal liability, during her findings argument indicated that FC3 Elliott was guilty of the same offense as Appellant, and therefore had a motive to lie.
- United States v. Johnson , 62 M.J. 31 (2005). Prior to trial, Appellant took a privately administered polygraph examination arranged by the defense. The examiner concluded that appellant was not deceptive when he denied knowing that he transported marijuana. During the sentencing hearing he sought to refer to his “exculpatory” polygraph test during his unsworn statement. The military judge ruled that the test results were inadmissible. The CAAF found that polygraph evidence squarely implicates its own admonition against impeaching or relitigating the verdict on sentencing. Furthermore, the court was not persuaded that exculpatory polygraph information qualifies as extenuation, mitigation, or rebuttal under R.C.M. 1001(c).
- United States v. Barrier , 61 M.J. 482 (2005). The military judge did not err when, over defense objection, he gave the “Friedmann” instruction. During appellant’s unsworn statement, the military judge called the panel members’ attention to the sentence received in an unrelated similar case. The military judge gave an instruction which essentially told the panel members that that part of the accused’s unsworn statement was irrelevant and that they should not consider it in determining an appropriate sentence.
- When the accused makes an unsworn statement, he does not become a witness:
- Not subject to cross-examination . See United States v. Grady , 30 M.J. 911 (A.C.M.R. 1990) (noting that it was improper for MJ to question the unsworn accused). (10) United States v. Martinsmith , 42 M.J. 343 (1995). No prejudicial error where MJ did not permit accused in unsworn statement to respond to member’s question concerning whereabouts of money which accused admitted stealing. Further, the judge did not abuse discretion in denying defense request at that point to reopen its case, to introduce a “sworn statement” of the accused. (11) United States v. Satterley , 55 M.J. 168 (2001). Defense counsel requested to reopen the defense case to answer a court member’s question via an unsworn statement by the accused. The military judge denied the request but stated he would allow the defense to work out a stipulation of fact, or allow the accused to testify under oath. The court concluded that the military judge did NOT abuse his discretion in refusing to allow accused to make an additional, unsworn statement. The court did note, however, that “there may be other circumstances beyond legitimate surrebuttal which may warrant an additional unsworn statement . . . . Nevertheless, whether such circumstances exist in a particular case is a matter properly imparted to the sound discretion of the trial judge.” (12) United States v. Adame , 57 M.J. 812 (N-M. Ct. Crim. App. 2003). Error for military judge to conduct extensive inquiry regarding accused’s desire for a punitive discharge in his unsworn where inquiry got into attorney-client communications. The court described the MJ’s inquiry as “invasive,” however, found no prejudice.
United States v. Friedmann , 53 M.J. 800 (A.F. Ct. Crim. App. 2000), pet. denied , 54 M.J. 425 (2001). Proper for military judge to provide sentencing instruction to clarify for the members comments made in the accused’s unsworn statement.
- The defense maypresent evidence or argument that challenges or re-litigates the prior guilty findings of the court. United States v. Teeter , 16 M.J. 68 (C.M.A. 1983).
- If accused made an unsworn statement, government may only rebut statements of fact.
- United States v. Manns , 54 M.J. 164 (2000). “I have tried throughout my life, even during childhood, to stay within the laws and regulations of this country,” was held to be a statement of fact and could be rebutted by evidence of the accused’s admission to marijuana use.
- United States v. Willis , 43 M.J. 889 (A.F. Ct. Crim. App. 1996), aff’d, 46 M.J. 258 (1997). Government allowed to rebut accused’s expression of remorse with inconsistent statements made previously by accused on psychological questionnaire and audio tape of telephone message to brother of victim.
- United States v. Cleveland , 29 M.J. 361 (C.M.A. 1990). “Although I have not been perfect, I feel that I have served well and would like an opportunity to remain in the service. . . .” The court determined that the statement was more in the nature of an opinion, “indeed, an argument;” therefore, not subject to rebuttal.
- United States v. Thomas , 36 M.J. 638 (A.C.M.R. 1992). Accused’s unsworn statement commented on his upbringing, pregnant girlfriend, reasons for enlisting in the Army, and the extenuating circumstances surrounding his offenses. The accused also apologized to the Army and the victim. The court held that it was improper rebuttal to have the 1SG testify that the accused was not truthful since character for truthfulness was not at issue.
- Relaxed rules of evidence.. United States v. Saferite, 59 M.J. 270. The rules of evidence apply at sentencing, but the MJ may relax the rules of evidence. A relaxation of the rules, however, goes more toward whether evidence is reliable and authentic; otherwise inadmissible evidence is still not admitted (citing United States v. Boone , 49 M.J. 187, 198 n.14 (1998)). See also United States v. Steward , 55 M.J. 630 (N-M. Ct. Crim. App. 2001) (observing that relaxed rules of evidence is not limited to only documentary evidence).
- Right to a “Complete Sentencing Proceeding.” United States v. Libecap , 57 M.J. 611 (C.G. Ct. Crim. App. 2002) [ Libecap I ]. On appeal, the appellant argued that a term of his pretrial agreement that required him to request a punitive discharge was both a violation of RCM 705 and contrary to public policy. The court agreed, setting aside the sentence and authorizing a rehearing on sentence. The court found that the provision violated RCM 705(c)(1)(B) because “as a practical matter, it deprived the accused of a complete sentencing proceeding.” The court also found that the provision was contrary to public policy.
- Mental Impairment. United States v. Doss , 57 M.J. 182 (2002). Noting that defense counsel was ineffective for failing to present “extant” psychological evidence.