Article 6b of the UCMJ, states that a crime victim has a “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” Article 6b(a)(4)(B). However, the rules of evidence allow a victim to present their testimony on sentencing in the form of an unsworn statement. This is similar to the right of an accused to give an unsworn statement during the sentencing phase of a court-martial. Providing an unsworn statement instead of a sworn statement means that the person giving the statement cannot be cross-examined. This method is often used when an accused or a victim would like to provide a statement during sentencing without facing an “attack” by the opposing counsel. In 2011, the Court of Appeals for the Armed Forces (CAAF) concluded that an unsworn statement given by the accused during the sentencing case is not considered evidence. This stems from the fact that Article 42(b) requires that “each witness before a court-martial shall be examined on oath.” In alliance with this decision, the Air Force Court of Criminal Appeals (AFCCA) on 20 December 2017 in United States v. Hamilton decided that a victim’s unsworn statement could not be considered evidence. The victim has a right to be heard, but if the victim does not provide a statement under oath it is simply not to be treated as evidence by the military judge or panel according to the AFCCA. This begs the question, what should the military judge or panel do with the information provided in an unsworn statement? If it is not evidence, then what is it and why is it even allowed? I will be watching closely to see how this unfolds and plan to use this new decision to my advantage when arguing for my clients in a court-martial. If you or a loved one is facing court-martial charges, you need an attorney who is apprised of all the newest decisions in military appellate law. I pride myself on keeping up with new decisions and using those decisions to help my clients. You also need an attorney with experience. A court-martial is one of the biggest events that could happen in your life or the life of your loved one. Make sure you have an attorney that you trust to do the job right. I have the experience you need if you are facing a court-martial or other adverse military action. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.
