Today, CAAF will hear oral arguments in United States v. Tyler, and will consider the issue that it granted last fall: “Whether the military judge erred when he permitted trial counsel to argue facts not in evidence; namely, the unsworn victim impact statements which were not admitted as evidence under RCM 1001(b)(4).”
CAAF briefs here.
Tyler will be the latest addition, after United States v. Hamilton, 78 M.J. 335, 342 (C.A.A.F. 2019) and United States v. Barker, 77 M.J. 377 (C.A.A.F. 2018), to a line of recent cases grappling with unsworn victim impact statements presented under Article 6b and R.C.M. 1000A. In Tyler, CAAF will address the unsworn statements’ relationship to aggravating evidence introduced pursuant to R.C.M. 1001(b)(4).
Pertinent Facts and Trial Court Ruling
In 2018, Air Force MSgt Rodney M. Tyler was tried and convicted at a general court-martial of several child sex offenses, the most serious of which was aggravated sexual abuse of a child in violation of Article 120. The primary evidence supporting his conviction consisted of testimony and written statements from his stepdaughter, ML, and biological daughter, MC.
Before sentencing arguments, both ML and MC submitted unsworn victim impact statements pursuant to R.C.M. 1001. Trial defense counsel objected to several portions of the statement, and the military judge sustained some and overruled others. The judge instructed the members that the unsworn statements were to be weighed according to the members’ “common sense.” The statements were not admitted into evidence, and included factual information not found in the trial record, such as new descriptions of the ML and MC’s emotions at the time of the offense and the continuing impact of the abuse on their lives.
In his sentencing argument, trial counsel quoted from the victim impact statements and referred to the factual information they contained, prompting trial defense counsel to object to the argument for presenting facts not in evidence. Despite the objections, the judge allowed trial counsel to argue those facts in the unsworn statement that were “the same” as those that would have been admissible in the government’s case-in-chief, and noted that the defense’s argument was preserved. The members sentenced MSgt Tyler to reduction to E-4, a bad-conduct discharge, and 54 months’ confinement—well below the maximum.
AFCCA’s Decision Below
In MSgt Tyler’s appeal, AFCCA considered the same evidentiary issue that is currently before CAAF. In its unanimous unpublished opinion, AFCCA opened its discussion of the law by noting that relief for improper argument requires a prejudice showing under the standard articulated in United States v. Fletcher, 62 M.J. 175, 178, 184 (C.A.A.F. 2005). To determine whether the prosecution’s improper sentencing argument prejudiced the defendant, military courts weigh “(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction.” United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013).
The AFCCA dismissed most of the appellant’s contentions before reaching the prejudice inquiry. Because trial defense counsel did not specifically object to the quotations from the statements, AFCCA ruled that these errors were not preserved. AFCCA also held that the trial counsel’s statements regarding the impact of the offense were fair inferences from evidence in the record.
Without deciding whether the remaining portion of the argument was improper, AFCCA applied the Fletcher/Halpin test to all allegedly improper statements and found no prejudice. First, any potential misconduct was not severe, AFCCA reasoned, because the alleged misconduct comprised only around 10% of the lines in the transcript of the government’s argument, and because the misconduct was “confined to the sentencing argument and rebuttal,” and did not affect the trial. Second, AFCCA briefly noted the limiting instructions that the military judge had given to the members. Third, and apparently most importantly, AFCCA found that “even if each statement Appellant alleges was improper argument was in fact error . . . the weight of the evidence clearly supported the adjudged and approved sentence.”
AFCCA opinion here.
Appellant's Arguments at CAAF
In his brief to CAAF, Appellant argues that the military judge abused his discretion by allowing trial counsel to conflate the victim impact statements admitted under R.C.M. 1000A with evidence that could have been admitted under R.C.M. 1001(b)(4). Based on the text of the R.C.M. provisions and several other cases addressing unsworn statements, Appellant argues that victim impact statements are regulated solely by R.C.M. 1000A, and are not evidence. R.C.M. 1001(b)(4) presents a distinct means of presenting information—importantly, statements admitted under R.C.M. 1001(b)(4) are subject to cross-examination and evidentiary controls, while those under R.C.M. 1001A are not. Thus, by allowing trial counsel to argue the contents of unsworn statements admitted under R.C.M. 1001A if those contents could have been admitted as evidence, the military judge abused his discretion. Appellant also argues that the errors prejudiced the result because the improper argument from the unsworn statements essential to the case’s strength.
In its brief, the government agrees that statements admitted under R.C.M. 1001A were not evidence, noting that Article 6b was based on an analogous provision of the Crime Victims’ Rights Act (CVRA). The government goes on to argue that because the unsworn statements were properly admitted information (not evidence) at the court martial, the members “could and should have” relied on them in sentencing. Analogizing to caselaw concerning unsworn statements of the accused, the government contends that “comment, inference and argument of victim impact statements for sentencing is appropriate,” so long as it is “reasonable.” Thus, the military judge did not err. Finally, the government argues, following the contours of the opinion below, that the alleged errors were not prejudicial. Curiously, the government did not meaningfully address the distinction between non-evidence R.C.M. 1001A and evidence under R.C.M 1001(b)(4).
In his rebuttal, Appellant excoriated the government’s argument for lacking a limiting principle. Defense argues that the reasonableness standard the Government proposes for sentencing arguments based on unsworn statements is too malleable, allowing counsel to “treat evidence and non-evidence alike, restrained only by the hope that the military judge’s instructions can succinctly unpack the evidence/non-evidence distinction that has troubled practitioners since the military adopted unsworn victim impact statements.” Appellant also criticizes the government’s brief for its comparison of victim and accused impact statements and fortifies his arguments for prejudice, characterizing the government’s application of the Fletcher/Halpin test as mechanical.
As the appellant’s reply emphasizes most clearly, the distinction between “evidence” and mere “information” is conceptually fraught. Tyler presents the opportunity for CAAF to draw a clear line between the two in the sentencing context. The stakes of this seemingly arcane evidentiary issue may be deceptively high for military defendants. The raw emotional power of victim impact statements, which is already at its height in sex offense cases, can be magnified by a skillful prosecutor, resulting in a harsh sentence for the accused. While the Government notes in its brief that Article 6b was patterned on the CVRA, a key difference between the federal criminal trial and the general court-martial arguably renders the former more powerful. In the Federal system, judges, not juries, determine the sentence. Juries, like the members of a general court-martial, may be quite susceptible to sentencing arguments based upon victim impact statements, and are less likely than a judge to appreciate the distinction between sworn and unsworn testimony. And in the military justice system, members may adjudge the sentence, as they did in Tyler.
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law