United States v. Cunningham

United States Court of Appeals for the Armed Forces · 2023 · Evidence

Reporter Citation Pending

Updated August 1, 2026

Evidence404(b) / motive vs. propensitysentencingvictim impact statementswaiverR.C.M. 1001(c)(5)(A)R.C.M. 1001Avictim impact statement

Facts

During sentencing, the victim's mother and grandmother gave sworn testimony describing the devastating effects of the infant victim's death. The victim's mother, acting as the victim's representative, then delivered an unsworn victim impact statement using a PowerPoint presentation with pictures, videos, transitions, stock images of life events the child would never experience, and somber music, followed by oral remarks. Defense counsel did not object to the sworn testimony, and at the close of sentencing arguments, defense counsel affirmatively stated there were no objections. The military judge admitted the victim impact presentation and later sentenced Appellant to eighteen years, less than the Government's request of at least twenty to twenty-five years.

Issue

Whether the military judge erred by admitting a victim impact statement containing music and photographs under the rule allowing only oral or written unsworn statements, and if so whether that error substantially influenced the sentence. The court also considered whether Appellant preserved objections to the prosecution's sentencing argument when defense counsel expressly said there were no objections.

Rule

Under R.C.M. 1001(c)(5)(A), a victim impact statement may be oral, written, or both; materials such as photographs and music are not authorized and their admission is error. If sentencing matter is admitted in error, prejudice turns on whether the error substantially influenced the adjudged sentence, evaluated by considering the strength of the Government's case, the strength of the defense case, the materiality of the evidence, and the quality of the evidence. When defense counsel affirmatively declines to object to sentencing argument, the issue is expressly waived.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a court-martial in San Diego, the victim's brother delivers an unsworn statement by reading from a printed page while a silent slideshow of family photographs is projected on a screen. Defense counsel objects that the visuals are unauthorized under the rule governing victim impact statements.

How should the military judge rule?

Explanation. The majority held that under R.C.M. 1001(c)(5)(A), an unsworn victim impact statement may be only oral, written, or both. Non-oral and non-written components such as photographs fall outside the rule, even if presented alongside an oral statement. The error does not depend on whether the photographs are silent or on how emotional they are. (Derived from United States v. Cunningham (n.d.).)