United States v. Shoup

United States Air Force Court of Criminal Appeals · 2019 · Evidence

EvidenceVictim impact statementsSentencingR.C.M. 1001AArticle 6bvictim right to be heardactual participationsworn statement

Facts

During presentencing, the Government offered three victim impact exhibits from victims depicted in images possessed by Appellant, and the military judge admitted them over defense objection under R.C.M. 1001A. Two exhibits were unsigned or unsworn written statements, and trial counsel had no contact with those victims; the record did not show they knew of Appellant's case or wished to participate. A third exhibit contained three signed, sworn statements from another victim plus a declaration from that victim's attorney, but neither the attorney's declaration nor the record showed the victim wanted to be heard in Appellant's court-martial. The sworn statements also predated Appellant's offenses, and the victim was not available for examination or cross-examination.

Issue

Did the military judge abuse his discretion by admitting victim impact statements under R.C.M. 1001A without showing that the victims wished to exercise their right to be heard in Appellant's particular court-martial? If so, did the error materially prejudice Appellant by substantially influencing the sentence?

Rule

Under Article 6b and R.C.M. 1001A, victim impact statements at sentencing must reflect actual victim participation: the victim must be contacted, have the choice to participate, and offer the statement personally or through counsel for the particular accused at the specific court-martial. A sworn statement under R.C.M. 1001A is inadmissible if the declarant is not subject to examination by the court-martial or cross-examination as required by R.C.M. 1001A(d). If victim impact statements are erroneously admitted, the appellate court asks whether the error substantially influenced the adjudged sentence 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.

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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 Antonio, trial counsel seeks to offer a written victim impact statement during sentencing in a child-pornography prosecution. The statement came from a national law-enforcement repository, and no one contacted the victim about the accused's case or asked whether she wanted to participate.

Should the military judge admit the statement under R.C.M. 1001A?

Explanation. R.C.M. 1001A gives the right to be heard to the victim, not the Government. The majority explained that the rule contemplates actual victim participation, meaning the victim must be contacted, have the choice to participate, and offer the statement personally or through counsel in the specific accused's court-martial. A repository statement offered without any showing that the victim knew of or chose to participate in this case is inadmissible. (Derived from United States v. Shoup (n.d.).)