The recent Air Force Court of Criminal Appeals case illustrates why defense counsel, and staff judge advocates, should exercise care with victim impact statements submitted post trial.
In United States v. Goss, the court reminds us that:
Article 60, UCMJ, was amended to include a new subsection “(d)” that authorized the submission of victim impact statements. See National Defense Authorization Act (NDAA) for Fiscal Year 2014, Pub. L. No. 113-66, § 1706, 127 Stat. 672, 960-61 (2013). However, the amended Article 60, UCMJ, does not address what may be included in a victim impact statement:
In any case in which findings and sentence have been adjudged for an offense that involved a victim, the victim shall be provided an opportunity to submit matters for consideration by the convening authority or by another person authorized to act under this section before the convening authority or such other person takes action under this section.
See Article 60(d)(1), UCMJ; see also R.C.M. 1105A (emphasis added).
Just as you do at trial, you should be alert to what a victim says. For example, at trial no victim can ask for or recommend a specific sentence–that’s the law.
Just as you do at trial, you can submit additional evidence (or perhaps unsworn statement) to contradict what a victim says. You can do this in federal court in response to the sentencing report.
Here’s the point from Goss.
An SJA may not provide a convening authority with information known to be unreliable or misleading. United States v. Mann, 22 M.J. 279, 280 n.2 (C.M.A. 1986). Therefore, SJAs and their staff should remain vigilant, particularly when reviewing materials submitted by victims who may still be emotional and justifiably biased. Victims and their advocates may not understand the issues that can be created when the post-trial process goes awry. Thus, a prudent SJA may decide to supplement the advice contained in an SJAR—depending on the content of a victim impact statement—or take other action to prevent a recently-convicted Airman from being unfairly prejudiced during the clemency phase.
If you receive a statement that appears wrong, the first step is to object to its reliability, or perhaps that it is misleading. In doing so, you should also explain why the statement is unreliable or misleading.
Check the statement.