UNDOING THE UNSWORN: THE UNSWORN STATEMENT'S HISTORY AND A WAY FORWARD.

• Author: Reid, John S.

1. INTRODUCTION II. THE RIGHT OF ALLOCUTION AT COMMON LAW III. ALLOCUTION IN THE AMERICAN LEGAL TRADITION IV. ALLOCUTION IN THE MILITARY JUSTICE TRADITION A. Unsworn Statements Prior to the Manual for Courts-Martial B. Unsworn Statements Post-Manual for Courts-Martial C. "We shall not speculate"--the Unsworn Statement Takes on a Life of its Own V. CONTRASTING THE CURRENT STATE OF THE UNSWORN STATEMENT AND THE RIGHT OF ALLOCUTION VI. THE WAY FORWARD VII. CONCLUSION I. INTRODUCTION

   An Air Force staff sergeant stands convicted. After hours of deliberation, the court-martial members (the military jury) found him guilty of a violent rape against a family member. Throughout the trial the military judge ruled meticulously on evidentiary matters, finding inadmissible many pieces of evidence offered by both the government and the defense due to concerns about their probative value and prejudicial effect. As the court-martial moves through the sentencing phase, the accused (the military defendant) rises to give an "unsworn statement." Speaking directly to the court-martial members, the accused gives a largely unfettered speech, opening the floodgate of otherwise inadmissible evidence. In his statement he proceeds to "impeach the verdict," making claims of fact that conflict with the finding of guilt. He makes numerous assertions that are inadmissible in findings or sentencing. After he is done, the military judge turns to the court-martial members and instructs them that they are not to consider much of what they just heard during their deliberations. With the accused's unsworn statement still fresh in their memory, and the human temptation to ignore the military judge's instructions to set aside much of what they just heard spinning in their minds, the members retire to a deliberation room and craft a sentence. Shortly thereafter, the court-martial members return with a verdict: to be reprimanded, to be reduced in grade from E-5 to E-4 (a one rank reduction), and to be confined to the limits of the base for two months. It is essentially a sentence of no punishment for the crime of rape. (1)

   In military courtrooms around the world, this strange ritual unfolds. If convicted, the accused stands and makes a statement to the court-martial members. During this statement the accused may introduce matters otherwise entirely inadmissible and irrelevant, often surprising the prosecution with new information. While the prosecution may rebut factual assertions within the unsworn statement with evidence of its own, the accused may not be cross-examined. Following the accused's unsworn statement, the military judge promptly instructs the court-martial members to disregard any irrelevant or inadmissible matters brought to their attention by the unsworn statement. This unusual and counterintuitive procedure is a largely unfettered weapon for the defense to systematically lower sentences by bringing otherwise collateral and inadmissible matters to the attention of the court-martial members.

   The civilian equivalent of the unsworn statement, termed the right of "allocution," exists broadly in civilian jurisdictions. (2) However, the expansive scope of the unsworn statement and its potential impact on the sentence adjudged is unique to the military justice system. Through a misinterpretation of history by the Court of Appeals for the Armed Forces, the unsworn statement became a creature divorced from its historical purpose and intent. The military and Congress should now seriously examine whether the military unsworn statement truly serves the aims of equitable sentencing. (3)

   It is an ideal time to re-examine the desired scope of unsworn statements in military trial practice in an effort to ensure equitable sentencing. The military faces a crisis of confidence with segments of the public, as well as bipartisan criticism from Congress over its handling of military justice matters. (4) Congress's concern has focused on cases like those discussed above--where it appears the military justice system failed. To address the issue, Congress initiated "blue ribbon" panels. These panels were to consider how the military prevents and responds to reports of sexual assaults as well as reexamine sexual assault statutes. (5) As a result, Congress and the executive branch enacted significant changes to the military justice system. (6) Despite this intense scrutiny of the military justice system, the unsworn statement managed to escape modification. (7) By addressing the unsworn statement, Congress can achieve the goal of more equitable sentencing through a relatively modest change to the military justice system.

   This article will first explore the history of the right of allocution from its common law genesis. It will then trace how the common law right of allocution found its way into both American courts and the military justice system as a statutory or regulatory creation. The article will examine the radically differing paths the right of allocution took as it developed in both the military and civilian contexts. Finally, the article addresses potential alterations to the military unsworn statement that would result in a more just military sentencing procedure.

2. THE RIGHT OF ALLOCUTION AT COMMON LAW

   In Great Britain, at common law (beginning in the 12th Century) the criminal defendant typically had no right to an attorney or to testify in his or her own defense. (8) British society became concerned with this seemingly inequitable arrangement. Thus, what some scholars deemed the "ancient and obscure ritual" known as allocution was born. (9) Because the defendant had no attorney to argue their case, the defendant was granted the right to speak before being sentenced.

   Beginning in the 17th Century, after being found guilty, the defendant was asked by the judge: "Do you know of any reason why judgment should not be pronounced on you?" (10) This moment at trial was crucial because in common law Britain every felony except petty larceny and mayhem could carry the death penalty. (11) Unfortunately for the defendant, there were limited excusing factors that could be brought to the court's attention at this time, such as pregnancy or insanity. (12) Interestingly, allowing such statements at common law was possibly a precursor to modern "excuse" defenses. (13)

   At common law, "[t]he point of [allocution] was not to elicit mitigating evidence or a plea for leniency, but to give the defendant a formal opportunity to present one of the strictly defined legal reasons which required the avoidance or delay of sentencing: he was not the person convicted, he had benefit of clergy or a pardon, he was insane, or if a woman, she was pregnant." (14) Today, where the right to an attorney is guaranteed, "the common law reasons or uses for allocution have long since disappeared." (15)

3. ALLOCUTION IN THE AMERICAN LEGAL TRADITION

   The common law tradition of allocution has survived in modern legal systems based on two rationales: mitigation and humanization. Mitigation has strong roots in common law, while humanization is a modern concept embraced by many jurisdictions. (16) While each jurisdiction defines mitigation on its own terms, mitigation evidence is generally accepted as evidence that, while not legally excusing the conduct, explains factors and circumstances regarding the crime that may result in a lesser punishment. Humanization refers to the concept that each individual should have a sentence particularly tailored to the > of his or her personality. (17)

   Where allocution rights still appear, they are codified by both the federal and state governments. The federal right of allocution is found in Federal Rule of Criminal Procedure Rule 32 (i)(4)(A), which states: "Before imposing sentence, the court must: (i) provide the defendant's attorney an opportunity to speak on the defendant's behalf; (ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence; and (iii) provide an attorney for the government an opportunity to speak equivalent to that of the defendant's attorney." (18)

   In Green v. United States, the Supreme Court held that the drafters of Rule 32(a) intended that federal courts follow the same procedure used in the common law tradition--with the judge directly asking the defendant "if he had anything to say" before being sentenced. (19) This duty to inquire, the Court declared, is an affirmative one. (20) The Court commented:

   [T]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself. We are buttressed in this conclusion by the fact that the Rule explicitly affords the defendant two rights: "to make a statement in his own behalf," and "to present any information in mitigation of punishment." (21) During the next term, in Hill v. United States, the Supreme Court addressed the issue of whether failure by a trial judge to advise a defendant of his or her allocution rights, consistent with the rule from Green, was reversible error on appeal. (22) The Court held that, while a judge should advise a defendant of allocution rights, the failure to do so "is not, of itself, an error of the character or magnitude cognizable under a writ of habeas corpus." (23) The Court concluded that omission of allocution is neither a jurisdictional nor a constitutional error. (24) Finally, progressing to a consideration of the role of allocution in basic due process, the Court reasoned that omission of allocution "is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure." (25)

   Green and Hill interpreted allocution rights through the regulatory lens of the Federal Rules of Criminal Procedure. Absent a statutory or regulatory allocution right, the Supreme Court has declined to declare a constitutional due process...