                       UNITED STATES, Appellee

                                   v.

                  Michael A. BARRIER, Senior Airman
                      U.S. Air Force, Appellant

                              No. 04-0540

                        Crim. App. No. S30160


       United States Court of Appeals for the Armed Forces

                       Argued January 25, 2005

                     Decided September 26, 2005

BAKER, J., delivered the opinion of the Court, in which GIERKE, C.J.,
and EFFRON, J., joined. CRAWFORD and ERDMANN, JJ., each filed a
separate opinion concurring in the result.



                                Counsel


For Appellant: Major Karen L. Hecker (argued); Colonel Carlos L.
McDade, Major Terry L. McElyea, and Major James M. Winner (on
brief).

For Appellee: Major John C. Johnson (argued); Lieutenant Colonel
Gary F. Spencer, Lieutenant Colonel Robert V. Combs, and Major
James K. Floyd (on brief); Colonel LeEllen Coacher.

Military Judge:   John J. Powers




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Barrier, No. 04-0540/AF


     Judge BAKER delivered the opinion of the Court.

     A special court-martial composed of officer members

convicted Appellant, pursuant to his pleas, of two specifications

of drug use in violation of Article 112a, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 912a (2000).   He was

sentenced to a bad-conduct discharge, confinement for six months,

forfeiture of $737 pay per month for six months, and reduction to

pay grade E-1.   The convening authority approved the sentence as

adjudged, and the United States Air Force Court of Criminal

Appeals affirmed.

     We granted review of the following issue:

     WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
     PREJUDICE OF THE APPELLANT WHEN, OVER DEFENSE
     OBJECTION, HE GAVE THE “FRIEDMANN” INSTRUCTION.

For the reasons articulated below, we affirm the decision of

the lower court.

                            BACKGROUND

     During the sentencing hearing of his court-martial,

Appellant elected to give an unsworn statement to the members in

which he stated:

     When deciding whether your sentence should include some
     amount of confinement, I know that each case has to be
     decided on its own merits. But I also believe that
     similar cases should receive similar punishments. Such
     as last year, Senior Airman Watson from Tyndall was
     charged with using ecstasy and the confinement portion
     of his sentence was only three months.

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United States v. Barrier, No. 04-0540/AF


To rebut Appellant’s statement, trial counsel presented the

court-martial order relevant to Senior Airman (SrA) Watson’s case

indicating that Watson had received a bad-conduct discharge, four

months of confinement, forfeitures, and reduction to E-1.

      Over the objection of defense counsel, the military judge

also informed the parties that he was going to issue a Friedmann

instruction.1    He then instructed the members as follows:

      Now, during the accused’s unsworn statement, he alluded
      to a case of another individual who the accused had
      stated had received a certain degree of punishment. In
      rebuttal, the trial counsel offered you Prosecution
      Exhibit 6, which was the court-martial order from that
      case which stated what that individual got in that
      case.

      The reason I mention this is for the following reason,
      and that is because, in fact, the disposition of other
      cases is irrelevant for your consideration in adjudging
      an appropriate sentence for this accused. You did not
      know all the facts of those other cases, or other cases
      in which sentences were handed down, nor anything about
      those accused in those cases, and it is not your
      function to consider those matters at this trial.
      Likewise, it is not your position to second guess the
      disposition of other cases, or even try to place the
      accused’s case in its proper place on the spectrum of
      some hypothetical scale of justice.


1
   In United States v. Friedmann, 53 M.J. 800 (A.F. Ct. Crim. App. 2000), the
accused informed the members in his unsworn statement that two of the four
airmen who pled guilty to drug use with him received nonjudicial punishment
and administrative discharges. He then asked the members to allow his
commander to administratively discharge him in lieu of adjudging a punitive
discharge. In response, the military judge instructed the members to disregard
the possibility that the accused might be administratively discharged along
with the sentences given to others in related cases. The Court of Criminal
Appeals affirmed under a plain error analysis.


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United States v. Barrier, No. 04-0540/AF


      Even if you knew all the facts about other offenses and
      offenders, that would not enable you to determine
      whether the accused should be punished more harshly or
      more leniently because the facts are different and
      because the disposition authority in those other cases
      cannot be presumed to have any greater skill than you
      in determining an appropriate punishment.

      If there is to be meaningful comparison of the
      accused’s case to those of other [sic] similarly
      situated, it would come by consideration of the
      convening authority at the time that he acts on the
      adjudged sentence in this case. The convening authority
      can ameliorate a harsh sentence to bring it in line
      with appropriate sentences in other similar cases, but
      he cannot increase a light sentence to bring it in line
      with similar cases. In any event, such action is within
      the sole discretion of the convening authority.

      You, of course, should not rely on this in determining
      what is an appropriate punishment for this accused for
      the offenses of which he stands convicted. If the
      sentence that you impose in this case is appropriate
      for the accused and his offenses, it is none of your
      concern as to whether any other accused was
      appropriately punished for his offenses.

      You have the independent responsibility to determine an
      appropriate sentence, and you may not adjudge an
      excessive sentence in reliance upon mitigation action
      by higher authority.2

2
 Although not the focus of his appeal, Appellant also argues that the judge’s
instruction “was dangerously misleading because the military judge’s reference
to the convening authority ameliorating any harsh sentence essentially
relieved the court members of their independent responsibility to determine an
appropriate sentence.” An instruction may not suggest that members may
consider the possibility of convening authority action in determining an
accused’s sentence. See Rule for Courts-Martial (R.C.M.) 1005(e)(4). In this
case, however, the Appellant initiated the discussion of sentence comparison
in his unsworn statement by asking the members to consider the sentence
adjudged in another case when determining his sentence. The military judge
was responding to Appellant’s request and placing it in context. If a
military judge has not limited an accused’s unsworn statement that invokes
sentence comparison, a military judge may instruct the members that in the
military justice system: (1) the members are required to adjudge a sentence
based upon their evaluation of the evidence without regard to the disposition

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United States v. Barrier, No. 04-0540/AF


      Appellant argues, as he did before the Court of Criminal

Appeals, that the military judge’s instruction interfered with

his right of allocution, which this Court stated is “largely

unfettered” and has been “broadly construed.”           United States v.

Grill, 48 M.J. 131, 133 (C.A.A.F. 1998).

                                 DISCUSSION

      During sentencing proceedings, an accused has a right to

“testify, make an unsworn statement, or both in extenuation, in

mitigation or to rebut matters presented by the prosecution.”

R.C.M. 1001(c)(2)(A).      An unsworn statement may be oral, written,

or both.    R.C.M. 1001(c)(2)(C).      It may be presented to the court

by the accused or by counsel at the direction of the accused.

Id.   The unsworn statement is not subject to cross-examination;

however, it is subject to rebuttal, comment during the

Government’s closing argument, and it may be tempered by

appropriate instructions from the military judge.            Id.; Grill, 48

M.J. at 133.    Thus, while “the scope of an unsworn statement may

include matters that are otherwise inadmissible under the rules



of other cases; (2) to the extent that the system provides for sentence
comparison, that function is not part of the members’ deliberations; it is a
power assigned to the convening authority and Court of Criminal Appeals; and
(3) in the course of determining an appropriate punishment, the panel may not
rely upon the possibility of sentence reduction by the convening authority or
the Court of Criminal Appeals. The military judge in this case provided an
instruction that covered these points. In the future, it would be preferable
for military judges not to use terms such as “harsh” or “light” so as to avoid
any implication that the panel might rely on the convening authority’s action.

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United States v. Barrier, No. 04-0540/AF


of evidence, the right to make an unsworn statement is not wholly

unconstrained.”       United States v. Tschip, 58 M.J. 275, 276

(C.A.A.F. 2003); United States v. Jeffery, 48 M.J. 229, 230

(C.A.A.F. 1998).       An accused, for example, may not use the

unsworn statement as a vehicle to show disrespect or a defiance

of authority.      United States v. Rosato, 32 M.J. 93, 96 (C.M.A.

1991).     Appellant now tests the apparent tension between the

rationale of Rosato and Grill, and this Court’s stated view in

United States v. Mamaluy, 10 C.M.A. 102, 106, 27 C.M.R. 176, 180

(1959), that “sentences in other cases cannot be given to court-

martial members for comparative purposes.”

       In Grill, the Government asked the military judge to bar the

accused from referencing in his unsworn statement the sentences

received by the accused’s civilian coconspirators in civilian

court.     The Government argued that the civilian sentences were

irrelevant to the accused’s sentencing at court-martial.               Grill

wanted to advise the members that some of his fellow

weightlifters, who were civilians, received lenient or no

punishment for their use of steroids.3           Moreover, their cases


3
  In particular, Grill wanted to include the following language in his unsworn
statement:

    There have been two additional factors which have made waiting during the
    last year even more difficult. One is knowing that my friends, the men who
    are weight lifters just like me and who were equally involved with
    steroids, have received such favorable treatment while I am being treated

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United States v. Barrier, No. 04-0540/AF


were adjudicated rapidly, whereas he had suffered the stress of

lengthy adjudication.       The military judge agreed with the

Government, and concluded that the material was “‘clearly

inappropriate to present to members’ and was objectionable as

irrelevant and confusing under Mil. R. Evid. 402 and 403 . . . .”

Grill, 48 M.J. at 133.

      This Court reversed and stated that “an accused’s right to

allocution in the form of an unsworn statement, while not wholly

unconstrained, has been broadly construed for decades.”             Id.   The

Court emphasized that in most cases the military judge’s

instructions could serve to place the unsworn statement in

context:

      [W]e have confidence that properly instructed court-martial
      panels can place unsworn statements in the proper context,
      as they have done for decades. . . . Such instructions, as
      well as trial counsel’s opportunity for rebuttal and closing
      argument, normally will suffice to provide an appropriate
      focus for the member’s attention on sentencing.



  so harshly. It is my understanding that one of them . . . , who was in the
  United States on a visa, was simply asked to leave and that no charges were
  brought against him. Another of my friends . . . was charged months ago,
  plead [sic] guilty, just like I have, and received only probation. Then he
  was allowed to move to Korea even though he was convicted and on probation.
  Finally, it is my understanding that no charges have ever been brought
  against [the third civilian conspirator], and may never be brought against
  him.

  The fact that everyone else received such lenient treatment, and that [the
  first two friends] have had their cases over and done with, while I am
  still waiting after so much time, makes this entire situation really hard
  for me.

Grill, 48 M.J. at 132-33.

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United States v. Barrier, No. 04-0540/AF


Id.   This would include “any concern of the military judge with

muddying the sentencing waters” by having the accused include

with his unsworn statement “matters that were not admissible in

evidence on sentencing.”   Id. at 132 (citing Rosato, 32 M.J. at

96; United States v. Breese, 11 M.J. 17 (C.M.A. 1981)).     With

this predicate, the Court concluded “the right to make a

statement in allocution is not wholly unfettered, but if there

are abuses, they should be addressed in the context of the

statements made in specific cases.”   Grill, 48 M.J. at 133.

      The issue presented in this case is whether Appellant’s

proposed statement regarding the sentence of another accused in

an unrelated case was relevant to the issue of Appellant’s

sentencing, and if not, whether Appellant nonetheless was

entitled to introduce the information without instruction by the

military judge that the information was irrelevant.   Appellant

argues that the instruction effectively nullified his right of

allocution.   The Government argues that by placing Appellant’s

statement in proper context, the military judge was doing no more

than that required by Grill.

      We review a military judge’s decision to give a sentencing

instruction for an abuse of discretion.    United States v.

Hopkins, 56 M.J. 393, 395 (C.A.A.F. 2002)(citing United States v.

Greaves, 46 M.J. 133 (C.A.A.F. 1997)).    “The military judge has

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United States v. Barrier, No. 04-0540/AF


considerable discretion in tailoring instructions to the evidence

and law.”    Hopkins, 56 M.J. at 395.

     As described above, Appellant called the members’ attention

to the sentence awarded to SrA Watson at Tyndall Air Force Base.

Appellant did not assert that Watson’s case was closely related

to his own.   The military judge permitted trial counsel to rebut

Appellant’s statement concerning Watson’s sentence, and

instructed the member as quoted above.

     The judge’s instruction accurately states the law.      “[I]t

has long been the rule of law that the sentences in other cases

cannot be given to court-martial members for comparative

purposes.”    Mamaluy, 10 C.M.A. at 106, 27 C.M.R. at 180.    This

rule seeks to keep courts-martial from becoming engrossed in

collateral issues and recognizes the UCMJ’s emphasis on

individualized consideration of punishment.   “[P]roper punishment

should be determined on the basis of the nature and seriousness

of the offense and the character of the offender, not on many

variables not susceptible of proof.”    10 C.M.A. at 107, 27 C.M.A.

at 181.   Therefore, the instruction in this case appropriately

stated that the information was irrelevant.   Appellant’s

statement brought the sentence from another case to the attention

of the members for comparative purposes.   Case law precludes such

comparison.   Thus, we conclude that the military judge acted

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United States v. Barrier, No. 04-0540/AF


within his discretion in instructing the members that the

comparative sentencing information offered by Appellant was

irrelevant.

     In reaching this conclusion, we are cognizant of Appellant’s

argument that the military judge’s instruction effectively

nullified this portion of his statement.    Because the information

in question was not otherwise relevant as mitigation,

extenuation, or rebuttal, it was beyond the scope of R.C.M. 1001,

and the military judge could correctly advise the members that

the comparative sentencing information was irrelevant.

     In different circumstances, a military judge might

appropriately preclude the introduction of information that in

context is outside the scope of R.C.M. 1001, if the military

judge determines that an instruction would not suffice to place

the statement in proper context for the members.   For example,

were an accused to offer a comparative review of sentences in the

Air Force generally, a military judge would have to consider

whether an instruction could adequately place the information “in

proper context” and whether the Government was entitled to rebut

the information with a study of its own, with all the incumbent

risks of the mini-trial.

     In summary, the right to allocution is broad, and largely

unfettered, but it is not without limits.   Grill should not be

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United States v. Barrier, No. 04-0540/AF


read to suggest otherwise.   Appellant presented comparative

sentencing information, which was not relevant as extenuation,

mitigation, or rebuttal.   The military judge put the information

“in proper context” by effectively advising the members to ignore

it.   While the military judge’s instruction emphasized that this

portion of Appellant’s statement was irrelevant, the instruction

was consistent with Grill’s general preference for contextual

instruction rather than outright preclusion.   However, each case

will present different facts, different arguments regarding the

relevance of sentencing statements under R.C.M. 1001(c)(2), and a

differing risk of confusion, distraction, and error.   A military

judge exercising his or her discretion, for example, might treat

the comparative cases of coconspirators differently than the

sentences of drug offenders generally, choosing to instruct or

preclude given the specific statement at issue and depending on

the context in which it is presented.

                             DECISION

      We hold that the military judge did not err when he

instructed the members regarding Appellant’s unsworn statement.

The instruction given enabled the members to place Appellant’s

statement in the appropriate perspective.   The decision of the

United States Air Force Court of Criminal Appeals is affirmed.



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United States v. Barrier, No. 04-0540/AF


       CRAWFORD, Judge (concurring in the result):

       I write separately to mourn our missed opportunity to

clarify, modify, or overrule this Court’s opinion in United

States v. Grill, 48 M.J. 131 (C.A.A.F. 1998).    Instead, this Court

again leaves counsel and military judges in Alice’s position:

       “It seems very pretty,” she said when she had finished
       it, “but it’s rather hard to understand!” (You see she
       didn’t like to confess, even to herself, that she
       couldn’t make it out at all.) “Somehow it seems to
       fill my head with ideas –- only I don’t know exactly
       what they are!” 1

       As if describing the theory that parallel lines eventually

meet in space, the majority posits that somewhere, some material

exists that, when offered in an unsworn statement, a military

judge, bearing in mind “Grill’s general preference for

contextual instruction rather than outright preclusion,” may

preclude consideration of information on the basis that it “in

context is outside the scope of R.C.M. 1001.”   61 M.J. __ (10-

11).

       Grill was certainly not such a case and, apparently,

neither is Appellant’s.   And so the great dance continues.

Grill recognizes a nearly unfettered right to introduce matters,

such as sentence comparisons in an unsworn statement, and

today’s lead opinion reassures military judges that they should

1
  Lewis Carroll, Through the Looking Glass and What Alice Found
There 24 (William Morris & Co., Inc. 1993)(1872) (Alice’s
observation after using the looking glass to read
“Jabberwocky.”).
United States v. Barrier, No. 04-0540/AF


follow Grill and “place unsworn statements in proper context” by

telling the members that the sentence comparisons are irrelevant

and should be excluded from their sentencing considerations.

     In the end, this practice probably does more to detract

from an accused’s credibility and the effectiveness of his

presentencing case than if the President were to eliminate the

unsworn statement altogether.   Because military judges dare not

exclude such matters, when an accused and his counsel weave the

thread of sentence comparison (or other, as yet undetermined

matters) through the accused’s unsworn statement, the last thing

court members will hear before they begin their sentence

deliberations is the military judge telling them that much of

what the Appellant asked them to consider was baloney.

     Until we revisit Grill, return the unsworn statement to a

form more consistent with law and history, and reassure military

judges that they may exercise reasonable control over the

sentencing case, the carousel will continue to operate.




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United States v. Barrier, No. 04-0540/AF


     ERDMANN, Judge (concurring in the result):

     I agree with the majority disposition of this case.      I

write separately, however, to express my view that United

States v. Grill, 48 M.J. 131 (C.A.A.F. 1998), creates an

irreconcilable tension between the scope of pre-sentencing

unsworn statements and the military judge’s obligation to

provide proper instructions.   That tension is obvious in

this case:   what the currently defined right to allocution

through a pre-sentencing unsworn statement under Grill

permits, the military judge takes away in a Friedmann

instruction.1

     This tension finds its origin in United States v.

Rosato, 32 M.J. 93 (C.M.A. 1991) where this court stated

that the scope of unsworn statements is “generally

considered unrestricted.”   Id. at 96.   The treatises relied


1
  See United States v. Friedmann, 53 M.J. 800 (A.F. Ct.
Crim. App. 2000). Awkward results have been spawned by
Grill. See United States v. Tschip, 58 M.J. 275 (C.A.A.F.
2003)(instruction giving members discretion to disregard
the accused’s statement that if he did not get a punitive
discharge he could still be administratively discharged);
Friedmann (instruction to members that possible
administrative discharge and disposition of other cases,
both of which the accused mentioned in his pre-sentencing
unsworn statement, should not be considered); United States
v. Macias, 53 M.J. 728 (A. Ct. Crim. App. 1999)(finding
error in preventing an unsworn statement from including
information that accused would have to register as a sex
offender, but suggesting that the military judge could have
instructed that requirement to register as a sex offender
was a collateral consequence of the conviction).
United States v. Barrier, No. 04-0540/AF


upon in Rosato for the assertion that an unsworn statement

is virtually unlimited must be considered in context.     It

is premised upon a right to make an unsworn statement that

is distinctly different than the right currently

established as part of military pre-sentencing procedure in

the Manual for Courts-Martial, United States (2002 ed.)

(2002 MCM).

     The unsworn statement recognized in trials by courts-

martial prior to implementation of the Uniform Code of

Military Justice (UCMJ) in the 1951 Manual for Courts-

Martial2 was a pre-findings statement, as contrasted with

the current pre-sentencing statement.   The accused was

permitted to make a statement “in the nature of an

argument” which “by custom of the service” could also

contain “allegations of fact, some of which may not have

been presented to the court in the form of evidence during

the course of the trial.”3   As Colonel Winthrop notes in his

treatise on military law, an accused was granted “very

considerable freedom” before findings because “under the

critical circumstances in which he is placed, [the accused]




2
  Manual for Courts-Martial, United States (1951 ed.) (1951
MCM).
3
  George B. Davis, A Treatise on the Military Law of the
United States 132-33 (3d ed. revised 1913).


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United States v. Barrier, No. 04-0540/AF


should certainly be allowed the largest latitude of

expression.”4

     The 1928 Manual5 established a pre-sentence procedure

that did not provide for an unsworn statement or argument

by counsel.6    Under the 1928 MCM, the right to make an

unsworn statement was provided only prior to findings, and

was permitted “in denial, explanation, or extenuation of

the offenses charged.”7    At that time the unsworn statement

played a key role in the actual defense against charges.8

     Pursuant to the authority granted by Article 36(a),

UCMJ, 10 U.S.C. § 836(a) (2000), the President adopted

revised pre-sentencing procedures in the 1951 MCM.    Those

procedures included the right of an accused to make “an

unsworn statement to the court in extenuation or mitigation


4
  William Winthrop, Military Law and Precedents 299 (2d ed.
1920 reprint).
5
  A Manual for Courts-Martial, U.S. Army (1928 ed.) (1928
MCM).
6
  Id. at paras. 79-81. See also A Manual for Courts-
Martial, U.S. Army (1928 ed. corrected to April 20, 1943)
paras. 79-81; Manual for Courts-Martial, U.S. Army (1949
ed.), paras. 79-81.
7
  1928 MCM, para. 76. See also Navy Courts and Boards (1937
ed., reprinted 1945, including changes 1 and 2) § 419;
Manual for Courts-Martial, U.S. Air Force (1949 ed.), para.
76.
8
  See United States v. Britt, 44 M.J. 731, 731-32 (A.F. Ct.
Crim. App. 1996), aff’d, 48 M.J. 233 (C.A.A.F. 1998)
(noting that the unsworn statement evolved from a time when
an accused was not a competent witness and most accuseds
were unrepresented. In such cases, the unsworn statement
was a key part of an accused’s defense to the charges).


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United States v. Barrier, No. 04-0540/AF


of the offenses of which he stands convicted.”9     The 1969

Manual10 contained the same authority for an accused to make

an unsworn statement “in mitigation or extenuation.”11      The

right was expanded in the 1984 Manual’s12 Rules for Courts

Martial (R.C.M.) to include an “unsworn statement . . . in

extenuation, in mitigation, or to rebut matters presented

by the prosecution, or for all three purposes.”13     The

accused’s right to make an unsworn statement exists in that

same form in the current version of the MCM.14

     Although the historical underpinnings of the “unsworn

statement” prior to the 1951 MCM are relevant to the scope

of that “pre-findings” unsworn statement, they do not

support the conclusion that the “pre-sentence” unsworn

statements are broader than as defined by the President.

The right to make an unsworn statement on sentencing does

not conflict with or diminish any constitutional or

statutory right and should be enforced and interpreted as

created by the President, i.e., to include matters in



9
   1951 MCM, para. 75c (2).
10
    Manual for Courts-Martial, United States (1969 revised
ed.) (1969 MCM).
11
    1969 MCM, para. 75c(2).
12
    Manual for Courts-Martial, United States (1984 ed.) (1984
MCM).
13
    R.C.M. 1001(c)(2)(A).
14
    R.C.M. 1001(c)(2)(A), Manual for Courts-Martial, United
States (2002 ed.).


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United States v. Barrier, No. 04-0540/AF


extenuation, mitigation and rebuttal.15    These terms are

well-defined and known in military practice but are not so

broad as to be unrestricted.16

     While I recognize that the majority opinion is

following this court’s prior precedent in Grill and that

the viability of Grill was not challenged in this case, I

believe it is time to reconsider that precedent.    In

relying on the flawed premise that a pre-sentence unsworn

statement is “unrestricted,” Grill engenders a procedure

that unnecessarily complicates military justice

proceedings.    The military judge and counsel must sit by

while the accused articulates information that is not in

extenuation, mitigation or rebuttal.   The military judge

then instructs the members to ignore those portions of the

unsworn statement.   The result is unnecessary confusion and

distraction that benefits neither the accused nor the

Government.

     The scope of unsworn statements is defined by R.C.M.

1001 and the content is limited to extenuation, mitigation

and rebuttal.   There is no right for an unsworn statement

to exceed that definitional scope.   Where an accused seeks

15
  Although the rules of evidence “may” be relaxed (R.C.M.
1001(c)(3)), the limitations on unsworn statements are not
rules of evidence but rather are rules of procedure
promulgated by the President.
16
   See R.C.M. 1001(c)(1).


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United States v. Barrier, No. 04-0540/AF


to make a pre-sentencing unsworn statement containing

material that does not mitigate, extenuate, or rebut, the

military judge should exclude that information as

irrelevant to proper sentencing consideration.   Such action

not only preserves the accused’s rights as conferred by the

Manual, it also prevents confusion, distraction and waste

of time.




                             6
