An unsworn statement is an approved method of addressing the sentencing authority in a court-martial when there has been a finding of guilty as to any specification or even as to a lesser-included offense.
This article is intended to explain a military client’s right to make a statement to the judge or court members orally or in writing, by your attorney, by you, or by both. This is the client’s one chance to speak directly to the person (or persons) that will sentence him; as such, we strongly recommend that clients make a statement in some form. Recall that if a client makes the statement under oath, the prosecutor can and most likely willcross-‐ examine her and remind the person deciding your sentence about everything that the client did wrong.
To assist our clients in putting together their statement, we also provide clients with a separate outline which will help organize their thoughts.
Understand that this is simply a general guideline.
The purpose of an unsworn statement is to provide information about you, your crime (if you committed any), and your situation to permit the person (or persons) who will sit in judgment for you in making an informed decision as to your punishment based off the big picture.
Essentially, you will tell the story of your life and the circumstances of how you came to be accused to the Military Judge or the Members.
Don’t say anything unless it is true. If you make an unsworn statement and something you say is false, the prosecutor has an opportunity to call witnesses or introduce documentation to show that what you said was a lie. If you lie and such evidence is introduced, the sentencing authority can take your lies into account as a signof your lack of rehabilitative potential.
When you are delivering your unsworn statement, always remember that sincerity is infinitely more important than volume or length. Never employ fake emotion; everyone will see through it.
Remember to look at the judge (or panel) directly and speak sincerely to them. Even though you are in the military and are expected to maintain your bearing, emotion is permitted. But do not attempt to create false emotion to try to elicit sympathy; judges and panels are adept at spotting insincerity, and it will only make your punishment more severe.
Speak deliberately and clearly. Remember that often when people are nervous, they tend to speak quickly. Make sure that you speak in a manner that will permit the listener to understand you; this may be the most important message you ever deliver. Slow down and allow your message to be heard.
Formulate an apology and address your apology to the victim of your crime even if that victim or those victims are not present in court. If you pleaded not guilty but were found guilty anyway, there is a nuance in how to apologize but not undermine any potential appeal that you have. Be sure to hire learned counsel to assist you.
Give some background about who you are, where you came from, and the composition of your family growing up. Providing personal information about your background helps to humanize you. It is far more difficult to sentence a person harshly if the sentencing authority sees you as a person and not a crime. Share about who you are and where you came from. If you have a strong religious faith or strong moral background from your family, the sentencer should know this about you.
Mention any significant financial obligations that you have and provide documentation of those obligations to your attorney in the event that the attorney elects to submit the documentation either for the court’s consideration or as a post-‐trial submission request for financial clemency.
Notify the court of your educational background. Part of what the punishment will balance is whether you will be restored to a constructive and useful place in or out of the military. Demonstrating that you achieved a specific educational goal can also speak to your determination.
Explain why you felt the call to serve. Include if you have any family members who are veterans, andespecially include any armed conflicts that they fought in or exemplary awards they achieved and how their service inspired you (if it did).
Notify the court of your educational background.
List deployments, their duration, and specific significant accomplishments.
Explain any special circumstances surrounding your misconduct. Remember that it is important to accept responsibility for your misconduct, but it is also important that the sentencing authority understand if there are any extenuating or mitigating factors.
Accept responsibility. Empathy, embarrassment, and shame are often hallmarks of a person who is capable of change and rehabilitation. Rehabilitation is a significant factor in sentencing and is recognized as such. Describe what it has been like being under investigation, but don’t complain. The point is to explain how you feel and how feeling that particular way is an indicator that you won’t repeat mistakes or commit crimes in the future.
Address Future Service / Plans. In consultation with your attorney, you will want to decide whether (and perhaps based on the result of the trial if it were contested) whether you have a viable chance to be retained in the service. If you want to continue to serve, make sure the members or judge knows that you do. If you believe it is unlikely that you will be retained, inform the judge or members what you plan to do outside the military. Forward planning can be an important indicator of accepting responsibility and that you are capable of rehabilitation.
End with an apology and a respectful request. Apologies can be tricky, especially when you pleaded not guilty. Be sure to apologize for how a person feels, not for what you did. When you make a request, remember that we often discourage you from asking for a specific sentence. Instead focus your request on mercy or as similar theme that speaks to you.
Be flexible, and also be prepared to receive constructive feedback. Understand that just because you includecertain information or certain phrases to me that you believe should be included in your unsworn statement, there maybe a valid reason for omitting certain information or for rephrasing how something is worded.
Be willing to help. We are working hard to ensure that the most effective unsworn statement is provided in order to tryto achieve the lowest possible sentence in your case. But we cannot do it alone and you are in the best position to help us make your unsworn statement the best it can be.
*This post is not legal advice. This post is not intended to serve as a substitute for proper tailored legal advice. All cases are unique.