This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Sean W. HARRINGTON, Airman First Class

United States Air Force, Appellant

No. 22-0100

Crim. App. No. 39825

Argued Oct. 26, 2022—Decided August 10, 2023

Military Judge: Christopher M. Schumann

For Appellant: Major Matthew L. Blyth (argued); Lieutenant 

Colonel Kirk W. Albertson and Mark C. Bruegger, Esq. (on 

brief).

For Appellee: Major Morgan R. Christie (argued); Colonel 

Naomi P. Dennis, Lieutenant Colonel Matthew J. Neil, and

Mary Ellen Payne, Esq. (on brief); Major Brittany M. Speirs.

Judge HARDY delivered the opinion of the Court, in which 

Chief Judge OHLSON, Judge SPARKS, and Senior Judge 

EFFRON joined. Judge MAGGS filed a separate opinion

concurring in part and dissenting in part.

_______________
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

2

Judge HARDY delivered the opinion of the Court.

A general court-martial convicted Appellant of involuntary manslaughter, communicating a threat, and two specifications related to the unlawful use of cocaine and marijuana. The panel members sentenced Appellant to a 

reduction in grade to E-1, fourteen years of confinement, 

and a dishonorable discharge. The United States Air Force 

Court of Criminal Appeals (AFCCA) affirmed the findings 

and sentence. United States v. Harrington, No. ACM 

39825, 2021 CCA LEXIS 524, at *4, 2021 WL 4807174, at 

*2 (A.F. Ct. Crim. App. Oct. 14, 2021) (unpublished).

We granted review to decide three issues. First, 

whether the evidence was legally sufficient to support Appellant’s conviction for communicating a threat. Second, 

whether the military judge abused his discretion by denying Appellant’s request to instruct the panel members on 

the maximum punishment available for each of Appellant’s 

offenses of conviction. And third, whether the military 

judge abused his discretion in allowing the Government 

trial counsel to participate in the delivery of the unsworn 

statement of the homicide victim’s parents.

Because we conclude that the evidence was sufficient to 

allow any rational panel to find the elements of communicating a threat proven beyond a reasonable doubt, we decline to grant Appellant relief on the first issue.

However, we answer the second and third granted issues in the affirmative and conclude that Appellant is entitled to relief on these issues. The military judge abused 

his discretion in denying Appellant’s request for an instruction on the maximum punishment for each individual offense because he did so based on an incorrect understanding of the law. Contrary to the military judge’s apparent 

understanding, he possessed the discretion to instruct the 

panel on the maximum punishments available for each individual offense, in addition to informing them of the maximum cumulative punishment available for all offenses. 

We also conclude that the military judge abused his discretion in permitting the victim’s parents to deliver their 
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

3

unsworn statements through a question-and-answer format with trial counsel. Trial counsel’s participation in the 

presentation of the unsworn victim statements is incompatible with the principle that unsworn victim statements

are the sole province of the victim or the victim’s designees.

The Government failed to meet its burden of proving 

that the two errors did not have a substantial influence on 

the adjudged sentence. We therefore affirm the AFCCA

with respect to the findings but reverse with regard to the

sentence.

I. Background

In July 2017, Appellant lived with roommates AB and 

BI. One night, AB went out with her friends, returning 

around four o’clock the next morning. AB testified that 

when she returned, she witnessed Appellant snort something that looked like cocaine. When AB got up the next 

day, she found liquor all over the house and could tell that 

Appellant and BI had been drinking heavily. AB then drove 

BI to an Alcoholics Anonymous (AA) meeting. While AB 

and BI were out, Appellant engaged AB in an exchange of 

text messages that formed the basis for his conviction for 

communicating a threat. In a string of texts, Appellant 

asked AB what had happened the previous night, explaining that he was at that moment “outside,” “tripping balls 

so hard,” and “damn near naked.” Appellant told AB, “you 

are my light right now.” He also expressed fury that someone had “hog tied” him while he was asleep or otherwise 

incapacitated. Appellant repeatedly pressed AB for information on who had tied him up, and stated, “whoever the 

sick sadistic mf who did this I’m going to kill.” Appellant 

texted AB, “[t]ell me who did it and I’ll go easy on you.” 

Appellant said he was “dead as [sic] serious” and, after 

pressing AB on who had tied him up, asked “did anyone 

come over?” BI testified that AB thought Appellant was being “rude,” and that AB seemed “annoyed” at these texts. 

When AB and BI returned home, Appellant was sitting 

in a chair with a handgun nearby and something like twine 

strewn around him. At trial, AB testified that she knew 
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

4

before this incident that Appellant owned a gun, although 

she had never seen it. AB claimed that Appellant turned 

the gun to point it toward her, but BI testified that he never 

saw Appellant move the weapon. AB testified that Appellant’s previous text messages “became real” upon seeing 

Appellant with the gun. The situation resolved after BI 

took the gun and walked away with it.

The Government charged Appellant with communicating a threat in violation of Article 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 934 (2012), and aggravated assault, in violation of Article 128, UCMJ, 10 

U.S.C. § 928 (2012), in connection with these events.1 The 

Government also charged Appellant with using cocaine 

and marijuana on divers occasions, both in violation of Article 112a, UCMJ, 10 U.S.C. § 912a (2012). 

After the referral of these charges to a general courtmartial, Appellant was involved in a shooting that resulted 

in the death of a fellow airman. Appellant called the police 

the morning of July 5, 2018, and reported that his friend 

had been shot in the head. Appellant told the operator that 

the victim had been “playing with a . . . gun.” Although Appellant initially denied knowing what had happened, he

eventually admitted that the gun had accidentally “discharged” in his own hand. The victim died four days later.

After the shooting, the convening authority withdrew 

and dismissed the original charges to provide for “further 

investigation of additional charges and consolidation of all 

known charges into one proceeding.” The convening 

authority ultimately referred the final charges to trial by 

general court-martial on February 27, 2019.2 A military 

1 The specification for communicating a threat referenced 

Appellant’s texts “whoever the sick sadistic mf who did this I’m 

going to kill” and “[t]ell me who did it and I’ll go easy on you.” It 

did not include the alleged displaying or brandishing of the 

handgun.

2 All of Appellant’s crimes occurred before January 1, 2019. 

However, because the repreferral occurred after January 1, 
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Opinion of the Court

5

judge convicted Appellant, consistent with his pleas, of 

using cocaine and marijuana on divers occasions, both in 

violation of Article 112a, UCMJ. Also consistent with his 

pleas, the panel members found Appellant not guilty of 

aggravated assault in violation of Article 128, UCMJ, for 

allegedly pointing his handgun at AB. Contrary to his 

pleas, however, the panel members convicted Appellant of 

communicating a threat in violation of Article 134, UCMJ. 

Although the Government had charged Appellant with 

murder for the death of the shooting victim, the members 

convicted Appellant, contrary to his pleas, of the lesser 

included offense of involuntary manslaughter in violation 

of Article 119, UCMJ, 10 U.S.C. § 919 (2012).

Two events occurred during the sentencing phase of Appellant’s court-martial that form the basis of the second 

and third questions presented. First, the military judge denied Appellant’s request to instruct the panel about the 

maximum punishment for each of the four offenses for 

which the court-martial found Appellant guilty. Second, 

the military judge overruled Appellant’s objection to the 

presentation of the victim’s parents’ unsworn victim statements via a question-and-answer format with trial counsel. 

Additional details about each of these events are presented 

below. 

The panel members sentenced Appellant to a dishonorable discharge, reduction to the grade of E-1, and confinement for fourteen years. The convening authority took no 

action on the findings or sentence, and the AFCCA affirmed. Harrington, 2021 CCA LEXIS 524, at *4, 2021 WL 

4807174, at *2. 

We granted review to decide three issues: 

2019, unless otherwise noted, all references to the nonpunitive 

articles of the UCMJ, Rules for Courts-Martial (R.C.M.), and 

Military Rules of Evidence are to the Manual for Courts-Martial, 

United States (2019 ed.) (MCM).
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

6

I. Whether the evidence is legally sufficient to support Appellant’s conviction for communicating a 

threat?

II. Did the military judge abuse his discretion by 

refusing to instruct the members of the maximum 

confinement for each offense, which ultimately resulted in an excessive 14-year sentence?

III. Whether the military judge abused his discretion in allowing the victim’s parents to take the 

witness stand and deliver unsworn statements in 

question-and-answer format with trial counsel?

United States v. Harrington, 82 M.J. 267 (C.A.A.F. 2022) 

(order granting review). We address each issue in turn. 

II. Discussion

A. Legal Sufficiency of Appellant’s Conviction

for Communicating a Threat

We review the legal sufficiency of convictions de novo. 

United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (citing United States v. Kearns, 73 M.J. 177, 180 (C.A.A.F. 

2014)). A conviction is legally sufficient if, “ ‘after viewing 

the evidence in the light most favorable to the prosecution, 

any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United 

States v. Robinson, 77 M.J. 294, 297-98 (C.A.A.F. 2018) 

(quoting United States v. Rosario, 76 M.J. 114, 117 

(C.A.A.F. 2017)). Because we impinge upon the panel’s discretion “only to the extent necessary to guarantee the fundamental protection of due process of law,” Jackson v. Virginia, 443 U.S. 307, 319 (1979), we impose “a very low 

threshold” to sustain a conviction, King, 78 M.J. at 221 (internal quotation marks omitted) (citation omitted). 

The President has specified four elements for communicating a threat under Article 134, UCMJ: (1) that the accused communicated certain language expressing a present determination or intent to wrongfully injure the 

person, property, or reputation of another person, presently or in the future; (2) that the communication was 

made known to that person or to a third person; (3) that 

the communication was wrongful; and (4) that, under the 
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Opinion of the Court

7

circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or 

was of a nature to bring discredit upon the armed forces. 

MCM pt. IV, para. 110.b. (2016 ed.); see also United States 

v. Rapert, 75 M.J. 164, 166-67 (C.A.A.F. 2016). Appellant 

argues that no reasonable factfinder could have found the

first and third elements proven beyond a reasonable doubt.

The first element of communicating a threat requires 

an objective inquiry, analyzing the existence of a threat 

from the viewpoint of a “reasonable person in the recipient’s 

place.” United States v. Phillips, 42 M.J. 127, 130 (C.A.A.F. 

1995) (emphasis added). This objective inquiry examines

both the language of the communication itself as well as its 

surrounding context, which may qualify or belie the literal 

meaning of the language. United States v. Brown, 65 M.J. 

227, 231 (C.A.A.F. 2007). In contrast to the first element, 

the third element’s requirement of wrongfulness is 

properly understood in relation to the subjective intent of 

the speaker. Rapert, 75 M.J. at 169. In determining if the 

speaker’s subjective intent was wrongful under the third 

element, the key question is not whether the speaker intended to carry out the object of the threat, but rather 

“whether the speaker intended his or her words to be understood as sincere.” Id. at 169 n.10. 

In this case, we first hold that the Government introduced sufficient evidence for a rational factfinder to conclude that a reasonable person would have perceived the 

communications as threatening. Appellant used inherently 

menacing language that expressed both violence (“whoever 

the sick sadistic mf who did this I’m going to kill”) and sincerity (“I’m f**king dead as [sic] serious”). Appellant’s 

statement to AB to “[t]ell me who did it and I’ll go easy on 

you” could reasonably be interpreted as threatening violence against AB when read in context alongside the other

messages. 

Bolstering this conclusion is AB’s testimony that she 

was aware Appellant owned a gun. Appellant also indicated to AB during their exchange of texts that he was under the influence of drugs. It would not be irrational for the 
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

8

panel to conclude that Appellant’s declaration of his intent 

to kill would be perceived as more threatening by a reasonable person who knew that Appellant was both intoxicated 

and in possession of a deadly weapon.

In support of his legal insufficiency argument, Appellant points to various pieces of evidence that he claims directly conflict with the panel members’ findings. For example, he notes that just three days after Appellant sent AB 

the threatening text messages, AB invited Appellant to 

“[c]ome smoke with [her].” Appellant also points to BI’s testimony, which described AB’s reaction to the texts as one 

of annoyance rather than fear. This evidence does not preclude a determination that Appellant’s texts would be perceived as threatening by a reasonable recipient. Although 

the recipient’s reaction to the alleged threat provides useful context, it does not control any element of communicating a threat under Article 134, UCMJ. Even if the panel

had fully credited BI’s testimony (which it was under no 

obligation to do) and found that AB did not actually feel 

threated by the texts, the panel could nevertheless have 

concluded that AB’s reaction simply differed from that of a 

reasonable person.3

We also hold that a rational factfinder could have concluded that Appellant subjectively intended his messages 

to be perceived as threatening. Much of the evidence supporting the panel members’ determination that the texts 

were objectively threatening also supports this conclusion. 

For example, a rational trier of fact could have found that 

the menacing language of the messages indicated a subjective intent to threaten the recipient. 

We note that Appellant allegedly displayed his handgun 

to AB and BI upon their return from the AA meeting. 

3 Indeed, the panel would have had good reason not to credit 

BI’s testimony. BI testified that he could not “recall” or “remember” various details about the interactions between AB and Appellant. He also testified that he never saw the text messages at 

issue in the case and that he was intoxicated at the time of some 

of the events in question.
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

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Appellant argues that we should not consider this fact 

when analyzing the context around the text messages 

given the potential for overlap between this conduct and 

the panel’s not guilty verdict on the charge of aggravated 

assault. Although Appellant concedes that “ ‘defendants 

are generally acquitted of offenses, not of specific facts, and 

thus to the extent facts form the basis for other offenses, 

they remain permissible for appellate review,’ ” Reply for 

Appellant at 6-7, United States v. Harrington, No. 22-0100 

(C.A.A.F. May 23, 2022) (alteration in original removed) 

(quoting Rosario, 76 M.J. at 117), he attempts to distinguish this case based on the passage of time between the 

sending of the text messages and the alleged display of the 

handgun. 

We decline to adopt a bright-line rule as to when laterin-time conduct may be considered and instead hold that 

the appropriateness of considering such conduct will turn 

on the facts of each individual case. Here, the Government 

introduced evidence sufficient for a rational factfinder to 

conclude that Appellant displayed the gun less than thirty 

minutes after the exchange of texts. Given that the menacing gesture occurred so soon after Appellant sent the 

threatening texts, the panel could permissibly consider the 

conduct in concluding that Appellant subjectively intended 

the text messages to be threatening. Accordingly, Appellant’s attempt to distinguish the rule from Rosario is unpersuasive.4

We cannot say that no rational trier of fact could find 

the objective and subjective elements of communicating a 

threat proven beyond a reasonable doubt here. As a result, 

the evidence is legally sufficient to support Appellant’s 

4 Appellant also argues that Rosario is distinguishable because, according to Appellant, AB could not have been a credible 

witness. However, credibility determinations are uniquely the 

province of the trier of fact, and we will not disturb Appellant’s 

conviction on this ground. See United States v. Scheffer, 523 U.S. 

303, 312-13 (1998) (discussing that in criminal trials, a “core 

function” of the factfinder is to make credibility determinations).
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

10

conviction for communicating a threat under Article 134, 

UCMJ. 

B. Denial of Appellant’s Requested Instruction

on the Maximum Punishment for Each Offense

Prior to the parties’ sentencing arguments, the military 

judge held an Article 39(a) session outside the presence of 

the panel members.5 At this hearing, defense counsel requested that during the sentencing instructions, the military judge explain to the members the maximum possible 

punishment for each offense. The military judge denied 

this request, stating:

Members are never instructed on what a specific 

maximum punishment is for each individual offense. It’s under our unitary principle. They’re always just told here’s the maximum and they are 

at liberty to decide that either the maximum or no 

punishment is appropriate in light of all of the offenses in the case.

Transcript of Record at 1131-32, United States v. Harrington, __ M.J. __ (C.A.A.F. 2023) (No. 22-0100). In support of 

his ruling, the military judge cited both R.C.M. 1005(e)—

which requires the military judge to instruct the panel on 

the maximum authorized punishment that may be adjudged—and an Army service court opinion, United States 

v. Purdy, 42 M.J. 666 (A. Ct. Crim. App. 1995). In Purdy, 

the United States Army Court of Criminal Appeals (ACCA) 

stated: “Court members should not be informed of the reasons for the maximum period of confinement. They should 

only be concerned with the maximum imposable sentence 

and not the basis for the limitation.” Id. at 671. Appellant 

argues that the military judge erred by denying defense 

counsel’s requested instruction.6

5 See Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2018) (authorizing military judges to hold proceedings outside the presence of 

the members for certain purposes).

6 It bears noting that panel sentencing instructions will cease 

to be an issue in noncapital cases in the military justice system. 

Congress recently amended Article 53, UCMJ, 10 U.S.C. § 853, 
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11

We review a military judge’s denial of a proposed instruction for an abuse of discretion. United States v. Carruthers, 64 M.J. 340, 345-46 (C.A.A.F. 2007) (first citing 

United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 

1993); and then citing United States v. Rasnick, 58 M.J. 9, 

10 (C.A.A.F. 2003)). Generally, a military judge “has substantial discretionary power in deciding on the instructions 

to give” in response to requests by counsel. Damatta-Olivera, 37 M.J. at 478. In the specific context of a military 

judge’s denial of a requested instruction, an abuse of discretion will occur if: (1) the requested instruction was correct; (2) the instruction was not substantially covered by 

the main instruction; and (3) the instruction was on such a 

vital point in the case that the failure to give it deprived 

the accused of a defense or seriously impaired its presentation. Carruthers, 64 M.J. at 346. More generally, however, 

any legal ruling based on an erroneous view of the law also 

constitutes an abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (first citing United 

States v. Griggs, 61 M.J. 402, 406 (C.A.A.F. 2005); then citing United States v. Wardle, 58 M.J. 156, 157 (C.A.A.F. 

2003); and then citing United States v. Sullivan, 42 M.J. 

360, 363 (C.A.A.F. 1995)).

Under the version of the UCMJ and Rules for CourtsMartial that apply in this case, military courts impose unitary sentences—a single sentence that accounts for all the 

offenses for which the defendant was found guilty rather 

than distinct sentences for each individual offense of conviction. R.C.M. 1002(b) (2016 ed.).7 Consistent with this 

to provide for military judge-alone sentencing in such cases. National Defense Authorization Act for Fiscal Year 2022, Pub. L. 

No. 117-81, § 539E(a), (f), 135 Stat. 1541, 1700, 1706 (2021) 

(providing that the provisions regarding military judge-alone 

sentencing “shall apply to sentences adjudged in cases in which 

all findings of guilty are for offenses that occurred after the date 

that is two years after the date of the enactment of [the] Act).

7 The President specified that the version of Article 56(c) 

(“Imposition of Sentence”) in effect in 2019 and its associated 
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12

approach, R.C.M. 1005(e)(1) requires the military judge to 

instruct panel members on the maximum authorized punishment that may be adjudged. In a case involving multiple 

offenses, this maximum authorized punishment is the cumulative total of the punishments authorized by the Manual for each offense of conviction. See R.C.M. 1005(e) Discussion. In United States v. Gutierrez, this Court’s 

predecessor recognized that even under the military’s unitary sentencing system, a military judge is not prohibited 

from instructing panel members on the maximum punishments authorized for each offense of conviction in addition 

to the maximum cumulative punishment. 11 M.J. 122, 124 

(C.M.A. 1981).

Although our predecessor Court’s opinion in Gutierrez

would appear to settle the question whether a military 

judge has discretion to instruct panel members on the maximum punishments authorized for each offense of conviction, the Government argues that intervening changes in 

the Manual abrogated that decision, stripping the military 

judge of any authority to give the requested instruction. 

The Government even suggests that “the military judge 

would have abused his discretion if he gave the defenserequested instruction without any basis in law to do so.” 

Brief for Appellee at 31, United States v. Harrington, No. 

22-0100 (C.A.A.F. May 13, 2022).

We find nothing in the Manual that supports this assertion. R.C.M. 1005(e)(1)’s requirement that a military judge 

must instruct the panel members on the maximum cumulative sentence in no way prohibits an additional instruction on the maximum punishment for each offense of conviction. Despite the intervening changes to the Manual

rules would apply only to cases in which all specifications allege 

offenses committed on or after January 1, 2019. 2018 Amendments to the Manual for Courts-Martial, United States, Exec. 

Order No. 13,825, § 10(a), 83 Fed. Reg. 9889, 9890-91 (Mar. 1, 

2018). Here, Appellant committed all his offenses before January 1, 2019. Accordingly, the 2016 edition of R.C.M. 1002(b) and 

R.C.M. 1005(c) and (e) (which implement Article 56(c)) governed 

Appellant’s court-martial.
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upon which the Government relies, the military judge in 

Gutierrez was also required to instruct panel members 

about the maximum authorized punishment, MCM para. 

76.b(1) (1969 rev. ed.), and the Court implicitly rejected the 

argument—raised by Chief Judge Everett in his concurring 

opinion—that an instruction as to the maximum punishment for each separate offense “runs counter to the theory 

of the ‘unitary sentence.’ ” Gutierrez, 11 M.J. at 125 (Everett, C.J., concurring in the judgment). Indeed, the companion provision of R.C.M. 1005(c) explicitly permits parties to 

request instructions on the law of sentencing. See 

R.C.M. 1005(c) (2016 ed.) (explaining that “any party may 

request that the military judge instruct the members on 

the law as set forth in the request”). We see no reason why 

this would not include a request for an instruction about 

the maximum punishment for each offense of conviction.8

At oral argument, the Government posited a different 

defense of the military judge’s ruling: that he denied defense counsel’s request not because he thought it was unlawful to give such an instruction, but because it would be 

imprudent to do so.9 If we could accept this interpretation 

of the military judge’s ruling—that the military judge recognized that he could grant Appellant’s request, but he was 

declining to do so—we would review it for an abuse of discretion. Carruthers, 64 M.J. at 345-46; see also Gutierrez, 

8 The Government does not rely upon the ACCA’s decision in 

Purdy in support of its argument that the military judge lacked 

authority to give the requested instruction. We note, however, 

that the lower court’s reliance on Purdy was misplaced for two 

reasons. First, the ACCA’s decision in Purdy addressed a different sentencing issue—whether the military judge erred by informing the jury that the maximum possible confinement to 

which the panel could sentence the accused had been reduced 

due to a multiplicity issue. And second, the ACCA’s decision in 

Purdy could not overturn our predecessor’s decision in Gutierrez.

9 See Oral Argument at 32:31-36:34, United States v. 

Harrington, __ M.J. __ (C.A.A.F. Oct. 26, 2022) (No. 22-0100) 

https://www.armfor.uscourts.gov/newcaaf/CourtAudio11/20221

026B.mp3.
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14

11 M.J. at 124 (suggesting that individualized instructions 

would not be permissible if they “mislead the members as 

to the total maximum punishment”). The Government’s argument fails because the military judge’s ruling does not 

support such a characterization.

In denying Appellant’s request, the military judge 

explained: 

Members are never instructed on what a specific 

maximum punishment is for each individual offense. It’s under our unitary principle. They’re always just told here’s the maximum and they are 

at liberty to decide that either the maximum or no 

punishment is appropriate in light of all of the offenses in the case.

Transcript of Record at 1131-32, United States v. Harrington (No. 22-0100). The military judge’s absolutist language—that “members are never instructed” and that 

“[t]hey’re always just told”—undermines the Government’s 

interpretation of the ruling. (Emphasis added.) The most 

natural reading of the military judge’s comments parallels 

the reasoning of the Government’s original argument: that 

members are never instructed on maximum sentences for 

individual offenses of conviction because such instructions 

are never permissible under a unitary sentencing system. 

See Brief for Appellee at 29, United States v. Harrington, 

No. 22-0100 (C.A.A.F. May 13, 2022) (asserting that “the 

plain language of R.C.M. 1005(e) . . . did not allow for the 

defense’s requested instruction”). 

Contrary to the military judge’s apparent understanding (and the Government’s argument in support of that apparent understanding), neither the practice of general unitary sentencing nor the Rules for Courts-Martial foreclosed 

the military judge from instructing the panel on the maximum punishment for each offense of conviction. The military judge therefore abused his discretion by declining 
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15

Appellant’s requested instruction based on an erroneous 

view of the law.10

C. Delivery of a Victim’s Unsworn Statement via

Answers to Trial Counsel’s Questioning

Upon learning that the Government intended to present 

the unsworn statements of Appellant’s victim’s parents in 

a question-and-answer format with trial counsel, defense 

counsel objected, arguing that the format was not permissible under R.C.M. 1001(c). The military judge overruled 

the objection, stating that R.C.M. 1001(c) did not prohibit 

the format and noting that R.C.M. 801(a)(3) empowered 

him to exercise reasonable control over the proceedings. 

The military judge agreed with the Government that the 

format would give trial counsel greater control over the 

scope of questioning to keep their statements within the 

appropriate confines of R.C.M. 1001.

We review a military judge’s interpretation of 

R.C.M. 1001 de novo. United States v. Edwards, 82 M.J. 

239, 243 (C.A.A.F. 2022). We review a military judge’s admission of an unsworn victim statement for an abuse of discretion. Id. A military judge abuses his discretion when his 

legal findings are erroneous, United States v. Barker, 77 

M.J. 377, 383 (C.A.A.F. 2018), or when he makes a clearly 

erroneous finding of fact. United States v. Eugene, 78 M.J. 

132, 134 (C.A.A.F. 2018). 

Once again, this Court is presented with the question 

whether a novel approach toward the delivery of a victim’s 

unsworn statement exceeds what the President has authorized under R.C.M. 1001(c)(5), and again we conclude 

10 To be clear, nothing in this opinion should be interpreted 

as requiring a military judge to instruct the members on the 

maximum sentence for each offense should the accused request 

such an instruction. We only hold that the military judge abused 

his discretion because of his misbelief that such an instruction 

was foreclosed as a matter of law. Because the military judge 

abused his discretion in this manner, we need not—and do not—

express a view on what the outcome would have been here of 

applying the three-part test from Carruthers, 64 M.J. at 346.
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16

that it does. See Edwards, 82 M.J. at 241 (finding reversible error when the military judge allowed the victim’s designee to present his unsworn victim statement in the form 

of a video slideshow set to background music). Presentation 

of the victim’s unsworn statement via a question-and-answer format with trial counsel violates the Rules for 

Courts-Martial because it contravenes the principle that 

an unsworn victim statement belongs solely to the victim 

or the victim’s designee. Id. (first citing United States v. 

Hamilton, 78 M.J. 335, 342 (C.A.A.F. 2019); and then citing

Barker, 77 M.J. at 378). 

Historically, criminal trials have been an adversarial 

proceeding between two opposing parties—the accused and 

the government. See Juan Cardenas, The Crime Victim in 

the Prosecutorial Process, 9 Harv. J. L. & Pub. Pol’y 357, 

371 (1986) (noting that “the American system of public 

prosecution was fairly well established by the time of the 

American Revolution”). More recently, Congress has 

changed the traditional paradigm by providing the victims 

of the accused’s crimes with limited authority to participate in the proceedings. See, e.g., Crime Victims’ Rights 

Act, 18 U.S.C. § 3771 (2018) (establishing the rights of 

crime victims in federal courts); Article 6b, UCMJ, 10 

U.S.C. § 806b (2018) (establishing the rights of crime victims in the military justice system). In the military justice 

system, victims of certain sex-related offenses and certain 

domestic violence offenses not only have limited rights to 

participate in the proceedings but may also be represented 

by a special victims’ counsel at government expense. Special victims counsel represent the victim’s interests instead 

of the government’s. See 10 U.S.C. § 1044e(c) (“The relationship between a Special Victims’ Counsel and a victim 

in the provision of legal advice and assistance shall be the 

relationship between an attorney and client.”). Although 

the interests of victims and the government often align, we 

note that this is not always the case. See, e.g., United States 

v. Horne, 82 M.J. 283, 289-90 (C.A.A.F. 2022) (holding that 

trial counsel committed unlawful command influence when 
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

17

she instructed investigators not to interview the victim’s 

husband at the special victims’ counsel’s request). 

Among the rights granted by Congress to victims of an 

offense in the military justice system is “[t]he right to be 

reasonably heard” at the court-martial sentencing hearing

related to that offense. Article 6b(a)(4), UCMJ. In noncapital cases, the President has authorized a victim (or the victim’s lawful representative or designee) to exercise that 

right by making “a sworn statement, an unsworn statement, or both.” R.C.M. 1001(c)(2)(D)(ii). If a victim elects to 

make an unsworn statement—as the parents of Appellant’s

shooting victim did in this case—the unsworn statement 

may be delivered orally, or in writing, or in a combination 

of both formats. R.C.M. 1001(c)(5)(A). The President has 

expressly authorized the victim’s counsel to deliver all or 

part of the victim’s unsworn statement on behalf of the victim for good cause shown. R.C.M. 1001(c)(5)(B).

In Edwards, this Court reaffirmed the principle “that 

unsworn victim statements belong solely to the victim or 

the victim’s designee.” 82 M.J. at 246 (first citing Barker, 

77 M.J. at 378, and then citing Hamilton, 78 M.J. at 342). 

We explained that the government may not use unsworn 

victim statements to supplement its own sentencing arguments, nor may it misappropriate the victim’s statutory 

right to be heard. Id. By participating in the delivery of the 

victim statements, the trial counsel in this case violated 

that principle.

The Government defends trial counsel’s actions in this 

case as mere “facilitation,” and points out that the question-and-answer format did not involve the same level of 

government involvement as was present in Edwards. Brief 

for Appellee at 42-43, United States v. Harrington, No. 22-

0100 (C.A.A.F. May 13, 2022). In essence, the Government 

argues that instead of adopting a bright-line rule forbidding any participation by trial counsel in the presentation 

of unsworn victim statements, we should allow some level 

of trial counsel assistance, especially when—as was the 

case here—those speaking on behalf of the victim were not 
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

18

represented by a special victims’ counsel. We decline to 

adopt this approach for three reasons.

First, as the military justice system proceeds into a future where multiple entities participate in courts-martial 

proceedings—including the accused, the government, and 

the victim—we recognize the importance of maintaining 

the separate authorities of each as set out by Congress and 

the President. Unsworn victim statements are not sentencing evidence, but vindication of the victim’s statutory right 

to be reasonably heard. United States v. Tyler, 81 M.J. 108, 

112 (C.A.A.F. 2021); Article 6b(a)(4)(B), UCMJ. Unsworn 

victim statements are not delivered under oath, the victim 

making the unsworn statement is not considered a “witness” for the purposes of Article 42(b), UCMJ, 10 U.S.C. 

§ 842(b), the victim may not be cross-examined by either 

trial or defense counsel, and unsworn statements are not 

subject to the Military Rules of Evidence. Tyler, 81 M.J. at 

112; R.C.M. 1001(c)(1), (c)(5)(A). Trial counsel’s participation in the presentation of the unsworn statement—especially in a question-and-answer format that closely resembles the presentation of actual evidence during every other 

phase of the trial—unnecessarily blurs the distinction between actual sentencing evidence and the unsworn victim 

statement.11

Second, the Government’s own statements to the military judge in response to defense counsel’s objection to the 

proposed format of the unsworn victim statement belie the 

Government’s argument here that trial counsel’s participation was mere “facilitation.” The Government defended the 

question-and-answer format specifically on the ground 

11 The Government argues that Appellant waived any objection to the fact that the victim’s parents sat in the witness stand 

when they participated in the question-and-answer exchange 

with trial counsel. Appellant raised a timely objection prior to 

the delivery of the unsworn victim statements to the questionand-answer format proposed by the trial counsel. We find Appellant’s general objection to the format—and the absence of any 

specific waiver related to the witness stand—sufficient to allow 

us to consider this fact on appeal.
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

19

that it gave trial counsel the ability to control the flow of 

the statement and prevent it from going outside the bounds 

permitted by the rules. We take the Government at its 

word that it had laudable intentions—preventing a potential violation of R.C.M. 1001(c)(3)’s limits on what may be 

included in an unsworn victim statement—by adopting the 

question-and-answer format, but this approach still gave 

trial counsel influence over the substance of the statement. 

By ceding control of the victim statement to trial counsel, 

the military judge made it impossible for us to attribute 

these unsworn statements “solely to the victim[s].” Edwards, 82 M.J. at 246 (first citing Barker, 77 M.J. at 378;

and then citing Hamilton, 78 M.J. at 342).12

Finally, we disagree with the Government that Article 6b(a)(5), UCMJ, requires that trial counsel be allowed 

to engage the victim in a question-and-answer format to 

present an unsworn victim statement. This provision 

grants the victim “[t]he reasonable right to confer with the 

counsel representing the Government” at several trial proceedings, including sentencing. Article 6b(a)(5), UCMJ. 

The Government reads this provision, alongside Article 6b(a)(4)’s granting of the right to be reasonably heard, 

to mean that trial counsel may “facilitate” the right to be 

reasonably heard through a question-and-answer format 

with trial counsel, if desired by the victim. Brief for Appellee at 45, United States v. Harrington, No. 22-0100 

(C.A.A.F. May 13, 2022). This argument stretches the 

meaning of “confer” too far. Given the absence of any suggestion in the Rules for Courts-Martial that trial counsel 

may participate in the delivery of an unsworn statement, 

and the presence of an express provision permitting “the 

12 We note that the Government is not powerless to prevent 

the victim from exceeding the limits of R.C.M. 1001(c)(3) even if 

trial counsel does not participate in the presentation of the unsworn victim statement. The Discussion to R.C.M. 1001(c)(5) expressly notes: “Upon objection by either party, . . . a military 

judge may stop or interrupt a victim’s statement that includes 

matters outside the scope of R.C.M. 1001(c)(3).” (Emphasis 

added.)
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Opinion of the Court

20

crime victim’s counsel, if any, to deliver all or part of the 

crime victim’s unsworn statement,” for good cause shown, 

R.C.M. 1001(c)(5)(B), we believe that Article 6b(a)(5) 

simply grants the victim the right to seek the advice or 

opinion of trial counsel in preparation for making an unsworn statement. See Merriam-Webster’s Collegiate Dictionary 260 (11th ed. 2020) (confer: “to compare views or to 

take counsel”). Indeed, it would be passing strange to read 

the Article 6(b) right to confer as providing trial counsel 

with the unconditional right to participate in the delivery 

of the unsworn statement when a victim’s own counsel cannot do so absent a showing of good cause. The right to confer does not, therefore, encompass a one-sided exchange of 

questions for answers, given for the purpose of informing a 

separate listener.13

Trial counsel’s participation in the delivery of the victim’s unsworn statement via a question-and-answer format 

violates the principle that an unsworn victim statement belongs solely to the victim. We accordingly hold that the military judge abused his discretion by permitting trial counsel and the victim’s parents to present the unsworn victim 

statements in this format.14

D. Prejudice

Having found an abuse of discretion in both the denial 

of the requested instruction on maximum punishments and 

in permitting the unsworn victim statements to be delivered through a question-and-answer format with trial 

13 We also note that under R.C.M. 1001(c)(5)(B), the victim 

must present a proffer of the unsworn statement to both defense 

counsel and trial counsel, further undermining the Government’s broad interpretation of the right to confer.

14 Appellant also argues that the question-and-answer format used in this case violated R.C.M. 1001(c)(5)(A)’s requirement that the victim’s unsworn statement “be oral, written, or 

both.” Because we find that the military judge erred by allowing 

trial counsel to participate in the presentation of the unsworn 

statement, we need not and do not decide whether the questionand-answer format exceeded the limits of R.C.M. 1001(c)(5)(A). 
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

21

counsel, we now turn to the question of prejudice. To determine prejudice when errors occur during sentencing, the 

fundamental question is “ ‘whether the error substantially 

influenced the adjudged sentence.’ ” Edwards, 82 M.J. at 

246 (quoting Barker, 77 M.J. at 384). In the case at hand, 

given the presence of two separate errors during sentencing, we conclude that the Government failed to meet its 

burden of demonstrating that the cumulative errors did not 

have a substantial influence on the adjudged sentence.

1. Denial of the Requested Instruction

To evaluate prejudice when a military judge erroneously denies a requested instruction, this Court tests for 

harmless error. United States v. Rush, 54 M.J. 313, 315 

(C.A.A.F. 2001); see also United States v. Miller, 58 M.J. 

266, 271 (C.A.A.F. 2003) (characterizing its prejudice analysis simply as “[h]armlessness”). In the sentencing context, 

harmless error analysis requires the Court to determine 

whether the error “substantially influenced the sentence 

proceedings” such that it led to the appellant’s sentence being unfairly imposed. Rush, 54 M.J. at 315.

The court-martial convicted Appellant of four offenses 

that carried the following maximum sentences: involuntary manslaughter (ten years), communicating a threat

(three years), wrongful use of cocaine (three years), and 

wrongful use of marijuana (two years). MCM pt. IV, 

para. 44.e.(2), para. 110.e., para. 37.e.(1) (2016 ed.). Appellant asserts that the “severity of the drug and threat 

charges paled in comparison to the involuntary manslaughter charge, which from opening statement through 

findings was the indisputable focus of the Government’s 

case.” Brief for Appellant at 44, United States v. Harrington, No. 22-0100 (C.A.A.F. Apr. 13, 2022). Essentially, Appellant contends that the Government unfairly argued to 

the panel that Appellant should receive “at least” fifteen 

years of confinement for the involuntary manslaughter 

charge, even though the maximum punishment for involuntary manslaughter is only ten years. 

Appellant presented this concern to the military judge 
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

22

when defense counsel requested a panel instruction articulating the maximum punishment for each offense. Defense 

counsel explained that Appellant was concerned that “the 

members could be under some type of false impression that 

they could adjudge [a] 15-year sentence solely for [the involuntary manslaughter charge], which under the law they 

could not do.” Transcript of Record at 1131, United States 

v. Harrington (No. 22-0100). Appellant acknowledged that 

the panel could still be instructed that it was to adjudge a 

unitary sentence for all four offenses, but he wanted the 

panel to understand that involuntary manslaughter, 

charged on its own, carried a maximum punishment of only 

ten years and that the other ten years of possible confinement in his case were derived from the other offenses. Further review of the record of trial demonstrates that Appellant’s concerns were not unfounded.

At various points in the Government’s sentencing argument, trial counsel connected its requested fifteen years of 

confinement to the involuntary manslaughter charge. For 

example, after reminding the panel that Appellant shot the 

victim in the head, trial counsel stated, “The next 15 years 

the [victim’s family] are going to have to live with this and 

that will never take it away, 15 years is not enough to take 

away that pain.” Transcript of Record at 1138, United 

States v. Harrington (No. 22-0100). Later, trial counsel 

stated, “The [victim’s family] will never see their son. In 15 

years that’s not going to heal it but it’s a start.” Id. at 1144. 

And at the conclusion of the Government’s argument, trial 

counsel instructed the members to “think about [the shooting victim] when you go back there and we ask you that you 

give the accused a dishonorable discharge and at least 15 

years in jail.” Id. at 1145.

In Appellant’s view, the military judge’s denial of the 

requested instruction made it impossible for him to explain 

to the jury that—contrary to the impression they might 

have received from trial counsel’s sentencing arguments—

the maximum penalty for involuntary manslaughter, 

standing alone, is only ten years of confinement. Appellant 

argues that this substantially influenced the sentencing 
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

23

proceedings resulting in the panel unfairly sentencing him 

to fourteen years of confinement.

The Government did not address prejudice in its brief, 

but at oral argument the Government argued that 

Appellant was not prejudiced because his other offenses of 

conviction were themselves serious and because the 

sentence ultimately adjudged fell within the range 

permitted by the Manual. Oral Argument at 37:16-39:02,

United States v. Harrington (C.A.A.F. Oct. 26, 2022) 

(No. 22-0100). Although these points are true, they do not 

persuade us that Appellant’s sentence was not 

substantially influenced by the military judge’s error. 

The Government conceded at oral argument that Appellant could not have lawfully informed the panel of the maximum punishment for involuntary manslaughter in his 

own sentencing argument. Oral Argument at 39:06-39:14, 

United States v. Harrington (C.A.A.F. Oct. 26, 2022) 

(No. 22-0100). Accordingly, by denying Appellant’s requested instruction, the military judge deprived Appellant 

of a powerful argument: that the President had deemed 

even the worst involuntary manslaughters to warrant no 

more than ten years of confinement. Given the focus placed 

on the involuntary manslaughter conviction by the Government during sentencing and under the specific facts of this 

case, we cannot be confident that the military judge’s denial of the requested instruction did not substantially influence the adjudged sentence. 

2. Unsworn Victim Statement

When this Court finds error in the admission of sentencing matters, the test for prejudice is “ ‘whether the error 

substantially influenced the adjudged sentence.’ ” Edwards, 82 M.J. at 246 (quoting Barker, 77 M.J. at 384). The 

Government bears the burden of showing the error was 

harmless, but need not show harmlessness beyond a reasonable doubt. Id. Generally, this Court considers the four 

Barker factors in making this determination: “ ‘(1) the 

strength of the Government’s case; (2) the strength of the 

defense case; (3) the materiality of the evidence in question; 
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

24

and (4) the quality of the evidence in question.’ ” Id. at 247

(quoting Barker, 77 M.J. at 384).15 We review these four 

factors de novo. Id. at 247 n.5.

Applying the Barker factors, the Government contends

that Appellant was not prejudiced by the military judge’s 

error in allowing trial counsel to participate in the presentation of the unsworn victim statement. The Government 

asserts that its sentencing case was strong (Appellant 

killed a fellow servicemember by shooting him in the head, 

to say nothing of his other offenses) and the Appellant’s 

case was weak (consisting only of “generic” character letters from family and friends, some “basic” certificates, and 

an unsworn statement). Brief for Appellee at 54-55, United 

States v. Harrington, No. 22-0100 (C.A.A.F. May 13, 2022). 

The Government further argues that the unsworn victim 

statement was neither material nor of high quality because 

the trial counsel’s statements in the question-and-answer 

exchange with the victim’s parents were benign, and that 

no part of the unsworn victim statements exceeded the substantive limits placed on the content of such statements by 

R.C.M. 1001(c). All of this is true. But none of these factors 

address the primary problem: that trial counsel’s participation in the presentation of the unsworn victim statement 

blurred the important distinction between sentencing evidence presented by the Government and nonevidentiary 

sentencing matters presented by the victim.

At courts-martial, panel members must sentence the 

accused based solely on the facts in evidence and the 

15 Although we apply the Barker factors in this case, we note 

our concern that the Barker factors may not allow this Court to 

adequately assess the prejudice arising from the erroneous admission of sentencing evidence or victim impact statements. See 

Edwards, 82 M.J. at 247 (describing the difficulties of applying 

the Barker factors in the sentencing context). In an appropriate 

case, the Court would be open to considering whether the Barker

factors should be augmented, or whether they should be replaced 

by a different analytical standard, when determining whether 

such errors substantially influenced the adjudged sentence.
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

25

military judge’s instructions. United States v. Frey, 73 M.J. 

245, 250 (C.A.A.F. 2014); see also R.C.M. 502(a)(2) (“the 

members shall determine an appropriate sentence, based 

on the evidence and in accordance with the instructions of 

the military judge”). As noted above, unsworn victim 

statements are not evidence, but instead fall into the 

separate category of “sentencing matters” that the Rules 

for Courts-Martial permit to be presented during 

sentencing. Tyler, 81 M.J. at 112-13. The Military Judges’ 

Benchbook provides the following standard instruction 

(which was given in this case) to advise panels on how they 

should treat unsworn statements:

The weight and significance to be attached to an 

unsworn statement rests within the sound discretion of each court member. You may consider that 

the statement is not under oath, its inherent probability or improbability, whether it is supported or 

contradicted by evidence in the case, as well as 

any other matter that may have a bearing upon 

its credibility.

Dep’t of the Army, Pam. 27-9, Legal Services, Military 

Judges’ Benchbook ch. 2, § V, para. 2-6-11 (2020).

In this case, the military judge not only erred by allowing trial counsel and the victim’s parents to present their 

unsworn victim statements in a question-and-answer format, but he also permitted those statements to be given 

from the witness stand. This means of presenting the unsworn victim statements mimicked the presentation of actual sworn testimony that the panel members would have 

experienced during the rest of the trial, raising the potential for confusion among the members about the status of

the statements. Although this potential confusion might 

not have prejudiced Appellant on its own, the cumulative 

effect of this error—combined with the prejudice caused by 

the military judge’s erroneous denial of the requested sentencing instruction—leads us to conclude that the Government failed to meet its burden of demonstrating that the 

cumulative errors did not have a substantial influence on 

the adjudged sentence.
United States v. Harrington, No. 22-0100/AF

Opinion of the Court

26

III. Conclusion

The decision of the United States Air Force Court of 

Criminal Appeals is affirmed with respect to the findings 

but reversed with respect to the sentence. The case is returned to the Judge Advocate General of the Air Force for 

remand to the Court of Criminal Appeals to either reassess 

the sentence based on the affirmed findings or order a sentence rehearing. 
United States v. Harrington, No. 22-0100/AF

Judge MAGGS, concurring in part and dissenting in part.

For the reasons that I explain below, I would answer the 

first assigned issue in the affirmative and would answer the 

second and third assigned issues in the negative. I therefore 

would affirm the judgment of the United States Air Force 

Court of Criminal Appeals. United States v. Harrington, No. 

ACM 39825, 2021 CCA LEXIS 524, at *4, 2021 WL 4807174, 

at *2 (A.F. Ct. Crim. App. Oct. 14, 2021) (unpublished)

(affirming the findings and sentence in this case).

Accordingly, while I concur in the Court’s decision to affirm 

the findings in this case, I respectfully dissent from the 

Court’s decision to set aside the sentence and to remand the 

case either for a reassessment of the sentence or for a 

rehearing on the sentence.

I. Legal Sufficiency

Addressing the first assigned issue, the Court holds that 

the evidence was legally sufficient for finding Appellant guilty 

of communicating a threat in violation of Article 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2012). I 

concur with the Court’s analysis and conclusion. I therefore 

join part II.A. of the Court’s opinion.

II. Sentencing Instruction

Addressing the second assigned issue, the Court holds 

that the military judge abused his discretion in denying 

Appellant’s request for an instruction on the maximum 

punishment for each of the offenses of which he was found 

guilty because the military judge denied the request based on 

an incorrect understanding of the law. The Court further 

holds that this error prejudiced Appellant. I agree in part and 

disagree in part. In my view, the military judge 

misunderstood the law, but his error did not prejudice 

Appellant.

At trial, Appellant requested an instruction informing

the members of the maximum possible punishment for 

each offense of which he was found guilty. The military 

judge, however, declined to provide the instruction that Appellant requested. The military judge believed that the requested instruction was impermissible, stating that 

“[m]embers are never instructed on what a specific 
United States v. Harrington, No. 22-0100/AF

Judge MAGGS concurring in part and dissenting in part

2

maximum punishment is for each individual offense.” But 

as the Court properly explains, this Court’s precedent says 

otherwise. This Court held in United States v. Gutierrez, 11 

M.J. 122, 124 (C.M.A. 1981), that a military judge has discretion to instruct the members on the maximum punishments authorized for each offense in addition to the maximum total punishment. The Court holds that the military 

judge abused his discretion in denying Appellant’s request 

because the military judge’s understanding of the law was 

erroneous. Having found an abuse of discretion, the Court 

then determines that relief is warranted because the Court

cannot be confident that the military judge’s denial of the 

requested instruction did not substantially influence the 

adjudged sentence.

In my view, the Court’s prejudice analysis omits an important step. Before addressing the question of whether the 

requested instruction might have substantially influenced

the sentence if it had been given, we first must consider 

whether the military judge would have provided the instruction if he had properly understood the law. For if we 

are confident that the military judge would not have provided the instruction (and that he was not required to provide the instruction), then we can also be confident that the 

military judge’s misunderstanding of the law did not “substantially influence[] the sentence proceedings.” United 

States v. Rush, 54 M.J. 313, 315 (C.A.A.F. 2001).

In rejecting Appellant’s request, the military judge 

explained:

What the law allows for [the members] to consider 

is an appropriate punishment that they believe is 

appropriate at the time that it’s adjudged that 

falls underneath the maximum punishment authorized by law. There’s no requirement that I’m 

aware of in the law that the members must give 

more weight to one offense over another offense or 

less weight to one offense over another offense 

simply based on a maximum punishment theory. 

Members are never instructed on what a specific 

maximum punishment is for each individual offense. It’s under our unitary principle. They’re 
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Judge MAGGS concurring in part and dissenting in part

3

always just told here’s the maximum and they are 

at liberty to decide that either the maximum or no 

punishment is appropriate in light of all of the offenses in the case. And, so, the court is loathe[] to 

give them any kind of direction that interferes 

with their ability, their independent ability, to decide an appropriate sentence in this case based on 

their interpretation of the evidence, matters in aggravation and the matters in mitigation, as long 

as that sentence falls underneath the maximum 

punishment. That’s what the law allows them to 

do and . . . again, there’s no requirement to clarify 

for them what maximum punishments are authorized for what offenses.

This explanation reveals that the military judge’s mistaken belief that the “[m]embers are never instructed on 

what a specific maximum punishment is for each individual offense” was not the only reason that he denied the requested instruction. The military judge expressed three 

other reasons. First, the military judge was concerned that 

the requested instruction might cause “the members [to] 

give more weight to one offense over another offense or less 

weight to one offense over another offense simply based on 

a maximum punishment theory.” Second, the military 

judge understood that “there’s no requirement to clarify for 

[the members] what maximum punishments are authorized for what offenses.” (Emphasis added.) Third, the military judge believed that the instruction would “interfere[] 

with [the members’] ability, their independent ability, to 

decide an appropriate sentence in this case based on their 

interpretation of the evidence, matters in aggravation and 

the matters in mitigation, as long as that sentence falls underneath the maximum punishment.” Because the military 

judge stated these three additional reasons for denying the 

requested instruction, I am confident that the military 

judge would not have given the instruction even if he had 

not been mistaken about his discretion to provide it.

I further do not believe that in such circumstances the 

military judge would have abused his discretion by not 

providing the instruction. The military judge understood 

defense counsel’s reason for seeking the instruction: 
United States v. Harrington, No. 22-0100/AF

Judge MAGGS concurring in part and dissenting in part

4

defense counsel did not want the panel to give too much 

weight to the manslaughter offense. But the military judge 

believed that this consideration was outweighed by the 

other considerations, which the military judge clearly articulated on the record. This decision, in my view, fell well 

within the military judge’s range of reasonable choices.

My reasoning here is similar to the reasoning that the 

Court used in United States v. Rasnick, 58 M.J. 9 (C.A.A.F. 

2003). In that case, the military judge declined to give a 

permissible sentencing instruction because he mistakenly 

believed that the instruction was impermissible. Id. at 10. 

This was an abuse of discretion because the military judge 

misunderstood the law. Id. But even so, the Court denied 

relief because it concluded that the instruction was not required under the circumstances, even though it was permissible. Id. The Court therefore did not reach the question 

of whether the result might have been different if the instruction had been given.

The same is true here. Even if the military judge had 

believed that the requested instruction was permissible, he 

would not have given it, and his decision not to give it 

would not have been an abuse of discretion. Accordingly, no 

prejudice occurred.

III. Unsworn Crime Victim Statements

Addressing the third assigned issue, the Court holds that 

the military judge erred in two ways. One was by allowing the 

victim’s parents to make their unsworn crime victim 

statements from the witness stand. The other was by allowing 

them to present their crime victim statements in a questionand-answer format with trial counsel asking them the 

questions. The Court further determines that these errors 

prejudiced Appellant.

In my view, the military judge in this case did not abuse 

his discretion by allowing the victim’s parents to present 

their unsworn statements from the witness stand for several related reasons. First, the Rules for Courts-Martial 

(R.C.M.) contain no express prohibition against making unsworn statements from the witness stand. If a crime victim 
United States v. Harrington, No. 22-0100/AF

Judge MAGGS concurring in part and dissenting in part

5

chooses to exercise his or her right to be heard at sentencing by making an unsworn statement, R.C.M. 1001(c)(1) 

simply provides that “the crime victim shall be called by 

the court-martial.” The rule says nothing about the location in the courtroom from which the crime victim, when 

called, shall make the statement. Second, R.C.M. 

1001(c)(1) expressly protects a crime victim’s “right to be 

reasonably heard.” The military judge, in his discretion, 

could reasonably conclude that the witness stand was a

proper place in the courtroom for the victim’s parents to 

give their statements because it was a place from which 

they could be conveniently seen and heard by the members, 

by the military judge, by the court-reporter, by the accused,

by the trial and defense counsel, and by those in the courtroom gallery. Third, throughout the long history of the military justice system under the Uniform Code of Military 

Justice, accused have made unsworn statements from the 

witness stand, and no cases have said that this practice is 

improper. See John S. Reid, Undoing the Unsworn: The Unsworn Statement’s History and A Way Forward, 79 A.F. L. 

Rev. 121, 157 (2018) (noting that it is “common” for the accused to “give an unsworn statement from the witness 

stand, often in a question-and-answer format with their defense attorney” and that “[m]ilitary appellate courts have 

not provided case law on whether a judge may disallow 

such a practice”). I see no strong reason that victims cannot 

also follow this practice. Fourth, a victim usually does not 

have the option of making an unsworn statement from a 

table because, unlike an accused who sometimes speaks

from the trial defense counsel’s table, courtrooms typically 

do not have tables for victim’s counsel. Finally, the military 

judge in this case took a reasonable step to prevent any 

possible confusion about the distinction between a sworn 

and unsworn statement by providing the following instruction to the members:

Members of the Court, at this time you will hear 

some unsworn statements from individuals that 

are identified as victims of the crime. I want to 

read you a brief instruction though as to how you 

can consider these particular statements. An 
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Judge MAGGS concurring in part and dissenting in part

6

unsworn statement is an authorized means for [a]

victim to bring information to the attention of the 

court and must be given appropriate consideration. The victim cannot be cross-examined by the 

prosecution or defense or interrogated by court 

members, or me, upon an unsworn statement but 

the parties may offer evidence to rebut statements 

of fact contained in it. The weight and significance 

to be attached to an unsworn statement rests 

within the sound discretion of each court member. 

You may consider that the statement is not under 

oath, its inherent probability or improbability, 

whether it is supported or contradicted by evidence in the case, as well as any other matter that 

may have a bearing upon its credibility. In weighing an unsworn statement, you are expected to use 

your common sense and your knowledge of human 

nature and the ways of the world.

In addition, in my view, the military judge also did not 

abuse his discretion in allowing the victim’s parents to 

present their unsworn statements by answering questions 

asked by trial counsel. R.C.M. 1001(c)(5)(A) places only three 

restrictions on questioning a crime victim when the crime 

victim makes an unsworn statement: (1) the crime victim 

“may not be cross-examined by trial counsel”; (2) the crime 

victim “may not be cross-examined by . . . defense counsel; and 

(3) the crime victim “may not be . . . examined upon [the 

unsworn statement] by the court-martial.” (Emphasis added.)

None of these three restrictions was violated. Restrictions (2) 

and (3) do not concern trial counsel, and restriction (1) 

prohibits only cross-examination by trial counsel. Crossexamination is the “questioning of a witness at a trial or 

hearing by the party opposed to the party in whose favor the 

witness has testified.” Black’s Law Dictionary 474 (11th ed. 

2019). If the crime victim voluntarily decides to present the 

unsworn statement in a question-and-answer format, I can 

see no way to construe that as being “cross-examined by trial 

counsel.” That said, if the President desires to prevent all 

questioning of the crime victim, the President could easily 

replace the current ban on “cross-examination” by trial 

counsel with a broader ban on any “examination” by trial 
United States v. Harrington, No. 22-0100/AF

Judge MAGGS concurring in part and dissenting in part

7

counsel—as the President already has done by prohibiting

any examination by the court-martial.

And as mentioned previously, R.C.M. 1001(c)(1) protects the victim’s right to be reasonably heard. In my view, 

the military judge properly exercised his discretion in concluding that a question-and-answer format was one way to 

effectuate this right in this case. The military judge explained on the record that a question-and-answer format 

was not contrary to R.C.M. 1001(c) and that this format 

“provides a greater sense of control in the sense that the 

government can control the questions, raise and reorient

. . . the individual providing the unsworn statement” to ensure the statement covered only permissible subjects.

The Court cites the principle that “an unsworn victim 

statement belongs solely to the victim.” I agree that trial 

counsel cannot make the crime victim’s statement for the 

victim in the way that R.C.M. 1001(d)(2)(C) allows defense 

counsel to make an unsworn statement on behalf of the accused. “[T]he right to make an unsworn victim statement 

belongs solely to the victim or to the victim’s designee and 

not to trial counsel.” United States v. Edwards, 82 M.J. 239, 

245 (C.A.A.F. 2022). But when reviewing the participation 

of trial counsel in the unsworn statement of a crime victim 

the question is “to whom should we attribute [the] message?” Id. at 246.

The clear answer in this case is the victim’s parents. 

Trial counsel solicited the statements of the victim’s parents with broad, open-ended questions: “How did Marcus 

feel about being stationed so close to home?” “How did you 

learn about the incident involving Marcus on 5 July?” “Has 

your family dynamic changed since Marcus hasn’t been 

there?” Trial counsel’s open-ended questions often 

prompted lengthy responses from the victim’s parents. No 

one could reasonably attribute the responses of the victim’s 

parents to trial counsel.

Finally, this case is distinguishable from Edwards. In 

that case, trial counsel helped crime victims to make a 

video that contained pictures and music, thus violating the 
United States v. Harrington, No. 22-0100/AF

Judge MAGGS concurring in part and dissenting in part

8

express requirement in R.C.M. 1001(c)(5)(A) that a victim 

impact statement must be only “oral or written.” 82 M.J. at 

244 (internal quotation marks omitted). It is true that in 

Edwards “the video also included two clips of the victim’s 

parents answering questions.” Id. at 242. But the inclusion 

of these questions was not one of the grounds on which this 

Court held that the unsworn victim statement was improper.

IV. Conclusion

For the foregoing reasons, unlike the Court, I would not 

set aside the sentence in this case. I therefore would affirm

the decision of the United States Air Force Court of Criminal Appeals.