(dissenting):
I dissent. The majority overlooks RCM 1001, Manual for Courts-Martial, United States (1995 ed.), MiLR.Evid. 403, Manual, supra, and Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (discussing what remedial action to take when there is an error). The military judge did not abuse his discretion in prohibiting appellant from including information on the disparate treatment of others in his unsworn statement because allowing him to do so would have been “highly confusing and misleading potentially to the members.”
*134The majority apparently would permit mini-trials during sentencing concerning selective prosecution and disparate treatment. These are matters that could be raised by motion prior to trial. Under the majority rule, an individual who is tried for fraternization could make an unsworn statement regarding how 20 or 30 senior individuals were treated for conduct similar to 'his own. This may well result in a mini-trial on this matter.
DISCUSSION
Sentencing is an important part of the criminal process. That is especially true when, as here, the defendant has pled guilty. In the military, the sentencing procedure is an adversary proceeding where both sides are afforded the opportunity to admit evidence. Sentencing is especially important because the sentencing authority has broad discretion. Generally, there are no fixed sentences,1 no mandatory minimum sentences, and no sentencing guidelines. Sentencing can range from no punishment to the maximum punishment, or to any of the alternatives between these extremes.
The right of a defendant, military or civilian, to speak to the sentencing authority is based upon procedural rules2 and not the United States Constitution. Historically, military law permitted defendants to speak prior to sentencing because, generally, defendants were not permitted to testify and were not represented by counsel.3
In the past, we have held that the Rules of Evidence apply to sentencing absent a contrary provision in those Rules or the Rules for Courts-Martial.4 We should not jettison any of these rules simply because the information is part of an unsworn statement.
RCM 1001(a)(1)(B) provides that, after findings, the defense may present evidence in extenuation and mitigation. This includes an unsworn statement by the accused “both in extenuation, in mitigation or to rebut matters presented by the prosecution____” RCM 1001(c)(2)(A). While the Manual provides for relaxation of the modes of proof, it does not provide for relaxation of hearsay rules, except as provided in RCM 1001(c)(3), or admission of evidence that is not relevant to the sentencing officials.
RCM 1001(c)(1) defines matters in extenuation and mitigation as follows:
(A) Matter in extenuation. Matter in extenuation of an offense serves to explain the circumstances surrounding the commission of an offense, including those reasons for committing the offense which do not constitute a legal justification or excuse.
(B) Matter in mitigation. Matter in mitigation of an offense is introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency. It includes the fact that nonjudicial punishment under Article 15 has been imposed for an offense growing out of the same act or omission that constitutes the offense of which the accused has been found guilty, particular acts of good conduct or bravery and evidence of the reputation or record of the accused in the service for efficiency, fidelity, subordination, temperance, courage, or any other trait that is desirable in a servicemember.
This Court has recognized that the right to make an unsworn statement is not unlimited. United States v. Fox, 24 MJ 110 (1987)(prior sexual behavior of sexual offense victim may not be admitted); United States v. Teeter, 16 MJ 68 (1983)(defendant may not use sentencing statement as a vehicle to challenge Court’s findings of guilt in litigated case); United States v. Quesinberry, 12 USCMA *135609, 31 CMR 195 (1962)(court members not entitled to be instructed on specific consequences of bad-conduct discharge); United States v. Tobita, 3 USCMA 267, 12 CMR 23 (1953)(following conviction of rape accused could not use unsworn statement to deny use of force); see also United States v. McElroy, 40 MJ 368 (CMA 1994)(although generally judge should not instruct on collateral, administrative consequences of sentence, judge’s instructions on veteran’s vested benefits were not substantially erroneous).
Without more information about what happened to appellant’s friends in the civilian community, the excluded evidence does not fall within the definition of extenuation or mitigation evidence under RCM 1001(c)(1). Even if it did fall within those categories, Mil.R.Evid. 403 permits the judge to exclude legally relevant evidence if it would confuse the issue, unduly delay the trial, mislead the panel, or result in a waste of time. Whether the judge’s ruling is correct is judged on an abuse of discretion standard. The judge ruled in this case that the evidence was potentially misleading and “highly confusing.” Hence, examining the issue under this Court’s deferential standard, there was no abuse of discretion.
Even when there is an allocution error, the remedy does not necessarily require reversal. See Green v. United States, supra. In Green, the trial judge asked the defendant and counsel, “Did you want to say something?” The defense attorney, not the defendant, responded. Justice Frankfurter, speaking for a plurality of the Court, held that Fed.R.Crim.P. 32(a) requires the trial judge to offer a defendant the right to speak for himself. The Court recognized that the most “persuasive counsel” may not be the lawyer but the defendant speaking for himself. 365 U.S. at 302-04, 81 S.Ct. at 654-55. Even though Green was not unambiguously addressed and given the right of allocution, the Court affirmed because Green did not show he was denied his right to allocution.
The right of allocution is not constitutionally required. When a defendant has adequate representation by counsel and has been afforded the opportunity to introduce relevant evidence at trial, it is questionable whether a restriction on the right of allocution, especially in a case such as this one, should result in resentencing.
I would affirm the decision of the court below.
. The offense of murder, however, under certain circumstances, has a required sentence of either death or life imprisonment. Para. 43e, Part IV, Manual for Courts-Martial, United States (1995 ed.); Art. 118(1) and (4), UCMJ, 10 USC § 918(1) and (4).
. See Fed.R.Crim.P. 32(c)(3)(C); see also Paul W. Barrett, Allocution, 9 Mo.L.Rev. 115 (1944).
. For a history of the right of the military defendant to speak, see United States v. Britt, 44 MJ 731 (A.F.Ct.Crim.App.1996).
. United States v. Irwin, 42 MJ 479, 482 (1995); United States v. Prevatte, 40 MJ 396, 397 n. * (CMA 1994).