Plea Discussions — Mil. R. Evid. 410

Professior Miller’s blog has this topic Let’s Make A Deal: Supreme Court Of Pennsylvania Correctly Affirms Rule 410 Ruling But On Wrong Grounds.” Evidence Prof. Blog, 30 January 2009. Professor Miller argues, correctly, that the court was right, but for the wrong reason (under Federal Rule of Evidence 410, as well as the Pennsylvania Rule).

I’m writing to add a military nuance.

First, under Military Rule of Evidence 410, the Pennsylvania decision would still be correct, but for the wrong reason — or would it? On the facts the answer is still yes. See United States v. Watkins, 34 M.J. 344 (C.M.A. 1992)(statements to Army CID). There is however a potential nuance for some cases particularly in the Department of the Navy. I have to admit that I’ve tried to advance a similar argument as that made by the appellant in VanDiver, — and yes lost. Van Diver was talking to the police, the military equivalent of the MP’s, NCIS, OSI, CID, CGIS, not an attorney. There’s also no evidence to suggest that the police improperly told Van Diver that they had authority or implied authority to strike a deal, etc. These facts of the police/suspect interaction would put Van Diver into a different context — improper promises, etc.

Federal Rule of Evidence 410(4) excludes:

any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. (emphasis added).

Military Rule of Evidence 410(4)* excludes:

any statement made in the course of plea discussions with the convening authority, staff judge
advocate, trial counsel or other counsel for the Government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) in any proceeding where in another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a court-martial proceedings for perjury or false statement if the statement was made by the accused under oath, on the record and in the presence of counsel. (emphasis added).

* The Military Rules of Evidences are essentially the Federal Rules of Evidence, with “adjustments” to accommodate military practice and realities. See Mil. R. Evid. 1102. The Rules are found in the Manual for Courts-Martial (2008).

The military nuance is the role of the commander or chain of command in military cases — this person is the convening authority. For background, in the military it is the commander who decides whether or not the service-member will be prosecuted at court-martial. In that role the commander serves a roughly analogous position to the U.S. Attorney, Commonwealth’s Attorney, or District Attorney. Accept that loose analogy for the purpose of this post. Mil. R. Evid. 410 does not mention a “Legal Officer.” In the Department of the Navy it is practice to have a non-lawyer within a command whose job is to take care of legal matters for the commander. Although a non-lawyer, this person frequently “advises” the commander on what to do with a particular case. In this role the person acts as a representative for the convening authority. In many situations this person also acts as an investigator of allegations. So, what if there are discussions with this person or someone who the client reasonably believes is acting on behalf of the convening authority, but who is not a lawyer or Trial Counsel for the convening authority? Does this dual role cause the potential for problems? Should the issue come up, it appears it might be resolved as an immunity issue. Whether or not the Legal Officer had actual or implied authority to grant immunity, or the reasonable belief of the suspect. See e.g. United States v. Churnovic, 22 M.J. 401 (C.M.A. 1986). I don’t want to take the immunity point too far because that is the subject of a different post all by itself about de facto immunity — a la, Lonetree, Samples v. Vest, Cunningham, and Cooke v. Orser.

Remember that Mil. R. Evid. 410 is, “broader” than the federal rule. United States v. Vasquez, 54 M.J. 303, 305 (C.A.A.F. 2001); there should be no “excessively formalistic or technical approach” to the rule lest the policy be undermined, Id. In some situations the accused talks to his commander, but because of military regulations that person is not the convening authority.

Brabant’s statements to his commanding officer should have been excluded under Mil.R.Evid. 410, Manual for Courts-Martial, United States, 1984. See United States v. Barunas, 23 MJ 71 (CMA 1986).

As noted earlier, in the military there exists a special relationship between a commander and one of the servicemembers in his command. That relationship is unique in our American society. A good commander not only leads and disciplines his troops but also has a paramount responsibility to take care of them. A good commander inspires trust in his subordinates. The challenged statements that morning, in reality, constituted a request to the commander that he resolve Brabant’s troubles in an administrative fashion. These statements were based upon that special subordinate/commander relationship and as such we find them to be part of a plea bargain negotiation under the rationale of Barunas. See Mil.R.Evid. 410. Accordingly, they never should have been introduced in this case.

United States v. Brabant, 29 M.J. 259, 264 (C.M.A. 1989).

So what about the command legal officer?