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WorthTheRead-MRE 305

October 7, 2015 | The Law Office of Philip D. Cave

I don’t often look at the Naval Justice School site, less robust than it used to be. But today I did decide to see if there is a new issue of the Naval Law Review. Sure enough, there’s an article of interest to military justice practitioners. You’ll have to scroll down to page 67, it’s not hyperlinked.

The notorious CDR (judge)(Art. 32 IO) Monahan has this piece.

A PROPOSAL TO CONFORM MILITARY RULE OF EVIDENCE 305 IN LIGHT OF THE SUPREME COURT’S HOLDINGS IN MARYLAND V. SHATZER AND BERGHUIS V. THOMPKINS

Is there an SVC crisis?

March 29, 2015 | The Law Office of Philip D. Cave

I am for (and against) the SVC program. I am mostly for it because it is necessary. Over the years and prior to the Air Force start there were regulations in place that required the trial counsel to inform the “victim” of what was happening in the case and get their input. The trial counsel were not doing the job and in some instances deliberately refused to follow the guidance. By example, a trial counsel who refuses to let the complaining witness know about pretrial negotiations, and who got upset when I gave the CW a copy of the pretrial agreement offer. Which leads to two reasons I’m not necessarily in favor of the SVC program.

Because the trial counsel routinely failed in their requirements, I got in the habit of asking the CW during my interview if they “knew what was going on?” They’d say “no, not really.” I would then take the opportunity to tell them what was going on. I would tell them that I was the defense counsel telling them this and they are welcome to confirm with the trial counsel. At that moment the interview had some lessened tension. In several cases I’m convinced that my “helping” the CW understand what was going caused her to modulate anger against my client and it may have helped later. So now that’s a lost opportunity.

I do have some concerns about the potential for SVC’s exceeding the scope of their responsibility to their client and the court. Whether or not those concerns are supported will be open to discussion for some time to come. There is a potential concern for coaching as opposed to preparing a CW for testimony. Trial and defense counsel prepare but don’t (shouldn’t) coach a witness. It’s perfectly proper to prepare for testifying. In one particular case I was concerned about a SVC who objected to questions unrelated to MRE 412 or 513 during an Article 32. That’s not their place or responsibility.

IAC by not filing motions

October 18, 2014 | The Law Office of Philip D. Cave

Can a failure to file a pretrial motion equal ineffective assistance of counsel? The BLUF is yes in some cases. In some instances I have argued IAC on appeal for failing to make a meritorious motion. The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue. The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King. The issue of IAC for failure to raise a pretrial motion is neither novel nor rare. Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion. I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges. A more common issue is a motion to suppress, or speedy trial, or UCI.

Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue: [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”

It’s not a privilege children have

July 3, 2014 | The Law Office of Philip D. Cave

I always counsel clients and family that there is NO parent-child privilege in courts-martial under the UCMJ (or in civilian court for that matter). This is important to know and for the military defense lawyer to make clear at the earliest opportunity. Any communications between a child and the parent can be used in evidence if known. That doesn’t mean military investigators or military prosecutors can force a parent to disclose information – well except by subpoena as a court-martial witness. A parent is free to decline to be interviewed if they want. During initial discussions with your military defense lawyer it is always important to discuss the limits to do with privileged communications. Reading the UCMJ, the Manual for Courts-Martial, and the Military Rules of Evidence, you can get a good basic overview. Remember, it is always better to discuss specifics with your military law attorney. Rules of evidentiary privilege are found in Rules 501 to 514 of the Military Rules of Evidence (MRE). The most common privileges you hear about are the attorney-client, the spousal privilege for the accused and for the non-accused spouse, the psychiatrist-patient privilege, and the clergy privilege. Each of these rules, except for MRE 514 are long-standing and well developed. The two more recent developments have been the exception where spouses are substantially and jointly involved in (the same) criminal activity, and the addition of the “victim advocate – victim privilege.” The Court of Appeals for the Armed Forces had rejected the joint crime exception because that was not in the Rule at the time. See United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007). There is still some ambiguity and perhaps confusion whether there is an exception to a privilege through forfeiture by wrongdoing. See e.g., United States v. Marchesano, 67 M.J. 535 (A. Ct.Crim. App. 2008), pet. denied 67 M.J. 371 (C.A.A.F. 2009). Under the UCMJ there is no parent-child privilege, nor is there one in any MRE. See United States v. Landes, 17 M.J. 1092 (A.F.C.M.R. 1983); United States v. Kelly, ACM 26707, 1988 CMR LEXIS 719 (A.F.C.M.R. September 2, 1988)(unpub.). And in light of the analysis in Custis, it is unlikely the appellate courts can graft one on. This is consistent with federal court practice. Recently the Fourth Circuit has ruled that a federal trial judge erred by “adopting the parent-child privilege and excusing” a nineteen year old son “from testifying before the grand jury” in a firearm investigation involving his father[.] In Under Seal v. United States, _ F.3d _ (4th Cir. June 16, 2014) (No. 13–4933);

The Fourth Circuit declined to apply a parent-child privilege. In reaching this conclusion, the circuit noted: “No federal appellate court has recognized a parent-child privilege, and we decline to do so here.” In particular, the circuit noted that “Doe Jr. has not made a strong showing of need for the parent-child privilege, and ‘reason and experience’ do not warrant creation of the privilege in the face of substantial authority to the contrary. Fed. R. Evid. 501.” Under Seal, _ F.3d at _ (citation omitted). In arriving at this decision, the circuit canvassed the cases that have considered the issue at the district court and circuit levels.

Thanks to federalevidence.com for bringing this to our attention. In addition to the Fourth, the Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh federal circuits agree. Federal evidence review blog notes that district courts in Nevada, Connecticut, and Washington do seem to have recognized such a privilege. Regardless, a military accused and his parents should continue to exercise care in what discussions they have about an alleged offense. There may be a limited way to create privileged communications, but it is not under any sort of parent-child privilege. But these are matters to be discussed with the military defense lawyer first.