Earlier today, Sam accepted that Article 32 won’t emerge unscathed from the debate over changes to the military justice system, but he also sounded the alarm at proposals to exempt “a victim” from any requirement to testify during an Article 32 pretrial investigation.

“A defense-centric concern,” you say.

But almost as if on cue, the Army Court of Criminal Appeals decides a case that gives even the most prosecution-minded among us a reason to pause and consider the second and third-order effects of these proposals floating around Congress.

In an unpublished decision in United States v. Trank, No. 20130742 (A.Ct.Crim.App. Nov. 19, 2013) (available here and here), the CCA grants a Government interlocutory appeal in a sexual assault case involving an alleged child victim who refuses to testify at trial. The military judge prevented the Government from admitting the recorded pretrial statements of the alleged child victim. But the CCA reverses, finding that the pretrial statements are admissible because the Defense had the opportunity and similar motive to cross-examine the child when she made the statements during her testimony at the Article 32 hearing.

Appellee is a junior enlisted soldier charged with one specification of aggravated sexual assault, one specification of aggravated sexual contact, and one specification of lewd acts, all with a child between the ages of 12 and 16 years of age, in violation of Article 120, UCMJ. The alleged child victim (identified as “ST”) is Appellee’s stepdaughter. She testified under oath at the Article 32 pretrial investigation and was cross examined by Appellee’s defense counsel.

ST’s testimony at the Article 32 was consistent with a prior sworn statement she made to criminal investigators. Slip op. at 3. But after Appellee was arraigned, “the trial counsel received a phone call from a lawyer who had been retained by ST’s mother to represent ST. The lawyer stated that ST would recant if called to testify and she no longer wished to testify. He further stated that under advice of counsel, ST would invoke her right against self-incrimination if called to testify.” Slip op at 4.

The Government then obtained a grant of testimonial immunity from the Department of Justice. “Testimonial” immunity is also known as “use and derivative use” immunity, and precludes later prosecution only if that prosecution is based on evidence derived from things discovered through the grant of immunity. However, it’s not the only type of immunity. “Transactional” immunity is far more broad, conferring immunity from prosecution for any thing, or transaction, about which the immunized person produces evidence. The Supreme Court considered both types of immunity in Kastigar v. United States, 406 U.S. 441 (1972), and determined that the Constitution only requires testimonial immunity to overcome an assertion of the right against self-incrimination. Because of this, grants of transactional immunity are incredibly rare. I’m aware of only one such instance: the transactional immunity provided to Monica Lewinsky by Independent Counsel Ken Starr in order to obtain her grand jury testimony about her relationship with President Bill Clinton.

But ST insisted on transactional immunity for her trial testimony against Appellee:

On 24 July 2013, the military judge held an Article 39(a), UCMJ, session to resolve the issue related to ST’s further testimonial cooperation. At this session, ST was questioned by the military judge and government counsel, and refused to answer any questions related to the substantive sexual allegations she had previously lodged against appellee. ST also indicated she would invoke her right against self-incrimination regarding the allegations if called to testify and she would refuse to follow the military judge’s order to testify, unless the testimonial immunity was broadened to transactional immunity. Her legal counsel further explained ST’s position, proffering that ST would make statements inconsistent with her previous statements if she were to testify and he reiterated that absent transactional immunity to fully protect her from possible prosecution, ST would invoke her right against self-incrimination.

Slip op. at 4 (emphasis in original). The Government asserted that it was unable to obtain transactional immunity from the state (Hawaii), and that it would not attempt to obtain it from the DOJ. The military judge then found that ST was unavailable, “but that the government had failed to meet its burden to show that the defense had a sufficiently ‘similar motive’ to cross-examine ST at the Article 32 hearing as they did after the subsequent ‘recantation’ proffered by her legal counsel.” Slip op. at 4.

The CCA’s analysis runs for a few pages, but I think this is the critical section:

Once declared unavailable in accordance with Mil. R. Evid. 804, former verbatim testimony given as a witness at an Article 32 hearing may be used against a party who had a similar motive and opportunity to develop the testimony at that hearing by cross-examination. In a case where a motive exists to dispute a victim’s account of information and a victim’s credibility is the central issue in the case, it would be significant to the defense to demonstrate the implausibility or unbelievability of the victim’s testimony. In this case, the defense’s motive to develop ST’s testimony at the Article 32 hearing is not just similar, it is the same as it would be at a court-martial. The defense’s motive to cross-examine ST’s testimony was to attack ST’s credibility, to examine ST for possible bias, to find motive to fabricate, and to deconstruct and analyze any inconsistencies in her allegations. The opportunity to develop this motive is exhibited by the defense in their probing cross-examination of ST at the Article 32 hearing. We are at a loss to see how the proffered “recantation” by ST’s defense counsel changes the nature of the defense’s motive to develop that testimony.

That said, even if the military judge’s legal analysis was sound regarding the “similar motive” analysis, we find the military judge’s legal conclusion is based on clearly erroneous facts.

The military judge asserted that at the time of the Article 32 hearing, the defense had no basis to impeach ST on her “recantation” and “will not be able to confront her on this recantation if the government were permitted to offer such evidence in the form of her Article 32 testimony at trial.” A careful reading of the record reveals that it contains no actual recantation by ST. At the Article 39(a) session, ST exercised her right to not incriminate herself and requested transactional immunity. She did not recant.

Her legal counsel’s proffer of a possible recantation is not evidence. This court will not speculate as to the possible existence of a recantation. In fact, the most compelling indication of what a witness would say under oath and subject to cross-examination is what that witness has previously said under oath and subject to cross-examination. As such, we find that the military judge’s findings of fact reflecting that a similar motive does not exist because the defense cannot cross the victim on her “recantation,” clearly erroneous.

Slip op. at 8-9.

I’d be surprised if CAAF doesn’t weigh in on this case. But one thing’s for sure; had ST not testified and been subject to cross examination at the Article 32 hearing, this prosecution of case would be significantly harder.

22 Responses to “In the debate over whether an alleged victim should testify at an Article 32 hearing, the Army CCA has impeccable timing”

  1. J says:

    As a former TC, this doesn’t give me any pause at all. If a victim refuses to testify, both at an Article 32 and at Trial, the prosecution of the case would definitely be “significantly harder.” A lack of evidence would also make a case significantly harder, if you push past an Article 32 despite that, you will have difficulty getting a conviction.
    This case just shows that there are a (presumably small amount) of cases where a victim will testify at an Article 32 but then refuse to testify at trial. If Article 32’s allow victims not to testify (which presumably will happen in almost all cases) and victims who are cooperating then choose not to cooperate, you won’t have prior testimony to fall  back on. Doesn’t seem like it will make a huge difference, unless since my time in the courtroom this has become an epidemic?

  2. Dwight Sullivan says:

    Of course, under current law ST could not be rrquired to testify at the 32, but nevertheless did so.

  3. Zachary D Spilman says:

    Of course an alleged victim can always refuse to participate from the beginning, but today that’s a big red flag for prosecutors, investigating officers, and convening authorities.

    If the code is modified to explicitly permit (and I’d say even encourage, considering the circumstances) an alleged victim to refuse to participate at the Article 32 in order to avoid having to “go through it all twice,” then that’s exactly what will happen.

    In this case, ST gave a sworn statement to law enforcement and her Article 32 testimony was consistent with that statement. But then she asserted her right against self-incrimination and her lawyer suggested that she recanted. Whatever ST fears, it’s not just perjury from the Article 32; the sworn statement also likely exposes her to prosecution (18 U.S.C. § 1001 comes to mind).

    Changing the code to encourage alleged victims to refuse to participate undermines the truth-seeking function of the military justice process. That’s bad law, bad policy, and bad for prosecutors.

  4. John O'Connor says:

    I do not believe requiring a victim to testify at an Article 32 advances the try-seeking function of a court-martial.  
    i never thought Susan Burke and I (who litigated against each other for nine years) would agree on anything. 

  5. J says:

    While I understand things change, why would a TC be pushing a case if they know the victim is never going to show up? I guess we all need hobbies, and maybe I’m just bad with time management, but it seems like a fool’s errand.
    Again, this seems like it will only matter in cases where a victim who doesn’t testify at a 32 (assuming these laws pass) changes their mind about participating. I’m thinking this is will be a small sample size.

  6. Sixth Amend Bypass? says:

    I think y’all are missing a very major point in an attempt to tie this case directly to the current debate in Congress.  What about the idea that victims now come in and testify at the 32 (where defense counsel often are not fully prepared to litigate the entire case b/c they received the case just days/weeks before, they may be using the 32 as a discovery tool only, they may want to handle the victim with kid gloves as to not alienate him/her too early in the process, they may learn of new evidence later, etc) and then later refuse to testify because they don’t want to be put through more cross-examination, risk further impeachment, risk poor presentation or whatever.  Could it not become routine that victim’s counsel advises such a course of action and the MJ would then allow the government to admit the 32 testimony under MRE 804(a)(2)?  I’d argue that this decision compels the MJ to do just that (while it is an unpublished opinion this decision finds the MJ clearly abused his discretion in refusing to admit the testimony even though she decided to recant after the 32 (a topic which was impossible to broach at the 32)).  What is the incentive for the victim to ever testify at trial if his/her 32 testimony can come in this way, especially if the cross-examination was weak and there is no new evidence that the victim needs to rebut in order to secure a conviction?  This seems to be an erosion of the Sixth Amendment right to confrontation where the norm should be that the fact finder observes the witness testify in order to judge his/her credibility, and the defense is given the full opportunity to cross-examination after a complete pretrial investigation.

  7. stewie says:

    Might be a small sample size now, might be a bigger one later.

  8. phil cave says:

    J., the government does “push” cases where the CW is uncooperative and doesn’t want to be there.  There is a theory that in order to prevent sexual assaults and spouse abuse, non-cooperative CW’s must be forced to testify – for the greater good.
    I have had such cases at trial, as I’m sure my colleagues have.  And I’m working a record of trial where that seems to have happened, And the prosecution spent a good part of its case impeaching its prime witness.  They still got the conviction and a significant sentence (else I wouldn’t be reading a verbatim).
    In some cases it is the existence of Article 32 testimony of a CW (or other significant witness) that allows the prosecution to get evidence in at trial or be persuasive, Article 32 testimony is the equivalent of a deposition.  
    Overseas.  Well we have cases overseas where a witness is now a civilian in CONUS and refuses to travel overseas.  There are alternatives, such as a deposition or moving the place of trial.  But even then it is not always possible to get the testimony live.  In that situation the Article 32 testimony may be the fall back.  That’s part of the reason I’d always wondered about the AF and it’s continual failure to do as the other Services and record the 32.  Their post-hearing ex-parte “summary” can’t be a substitute IMHO.  I do notice one of the proposed changes will be a recorded 32.   :-)
    As a TC and SJA I have valued the trial run at a 32.  It’s discovery for me.  But, it has been decided that preventing the early exposure to cross-examination and defense discovery is the preferred course of action.  Whether that is the wise, right, or effective course of action remains to be seen.
    Interestingly, the issues are moving forward even though the “commission” of experts to examine the issues hasn’t finished the work.  Congress directed the commission, but now has decided it isn’t needed.  The train, as former CJ Sullivan would say, has left the station.  The “new” 120, less so the “new new” 120 proceeded in a similar fashion.  The in-depth DoD report and recommendations on the “new” 120 were ignored.  You’ll remember where that got us.  A similar result may lay in store for any new rules and procedures.
    Deliberately ignored in the mix is the effects on an accused’ right to a constitutionally fair trial.  But as we know the definition and scope of that is always a matter for change.  Many, many, many years ago an accused was prohibited from testifying in their own case; that changed.  Maybe that rule will come back.  Phil -sophically what’s going on is disheartening.  The Congress and the Commander-in-Chief as President have, IMHO a duty to ensure both sides of the discourse are addressed.  They each have a prime role in developing the laws and rules for the prosecution and conduct of courts-martials through their Article II power and Article 36.  This is a broader application of the idea that commanders appoint the members, and in the old days appointed the defense counsel.  They are supposed to take, IMHO, a more unbiased less case specific approach to what they enact or order.  I think an analogy I have used is the manager of the home team being able to “appoint” the pitcher for the away team.  The Powers have a concomitant duty to ensure the fairness of the system for those accused, a system which they are charged with enacting and ordering.  The “debates” surrounding the original enactment of the UCMJ as we know it reflect that studied and reasoned approach.  Do the current “debates” reflect that, I’m not sure they do.
    Maybe it is time to give up a common law approach and do as the continentals do – I mean the ones over in Europe.   http://legal-dictionary.thefreedictionary.com/Inquisitorial+System

  9. John O'Connor says:

    When I was a brand new trial counsel, one of my colleagues took a SpCM to trial where the accused got into a fight with his wife and held her down and cut off all her hair.  She told CID (or maybe the MPs, I can’t remember) what happened and then “disappeared,” likely because she didn’t want to testify against her husband.  My colleague tried the whole case on an excited utterance because the command didn’t want to drop the charges.  An acquittal predictably resulted. 

  10. AFSVC says:

    @PC…WRT forcing unwilling victims/witnesses to go forward, that certainly has happened in the past, but in my cases and annecdotally in my community I think that is largely a thing of the past. When it’s discussed, I usually cite the language below and so far that has been effective. Yes, the JAGs always say that “should” doesn’t mean the same as “shall” or “must,” but the Commanders who are actually making the decisions seem to see that as a fairly tenuous distinction and are disinclined to give the order/see a subpoena issued.
    DoDI 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures, enclosure 4, para. 1(c)(1), provides that “[t]he victim’s decision to decline to participate in an investigation or prosecution should be honored by all personnel charged with the investigation and prosecution of sexual assault cases, including, but not limited to, commanders, DoD law enforcement officials, and personnel in the victim’s chain of command. If at any time the victim who originally chose the Unrestricted Reporting option declines to participate in an investigation or prosecution, that decision should be honored in accordance with this subparagraph.”
    At least within the AF (and again this is annecdotal), the only cases where there seems to be the stomach to compel participation at trial is in forcible, multiple-victim cases.  
    One unfortunate issue (probably from the perspective of the DCs as much as my community) is that declination to participate is not being treated as a means to stop an investigation at the outset. For example, victim is assaulted (okay…allegedly assaulted); she tells her best friend but swears her to secrecy because she doesn’t want anyone else to know. Victim and friend are both AFSOC assets. Friend, setting aside her desire to see (alleged) offender punished, knows of the AFSOC GO that requires reporting of such incidents; she thus reports to her CCF who goes VFR to OSI. OSI calls in victim who is permitted to speak to the SARC. SARC briefs victim on SVC program and victim  requests SVC. I show up at OSI, speak to victim (who still does not want to report), and inform OSI that victim declines to participate and is leaving. OSI acknowledges this, but informs me that, based on the friend’s statement, it is too late to shut things down; thus they will likely be calling in anyone associated with victim (her flight coworkers, her boyfriend…I even know of a case where the agents indicated they would need to call her parents to ascertain if they knew anything) to interview them regarding their knowledge of anything relevant. This is obviously coercive and indirect contravention to the purposes of the DoDI, but this is the answer we get. So what is client to do? Answer questions “voluntarily” or see OSI “bull in a china-shop” through her personal life? I think all can agree that is not a happy situation to be in.
    Yes, there is a good order and discipline/installation security concern that needs to be addressed, but it seems there could be a better way.

  11. stewie says:

    John, I had a similar case (or my TC did) and it was a conviction.  So I don’t think it’s as predictable as you say.  It depends on the quality of the evidence. I also think as we get SVCs, we are going to see more examples of this issue.

  12. johnny says:

    John, I am with stewie.  At a busy installation, I saw three convictions in a two year timeframe in cases where the victim did not cooperate.  It is of course easier to remember those conviction cases than it is to remember the many cases that were dropped early on based on a victim’s refusal to cooperate.  The sentence in those three cases was admittedly less severe with the hampered presentencing phase, but the conviction still happened. 

  13. J says:

    I guess I’m with Johnny, my (admittedly limited) experience is that you’re much more likely to see a non-prosecution than a conviction.

  14. John O'Connor says:

    I viewed acquittal as highly likely in the case in my shop because not onloy did the victim not cooperate, she did not appear, had no prior testimony, anhd there were no eyewitnesses.  The case got to the members SOLELY through an MP (or CID) testiminy about an excited utterance that “he cut my hair off.”  That’s it.
    As an aside, my Spam Protection question was what is one plus two.  Even Navarre can post when the questions are that easy.

  15. rob klant says:

    Sorry, I still get it:  given the unique environment of the military, why should an active-duty victim of sexual assault be relieved of the responsibility to report and fully to cooperate in the prosecution of his assailant, to the same extent all members of the authority are obligated to report each known offense and to aid authorities to the best of their abilities to bring the offender to justice?
    If I were inclined toward uncharity, I would find such a victim to be morally complicit in any crimes the assailant subsequently commited.
    And, I would find any commander who did not exercise her inherent authority to compel the victim to report and cooperate to be derelict in her own duties and to be an enabler of the intimidation and isolation upon which sexual predators thrive.
    The necessity for commanders to apply an equal and opposite force to victims arises from the recognized forces which compel victims to remain silent and to refuse to cooperate.
    Within the military, the “right” to a restricted report of sexual assault operates only as a shield behind which victims can hide while their assailants are free to re-offend with impunity, while their commanders are left powerless to address the situation. 
    Such an abomination should be ended, immediately.

  16. Bulldog says:

    Sixth Amend, I agree 100%.  Although there are rare cases where firing all of your shots at an Art 32 will get a case killed, in today’s political climate, that is the exception, not the rule.  It seems that the motive for the Defense to cross examine the accuser at most sex assault 32s is simply to lock in the account of what happened and use the rest as a discovery tool – this is substantially different from the motive at trial.  Fortunately, this should not been a problem for the AF as legal offices routinely refuse to record Art 32 hearings verbatim…
    Another problem I have with this tactic is, if this is a typical “he said, she said” case, credibility of both the accuser and the accused is going to be a key issue.  How can the trier of fact judge the accuser’s credibility from purposefully underdeveloped cross-examination from an Article 32?  Further, there are many times where testimony at an Art 32 hearing leads to the discovery of information which is only later available to attack a witness’ credibility at trial.  If the tactics in this case became the norm, the accused is deprived of the opportunity to fairly present a defense.
    As a side note, why wouldn’t the Defense in this case compel this (alleged) victim’s presence and forcer her to make good on her threats?  It seems she did not say she would refuse to testify entirely, just that she wouldn’t cooperate with PROSECUTORS and that she would recant her story if forced to take the stand.  As a DC, that seems like information I want to place before the trier of fact…

  17. SFC V says:

    If the cooperation of the victim were a prerequisite for prosecution, then domestic violence cases would seldom be prosecuted anywhere.  Victims routinely refuse to cooperate and as a prosecutor you just have to deal with it.   I have a case right now (civilian not military) where the victim told the police that nothing happened and insists that it not be prosecuted.  But I have two independent witnesses who saw him strangling her.  I don’t think it would be a great idea to not prosecute this case just because the victim doesn’t want to.  A crime harms the community and not prosecuting the offender puts others at possible risk in the future.  Now you have to evaluate each case and determine if you have enough evidence despite a non-cooperating victim. 
    Defense counsel should not forget that they too can subpoena a victim.  In many instances there will be ample evidence in the absence of a victim’s trial testimony to sustain a conviction.  If you want the opportunity to put their live testimony before the trier of fact then you should exercise the defendant’s right to compel the victim’s presence.       It is my belief that many don’t because they feel their client’s best opportunity for an acquittal is for the victim not to show.   

  18. AFSVC says:

    @rk, 1) precisely what duty to report are you referring too (any crime, not just sexual assault)? I’m not familiar with any such a general duty, though one can be imposed by regulation (US v Heyward, US v Bland). As I alluded too in my earlier post, some AF Commanders have imposed an affirmative duty to report sexual assaults (though every GO I’ve seen has expressly exempted victims). And yes, to the extent that one were to exist, express or implied, Restricted Reporting would clearly obviate the duty for a victim.
    2) As to moral complicity for subsequent crimes an assailant might commit; that’s a pretty interesting way to look at it. I find it oddly reminiscent of the uncharitable views many folks (though not I) hold about attorneys who provide defense services to sexual predators.
    3a) I understand the dereliction argument for the commander, but disagree. If the commander is faced with an uncooperative victim and a dangerous individual in their command, there are other avenues (discharge proceedings) by which to remove the individual from the military environment the commander is responsible for besides compelling the victim to participate in an investigation/prosecution against his/her will.
    3b) I’m just not tracking on how a commander respecting a victim’s desire not to participate is enabling intimidation and isolation. The commander’s action is returning control to the victim, control that victims frequently feel was taken during the assault . Restricted reporting encourages quick reporting as well as anything else, allowing a SAFE kit to be collected and used if the report is later converted to unrestricted.
    4) Apply an equal and opposite force to the victim? Your solution to improve the (admittedly overblown) sex assault issues in DoD is to systematically compel their investigative participation? And that is supposed to improve reporting? Not sure how to respond to that…
    5) Restricted reporting does act as a shield and it does indirectly help offenders, though based on experience with my restricted clients and speaking anecdotally from discussions with other SVCs, many restricted cases would have little chance of ending in a conviction anyway. A fair amount of ‘good’ restricted cases end up going unrestricted. All restricted reporting does is permit them access to services, with the alternative being that the most of these cases would go wholly unreported. Whose interest does that serve if not the offender?

  19. stu wilde says:

    wonder why the minor needed immunity???

  20. Zachary D Spilman says:

    Regarding the duty to report offenses, Article 1137, U.S. Navy Regulations states:

    Obligation to Report Offenses.
    Persons in the naval service shall report as soon as possible to superior authority all offenses under the Uniform Code of Military Justice which come under their observation, except when such persons are themselves already criminally involved in such offenses at the time such offenses first come under their observation.

    It’s a favorite charge of junior prosecutors.

  21. phil cave says:

    See United States v. Serianne, 69 M.J. 8 (C.A.A.F. 2011), for the most recent famous controversial effort to apply 1137 within the Navy.

  22. Darrow says:

    Isn’t the bigger issue here ACCA missing the confrontation clause analysis?  Even if the same motive exists, don’t conflate hearsay and CC; separate protections.  Similar motive is an exception for Hearsay ; NOT for CC.