In the debate over whether an alleged victim should testify at an Article 32 hearing, the Army CCA has impeccable timing
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In an unpublished decision in United States v. Trank, No. 20130742 (A.Ct.Crim.App.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.