A few weeks ago, Zach posted a link to the latest edition of the The Reporter, the Air Force JAG School’s magazine. In that edition, there were two articles dealing with the Special Victim’s Counsel program. One of those articles, The Scope of a Victim’s Right to be Heard Through Counsel by Major Christopher J. Goewert, USAF and Captain Seth W. Dilworth, USAF, got me thinking more about what discovery rights an alleged victim might have.

In the article, the authors tease out what the scope of an SVC’s representation might be in light of LRM v. Kastenberg. As an aside, Maj Goewert was one of the appellate counsel arguing on LRM’s behalf in the appellate courts and Capt Dilworth was LRM’s SVC. The article was thought-provoking, particularly toward the end in a section titled “What Information Should be Provided to an SVC.”

This is an interesting section because, as the title indicates, it is almost entirely prescriptive rather than descriptive. In other words, it seems to be making arguments for what evidence should be provided to an SVC, but does not really discuss what evidence is legally required to be provided. It got me thinking about what requirements, if any, exist right now for production of evidence to an alleged victim. Before we proceed though, let me say that I certainly don’t have all the right answers. This blog post is essentially me thinking through a portion of this article. If I’m wrong on something, please set me straight in the comments. This is as much a learning experience for me as anyone else.

The article proposes four possible levels of discovery:

(1) no disclosure; (2) disclosure of that information which is provided to the court; (3) provision of all evidence that directly relates to the victim; and (4) access to all information that is discoverable to the parties.

I think the pros and cons of each of these levels could be separate blog posts, and maybe that’s something I’ll undertake in the future. However, I want to address the premises from which the authors begin this discussion and some of the implications of these premises. The authors begin their discussion by stating that:

It is patently unreasonable for the government to provide a victim’s attorney with no evidence, as the victim would then be represented by counsel that has been rendered ineffective. It is equally unnecessary for victims’ counsel to receive all the evidence in a given case as they are not a party entitled to discovery.

It’s not clear to me whether the authors are saying  that providing a victim’s attorney with no evidence is “patently unreasonable” in the status quo or whether they are advocating a position for future changes to the law. To the extent that they are arguing that it is unreasonable in the status quo, I would take issue with that conclusion. I take issue with it for the exact same reason that the authors conclude it is unnecessary for a victim’s counsel to receive all the evidence. Namely, the victim is not a party entitled to discovery. If they are not a party entitled to discovery, then it’s not unreasonable to provide them with no discovery.

Further, appeals to effective representation of  victims are not helpful to the authors’ position. I don’t mean to be callous here, but if providing the SVC with no evidence renders him or her ineffective, so what? That speaks more to the quality of representation provided by the SVC than a fault of the system. The authors’ conclusions here starts from two flawed premises: first, that an alleged victim is entitled to effective assistance of counsel and second, that effective representation is contingent upon the government just handing stuff over to the SVC. Or, at the very least, that it is a best practice for the trial counsel to “play nice” and just hand over certain things to the SVC.

Looking at the first premise, while I could be wrong, I’m not aware of any requirement for an alleged victim to receive effective assistance of counsel, whatever that means for an alleged victim. Certainly, to the extent the authors are analogizing to a Sixth Amendment type right, their argument is incoherent for obvious reasons. A good starting point is what CAAF has to say about an alleged victim’s right to counsel:

Furthermore, M.R.E. 412 and 513 do not create a right to legal representation for victims or patients who are not already represented by counsel, or any right to appeal an adverse evidentiary ruling.

LRM v. Kastenberg, 72 M.J. 364, 371 (C.A.A.F. 2013). So, we learn from CAAF that there is no judicially recognized right to representation for an alleged victim. The unspoken corollary is that there is no constitutional right to representation. While the Congress and the DoD have elected to provide all alleged victims with access to SVCs, those statutory and regulatory rights do not necessarily create a right to effective representation.

The correct analogy here is to legal assistance services rather than defense services. It is equally nonsensical to say that a legal assistance client is entitled to effective representation by a legal assistance attorney, as it is to say that an alleged victim is entitled to effective representation by an SVC. If legal assistance screws up your will or your divorce paperwork, you will not escape the repercussions of those mistakes simply because your counsel was ineffective. You might have a civil malpractice claim under FTCA (frankly, I don’t know if that’s even possible for legal malpractice), but the fact that your counsel was ineffective doesn’t help you get out of the legal issue you were facing. Similarly, if an SVC were to be negligent or ineffective, or whatever word you want to use, in representing an alleged victim, the result would most certainly not be that the case is re-tried. Therefore, I would argue that when we think about an alleged victim’s discovery rights, or really any victim’s rights, it is helpful if we dispatch with the idea that an alleged victim is entitled to effective representation. Certainly that’s something good to shoot for, but I don’t see how it’s based on any valid legal argument.

The second premise here, that an SVC’s job is dependent on the trial counsel providing them with certain material, is equally problematic. As I alluded to earlier, the more troubling part of this premise is the underlying idea that it is a “best practice” to play nice with SVCs. Let’s start by talking about who is the trial counsel. I don’t think it’s a stretch to say that these words apply to a trial counsel equally as they would to an AUSA:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.

Berger v. United States, 295 U.S. 78, 88 (1935). While I know I’m running the risk of getting preachy here, I think this quote drives home, in an indirect way, one of the most salient points about the SVC program. That point is that we must resist the notion that the SVC and trial counsel are on the same “team.” They are not. The trial counsel, as the representative of the United States, has a single aim – “that justice shall be done.” Doing justice is not the aim of an SVC. An SVC’s role is to advocate, within the bounds of law and ethics, for his or her client’s position. That may lead to justice in some cases and it may not in others. The main point though is that the SVC and the trial counsel are not on the same “team,” even if their interests may align at times. Indeed Capt Dilworth is very aware of this truth, because he argued it at the trial level in LRM:

Initially during the arraignment hearing, Capt Dilworth indicated that he did not intend to argue at any future M.R.E. 412 or 513 motions hearings. Later during the same hearing, Capt Dilworth argued that there may be instances where LRM’s interests in the motions hearings were not aligned with the Government, in which case Capt Dilworth asked the court to reserve LRM’s right to present an argument.

LRM v. Kastenberg, 72 M.J. 364, 366 (C.A.A.F. 2013).

The trial counsel is under no more obligation to make the SVC’s job any easier than he or she is to make the defense counsel’s job any easier, and trial counsel should treat both counsel the same. The trial counsel should follow the law and only provide the SVC with what the law requires, the same as the trial counsel would do with the defense counsel. If the only way for an alleged victim to obtain certain evidence or court documents is for him or her to file a FOIA request for those documents, then guess what? The DoD has provided the victim with an attorney who can assist him or her in doing just that. If there is no mechanism for a victim to receive certain documents, then their SVC can file a motion arguing for some new interpretation of the law. But, what a trial counsel must not do is just go along to get along with the SVC.

I hope to post more on this subject. While at present I’m at a loss to think of any legal requirement to provide an alleged victim with any evidence from a court-martial, there may be some arguments to read such a requirement into certain statutes. I would encourage all MilJus practitioners though to read this article if you have not already and think about the implications for how we can legally and ethically incorporate this new program into the military justice process.

33 Responses to “Thinking About SVC and Victim Discovery Rights”

  1. Tami says:

    Why limit “effective assistance of counsel” to the 6th Amendment standard?  Why not look at “effective assistance of counsel” from a professional responsibility perspective?  If, for example, I am trying to quash a subpoena for records, how can I adequately argue my client’s position if I don’t have those records?  Or a subpoena for a family member to testify that my client has legal custody of?  Am I not entitled to that family member’s written statement so that I can explain to the judge why my client’s motion should be granted?  I have to have a good faith basis to make my argument, if I have to go into it blind, then I am “ineffective” in the PR sense.  CAAF has established that the alleged victim has the right to be heard in certain matters, and in order to exercise that right, I think the alleged victim is entitled to a certain documents, at a minimum, copies of his/her own statements.  Requiring an alleged victim to file a FOIA request is inappropriate in the litigation context.  If SVCs have to start filing motions to compel discovery of certain matters, then so be it.  I don’t know why anyone would advocate a position that invites more litigation that wouldn’t be necessary if a TC exercises some common sense and professional courtesy.  I agree an SVC isn’t entitled to the entire case file like a DC, but there is, and should be, a happy medium between no evidence and all the evidence.  At a minimum, it should be all evidence necessary to enable the SVC to meet PR standards of effective representation of their clients.

  2. Chris says:

    Thank you for raising this very important and interesting issue. Firstly, much of the concern in this area will be addressed by the fact that NDAA 2014 Sec. 1702 requires that Article 32 hearings be recorded and that a copy be made available to the victim. This will obvioulsy allow the SVC/victim to have a great deal of information that will be useful for responding to or raising issues pretrial. The suggestion that the TC provide a copy of the 32 report to the SVC anticipates this sort of new mandatory disclosure. 
    The question of providing information to the victim/SVC is more nuanced then that of disclosing to the defense.  The idea is not that the TC should release information simply “to get along,” though professional courtesy is surely welcome, the TC has an affirmative statutory duty toward the victim that necessitates disclosure.  The victim has the enforcable Article 6b right to confer with the TC or government representative about the case. It would be very difficult for the SVC/victim to confer with the government without knowing what the facts of the government’s case are.  This is in fact the legal mechanism though which information should be passed though it does not mandate disclosure; courts that have looked at providing information to victims under the CVRA suggest that it is part of the right to reasonably confer. These courts imply that information about the case, including, it would seem, evidence, would be transfered over at the discretion of the prosecution under the right to confer. (See, U.S. v. Sacene 2007 WL 951666 (D.Conn. 2007); U.S. v. Ingrassia, 2005 WL 2875220 (E.D. N.Y. 2005).  The victims need the information to intelligently confer with TC and enforce their other Article 6b rights. This is not to suggest that TC give over information that is otherwise privileged, classified or would interfere with other investigations.  There could also be reasonable restrictions on the release of the information to ensure that it doesn’t interfere with that current case. 
    There other arguments to be made as well and I think we will see those, but to answer your philosophical point, the prosecutor provides discovery to the defense counsel so they can effectively perform their role and preserve the rights of the accused. By advocating for the rights of the accused, a just outcome, that is to say, the balancing and weighing of the evidence and interests in a case is more likely. The remit of achieving justice also simliarly encompasses the protections of the rights of a victim. Providing information to their SVC helps to protect their interests and rights which is a part of impartial justice.

  3. Chris says:

    In thinking about Article 6(b), by way of example, consider a victim’s input into the decision to prosecute.  The victim is consulted on whether he/she wants to see the offense prosecuted prior to preferral or referral.  The trial process and testifying will be an emotional hardship and will cause the victim to relive the events, exacting a tremendous psychological and emotional toll on that individual. Before providing input, a person in their position would reasonably want to know about the quality of the case. What’s it going to look like? What is the likelihood of a successful prosecution? It may not be worth it for them to continue if the evidence is weak or the case may result in the disclosure of embarrassing personal details. They cannot meaningfully provide input without such information and counsel certainly cannot provide them advice on these matters without information.

  4. phil cave says:

    As a defense counsel I don’t see any problem with letting the complaining witness have the information.  There are in fact several benefits to the accused.

  5. rob klant says:

    But what if the information is protected by the Privacy Act or its re-disclosure might be restricted by another statute?   What authority could a TC rely on to release it to the victim, even if the TC were so inclined?
    I’d think a court order would be the only safe way to go.

  6. Advocaat says:

    Concur w/ @RK; without a specific release authority, disclosing information is fraught with peril.  I also think the more information any witness has about a case, the more likely it is their testimony will be influenced.  Filling memory gaps with the perception, retention and recall of others taints the process.  Shouldn’t preserving evidence trump all other considerations, or is the tail finally wagging dog?

  7. Advocaat says:

    (Or “the” dog in these parts…)

  8. Chris says:

    At least in the AF, the Privacy Act would not prevent disclosure of information by TC to the victim because that would be a routine use of the information under VWAP. For those of you who are interested see, Federal Register Volume 73, Number 236, December 8, 2008 page 74473. AFI 51-201 Chapter 7 would be the actual authority for disclosure.

  9. Narlahotep says:

    The old curse “may you live in interesting times” is certainly coming to fruition for me during my time as a Trial Counsel.  Absent any definitive guidance, we’re currently erring on the side of caution in my jurisdiction and only releasing to the victim and SVC statements or materials created by the victim herself.  I will talk in very vague generalities about my opinion on the likelihood of success or failure of a case with the SVC but I do not feel compelled by any statute or case law to release any discovery to them.  Quite the opposite in fact.  As a non-party to the proceedings they are not entitled to discovery any more than some random bubba walking into my office.  The intention behind this is not to be callous or rude or obsturctionist, but rather to protect both the interests of justice and of my client, Uncle Sam.  It’s becoming like the Wild West out there though.  At a recent Article 32, I had an SVC repeatedly objecting to questions from the defense (questions which I, for strategic reasons, wanted the victim to answer), and the SVC had to be gently reminded by the actual parties (and thank goodness, by the savvy IO) that he was not a party and could not object to lines of questioning.Nonetheless, I feel privileged to be in the trenches on the cusp of some of the most drastic changes to military law since the MCM itself came about.

  10. Stackhouse says:

    There’s a case in the trial phase out of Camp LeJeune that is currently stayed based upon an interlocutory appeal to NMCCA filed by the complaining witness’ legal counsel arguing for discovery that was denied by the trial court judge.  Maybe we’ll see soon what the appellate court judges have to say about it.  The record and the filings are with the court as of January 22, 2014.

  11. Tami says:

    An alleged victim is not some “random bubba” or “bubbette.”  The alleged victim has been given specific rights in statute, which has now been interpreted by our highest military court.  Like it or not, these are the rules.  And I don’t think anyone could tell me with a straight face that they have never informed witnesses, either during interviews or testimony rehearsals, of what others are saying, what others wrote in their statements, etc.  So the idea of “tainting” the alleged victim’s testimony, I just don’t think it’s as bad as people think.

  12. Zeke says:

    I share Advocaat’s concern that providing evidence to a witness (victim or otherwise) runs the risk of tainting their testimony.  Even the new NDAA’s provision granting victims the right to sit in on proceedings contains the caveat that a victim can still be excluded from the courtroom if there is clear and convincing evidence that their testimony would be influenced by hearing/seeing others testimony.  The same standard should apply to TC disclosure of evidence to a victim or any other witness prior to trial.  The defense should get a chance to object prior to TC turning over any evidence (including Article 32 reports), and if there is objection on the grounds that disclosure would impact the victim’s testimony, then the decision on whether to turn that evidence over should be made by a military judge.  The standard the judge should use should be the same as under the new Article 6b: turn it over absent clear and convincing evidence that testimony would be impacted.

  13. Zeke says:

    @Tami:  I seem to recall that in the Moussaoui terrorism trial, one of the prosecutors was chastised and the government sanctioned for doing exactly what you are referring to (letting witnesses know what other witnesses said and providing them with copies of those other witness’ testimony).  It almost cost the government the ability to even pursue the death penalty in in that case.  Only a last minute compromise involving calling completely different (untainted) witnesses kept capital punishment on the table.  Giving full 32 reports containing summaries of other witness’ statements is potentially witness tampering of the same type.  http://www.nytimes.com/2006/03/16/national/16assess.html?_r=0

  14. JTS says:

    Interesting times, and I’ve run into this very issue as an SVC.  While I hear what the TCs on this string are saying, the bottom, practical line is that minimal to no discovery hinders the SVC from doing his or her job.  If part of our job is to help inform the client what he or she is facing at trial, we can’t fully and properly do that without seeing the charge sheet.  If we want to discuss with our client whether he or she should support an OTP or other alternative disposition, we can’t do that without being able to see the evidence available (these two, by the way, are things that TCs have asked me to do with my client as an SVC).  Not allowing an SVC “some” discovery would leave the SVC just speculating with the client, which could lead to more confusion by the client going through the justice process, and I don’t think that really benefits anyone, even the accused.  I do think that there needs to be given some priority to resolving this ASAP, whether that’s through redrafting the RCMs or having the SVCs start appealing these issues en mass to the CCAs.  Otherwise, everyone here is right when they say this is all speculation with no rules, and we all know what problems that can lead to.
    @Narlahotep I am not sure if you are aware, but objecting at 32s is guidance that’s been put out to the SVCs, at least in the Army.  So while you may remind the SVC that “they are not a party,” the SVC is still probably going to keep objecting, at least until the new provisions of the NDAA involving victim unavailability actually kick in this June.

  15. Dew_Process says:

    @Zeke – the judge did take the DP off the table in Moussaoui – only for a different reason, viz.,  the government would not grant the defense access to both fact and mitigation witnesses that the judge had previously found necessary and relevant.  So she sanctioned the government by precluding the DP.  The Gov’t appealed and the DC Circuit reversed saying that the sanction was too harsh. SCOTUS denied certiorari – and the jury didn’t buy the DP argument in any event.

  16. Zeke says:

    @Dew_Process: I did remember something about a separate issue concerning denied access to witnesses in that case, but didn’t remember how that panned out.  So, thanks for the detail.  

  17. Sam Adams says:

    @JTS and Chris,
    I appreciate the points you bring up, and I think that SVCs have been put in an unenviable position by being tasked with a job with little guidance and even fewer hard and fast procedural rules to follow. I think my main concern is that there seems to be an undercurrent with the SVC program to make it more than it is or it should be. I guess I’m not sure why (and this is me asking for someone to educate me on it) an SVC needs to be in the business of evaluating the merits of the case. To me the question is as simple as does the victim want to participate or not? Is the victim less re-victimized if the case is a winner vs. a loser? There’s also always the chance that a great case goes down in flames or a bad case somehow gets a conviction. I’m sure that it is a question that comes up as an SVC, but maybe the better question is what is in the SVC’s scope of practice? I just feel like I would be wary as an SVC to get into the business of advising a victim about participation based on the strength of the case. Particularly, since the victim may not get a choice whether they participate or not. That’s the prosecutor’s call.
    Chris, I hope to respond more specifically to some of the other good points you bring up. I need to look at those cases, and I appreciate you pointing me toward them. You also very correctly point out that under the NDAA the victim is entitled to the Art 32 testimony, so that’s sort of a moot point as to whether the victim is entitled to it.
    Tami, I’m not sure I follow your point on the PR piece, but it may be due to my own ignorance about the areas of law you give as examples. My off the cuff response would be that there are civil procedure rules and substantive case law that govern whether you get statements in those contexts. My point, which probably was not very clearly made, is that we are reading in rights that are by no means explicit, based on a victim’s right to be heard through counsel and to confer with the prosecution. Conferring with the prosecution could cover quite a range of activity, much of it short of receiving any evidence. Regardless, I don’t see how it’s the TC’s responsibility to ensure that the SVC meets his or her PR requirements. Additionally, if the SVC acts within the bounds of the law then I think they meet their PR obligation. If their client does not have a right to something under the law, I doubt than can be faulted for failing to procure it. Sadly, I think the only way to resolve these issues is through lots of writs of mandamus or, less likely, through additional legislation.

  18. phil cave says:

    This is the issue that should concern TC and DC.

  19. Tami says:

    I’m wondering if people understand that the rights of an alleged victim are spelled out, both in the current NDAA and in the MCM.  First, the alleged victim gets a copy of the Article 32 transcript.  Period.  Second, the alleged victim gets to sit in and listen to other people’s testimony.  Does it happen often?  No.  I defended a rape case where the alleged victim wanted her mother to sit in with her during the MRE 412 hearing, mother was a witness.  When I objected, the judge overruled, saying she gets to have whoever she wants sitting with her.  Which was fine in the end, they were both lying, got caught in their lies at trial, and my client was acquitted.  As far as litigating subpoenas, civil rules of procedure have nothing to do with it.  I’m talking about courts-martial–litigating subpoenas, depositions, everything which the alleged victim has an interest in.  I got it, this is a new program that we are creating as we go along, reacting as events happen.  As with anything military, we are given broad guidance, rules, etc., then it’s up to us to figure out the implied tasks necessary to accomplish the mission.  In talking about PR, I’m suggesting a lower standard of effective assistance of counsel.  Got it, it’s not the TCs job to ensure SVC meets PR requirements, but if SVCs have to start arguing that in court for a victim to exercise the rights Congress provided (good or bad idea is a non-issue), that’s going to be painful for everyone.

  20. Zeke says:

    To be sure, Congress has given complaining witnesses new rights – including the right to receive a copy of the Article 32 transcript, which will, of course, contain the testimony of other witnesses.  That statutory creature is still subordinate to the accused’s constitutional right to a fair trial.  If turning over the transcript or other evidence under the statute would prejudice testimony or other evidence essential for the accused to receive a fair trial, then the statute would not control, the constitution would.

  21. Advocaat says:

    This is an excellent discussion.  It makes me wonder why these issues were not fully vetted before the SVC program became a reality.  The military has an excellent operational planning process (mission analysis, COA development, COA analysis, COA selection, plan implementation) that was either ignored or poorly executed.  Forcing trial participants to shape the program from the bottom up is a failure in leadership and a recipe for inconsistent procedures/results.

  22. Observer says:

    Recently TJAG said gave a timeline of how the SVP program was initiated.  SECDEF ordered in late summer/early fall that by 1 November 2013 that there was to be initial operating capacity across the force, and by 15 December 2013 that the SVC be fully operational.  This did not leave much time for planning or completing a thorough MDMP. 

  23. Sam Adams says:

    That was a reading comp fail on my part. For some reason I read the sentence as having to do with a custody dispute. If you are moving to quash a subpoena for records, you would already have those records so the point would be moot correct? I mean if we’re talking about mental health records for example, a client can authorize their legal representative to obtain their mental health records, so they don’t need the TC to turn that over. I would tend to agree with you that there’s a lot stronger case to be made as to why someone is entitled to a copy of their own (or someone over whom they have legal custody) statement. Although again, in theory if we’re talking about an adult client they should know what they said. Obviously, that position is probably several degrees removed from reality – at least my experience as a defense counsel would lead me to believe that.
    I looked at Ingrassia and Sacane, and I’m not sure they support the position that the conferral right translates to a right to receive certain evidence, although I can see how that might be an argument. I think it’s worth noting that the issue in Ingrassia and Sacane was specifically regarding the right of the victim to obtain a copy of the PSR. There’s two salient points there. First, the fact we’re talking about a PSR means there’s already been a guilty plea. I would argue there are substantively different concerns when we’re talking about a victim’s access to evidence prior to a contested trial vs. for the purposes of sentencing. Second, and related, even though I think there is less concern with a victim having access to evidence in the sentencing context and there is a clear right of a victim to restitution under the CVRA (which is often the context in which PSR access comes up), pretty much every court that has addressed the issue still has found that a victim is not entitled to a copy of the PSR. As the court said in Ingrassia:
    “The statute no more requires disclosure of the pre-sentence report to meet its remedial goal of giving crime victims a voice in sentencing than it does disclosure of all discovery in a criminal case to promote the goal of giving victims a voice at plea proceedings.” Ingrassia, 2005 WL 2875220, *17
    “The Senate Debate supports the view that the framers of the CVRA intended that the right to be heard would be a mechanism for victims to provide information. To the extent victims might wish to obtain information on which to base their input, the contemplated mechanism for doing so was conferral with the prosecutor rather than the implicit creation of an affirmative disclosure right…” 2005 WL 2875220, Fn 11
    Recognizing that the primary purpose of the CVRA (on which it seems like Article 6(b) is based) is for the victim to provide information, the conferral right is limited to the extent necessary to enable the victim to do so. There’s a lot of “conferring” that can happen to adequately effectuate the purposes of the CVRA short of turning over evidence. There may be certain circumstances where that’s a appropriate on a limited basis (and I would concede that Sacene contemplates those), but it definitely should not be the default position of the TC, and it’s probably only going to come after a court order.

  24. Tami says:

    I raised the issues with the subpoenas because I am aware of a case where the TC subpoenaed the alleged victim’s child to testify (I don’t know how old the child is).  The alleged victim objected and tried to prevent that from happening.  But the TC refused to give copies of the child’s written statements to the SVC, so the SVC was unable to articulate to the MJ why the child shouldn’t be required to testify, so motion was denied.
    As far as records go, if they are the alleged victim’s, you would think there’s already access, so no need for TC to give copies of stuff.  I disagree, it depends on the record.  Also, what if the TC wants to introduce only some of the records into evidence.  Would the SVC then not be entitled to see what the TC wants to introduce?
    As far as the rush to start up the SVC program, remember this was something that Congress demanded.  I think it’s better for us to figure out, and work out, the kinks ourselves, than to wait for Congress to tell us how to do it.  Because then, there would probably be 1,000 monkeys with typewriters.

  25. JTS says:

    A few times, I’ve been in situations where a victim does not know what he or she wants, and they are conflicted about whether to agree to one course of action (i.e. whether to support an OTP, whether to ask to have a case proceed down the CM path or ask for alternative disposition).  When that happens, I feel that my obligation to “zealously advocate” for my client means I have to help them understand the strengths and weaknesses of a case so they can make that very informed and often very emotionally taxing decision.  And that needs to be my assessment, not just one of the party’s who have an interest in an outcome.  So that’s why, at least in my humble opinion, we do have to assess the strengths and weaknesses of a case, and we really can’t know that until we have at least some “evidence.”  Whether that’s the Art. 32 alone or more, well that needs to be figured that out ASAP.  Because I’d agree with everyone else, no one likes this making it up as we go along stance we’re all unfortunately in now.

  26. Chris says:

    You suggest that because there is no affirmative duty to provide information to a victim, no information should be provided. The opposite is equally true: because there is no rule prohibiting providing information, it should be provided.
    Neither are correct positions. A reasonable amount of information should be provided so that the victim (read SVC) can intelligently engage in the process and more importantly, protect their rights to fairness, dignity and privacy.
    The question is only one of degree and manner.
    It was interesting for anyone who attended the recent Air Force SAPR summit to learn that in surveys of SA victims, 82% said that their top concern during the case was the protection of their personal privacy, to include protection of mental health records, seizure of cell phones records, others learning about prior sexual abuse, etc.  Not that the case be successfully prosecuted.  
    The concern that seems woven throughout the comments is that if a victim sees the evidence in the case they will be tainted. The prosecution does not need to provide their entire case file to a victim but should provide enough information to the SVC so that the SVC can intelligently advise the victim and advocate for their rights.  The SVC needs to be able raise privacy and fairness concerns either with the TC or with the court. This can only be done if the SVC has information about the case. Many of the privacy issues involved in a case do not come from the victim’s statement but from other sources.  A victim only needs the SVC to review the information in a case and issue spot in order to protect their rights, not give them a blow-by-blow of the underlying case facts according to the other witnesses.
    There are significant due process concerns raised by not providing the victim, and more importantly the SVC information about the case. For instance, if the victim does not have the 412/513 evidence raised in a motion they cannot intelligently argue the victim’s position. They cannot hope to invoke and protect their rights under Article 6(b) if they are left in the dark.  (U.S. v. Heaton, 458 F.Supp.2d 1271, 1272 (D.Utah, 2006)  (The right to fairness and respect for dignity and privacy is broad and concrete, extending “to all aspects of the criminal justice system,” includes treating a victim justly and equitably).
    If the TC’s role as outlined in the original posting can be summarized as the pursuit of big “J” justice by ensuring all rights are protected, they need to allow the advocates who protect the victim’s rights access to the information that impacts the exercise of those rights.

  27. SVC says:

    As an SVC, I’m often in the position of answering the question of whether my client wants to go to trial.  Legal offices evaluate whether it should go to trial and advise the commander accordingly.  Following guidance to consult with the victim (AFI 51-201, Chapter 7), legal offices often ask me what my client thinks.  My clients usually don’t want to be in the position of deciding whether it goes to trial or not, but they recognize they have a vote.  In making that decision, they usually want to weigh the likelihood of a successful conviction against privacy concerns (different clients think differently, but I am speaking here generally).  That’s why knowing the strength of the case is important.  The TC can help give that assessment, and I’ve found DC are often willing to chime in on the strength of the case.  Ultimately, I need some minimum information (a charge sheet and some statements) in order to help my client make a good decision.  If the TC wants the victim to make a good decision and is genuinely interested in Justice, the TC should provide information to help the victim make a better decision. 
    Also, the Kastenberg holding allows a victim to be heard through counsel.  MRE 412(c)(1)(B) requires the victim be notified of a 412 motion.  MRE 513(e)(1)(B) has a similar requirement.  While the notification does not require disclosure of evidence, disclosure of the motion and attachments allows the SVC to advocate on point.  Failing to disclose that information means the SVC has nothing on which to base an argument.  The right to be heard under the Kastenberg opinion means something if the SVC has the information that is the basis for the motion. 

  28. Charlie Gittins says:

    Victims are little more than eye-witnesses.  Yeah, they have some additional skin in the game, I get it.  But they get to testify under oath, truthfully, just like any other witness; they are really no more or no less.  The whole crap about giving them a 32 transcript and letting them sit in for testimony is all about the victims advocate lobby attempting to obviate the time-tested inconvenience of impeachment by cross-examination where they don’t know what a percipient witness has testified to and now they look like liars, or more likely, a witness with a bad memory (due to intoxication).  Glad I am not doing the work any more, but I am watching with my popcorn in hand.  Good work to all those defense counsel still getting acquittals — it goes to show that at the end of the day, the adversary system mostly works, despite how Congress may plainly attempt to manipulate procedure to come out with something other than justice.  

  29. Just Sayin' says:

    “Requiring an alleged victim to file a FOIA request is inappropriate in the litigation context.”
    And yet…  This isn’t as bad as some things I’ve seen.  In a Navy PR case the Navy made an attorney submit a FOIA for their own work product, which was exculpatory, refused to grant an extension on the PR case, and then denied the FOIA request.  Ultimately the OGC determined that OJAG had acted in violation of FOIA and ordered the return of the documents, but by that time the issue was moot.
    “You need to submit a FOAI” is government speak for “We are never going to give you that information.”

  30. Sean Mahoney says:

    As an SVC, I have seen a definite evolution and a lot of variety in access to information.  Some TCs have seen the SVC as the best one to do expectation management and advising of a victim and so they want to have discussions with me about their thoughts on a case and provide me with information.  Others have used the NDAA’s provisions on Article 32 testimony and basically decided that since they would show a victim their previous statement anyway to prepare them for the 32, they just provide it to me early. 
    As for statements of other witnesses, regardless of whether I get them or not, one of the things I tell a client in my initial meeting with them is that over the course of the investigation, I may be privy to information which I think is best not to share with them.  While they are my client and my job is to work for their interests, because they could potentially get questioned about that information and it could hurt their credibility in front of a panel/judge, I ask them to basically agree that it is best for me to try to gather as much information as possible but then to only provide them with the information that they need.  This sounds like I’m playing hide the ball but generally, I have found clients really want an advocate and someone experienced in the system to advise them and they don’t want to get blown up on the stand for reading someone else’s account of what they know was an assault they experienced.
    Let’s also look at this practically… Once the Article 32 occurs, the 2014 NDAA gives the victim/SVC the right to request and receive the Art. 32 transcript and recording.  So we are really talking about things like access to witness statements and CID files before the Article 32.  Practically, I usually ask for sworn statements (if they already exist) because one of the hardest things for my clients is to come in to see me and they are being asked to tell me what happened to them for at least the third time in a short period (if there is a sworn statement then they have already told the SHARP Rep./Victim Advocate and CID).  At that point, my focus is to prevent my client from at least one more recitation of what will be many more in the future.  I really don’t see the issue with turning over the victim’s statement to CID early in the investigation, but our local CID office now refers me to the TC and TCs are now getting more weary of providing anything because like all attorneys, we look for some authority.  The SVC program is very light on regulatory or legal citations at this stage so then we can hit an impasse.
    Also consider that if I don’t have statements of other witnesses, then I may need to reach out to witnesses and conduct my own investigation (assuming I have time… CAAFlog isn’t the place for the discussion but the Army’s dual hatting legal assistance attorneys as SVCs is a huge time issue).  As a TC or DC, do you really want me as an SVC out there interviewing witnesses and basically conducting another investigation?  Probably lots of pros and cons there depending on the case.
    This discussion is a great one to have.  Thanks for all the thoughtful posts.

  31. Tami says:

    The Army SVCs have a rule against sharing witness testimony with the alleged victim, where the victim is excluded from attending the proceedings under MRE 615. MRE 615 specifically says that victim can’t be excluded from watching the witnesses testify at trial, but it sounds to me like it does apply to pretrial proceedings. The SVC is free to observe everything.

  32. Chris says:

    Article 6(b) allows a victim the right not to be excluded from a hearing, which includes an Article 32 hearing, unless there is a showing by clear and convincing evidence that testimony will be materially altered. That is a high hurdle to overcome.  The victim has a right to know what is happening in the case and the SVC needs to know in order to protect the victims privacy and due process interests. The problem with denying information to the SVC is that doing so can frustrate their client’s right to be meaningfully heard. Instead of taking a fast obstructionist stance, TC/DC should be considering how they can use the SVC to smooth out the process. TCs routinelyprovide discovery to defense counsel well in advance of referral, often for this reason. There is nothing prohibiting them from providing information, thought not necessarily complete discovery, to an SVC in advance in order to ensure that the victim’s liberty and privacy interests are meaningfully represented. 

  33. Tami says:

    I agree that both sides (and CID for that matter) should figure out how to use the SVA for a smoother process.  I see nothing wrong with providing the SVA all information, and the SVA is allowed to sit in on everything and listen to all the witnesses testimony, regardless of whether it’s an Article 32 hearing, motion to suppress, or MRE 412 hearing.  Just wanted to point out the Army has addressed the concern about taint as best as anyone can, by precluding the SVA from sharing testimony that the alleged victim isn’t allowed to hear on his/her own.  But the SVA gets to sit in on that testimony, thus being able to make educated decisions about how best to represent his/her client.