There is a very interesting issue going on which in some ways is relevant to some of the past and continuing discussions regarding SVC’s, etc.

What does MRE 410 say?

 “Evidence of the following is not admissible against the accused who made the plea or participated in the plea discussions:

(4) any statement made during plea discussions with the convening authority, staff judge advocate, trial counsel or other counsel for the government if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.”

How different is MRE 410 from FRE 410?  Not much I would say.

 “(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.”

Enter Professor Cassell.  You may know him as the anti-false confession expert in false confession cases.  Professor Cassell starts out today’s blog post on Volokh Conspiracy as follows.

 On Friday, the 11th Circuit ruled that discovery can move forward in an important Crime Victims’ Rights Act case[.]  The narrow issue before the court was whether prosecutors and defense attorneys could assert some sort of “privilege” to prevent crime victims from reviewing the correspondence that lead to a plea bargain.

Here’s where it gets interesting (I’m jumping over some very interesting background facts).

 Among other relief [at the district court], we sought rescission of the non-prosecution agreement as a remedy for the violation of the victims’ rights.  To make the case for such a remedy, we moved for discovery of the correspondence between the U.S. and Epstein’s attorneys during the plea negotiations. Epstein’s attorneys intervened, arguing that Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11 create a privilege for plea negotiations, barring release of the correspondence.  They also argued that the court should find that the materials were protected under the work product doctrine or, alternatively, should be protected under a new “common-law privilege for plea negotiations.”

Here is a link to Doe 1 & 2 v. United States, et. al., decided 18 April 2014.

I’ll also jump over the interesting jurisdictional questions, suffice it to say the court found they had jurisdiction and that there is a right to discovery.  (For those interested in the USAF Interlocutory Appeal Activity (sorry meant the AF GAD) and it’s writ activity and such, there is meat for you in this opinion also.)

I’ll leave you to read why the negotiations are not privileged and why the court won’t create one.

My concern is one for practitioners should the case become more than a single circuit’s view of how complaining witnesses have or do not have access to pretrial negotiations matters.  While it may be a victory for victim rights, I wonder the effect on the system and on the pretrial negotiation process in the military.  There are a number of issues not addressed peculiar to the military rule and military practice – but who knows that could change.

I’ve said before, I’m not too concerned about the victim’s rights issue and the SVC issues going on, except to the extent there are potential issues of witness coaching, witness tampering, and the issues of pretrial interview access.  Forget about all of ‘today’s’ ballyhoo about victim rights.  Most of it is window dressing about what previously existed in military regulations, plus the SVC bit.  Why do I say this other than from experience?  Maybe because the DOD Victim & Witness Council gives us this historical note.

Department of Defense (DoD) Directive 1030.1, Victim and Witness Assistance (November 23, 1994) and DoD Instruction 1030.2, Victim and Witness Assistance Procedures (December 23, 1994) implement statutory requirements for victim and witness assistance and provide guidance for assisting victims and witnesses of crime from initial contact through investigation, prosecution, and confinement.

You will see I have highlighted the year 1994 – is that 20 years or so ago – huum.  You may see some familiar victim rights listed.  The 1994 version of 1030.1 was cancelled to be replaced in 2004, and then amended in 2007.  The 1994 version of 1030.2 was replaced in 2004.

Whenever I enter case resolution negotiations I’m careful what I say and avoid saying too much unless it is to a TC I know and trust.  That’s because you cannot always be sure that the discussions don’t get into the case preparation and the court if the TC is not honest or careful.  So, there’s a similar problem I see with giving a complaining witness unredacted copies of all the pretrial negotiations stuff.  I see no problem with the CW knowing that negotiations are ongoing and the general goal I’m after.  But I have a serious objection to the CW being told what the theory of the case is or statements that might be attributed to my client or which demonstrate flaws in the government case.  Fodder for a CW to alter her testimony, which then, in my mind brings up the 410 issue.  So thinking ahead if this issue of Professor Cassell’s has more widespread traction, in cases where I suspect the TC is using something discussed in the – IMHO – protected discussions (and potentially to include disclosures to a CW), I try to argue as follows, with analogy to Kastigar.

 In the course of seeking a pretrial agreement in this case, the accused, through military defense counsel gave information to the trial counsel.  The information or fruits of exploiting that information (derivative evidence) is now being or is about to be used by the prosecution.  The defense objects to the use of that information or the fruits of that information.  Further, the accused requests that the prosecution be required to prove that it is not using, has not used, and will not use that information or the fruits of that information.

The issue is similar to the use or attempted use of an accused’s immunized testimony.  The threshold test an accused must meet to raise to issue of improper use of immunized testimony is well established. All an accused need do is demonstrate that he gave testimony under immunity on matters related to his own prosecution. Once the issue is raised, the prosecution has the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.  Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964).  The Supreme Court provided further guidance on this issue in Kastigar v. United States, 406 U.S. 441, 460 (1972), where the Court defined the Government’s duty as follows:

This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.

Murphy and Kastigar apply to the military, United States v. Rivera, 1 M.J. 107, 111 n. 6 (C.M.A. 1975).  Whether the Government’s evidence is untainted and independent is a question of fact to resolve at an evidentiary hearing.  Mere assertions of faith are insufficient.  Impermissible uses include deciding to initiate prosecution, refusing to plea bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy. See United States v. McGeeney, 44 M.J. 418 (C.M.A. 1996); United States v. Olivero, 39 M.J. 246 (C.M.A. 1994).

Bottom line, while I understand the motivations behind Professor Cassell’s litigation, and am not averse to an informed CW, I’m averse to how his policy may conflict with another significant public policy objective that encourages the pretrial negotiation process.  Your thoughts – if any?

7 Responses to “A clash of rights and privileges?”

  1. stewie says:

    I would hope this doesn’t extend to the military.  It would certain make me never want to give up the slightest bit of information in plea cases involving victims for fear it would end up in court if we went contested.

  2. Lieber says:

    at least one federal circuit has created a settlement discussion privilege.  I won a motion in limine on that very point years ago.  (was representing a plaintiff corp that had had settlement discussions with a third party corp and the defendant corp moved for discovery)

  3. Zeke says:

    I don’t think voluntary comms between an accused and the government regarding a plea should be confidential, although I agree they should remain inadmissible at trial.  The only caveat is that I think the due process clause’ protections against witness tampering should come into play if a government actor has disclosed comms to a witness/victim under circumstances where a reasonable person would know such disclosure might influence the witness’ testimony in a legal proceeding.  The full range of remedies, from an adverse inference instruction, to precluding the witness from testifying, to dismissal of the affected charge should be in the table for such a breach.  A statutory right of the victim to know of plea negotiations would not preclude relief under a constitutional due process theory.

  4. phil cave says:

    Zeke, I think we are on the same page.
    Any alleged statements, such as a proffer, or something that indicates a trial theory should be redacted or not disclosed.  But the rest I’m fine with a CW knowing about.
    As AFSVC (?) has mentioned before, some CW’s are themselves interested in having plea deals if they can feel they have gained something and can have a sense of satisfaction and partial closure.

  5. RKincaid3 says:

    You are 100% correct. This is not how a just system works.  And, from a policy perspective, there is a reason for the rule–one actually discourages settlement discussions, and settlements–clogging the courts with litigation that is best settled by making such discussions discoverable.  This is simply more ridiculousness from the “woe is me, I’m a victim lobby.”

  6. ArmyTC says:

    <rant>Not long ago I had an SVC who threatened to recommend to his client not to support a rare plea to a 120 because we wouldn’t show her client the stip. I’ve heard this has happened at other installations.I explained to him that the stip is an agreement between the accused and counsel, and that until it’s admitted in evidence conditional to acceptance of the plea, it just isn’t something I’m going to share. For one, it’s much more likely that a 120 plea will go sour and the case will go contested. If that happens, the last thing I need is the victim’s testimony influenced by what’s in the stip…which might contain 410 information. Second, the victim doesn’t have a role in drafting the stip. I’m sure there’s stuff s/he wants exposed in sentencing, that’s what his/her testimony is for. I am not jeopardizing the OTP by putting information the victim wants in the stip that the accused can’t stip to. You don’t want to support the deal? That sucks. Here’s a subpoena. See you at trial. </end rant>

  7. ArmyTC says:

    Why is my spacing always jacked up? /end additional rant