Back in March, in this post, I wrote about the Air Force CCA’s interlocutory order in United States v. McDowell, Military Judge, and DeMario, Real Party in Interest, Misc. Dkt. No. 2013-28 (A.F.Ct.Crim.App. Mar. 13, 2014) (link to order).

The accused is charged with forcible rape of a then 16-year-old girl – who was a family friend – in March 2012. The girl participated in the Article 32 pretrial investigation but cut short her testimony during cross examination by the Defense. After the case was referred, the Defense asked the judge to order a deposition of the girl and the judge granted the Defense request (and also ordered the Article 32 re-opened to consider the deposition). The Government then sought a writ of mandamus from the Court of Criminal Appeals to stop the deposition. The CCA denied the petition noting in part that “this matter represents a case-specific situation, not a widespread situation likely to recur.” McDowell, order at 8.

The Judge Advocate General of the Air Force then certified the case to CAAF (discussed here).

On Friday, August 8, CAAF summarily affirmed the CCA’s ruling denying the Government petition. Chief Judge Baker writes a separate concurrence, reproduced in full below, in order “to highlight the sui generis nature of this case.”

No. 14-5005/AF.  United States, Appellant v. Todd E. MCDOWELL, Appellee, Christopher A. DEMARIO, Real Party In Interest.  CCA 2013-28.  On consideration of the issues certified by the Judge Advocate General of the Air Force, 73 M.J. 287 (C.A.A.F. 2014), the briefs of the parties and of the amici curiae, the motions of Protect Our Defenders and the alleged victim for leave to file amicus curiae briefs and make oral argument in support of Appellant, and the motions of the Real Party in Interest and Appellant to supplement the record, we conclude that the United States Air Force Court of Criminal Appeals did not err in denying Appellant’s petition for extraordinary relief.  Accordingly, it is ordered that the motions of Protect Our Defenders and the alleged victim to file amicus curiae briefs are hereby granted, that the motions of the Real Party in Interest and Appellant to supplement the record are hereby granted, that the motions of Protect Our Defenders and the alleged victim to make oral argument are hereby denied as moot, that the certified issues are answered in the negative, and the decision of the Court of Criminal Appeals is hereby affirmed.

* BAKER, Chief Judge (concurring):

I agree with the reasoning of the Court of Criminal Appeals as to why the military judge did not abuse his discretion in this case as well as its reasons for not granting a writ of mandamus. A writ of mandamus is limited to “the exceptional case where there is clear abuse of discretion or ‘usurpation of judicial power.'”  Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953).  Neither is present in this case.  However, given the importance of the issues raised to military justice, including to the alleged victim, to the Government, and to the accused, I believe it important to state on the record my concurrence with the military judge and the lower court.  I also do so to highlight the sui generis nature of this case.


As summarized in the lower court’s order, a single charge and specification were preferred against the accused alleging the rape of BB, a 16-year-old female acquaintance.  On the day prior to the Article 32, UCMJ,1 investigation, defense counsel interviewed the alleged victim for three hours.  At the hearing, defense counsel informed the investigating officer that they had not been able to complete their interview of the alleged victim the previous day.  To accommodate the defense the investigating officer allowed more expansive questioning of the alleged victim “that would normally have been covered during a pretrial interview.”  After more than two hours on the stand answering the defense questions, it appeared to the investigating officer that the alleged victim was becoming upset with the nature of the questions.  At this point the investigating officer informed the alleged victim that she was not obligated to continue her appearance at the hearing and that she was free to leave, and she departed.  At the point the witness’s testimony terminated, defense counsel had just begun questioning her relating to the events on the day of the alleged act.  Up to that point, counsel had been questioning her on her interactions with the accused leading up to the day of the alleged rape.

Later, at a pretrial Article 39(a), UCMJ,2 session, the defense moved to depose the alleged victim asserting they had had insufficient opportunity to interview her or to cross-examine her at the Article 32 investigation.  The military judge concluded, “due to the exceptional circumstances of this case, it is in the interest of justice that the testimony of [the witness] be taken and preserved.”  He then granted the motion to depose the witness and ordered the convening authority to reopen the Article 32 investigation to allow the investigating officer to consider the deposition once it was taken.  The Government filed a Petition for Extraordinary Relief with the Court of Criminal Appeals seeking a writ of mandamus against the military judge.  Relief, however, was denied.

A writ of mandamus is a writ this court may issue under the authority of the All Writs Act, 28 U.S.C. § 1651(a) (2006).  However, “[t]o justify reversal of a discretionary decision by mandamus, the judicial decision must amount to more than even ‘gross error’; it must amount ‘to a judicial usurpation of power’ or be ‘characteristic of an erroneous practice which is likely to recur.'”  Murray v. Haldeman, 16 M.J. 74, 76 (C.M.A. 1983)(internal citations omitted).


At the time of the military judge’s ruling, Article 49(a), UCMJ,3 provided the accused a statutory right to “take oral or written depositions unless the military judge . . . forbids it for good cause.”  Moreover, as a general matter, an accused has a due process right to interview witnesses in order to prepare a defense.  Consistent with these principles, “A request for a deposition may be denied only for good cause.”  Rule for Courts-Martial (R.C.M.) 702(c)(3)(A).  “The fact that a witness is or will be available for trial is good cause for denial in the absence of unusual circumstances . . . .”  R.C.M. 702(a)(3)(A) Discussion.  However, if there are unusual circumstances, such as the “unavailability of an essential witness at an Article 32 hearing,” there is no good cause to deny the deposition.  Id.

Three factors make this case both sui generis and place it beyond easy characterization.  First, the witness BB was available for trial.  She was also interviewed prior to trial and cross-examined during the Article 32 investigation.  However, at the same time, and as noted by the military judge and the Court of Criminal Appeals, BB’s pretrial interview was terminated before the defense had concluded its questioning, and her cross-examination testimony at the Article 32 investigation was curtailed before the incident in question was addressed.

Second, in the context presented, the military judge placed limits on the deposition.  The military judge’s order permits BB’s attorney to attend the deposition, including those portions relating to matters covered by Military Rule of Evidence (M.R.E.) 412, thus allowing BB to exercise any privileges, including her privilege under M.R.E 513 to refuse to disclose confidential communications between her and her psychotherapist. See R.C.M. 405(i).  In addition, the military judge’s order provides additional protection by requiring the defense to provide notice and by authorizing the deposition officer to take reasonable and necessary measures if issues under M.R.E. 412 arise.

These safeguards were in addition to the existing rules and tools already available to the military judge to regulate the proper conduct of depositions.  For instance, under R.C.M.702(f)(3), the deposition officer is charged with protecting witnesses from “annoyance, embarrassment, or oppression.”  Also, under R.C.M. 702(g)(1)(B), “The scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself.”  Thus, it would appear that the military judge, who was in the best position to observe the witness and was most able to assess the circumstances surrounding the issue of the witness’s expected testimony in this case, exercised discretion that was within the ambit of his authority.

Third, while Article 32 has been amended, the impact of this provision on military practice is not at issue in this case.  As the Court of Criminal Appeals noted:  “Defense counsel may or may not have greater occasion to request depositions of alleged victims after this legislation takes effect, but such requests will be based on different factual predicates than the situation in this case.”  Under Article 6b, UCMJ,4 victims have the right not to be excluded from, and the right to be heard at any hearing convened pursuant to Article 32.  Although this provision of the UCMJ took effect after the Article 32 investigation in this case, it is an example of a continuing trend toward affording alleged crime victims protections throughout the criminal justice process, particularly in sexual assault cases.  As the lower court pointed out, further changes are on the horizon.  The coming changes to Article 32 itself will expressly state that no victim will be required to testify at an Article 32 hearing.5  Moreover, the fact of the matter is that in this case the alleged victim was a civilian who could not have been compelled to appear, or continue her appearance, at the Article 32 hearing in the first place.  See R.C.M. 405(g)(2)(B) Discussion.  Thus, how Article 6(b) and the new Article 32 interplay with an accused’s rights is not addressed in this case and must be resolved in future contexts.

As a result, I concur with the Court’s resolution of the relevant motions in the case and the Court’s disposition of the certified issues.


1 Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 832 (2006).

2 10 U.S.C. § 839(a) (2006).

3 10 U.S.C. § 849 (2006).

4 10 U.S.C. § 806b (2013).

5 113-66, FY 2014 National Defense Authorization Act, § 1702(a).

38 Responses to “CAAF affirms the AFCCA’s denial of a Government petition for a writ to stop the deposition of an alleged victim of sexual assault”

  1. stewie says:

    Hmmmm…so the really important question, are judges/courts going to allow DC to use depositions to replace the alleged victim testifying at a 32, is left for another day.

  2. DCGoneGalt says:

    Stewie:  While I am nearly giving up on military justice at this point, I share the same take away on this case as you.  I see this as a kick the can down the road decision until in the near future the Court is faced with a case involving a complainant and SVC that refuse a pre-trial defense interview while granting TC open access to the complainant and an MJ orders a deposition and the SVP/SVC appeal and TJAG certifies and walks the casefile directly to CAAF.  Based on MRE 702 I don’t see the need for a deposition in a case in which an SVC/complainant denies pre-trial interviews to both TC and DC but in the case of TC being granted an interview, or interviews, I see military judges stepping in and ordering a deposition.  To quote from MRE 702, IMO this factual scenario is an example of Congress unintentionally creating “exceptional circumstances” that require an MJ to ensure the “interests of justice” are served.

  3. k fischer says:

    Hark!  I think I heard CAAF at 2:13 of this work safe video.  With those black leather pants and horrible dance moves, Bono must have gotten sick of being asked to sing “Hit Me with Your Best Shot” in the early days of U2.

  4. DCGoneGalt says:

    kf:  Bono looks crazed in that clip at 2:13.  I saw his overall look during in that video as more Joan Jett than Pat Benetar so I would have yelled out a request for “I Love Rock and Roll” but I suppose Bono’s resemblance to 80s female pop-stars during that timeframe is somewhat of a tomato-tomatoe difference of opinion.

  5. stewie says:

    Hmmm, I think if a MJ orders a depo in your scenario there are well within their rights to do so. I don’t see how it’s an abuse of discretion, so I’d suspect any government appeal wouldn’t last long there. I think the real interesting thing to watch will be when in your scenario the MJ does not order a depo and the defense objects.
    What will the courts do with that scenario? Before, you had the rigorous A32 process to make depositions in these cases really a somewhat rare event. Now, you don’t, and you are left with the possibility that an alleged victim makes one statement, and gets to trial never having made another, and never talking with defense in any forum/manner (in fact, not just a possibility but the preferred government path to trial).
    Will the courts think, that’s ok, or will they have heartburn with it? Particularly given the fairly permissive language of the rule for depositions.

  6. DCGoneGalt says:

    stewie:  I think, and hope, an MJ would order a deposition in the scenario I presented above and those are the scenarios I have seen starting to crop up with more regularity.  If the MJ doesn’t order a depo in that scenario then the answer will come when a conviction occurs and the Court rules on the issue.  The more interesting issue IMO is a complainant who refuses to make a statment to TC or DC once the initial statement is made to LE, or whoever the report is made to.  I honestly think an MJ would not order a deposition in that case and I could see the Court upholding it.  Now that I think of it, I can imagine a scenario where:  1) an allegation is made to a friend who reports, 2)an investigation occurs, 3) the complainant refuses to even make a statement to LE but 4) the SVC passes to TC/SJA the desire of the complainant for the case to go to C-M, and 5) the case gets referred based on the investigation and the hearsay statement of what the allegation was.  What would the court do with a deposition in that scenario?  And no, I don’t think that insane scenario is outside the scope of possibility.

  7. Charlie Gittins says:

    Congress has not amended Article 46, UCMJ — equal access to evidence and witnesses.  If the prosecutrix is talking with the P’s and not with the defense, that would seem to be a problem under Article 46 and a denial of military due process, IMO.  I’d be headed to appellate courts with an Ex Writ if the judge denied me a depositiion. 

  8. DCGoneGalt says:

    Mr.Gittins:  Agreed on Art 46 and the likely appellate outcome, but that won’t stop gov’t/SVC appeal and TJAG from sending it up once the changes hit in Dec 14 and an MJ orders a depo under those circumstances.   That is why I want to see what happens when interviews are cut off to both sides (or in the hypo I presented above when a complainant doesn’t even make a statement to LE).

  9. The Silver Fox says:

    Like aliens, the sasquatch, and the loch ness monster, “military due process” (different from regular, old “due process”), does not exist.  United States v. Vazquez, 72 M.J. 13 (C.A.A.F. 2013); see also United States v. Hawkins, 73 M.J. 605 (A. Ct. Crim. App. 2014)(the concept of “military due process” was “cashiered” by CAAF)).
    Also, other jurisdictions give victims far greater rights than the military does.  Take Georgia, for example:
    I really hope you all get what you wish for and the military justice system is completely civilianized.  All of these esoteric issues will fall by the wayside when your clients are leveraged into a plea bargains. 

  10. DCGoneGalt says:

    Silver Fox:  The cases will not be turned over to civilians, civilian jurisdictions aren’t interested in the vast majority of the alcohol-infused sex cases the military takes to trial.  Therefore, it will not achieve the desired end result of more trials and more convictions.  And the reason the civilian jurisdictions aren’t interested in the cases is because the majority of them cannot be proved beyond a reasonable doubt, a fact which is usually known by an impartial observer from the investigatory stage.  What will a plea be leveraged with?  Military jurisdictions can leverage a plea by bringing crimes like adultery, underage drinking, derelictions, etc.  Civilians cannot, what would a civilian jurisdiction leverage a plea to a lesser charge on in the typical alcohol-sexual assault case?  A bad fact sexual assault case taken forward because of political sensitivities is a non-starter in a civilian jurisdiction. 
    Therefore, Congress will either: 
    1) Continue tinkering with the system until they lose interest, or
    2) Eventually adopt something along the lines below (taken from a previous comment linked in this CAAFLOG article) when once again a high-profile case with a skewed version of the facts is widely reported in the media at the outset of the allegation or investigatory stage and the media fails to correct the record by reporting the facts that emerge at the end of the investigation and/or trial and the trial results in an acquittal followed by public calls for reform from advocacy groups who seem to lack even a basic understanding of the facts elicited at trial and/or the operation of the military justice system.  

    I think the worst endgame scenario involves a centralized Sexual Assault Justice system with a separate preferral/referral authority, as well as regional Art 120 IOs for Art 32s, regional SVPs and quarterly member panels in each region that are specially chosen to hear Art 120 cases. Creating a wholly separate system for Art 120 cases with these special command and prosecution structures would likely achieve the desired result of many more cases going forward and increase the conviction rates. It is a truly scary proposition but one that I think is more possible than the complete abolition of the military justice system, or even the partial abolition of taking Art 120 cases and handing them to civilians.

  11. stewie says:

    Why do we have to have this same conversation? Yes, victims have greater rights in some jurisdictions. Yes, in some ways a military accused has more rights than in some jurisdictions, and in other ways, they have fewer rights. Few folks on here are “wishing for a completely civilianized system” so your comment is both inaccurate and just plain lazy in that respect.
    Article 46 is an example of “military due process.” It’s something that doesn’t necessarily exist in the civilian world although there are certainly analogues. Our open discovery system is another. You can call it due process or military due process or whatever you want to call it, but there are differences that cut for and against an accused (or alleged victim) in our system.  As those things are changed, and changed only in one direction, it’s pretty darn reasonable for folks to ask if that shifts the balances unfairly.
    As opposed to your viewpoint which appears to be, just smile and like it because you already got it good enough anyways.  I think most sexual assault accused would love to be in a civilian system, because they would no longer be sexual assault accused.

  12. The Silver Fox says:

    Maybe you’re right civilian jurisdictions don’t take these type of cases to trial that often.  I haven’t seen the data.  But does hard and fast empirical data exist that suggests civilian jurisdictions are more lenient regarding sexual assault allegations?  And I’m not talking about some white-Sears-suit-wearing civilian DC’s anecdotal perspective.  Because I’d be willing to bet there are jurisdictions that pursue these cases just as aggressively, if not more aggressively than we (the military community) do.  And do you really believe “most sexual assault accused” are innocent, Stewie?  I’m not talking about Shawshank innocent, but actually innocent? 

  13. Charlie Gittins says:

    The sexual assault victim industry is brain washing the military leadership.  I keep coming back to the following scenario.  Woman goes to a bar, drinks way too much, gets in her car and drives home.  The next morning she awakes in her room and the car is in the driveway and she has no recall of driving the car home.  Yet she obviously maneuvered the car and navigated to get herself home’  If she had been stopped by an officer for DUI, would she be not prosecuted because she could not recall the night before?  No, she’d get a DUI conviction because she voluntarily drove drunk.  And that’s the problem with most of our military alleged sexual assaults.  The prosecutrix doesn’t remember what happened, so it must be rape, right?  Wrong.  Bad decisions under the influence of alcohol are what most military cases are about.  Because civilian prosecutors are not answerable to a CA, they have discretion which cases to take to trial and whioch ones not to take.  ANs since most DAs are elected, they don’t take losing cases to trial because it would damage their success record.  Military TCs son’t have the luxury of declining to prosecute when the CA say, prosecute.  And the acquittal rate is still impressive despite the attempts by CMC and the victimology industry to brain wash the rank and file who may serve as members.  

  14. The Silver Fox says:

    Yes, some accused are innocent.  But, on the flip side, some victims have truly been assaulted.  The question is, who decides what the truth is?  And what standard should be met prior to a case going to trial?  A scintilla?  Probable cause?  A preponderance? 
    Let’s be careful not to paint either side with one color because the truth is never as black and white as one might think.  Lawyers, of all people, should understand that better than anyone else. 
    And, btw, civilian DC, I joke because I love…the suits. 

  15. DCGoneGalt says:

    Silver Fox:  IMO, in all cases, and especially in the alcohol-induced sexual assault cases, it is not the role of the SJA or the referring CC to decide what the truth is.  The SJA and the CC evaluate evidence and what can be proven, not what the truth is.  It is the SJAs role to make a determination as to whether the case has the evidence to be sent to trial and be proven beyond a reasonable doubt and the CCs role to determine if the evidence is there and whether good order and discipline dictates taking it to trial (which can sometimes include sending cases to trial that the CC honestly believes will result in an acquittal).  If the standards for recommending referral is a scintilla or probable cause then I see SJAs as little more than matadors ole’ing cases to the CC for referral.  It would be enlightening to see BLUF simple guidance provided to SJAs as to the referral standard sent down by the TJAGs.

  16. stewie says:

    Depends on the type of sexual assault. I suspect the acquittal rate just for “drunk sex” is higher than 50 percent. I suspect the conviction rate for lower level sexual assaults not involving alcohol is also higher than 50 percent. I’m not remotely sure of the relevance of this question since whether or not an accused is or is not innocent in fact has little to do with how we run the system.
    I have plenty of evidence anecdotally that COJs and SJAs and crim law folks would all agree that we take a lot of cases the civilians pass over without a second glance. No one has done a “study” but I’m fairly comfortable there’s sufficient evidence out there to make the argument legitimately. The civilian world takes sure-fire winners to trial. Find me a civilian DA with a 55% sexual assault conviction rate, and I’ll find you a DA who loses their next election.
    So if there are jurisdictions that pursue this more aggressively, it isn’t a butt grab, or two folks were drunk, it’s stranger rape, its bushes rape, its drugged rape…and its clear, and obvious.
    What standard should be met? PC for sure…and everyone on here understands that the reality is that everything is going to trial now. THAT reality means that when you get to trial, you better make darn sure due process is followed and that you aren’t skewing things against the accused.  So pick one, higher standard to get to trial, or more stringent due process considerations if you are going to take everything that isn’t outright lying to trial, because I guarantee you in the civilian world, they don’t send everything that simply meets PC to trial.

  17. AF JAG says:

    Switching tacts to Chief Judge Baker’s concurrence for a moment, did anyone catch this little nugget:  “Moreover, as a general matter, an accused has a due process right to interview witnesses in order to prepare a defense.”  SINCE WHEN?  Notice how there was no citation of authority on that proposition?  That’s because there is none.
    Article 46, UCMJ requires equal OPPORTUNITY to witnesses and evidence, NOT equal results.  Stated another way, the accused is absolutely entitled to up to date and correct contact information for all government witnesses, and then those witnesses, in turn, are entitled to exercise their individual prerogative to decline an interview, particularly a civilian witness.  Unless subject to compulsory process via subpoena (or military members ordered to appear at an Article 32 hearing) no one is required to appear to talk to anyone prior to trial.  Forgive me if I’m missing something, but the last time I checked the 6th Amendment Confrontation Clause right applies only at TRIAL.  There is no Constitutional, statutory, or regulatory right to a pretrial interview.
    Here’s some gems from the CAAF “olides but goodies” file to prove the point:  let’s start with United States v. Enloe, 35 C.M.R. 228, 235 (C.M.A 1965).  In Enloe, the CMA held that the government regulation mandating trial counsel’s presence during any interview with Air Force Office of Special investigations personnel violated Article 46.  Id. at 234.  However, in so doing, it distinguished restrictions on pretrial interview imposed by the government from a witnesses’ own determination not to submit to a pretrial interview, and reasoning that “neither the accused, his counsel, nor the court may be able to compel a witness to submit to a private interview, or not to attach such conditions to the matter as he, the witness, deems appropriate”.  Id. at 235.  Judge Quinn then affirmed this principle in his concurrence, noting “A prospective witness can refuse to be interviewed, privately or otherwise, by either the Government or the accused.  He cannot be compelled to speak to anyone, whether it be to a law enforcement agent, to Government counsel, or to the accused and his counsel, except when summoned, in proper form, before an officer or a tribunal empowered by law to require him to testify.”  Id. at 238 (Quinn, J. concurring) (citing Byrnes v. United States, 327 F.2d 825, 832 (9th Cir. 1964); Blackmer v. United States, 284 U.S. 421 (1932)). 
    The CMA revisited this subject in United States v. Killibrew, 9 M.J. 154 (C.M.A. 1980) explicitly holding what Enloe had intimated:  that an accused has no constitutional or regulatory right to a pretrial interview.  However, Kilibrew demonstrates “the exception that proves the rule” for in Killibrew the Court held that the only circumstance in which the accused is entitled to a pretrial interview as a matter of right under Article 46, UCMJ is where the government intentionally blocked access to their government informant witness (in this case by literally transferring him off the island under cover of darkness and not informing the defense counsel of his whereabouts until the day before trial):  “While in the usual case trial counsel need not arrange for interviews of witnesses, a different burden exists when the Government has intentionally blocked access to a witness by secretly transferring him.”  Id. at 160 (emphasis added). 
    Finally, the CMA then further refined and applied this principle in United States v. Morris, 24 M.J. 93 (C.M.A. 1987) this time finding no denial of equal protection or due process where trial counsel permitted to interview child alleged sex assault victim prior to trial, but child’s parents refused to allow a pre-trial interview by defense counsel.  Id. at 95.; see also United States v. Alston, 33 M.J. 370, 373 (C.M.A. 1991) (noting “neither the convening authority nor the military judge was obliged to grant this irregular and unprecedented discovery request”) (citing United States v. Arboleda, 929 F.2d 858, 867–68 (1st Cir.1991); United States v. Bennett, 928 F.2d 1548, 1553–54 (11th Cir.1991)); United States v. Duncan, 48 M.J. 797 (N-M Ct. Crim. App. 1998), aff’d by 53 M.J. 494 (C.A.A.F. 2001), cert denied by 531 U.S. 1079 (2001); 57 Corpus Juris Secundum § 204 (2014) (“Furthermore, a witness has no obligation to submit to a pretrial interview”).
     I will agree with CAAF on one thing:  right now, the overly permissive language of Article 49 invites this result.  That is because Article 49 as currently configured inverts the analysis the Federal Rule of Criminal Procedure 15 applies to depositions.  Namely, while Article 49 generally says:  depositions YES; for ANYONE, unless good cause against; FCRP 15 says:  depositions NO; and ONLY A PARTY’S OWN WITNESSES; unless “exceptional circumstances in the interests of justice.” 
    I hope that the forthcoming MJRG review addresses the role of depositions and amends Article 49 and RCM 702 to conform with federal practice.  As the commentary on FCRP 15 makes clear, the purpose of a deposition is for a party to preserve the evidence of its OWN WITNESS for trial when you think circumstances may arise where that witness will not be “available” for trial.  That’s NOT what the defense is doing when it asks to depose an alleged victim; they’re looking to create fodder for a prior inconsistent statement.  And while I understand that as a tactic, the federal rules don’t provide for such a maneuver, and neither should the military rules.  That’s not “unfair”; that’s just a recognition that 6th amendment confrontation rights apply at trial, not before. 
    After all, defense counsel, if you don’t depose the alleged victim and he/she fails to show up for trial, you know what you get . . . an acquittal.  And if they do show up, you get exactly what the Constitution guarantees you:  the right to confront your accuser at trial–no more, no less.     

  18. k fischer says:

    Silver Fox, 
    I know what you mean about the suits.  I particularly have a chuckle at SAUSA’s who, it clearly appears, joined the Army, so they could be issued blues and ACU’s and not have to spend any money on a decent fitting/looking suit.  Usually, they waltz into the Middle District of Georgia (Columbus Division) looking like they took fashion advice from their favorite CID agent who, by the way, is eking out an existence at the E-5 pay grade.  When I tell them they should go over to Chancellor’s on Broadway and tell Elliot or Roger that I sent them over because they desperately need one of them to square them away, they thank me profusely for the sage advice and drop my client’s DUI down to a reckless………..

  19. DCGoneGalt says:


    After all, defense counsel, if you don’t depose the alleged victim and he/she fails to show up for trial, you know what you get . . . an acquittal.

    True enough and you are also right on the Constitutional right limited to cross-examination at trial.  Sadly, in this environment many of these cases have patterns (known from the word GO) that even when all government witnesses show up for trial, you know what you get . . . an acquittal.  We will have to see how the appeal system treats the Art 46 equal access language in cases where TC has multiple interviews and an MJ orders a depo/interview.  I don’t think we will have to wait for a conviction/accused appeal because I truly believe under those facts MJs will order depos/interviews so it will be an SVC/TC appeal.  I also want to know if the interviews matter pre-and post-referral.  As I said before, the interesting fact pattern I can see developing is the scenario where no counsel gets an interview.  If MJs start ordering depos/interviews then that could lead to an initial LE interview followed by radio silence from the SVC other than expressing the desire that the case go to trial. 
    ALL:  I must say I never understood the TC/SVC (hell, the whole collective “big G” government) shrieking with fright at allowing defense counsel to conduct a reasonable and respectful interview.  Heck, nowadays TC and/or SVC can sit in on the interviews if the complainant desires and in my experience as a DC/TC/MJ administrator defense counsel who conduct themselves in a respectful manner seldom had any issues with a complainant (and in the modern era an SVC).  While protection of the victim plays a large role in this position (and an admirable one), methinks the high acquittal rate and a desire to avoid the fact patterns from being laid bare play some role (an unadmirable one) in the desire to limit/prevent defense intervies.  
    Be nice to people in cheap suits.  I myself have always been partial to straw hats, seersucker and suspenders. 

  20. stewie says:

    AF JAG, but you are forgetting that in some areas we get MORE than the usual constitutional rights, ostensibly to cover the fact that, arguably, in some places we get less.
    So citing “you get constitutional rights, no more, no less” actually isn’t true. There is no right to a jury in the military, there’s less right there. There is the whole Article 32 process (at least until it changes) which is more. There’s Article 31b, which is more. Article 49, and 46 were written for a reason, and the case law you cite was under the old Article 32 which provided a venue for calling and interviewing on the record major witnesses in a case.  Now, that’s changed and so it will be interesting to see what the courts do with that change, do they alter their approach to facilitate depos, or do they do something else? I don’t know the answer.

  21. k fischer says:

    AF JAG, 

    Switching tacts to Chief Judge Baker’s concurrence for a moment, did anyone catch this little nugget:  “Moreover, as a general matter, an accused has a due process right to interview witnesses in order to prepare a defense.”  SINCE WHEN?  Notice how there was no citation of authority on that proposition?  That’s because there is none.

    Read R.C.M. 701(e) lately?  Are you telling me that “[e]ach party shall have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence” means that the SVP can have all the access it wants to the victim witness to prepare for trial, but cross examination is adequate and the judge cannot do anything about it? 

  22. Charlie Gittins says:

    I have had a judge order a witness to report for an interview, post-Articl3 32 where the witness was subject to cross-examination — in US v. McKinney.  We asked for an interview because of information developed during our independent investigation that a witness had been placed on the DA Special Roster, provided a new name, transferred to the West Coast on the Chief of Staff’s aircraft and provided Government Officer Quarters on a Navy Base, noe of which had been disclosed by the Government.  The judge ordered the witness to be present for interview for two hours.  The interview was conducted in private in a respectful way and we received confirmation of the facts we had independently developed and were able to use it to great effect at trial in cross-examination of multiple witnesses.  In argument, I referred to the witness as “the most important Staff Sergeant in the Army” repeatedly and never by name.  Similarly, the witness acknowledged that she had been told by a CID agentv that it was OK to lie to the Sergeant Major of the Army.  He became “the it’s OK to lie guy” throughout my closing argument.  Damn that was fun.

  23. k fischer says:

    I wonder how long it will take for SVP’s to start using the SVC as a proxy?  
    For instance, why can’t the SVC conduct an interview using the questions in writing that the SVP would ask on direct, then show, but not give, the written answers to the SVP to review, so the SVP knows what answers are given by the victim.  If defense counsel requested the interview in discovery, then would it be covered under attorney client privilege, or did the SVC break attorney client privilege by allowing the SVP to look at it?  And, who is going to know if the SVC showed the SVP the notes?  And, if the SVP made notes from the interview, then wouldn’t the notes be attorney work product?  And, how is defense counsel supposed to know if there is a prior inconsistent statement, unless, the dc has access to the attorney client communication or attorney work product?
    Are we supposed to trust that the SVP is going to jump up in the middle of trial, ask for a 39(a), and advise the witness to tell the truth?  Because how many times have you seen that happen at a court-martial where the TC or SVP knew the witness was not telling the truth about a communication and the TC or SVP asked for the 39(a)?
    I’ve had no less than 3 courts martial where I and the SVP knew that the witness was changing their story completely.  I had hard evidence on one, which was an e-mail between the witness and TC that showed the witness lied about making the communication.  The TC made several different objections to try to suppress the introduction of the e-mail to impeach the witness after I showed her that I had the e-mail.  The second was where the witness testified to something at the 32 that she denied at trial and denied that she made the statement at the Article 32.  When I called the 32 recorder to the stand to show that the witness made the statement at the 32 based on his transcripts, the SVP explained away that the Article 32 transcripts were summarized.  I got my hands on the 32 recording that indicated otherwise and addressed it in my 1105’s, but nothing came of it.  The other one dealt with a proffer from the TC that completely contradicted what the witness testified to, so all I knew one of them was lying, and I would believe it to be the witness because he was an oxygen thief and I respected the TC’s integrity.  But, still the TC didn’t pop up and address the issue.  I let it go, and I ultimately got the acquittal.
    These are three examples of situations where I had some decent evidence of a prior inconsistent statement and questioned the witness if he or she made the statement.  When the witness denied making the statement, the TC or SVP did nothing.

  24. k fischer says:

    You got a similar rhyme for a lying female?

  25. DCGoneGalt says:

    k fischer:  The conscience of every TC/SVC I have ever worked with and the ethics rules already prevent your first scenario re: using SVC as a proxy.  At some level the system depends on trust that human beings will abide by ethical standards.  As to the second scenaro of the SVP jumping up in court and notifying the court/DC of a false/prior inconsistent statement this is something that I believe is largely addressed by current discovery obligations.  If it is known Brady material prior to trial then it should be turned over and if something comes out during trial that is discoverable the discovery obligation continues, it does not stop at the courtroom door.  If the witness denies making the statement that is why DC are able to use summarized/sworn statements to impeach.  Of course, my suspicion is that the whole movement to take away complainant testimony at Art 32s and interviews prior to trial is only in part to “protect the victim” with a fair element of the push designed to carefully manage all information passed to DC to ensure the “chosen narrative” of the facts will be the one to be unveiled at trial.     

  26. stewie says:

    “For instance, why can’t the SVC conduct an interview using the questions in writing that the SVP would ask on direct, then show, but not give, the written answers to the SVP to review, so the SVP knows what answers are given by the victim.”
    Because at at that point, the SVC is operating as part of the prosecution and A-C privilege is broken IMO (or at least “pierceable”).
    You switched to SVP in the middle so I can’t tell if you meant to say SVC, or not.

  27. k fischer says:

    I used SVC and SVP properly, hence the concept of the SVP using the SVC as a proxy to gather info from the vic.
    DCGG, most TC’s have a conscience.  However, how is the SVP supposed to know what the vic said previously if he heard it through the vic’s attorney, i.e. the SVC?  (Stewie, in my scenario, the SVP never speaks directly to the vic.  The SVP gathers all of what he thinks the vic will say through her attorney, the SVC.)  Would the SVP be required to state that the SVC told him that the vic made a statement to her attorney that was previously inconsistent with her in-court testimony?
    And, I’m being serious here.

  28. stewie says:

    I wasnt saying you used it improperly, I just didn’t know if the letter change was accidental or intentional.
    I don’t think SVCs are going to be the first person telling the alleged victim’s story to the SVP. I think your hypo is something that would be pretty rare. If the SVC is reporting the alleged victim’s story to the SVP then that’s not privileged information any longer. Privilege doesn’t work any differently here than anywhere else. Now, I suppose, an alleged victim could claim the SVC was not authorized to share her story, and thus would still claim the privilege. But in reality this scenario isn’t any different than the moral and ethical dilemma presented to any TC/SVP when dealing with an alleged victim’s story. If there are discrepancies are they simply from the fact that humans will not tell the same story the same way any two times, or are they evidence of fabrication?
    At what point must they report said discrepancies? I don’t think for example if they do practice interviews with the alleged victim and she says something occurred at 300 am one time, and 301 am the next time that such a discrepancy is meaningful. If she says it occurred at 3am one time, then 3 pm another, that’s a whole other kettle of fish.  Whether that discrepancy comes from the alleged victim herself, or through the SVC (who the SVP can’t be sure didn’t mishear/translate/retell what the alleged victim told them).

  29. Charlie Gittins says:

    KF — can’t think of one off the top of my head, but when on cross at trial the prosecutrix states under oath that CID told her it was “OK to lie to the SMA, her superior nn-commissioned officer”, it’s hard not to use that at every opportunity.  The same CID agent had photos taken of a “crime scene” in Germany in black and white film.  Yeah, film was still predominant in 1997.  We sent our junior Captain DC to take the same photos in color at the same place at the same time of day.  The “Its OK to lie guy”  also became the CID agent “who tried to mislead you members with black and white film that NO ONE uses any more except for artwork.”  BTW, my dad worked for Eastman Kodak and he gave me shitloads of Qs to rape the CID agent on the stand about film, f-stop, lighting etc.  Never had more fun.   The G in the McKinney trial had hundreds of soldiers working to convict, but had the most incompetent leadership as a prosecutor I have ever encountered.  They were completely unprepared for a team of pros on defense.  I share credit with all three of the military defense counsel, who were superb pros.

  30. Zeke says:

    AF JAG said:

    Switching tacts to Chief Judge Baker’s concurrence for a moment, did anyone catch this little nugget:  “Moreover, as a general matter, an accused has a due process right to interview witnesses in order to prepare a defense.”  SINCE WHEN?  Notice how there was no citation of authority on that proposition?  That’s because there is none.

    Concur.  That jumped out at me too.  Dear God.  That’s twice in a row I’ve agreed with AF JAG now.  Before you know it, I’m going to be typing in ALL CAPS.  ;)

  31. stewie says:

    Article 46 could easily be interpreted as a right to interview witnesses, not simply the right to not be barred from doing so.  The idea that all Article 46 allows is the right to the contact information of witnesses makes one wonder the point of going to the trouble of making it an Article under the UCMJ.

  32. Phil Cave says:

    I have on occasion been required to resort to a couple of cases.
    United States v. Irwin, 30 M.J. 87 (C.M.A. 1990).
    The QP


    And I like this:

    The second reason for our conclusion is the insufficient basis upon which the convening authority imposed a unilateral requirement on the defense for third-party presence at its pretrial interviews of these witnesses. We initially note that this officer acknowledged in his testimony that the children might suffer just as much from trial counsel’s questioning as from defense questioning. Otherwise, the blanket restriction on defense interviews was totally unsupported except for the NIS investigator’s unjustified indictment * of the defense bar. 

    And there was this (which is pretty funny in light of a recent potential prosecution witness who refused to be interviewed without me being present.

    We accept the prosecutor’s statement as to his advice to the witnesses as true. But we know of nothing in the law which gives the prosecutor the right to interfere with the preparation of the defense by effectively denying defense counsel access to the witnesses except in his presence. Presumably the prosecutor, in interviewing the witnesses, was unencumbered by the presence of defense counsel, and there seems to be no reason why defense counsel should not have an equal opportunity to determine, through interviews with the witnesses, what they know about the case and what they will testify to.

    And then you have United States v. Killebrew, 9 M.J. 154 (C.M.A. 1980)
    Some of this may sound familiar where CMA said, 
    this Court held invalid a military order which prohibited an accused from contacting witnesses concerned with the charges against him. United States v. Aycock, 15 U.S.C.M.A. 158, 35 C.M.R. 130 (1964)Accord, United States v. Wysong, 9 U.S.C.M.A. 249, 26 C.M.R. 29 (1958)
    “Unlike the defense right to interview witnesses, which is unconditional.”
    absent special circumstances, the right to a pretrial interview — guaranteed to [the defense] under the Manual [for Courts-Martial] and the Code — encompasses the right to an interview free from insistence by the Government upon the presence of its representative.” 
    That translates to a grant and thus a Fifth Amendment Due Process right.  Yes, I know there was a dissent.  For many years there was also the concept of Military Due Process, which gave a stronger argument for a “right” to a pretrial interview.  See n.3., to Irwin.
    Remember also, and I think this still exists, the trial counsel was required to encourage prosecution witnesses to cooperate with a defense interview.
    And in a case I had, following Irwin, the MJ “issued a protective order in this case to the third-party observer preventing him from disclosing any statements made during these interviews except as required by the defense or a competent court.”
    So, rather than consider CJ Baker’s thought of a due process right to interview, I recommend putting on the thinking caps to find the cases that show he is right – then the issue, as in Irwin becomes the nature of any limitations or such.

  33. Phil Cave says:

    And to AFJAG, I would suggest that the due process right to a witness interview goes back to United States v. Enloe, 15 U.S.C.M.A. 256, 35 C.M.R. 228 (1965).  That’s in the red books.

  34. Just Wondering says:

    Can anyone tell me — what is the outreach to these men and women like, before they become an accused?  
    I mean, obviously, I bet there is some sexual assault training. Does it get hammered home how close the facts are on some of these cases? How what they think is another night out can go south pretty quickly? Or, that once the other person calls what they thought was just a drunken hookup an assault, they could in some cases be roasted by the rules and political climate? If there is training, is it led by an attorney?
    For example, could you ever try (if determined to be possible or effective) to have these young people sit in on a court-martial to get an idea of what these things are like?
    I remember on my first day of law school they said, “Look to your left. Look to your right. One of those people will have a drinking problem at some point in their life.” I guess I just wondered if anyone puts sexual assault in real terms like that before the offense occurs, i.e., “Last year at this base, X or Y happened to someone just like you. Be careful.”
    Not criticizing, just wondering/ignorant.

  35. DCGoneGalt says:

    Just Wondering:  At least in my experience the briefs have moved away from a responsible alcohol choices/battle buddy bystander intervention training model to a rape myths/offender recognition model that IMO is less effective.  My understanding, and I will be the first to admit I could be wrong because I have a very difficult time finding the rationality in a lot of decisions made in this particular topic, is that the emphasis on alcohol/battle buddy was taken as a form of “victim blaming”.  As a defense counsel I would do the “training” that you suggest on a one-on-one basis to those that thought nothing of a drunken hook-up because it is so common place in our culture that people seem to think nothing of it.  However, in that role for the most part you are providing assistance after an allegation has been made and at that point the lesson has been learned, and too late.  IMO, I cannot envision a commander allowing the type of training you suggest because I think that institutionally the decision has been made that if an allegation has been made that there is no such thing as a drunken hook up, there are only a sexual assault. 

  36. Zeke says:

    Mr. Cave,
    I think those cases stand for the concept of there being a due process right for an accused to pursue pretrial witness interviews free from government interference.  I see that as being a proposition wholly different than the Chief Judge’s assertion that the due process clause gives an accused the right to have the government compel his fellow free citizens submit to his desire to engage in extrajudicial questioning of them.

  37. Zachary D Spilman says:

    I agree with you Zeke about the meaning of those cases.

    But I don’t think Chief Judge Baker’s concurring opinion asserts, as you write, “that the due process clause gives an accused the right to have the government compel his fellow free citizens submit to his desire to engage in extrajudicial questioning of them.”

    The Chief Judge wrote:

    At the time of the military judge’s ruling, Article 49(a), UCMJ, provided the accused a statutory right to “take oral or written depositions unless the military judge . . . forbids it for good cause.” Moreover, as a general matter, an accused has a due process right to interview witnesses in order to prepare a defense. Consistent with these principles, “A request for a deposition may be denied only for good cause.” Rule for Courts-Martial (R.C.M.) 702(c)(3)(A). “The fact that a witness is or will be available for trial is good cause for denial in the absence of unusual circumstances . . . .” R.C.M. 702(a)(3)(A) Discussion. However, if there are unusual circumstances, such as the “unavailability of an essential witness at an Article 32 hearing,” there is no good cause to deny the deposition. Id.

    There’s really nothing dramatic in this passage. The Government can’t prevent the defense from interviewing witnesses (i.e., the disturbing cease-and-desist order in the LTC Morse case that Phil discussed here and Stars and Stripes reported here). In turn, the defense can request a pretrial deposition of a witness. But that request may be denied if the witness will be available for trial, unless there are unusual circumstances to justify the deposition despite the fact that the witness will be available.

    This case involved the unusual circumstance that the alleged victim completed her Article 32 testimony for one party but then left during the opposing party’s cross-examination. Something like this could re-occur (as I discussed in this post) but it’s a highly-unusual set of facts.

  38. Zeke says:

    Z, I see what you’re saying – you’re right. The Chief Judge’s statement that there is a due process right to pretrial interviews can not be read out of context from the rest of his paragraph, wherein he articulates the limits of that due process right – i.e., the right exists only under “unusual circumstances.” Further, I whole-heartedly agree that a witness answering TC questions but refusing DC questions would constitute “unusual circumstances” justifying a deposition. I would extend that principle beyond the Article 32 hearing as well. A complaining witness that submits to a TC pretrial interview but refuses to submit to one from DC should be subject to a deposition even if that witness declines to testify at a preliminary hearing for either party. An interesting question arises, on advice from a government-appointed special victim’s counsel, the complainant submits to law enforcement questioning but then refuses to be interviewed by either TC or DC, and refuses to testify at a preliminary hearing? Does the government’s provision of counsel who then discourages a witness from talking to either the prosecution or the defense constitute frustration of the defense’s ability to prepare for trial, in violation of the due process clause? I don’t know that there’s an easy answer to that question.