There was a lively debate in the comments section to this post from last Tuesday, where I reported CAAF’s summary disposition in United States v. McDowell, Military Judge, and DeMario, Real Party in Interest, No. 2013-28 (A.F.Ct.Crim.App. Mar. 13, 2014). The case involved an Air Force effort to stop a judge-ordered deposition of an alleged victim of sexual assault. The Air Force CCA declined to stop the deposition and CAAF affirmed the CCA (I analyzed the CCA’s opinion in this post, and discussed the JAG’s certification to CAAF in this post).

The deposition was ordered because at the Article 32 pretrial investigation the alleged victim – a civilian who could have refused to participate in the Article 32 entirely – took the stand as a Government witness and testified on direct examination, but then walked out during cross-examination by the Defense and refused to participate any further. The case was then referred to trial by general court-martial and the Defense sought an order from the judge compelling a deposition of the alleged victim. The judge granted the order (and re-opened the Article 32 pretrial investigation to force the convening authority to consider the results of the deposition) in part because:

[the alleged victim] “provided incomplete testimony” at the Article 32 hearing that “denied the accused of a substantial pretrial statutory right: a full opportunity to cross-examine an available witness at the Article 32 hearing.”

DeMario, order at 4 (quoting the military judge’s ruling).

One important fact about McDowell is that it involves an alleged victim who is a civilian who can refuse to participate in an Article 32 pretrial investigation (because an Article 32 investigating officer does not have the power to compel attendance). Today, an alleged victim on active duty does not have that same ability to refuse to participate (because a commander can compel that person’s attendance). But Article 32 was modified in the National Defense Authorization Act for FY14 to include an express rule that “a victim may not be required to testify at the preliminary hearing.” That change is not effective until December 27, 2014 (and then only for offenses committed on or after that date; for more discussion of that change, see part four of my series of posts on the NDAA changes). But when it is effective, this important fact in McDowell won’t be so significant.

However, McDowell also involves the fact that the alleged victim completed her Article 32 testimony for one party but then left during the opposing party’s cross-examination. As the CCA noted in its order:

A reasonable argument could be made that an essential witness – BB – was made unavailable at the Article 32 hearing when she excused herself before cross-examination concluded.

Order at 7. This is a fact that may well repeat itself when the future Article 32 takes effect and an alleged victim, who voluntarily participates in the proceeding, departs the Article 32 before the end of cross-examination by the opposing party. And there are good reasons to believe that when this happens a deposition of the alleged victim will be the appropriate remedy.

Today, an Article 32 pretrial investigation has a broad purpose:

(a) No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.

Article 32(a), UCMJ, 10 U.S.C. § 832(a) (2014). But the revision enacted in the FY14 NDAA will change that purpose:

(a) Preliminary Hearing Required-

(1) No charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing.

(2) The purpose of the preliminary hearing shall be limited to the following:

(A) Determining whether there is probable cause to believe an offense has been committed and the accused committed the offense.

(B) Determining whether the convening authority has court-martial jurisdiction over the offense and the accused.

(C) Considering the form of charges.

(D) Recommending the disposition that should be made of the case.

Pub. L. No. 113-66, § 1702(a), 127 Stat. 672, 954 (2013) (to be codified at 10 U.S.C. § 832(a) effective December 27, 2014, and only for offenses occurring on or after that date).

There’s a important commonality between these two statutory purposes of an Article 32: Both involve a recommendation as to the disposition that should be made of the case. This is a far greater purpose than a mere probable cause determination (such as that made by a grand jury). Convening authorities have a wide range of options to address allegations of misconduct by military personnel, from mere informal counseling (i.e., getting chewed-out) all the way up to trial by general court-martial, and the Article 32 process is an important part of a convening authority’s decision-making process. While civilian prosecutors may pursue alternatives to prosecution (such as the federal pretrial diversion), there is no clear analogue to the wide range of options available to a convening authority, and no civilian probable cause determination is as broad as either the current or future Article 32.

Another important commonality between the current and future rules is the right of an accused to cross-examine witnesses who testify at the Article 32 proceeding. The current statutory language provides that:

[F]ull opportunity shall be given to the accused to cross-examine witnesses against him if they are available. . .

Article 32(b), UCMJ, 10 U.S.C. § 832(a) (2014). The future language will read:

The accused may cross-examine witnesses who testify at the preliminary hearing. . .

Pub. L. No. 113-66, § 1702(a), 127 Stat. 672, 954 (2013) (to be codified at 10 U.S.C. § 832(d)(2) effective December 27, 2014, and only for offenses occurring on or after that date).

At the intersection of these two commonalities is the practical reality of credibility determinations. An alleged victim who testifies at an Article 32 and whose testimony is tested by the crucible of cross-examination is inherently more credible than one who avoids such a test. It is axiomatic that it’s easier to lie when nobody challenges your story. And the credibility of the alleged victim is undeniably a critical factor in the determination of the disposition of the case.

When an alleged victim avoids cross-examination at an Article 32, such as by giving incomplete testimony like the alleged victim in McDowell, there can be far-ranging consequences. First, the report of the officer conducting the Article 32 (called an investigating officer now and a hearing officer in the future) is affected, and it may be compromised by over-reliance on a less-than-credible account of an alleged victim. Next, if the case is forwarded to a superior commander pursuant to Article 33, 10 U.S.C. § 833, with a recommendation as to disposition, that recommendation is similarly suspect. Then, the staff judge advocate’s Article 34, 10 U.S.C. § 834, pretrial advice (often little more than a minimalist recantation of the necessary criteria) is questionable. And finally, the decision to refer the case for trial by court-martial might easily be called an abuse of discretion due to an over-reliance on the untested account of the alleged victim. This is obviously a case-dependent determination, but it’s a conceptual illustration of how the circumstances of McDowell (a military judge ordering a deposition to provide an accused with an opportunity for complete pretrial cross-examination of an alleged victim) may well reoccur.

But this analysis is far from saying that an accused has a right to pretrial cross-examination of an alleged victim outside of an Article 32, or even that the accused has a right to interview an alleged victim at all. The right of confrontation applies at trial and it takes an order from a commander (in the case of a military witness) or a judge (in the case of a civilian witness) to compel the appearance of a witness for an interview or formal examination (i.e., a deposition). Even then, a witness who is compelled to appear for a pretrial interview might just sit mute, and Rule for Courts-Martial 702 limits depositions to cases where “due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at an investigation under Article 32 or a court-martial.”

Further, caselaw addressing the accused’s right to interview witnesses (including an alleged victim) is even more circumspect. For instance, while in United States v. Enloe, 35 C.M.R. 228, 234 (C.M.A. 1965), the Court of Military Appeals broadly held that “it is beyond the authority of the United States to interpose itself between the witness and the defense counsel and require, as a condition of granting such interviews, that a third party be present,” the court specifically recognized that there there could be “a situation in which the circumstances are such as to demand the presence of a third party at the interview, in order to protect a special interest of either the State or the witness,” 35 C.M.R. at 233. And the court provided something of a roadmap for determining the existence of such circumstances in United States v. Irwin, 30 M.J. 87, 93 (C.M.A. 1990) (finding error but no prejudice in the convening authority’s ex parte imposition of an unjustifiable requirement for a third party presence during defense pretrial interviews of child witnesses).

Finally, Congress recently gave an alleged victim of a sex-related offense the unilateral power to demand the presence of a third party during a pretrial interview with the defense (discussed in part three of my series of posts on the NDAA changes). And more Congressional intervention my be coming: Section 541 of the Senate Armed Services Committee’s version of the next National Defense Authorization Act (available here) would modify Article 49 to limit depositions to the circumstances detailed in R.C.M. 702 (effectively adopting the more narrow regulatory standard as the statutory standard).

The trend is clear and long in the making: Witnesses for one side at a court-martial (and particularly alleged victims) have broad and growing power to avoid pretrial questioning by the other side. It is the Article 32 process that puts a check on that power when a witness testifies at the Article 32 proceeding (for a good reason I think, considering the broad purpose of Article 32) and that’s what the deposition issue in McDowell addresses. Even when the new Article 32 takes effect (and even if Congress enacts the SASC version of the NDAA and changes the statutory rule for depositions), I think the analysis of the judge, the CCA, and CAAF in a case like McDowell will be the same (if less novel).

However, McDowell doesn’t stand for the proposition that an accused has the right to a deposition of an alleged victim who does not walk-out of an Article 32 after testifying for the prosecution.

5 Responses to “Deposing the alleged victim, now and in the future”

  1. stewie says:

    I think it will change at least somewhat and here’s how. First, I don’t think any MJ who orders a deposition is going to be found to be abusing their discretion by the courts. Thus, I think at the very least, you will have some MJs who routinely (or regularly enough) will order a deposition for alleged victims who don’t testify at an Article 32 AND who don’t agree to an interview with defense AND whom the defense then requests a depo, and those will not be overturned as an abuse of discretion IMO.
    Of course, some MJs won’t, and there’s where we will see what we see. The courts could treat it the same as before but the problem is before there was an expectation that the alleged victim would testify at an A32 (and a near-requirement that a military alleged victim would). Thus, the need for depos truly was rare. Now, that’s gone.
    A depo also solves the third party issue with a depo officer, and a depo still follows the rules for court-martial so 412, demeaning questions, et al still apply.  Seems to me it’s time to re-look Article 46 and see if all it means is “right to contact information” or something a little bit more. Yes, I know, civilians don’t get the right to interview prior to trial, but this isn’t the civilian system.
    I will say, it makes no logical sense to me that an alleged victim who doesn’t testify pre-trial at all doesn’t justify a depo, but one who does testify, but just for the government, does. If the latter situation justifies, the former does as well. Even if I am wrong, and CAAF says no depo is ok, I certainly don’t think this is something that will be a 5-0 decision, as at least one member of CAAF seems to think there’s a right to the defense to interview witnesses before trial (much to silver fox’s consternation).

  2. Christian Deichert says:

    Of course, once MJs start to do this, Congress may “fix the glitch.”

  3. stewie says:

    I suppose that’s possible. It will still take a few years though, and I think they are familiar enough with how depos work that the quasi-judicial nature of them may make them survive congressional scrutiny.

  4. SeaLawyer says:

    I think you’re right that if the alleged victim chooses to provide direct testimony at an Article 32, but does not submit to cross-examination, a court-ordered deposition post-referral (and probably re-opening of the A.32) is the likely (and just) result. 
    But Stewie, your comparison in your last paragraph isn’t apples-to-apples.  The accused still will have the statutory right to cross-examine anyone who DOES testify, which is why McDowell will still apply for crimes post-12/27/2104.  However, since the alleged victim can refuse to testify altogether, what possible basis would the judge have for ordering a deposition of a civilian alleged victim who refused to cooperate with the defense at all?  If I’m TC, why would I ever call the alleged victim at a 32, unless the 32 were intended to be a CYA 32?  Gone is the right to pre-trial, under-oath testimony of critical witnesses (at least in cases involving victims of any kind).  Absent that, I don’t think you can claim that that the accused has a right to interview a civilian complaining witness prior to her actual trial testimony.  They certainly don’t in federal court, and it’s pretty clear that Congress intended to drastically limit (unconstitutionally so, IMO) the accused’s right to prepare in a CM.  Most judges I know would not order a deposition of the alleged victim in light of NDAA-14’s cancellation of a significant pretrial right of the accused.  Is an MJ really going to hold a CM in abeyance until an alleged victim agrees to talk with defense despite clear congressional intent to allow her to avoid doing so?  I’m not suggesting that I’m happy with this result, but I predict very few TC’s, if any, will call the alleged victim as a witness at a 32, but will submit a sworn statement from her instead.  In the rare event the judge does order a deposition, I’m sure we’ll see a challenge to that up to CAAF by her SVC.  If the SVC loses, then every difficult question at the deposition will be met with an objection and a refusal to answer by the alleged victim.  The government will argue that, just like in Federal court, the accused still has the right to subject the alleged victim to the crucible of cross-examination, but only at trial, and that if the victim’s refusing to cooperate with defense outside the courtroom doesn’t unconstitutionally limit the defense’s ability to effectively prepare for that cross-examination in Federal court, it doesn’t in a court-martial either.  The only real counter to that argument that I’ve come up with is that the rule as applied violates due process, because other Federal court protections aren’t afforded to the accused (unanimous grand jury decision binding vs. non-binding IO recommendation, unanimous verdict required for guilty finding, etc.).  Congress obviously has no quams with Frankensteining legislation under special-interest pressure as proven by the ’06 A.120 debacle. 
    Victims now have a speedy trial right??  Seriously?!!

  5. stewie says:

    What basis? RCM 702 is the basis. Lack of testimony at an Article 32. It’s right there in the discussion section. The only question is whether judges will use that basis or not.  Yes, some judges will hold a trial in abeyance IMO, others will not.