The Military Law Review recently published an article by Army Major Angel M. Overgaard, one of the prosecutors from the Manning case.  In her article, Redefining the Narrative: Why Changes to Military Rule of Evidence 513 Require Courts to Treat the Psychotherapist-Patient Privilege as Nearly Absolute, 224 Mil. L. Rev 979, 984-985 (2017), Major Overgaard explores the intersection between a patient’s privilege under MRE 513 to keep communications with mental health providers private, and an accused person’s right to receive a fair trial.

MRE 513 originally contained eight exceptions, the last of which directed the disclosure of protected communications whenever “constitutionally required.” That eighth exception was viewed by many to be too broad in application.  Therefore, the President and Congress deleted the “constitutionally required” exception. The 7 remaining exemptions allow the disclosure of psychotherapist-patient communications:

(1) when the patient is dead;

(2) when the communication is evidence of child abuse or of neglect, or in a proceeding in which one spouse is charged with a crime against a child of either spouse;

(3) when federal law, state law, or service regulation imposes a duty to report information contained in a communication;

(4) when a psychotherapist or assistant to a psychotherapist believes that a patient’s mental or emotional condition makes the patient a danger to any person, including the patient;

(5) if the communication clearly contemplated the future commission of a fraud or crime or if the services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud;

(6) when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission; [and]

(7) when an accused offers statements or other evidence concerning his mental condition in defense, extenuation, or mitigation, under circumstances not covered by R.C.M. 706 or Mil. R. Evid. 302. In such situations, the military judge may, upon motion, order disclosure of any statement made by the accused to a psychotherapist as may be necessary in the interests of justice[.]

Major Overgaard posits that the deletion of the constitutionally-required exception “revealed [the President’s and Congress’] judgment that the [remaining 7 enumerated] exceptions reflect the full extent of the constitutional requirements.” Her article laments that “[i]nstead of acknowledging that MRE 513 is now nearly absolute, practitioners have attempted to create their own exceptions, rather than look to the enumerated exceptions or other non-privileged sources.” Id. at 985.

The counter-argument to Major Overgaard’s position is that MRE 513 should be read in a way that is respectful of the accused’s Sixth Amendment right to confront witnesses through effective cross-examination. CAAF explained this principle when discussing how to apply a similar privacy-based rule – MRE 412 – in United States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011):

[A rule of privilege] cannot limit the introduction of evidence required by the Constitution — although the text of the rule seems to permit such a limitation. And the [suggestion] that balancing constitutionally required evidence against the privacy interest of the victim before admitting it is necessary to further the purpose of the rule . . . is simply wrong. The purposes of [a rule of privilege] are served by the rule itself[.] If after application of M.R.E. 403 factors the military judge determines that the probative value of the proffered evidence outweighs the danger of unfair prejudice, it is admissible no matter how embarrassing it might be to the alleged victim.

All of that being said, the crux of Major Overgaard’s article is that “the psychotherapist-patient privilege is like,” and should be treated like, the “absolute clergy privilege and the nearly absolute spousal and attorney-client privileges[.]” Id. at 1021. In furtherance of that argument, the article notes that both psychotherapist-patient and clergy-penitent relationships “are based on trust and focus on wellbeing” and that “breaching the privileges would eviscerate the purpose and societal benefits resulting from the relationships.” Id. at 1023. As for the attorney-client privilege, Major Overgaard correctly notes that communications with an attorney and communications with a psychotherapist are alike in that, “[i]n both cases, clients are seeking professional assistance to deal with an issue that they cannot solve themselves.” Id. at 1025. The article does not offer a satisfying explanation for how psychotherapist-patient relationships are analogous to spousal relationships.  Instead, rather than comparing those relationships, Major Overgaard notes that the privileges designed to protect those relationships are structured similarly – both have enumerated exceptions. Id. at 1024.

Unfortunately, Major Overgaard does not address the key factor which seems to distinguish the psychotherapist-patient privilege from the clergy-penitent privilege and the attorney-client privilege. Unlike the privilege protecting psychotherapist communications, protecting communications with a clergy member or a lawyer furthers enumerated Constitutional rights. Specifically, the clergy-penitent privilege furthers the free exercise of religion under the First Amendment.  A helpful discussion of the evolution of the clergy-penitent privilege can be found in The Court of Appeals for the Second Circuit’s decision in Cox v. Miller, 296 F.3d 89, 102-103 (2002). In Cox, the Court outlined the facts and holdings of the seminal case on the question – People v. Phillips – where, in 1813, the New York Court of General Sessions held that the clergy-penitent privilege was “essential to the free exercise of religion.” Similarly, at least in criminal cases, the attorney-client privilege furthers the Sixth Amendment’s right to counsel. In Greater Newburyport Clamshell Alliance v. Public Service Co., 838 F.2d 13 (1988), the Court of Appeals for the First Circuit noted: “[T]he essence of the Sixth Amendment right is, indeed, privacy of communication with counsel.”

Unlike protecting lawyer-client or clergy-penitent communications, protecting communications between a patient and their psychotherapist does not further any enumerated right under the Constitution.  An argument might be cognizable that psychotherapist-patient communications should enjoy protection in the “shadows cast” by the Bill of Rights. See Whalen v. Roe, 429 U.S. 589, 598 n. 23 (1977).  But, a right found in the “penumbra” of the Bill of Rights is not an enumerated right.  Additionally, it seems likely that if psychotherapist-patient communications fall into the penumbra of any Constitutional provision, it is the Fourth Amendment prohibition on unreasonable searches and seizures.  See id., 429 U.S. at 599 n. 24.  A right that can only be found within the Fourth Amendment’s penumbra is a particularly vulnerable right.  After all, all that the Fourth Amendment’s text requires before a liberty interest may be invaded is that the government conduct itself in a manner that is “reasonable” and make a showing of “probable cause.”

Those apparent differences notwithstanding,  Major Overgaard’s article advocates for equality between the psychotherapist-patient, clergy-penitent, and attorney-client privileges. But, her argument for equality comes with an important caveat: Unlike evidence that is withheld under those other rules of privilege, Major Overgaard asserts that evidence withheld under MRE 513 should not yield to the accused’s right to a fair trial.  Indeed, at 1034, her article argues against “suppressing victim-witness testimony or abating the proceedings” when MRE 513 deprives a trial of evidence deemed essential to a fair proceeding. She explains that doing so would “do[] little to enhance victim rights and is counter to society’s interest in justice. Reducing sexual assault prosecutions runs counter to leadership’s goal of eliminating sexual assault.” Id.

When referencing the suppression of witness testimony or the abatement of proceedings, Major Overgaard’s article was alluding to Rule for Courts-Martial 703(f)(2), which provides, in relevant part:

[A] party is not entitled to the production of evidence which is . . . not subject to compulsory process. However if such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party.

This blog’s #10 Military Justice Case of 2014, United States v. Bowser, 73 M.J. 889 (A.F.C.C.A. 2014), aff’d 74 M.J. 326 (C.A.A.F. 2015) (CAAFlog case page), offers an example of RCM 703 provisions being applied in a case where essential evidence became unavailable due to the invocation of a privilege. In Bowser, after a litany of discovery violations related to undisclosed witness statements, the trial judge deemed it to be necessary for a fair trial to make the prosecutors turn over their witness interview notes for in camera review. The prosecution, citing the attorney work-product privilege, refused.  The judge found prosecutorial misconduct and bad faith. He then imposed a drastic remedy for all of those ills: dismissal of the charges with prejudice. The prosecution appealed. The CCA, in a opinion critical of the prosecution, unanimously upheld the trial judge, including his findings of misconduct and bad faith by the prosecutor. The case was certified to CAAF, and the trial judge was again unanimously upheld.

Given the precedent of Bowser and Gaddis, Major Overgaard’s argument that MRE 513 is not subject to constitutional constraints beyond its own enumerated exceptions – none of which adequately address the accused’s Fifth and Sixth Amendment rights – is unsustainable. Her article is not a call to see the military’s psychotherapist-patient privilege treated equally; it is a call to see it elevated to a position of unparalleled primacy.

At a speech given at Boston College just a few days ago, FBI Director James Comey articulated the counterpoint to Major Overgaard’s position:

Here’s something that I don’t mean to freak you out with, but I think is true. Even our memories are not absolutely private in America. Any of us can be compelled, in appropriate circumstances, to say what we remember, what we saw. Even our communications with our spouses, with our clergy members, with our attorneys, are not absolutely private in America. In appropriate circumstances, a judge can compel any one of us to testify in court about those very private communications. And there are really, really, important constraints on law enforcement, as there should be. But, the general principle is one we’ve always accepted in this country: There is no such thing as absolute privacy in America; there is no place in America outside of judicial reach. That’s the bargain. And, we made that bargain over two centuries ago to achieve two goals: to achieve the very, very important goal of privacy. And, to achieve the very important goal of security.

 

24 Responses to “Scholarship Saturday: Military Rule of Evidence 513 – “What men value in this world is not rights but privileges.” – H.L. Mencken (1956)”

  1. Tami a/k/a Princess Leia says:

    In a way, I agree with the author that we are limited to arguing the enumerated exceptions to MRE 513, as we are any other privilege.  However, there is a remedy when the privilege can’t or won’t be pierced–adverse inference.  I disagree with her assessment that respecting the privilege takes precedent over an accused’s constitutional rights.  The rules on privileges already provide a “when constitutionally required” exception–adverse inference in the interests of justice.
     
    I disagree with your argument that the crucial distinction between MRE 513 and clergy and attorney client privilege is the furtherance of a constitutional rght.  If that was the case, then attorney client privilege could be breached in any civil case, and could be breached if the client is not the accused.  And you dont account for marital privilege as furthering a constitutional right.  So what is the real distinction?  Clergy, attorney, and spousal privileges were all common law privileges, MRE 513 isn’t.  But it is a listed exception now, and must be litigated the same as any other privilege.
     
    Comey doesn’t have it right either.  Has anyone noticed there aren’t any enumerated exceptions to the clergy penitent privilege?  That’s because there aren’tany!

  2. Dew_Process says:

    Princess Leia is correct – a statutory privilege must give way to the Accused’s constitutional right of confrontation and a fair trial. The Supremes decided that long ago in Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
     
    And in the military, the attorney-client privilege is hardly sacrosanct either. See, e.g., U.S. v. Godshalk, 44 MJ 487 (CAAF 1996).

  3. stewie says:

    There is no such thing as an “absolute” privilege, nor should there be. The concept she proposes that there is or should be one smacks of someone who takes a very bright line approach to things. She weakens her argument with it. She could have made a stronger argument simply be advocating that any constitutional exceptions should be rare or focused on specific areas as opposed to suggesting that the remaining listed exceptions simply encompass the entirety of the constitutional issues possible.
     
    That wasn’t the thought process in getting rid of the constitutional exception…the thought process was, let’s make this rule as hard to pierce as possible. The only one of those exceptions remotely designed to get at the accused’s constitutional rights is maybe 5 and that’s a stretch. The fact that a constitutional catch all was implemented in the first place was a recognition that the other listed rights didn’t reach that area.
     
    But it’s this line that really kind of makes me say huh:
    “Courts cannot engage in a balancing test of constitutional rights because the Supreme Court, Congress, and the President have already performed that test, and the importance of the privilege has prevailed over the unlikely possibility of discovering probative information in all but a few enumerated exceptions.”
     
    What?! So sorry courts, I know ordinarily you determine the constitutionality of statutes and rules all of the time, but not this time…Congress and the President have already said it’s constitutional so don’t even bother looking at it. That’s…not true.
     
    She apparently thinks 412 is different because it specifically says there is a constitutional exception…which assumes then that if that language was pulled from the rule, she’d feel differently about it?
     
    Courts review constitutionality…they do it for rules in total, and they do it on a case-by-case basis, particularly with new rules. Congress and the President cannot predict every situation in writing new rules/statutes, they can’t anticipate every scenario. Of course the courts are going to ensure the constitutional rights of the accused are protected…regardless of whether the words “constitutional exception” exist or not.
     
    To assume otherwise would be to argue that the Constitution only applies when Congress or the President says it does.
     
    I don’t mean to cast stones, she obviously worked hard on the article and her position is not a lonely one…but it is fundamentally wrong IMO.

  4. Isaac Kennen says:

    Tami,
    Thanks for responding!  I hope you’ll allow me to make a couple of points.  You said:
     

    I disagree with your argument that the crucial distinction between MRE 513 and clergy and attorney client privilege is the furtherance of a constitutional right.  If that was the case, then attorney client privilege could be breached in any civil case[.]

     
    Whether the attorney-client privilege may be breached in a civil case is another topic entirely.  One thing does appear to be certain, however: the infringement of attorney privilege in a civil case is not a Constitutional question.  See the Greater Newberrryport decision cited in my article, above, which, in relevant part, held:
     

    The sixth amendment provides a shield for the attorney-client privilege only in criminal proceedings; upon the termination of those proceedings and initiation of a civil action putting the privilege at issue, that constitutional protection ends. 

     
    Greater Newberryport Clamshell Alliance v. Public Service Co., 838 F.2d 13 (1st Cir. 1988) (at paragraph 28 on the linked site).
     
    You also said:
     

    And you dont account for marital privilege as furthering a constitutional right.

     
    You are right.  Here goes: It is hard to identify any enumerated right in the Constitution that is furthered by protecting spousal communications.  While the Supreme Court struck down statutes that burdened marriage, as in Obergefell v. Hodges, 135 S. Ct. 2584 (2015) and Loving v. Virginia, 388 U.S. 1 (1967), the Court’s rationale for doing so has always been that the offending state action burdened “individual autonomy,” which was protected by the due process clause.  See Obergefell, 135 S. Ct. at 2599.  Invading marital communications would not impact a person’s individual autonomy in any way similar to the invasions that have inspired Constitutional scrutiny – Obergefell spoke of “individual autonomy” in terms of whether or not to get married, contraception, family relationships, procreation, and child rearing.  It’s hard to see an invasion of marital communications by a court impacting liberty interests of that magnitude. It seems likely that, if it is protected at all, the privacy interest in martial communications would only fall into the penumbra of the Fourth Amendment.  (Which is where I think psychotherapist-patient privileges fall as well.)  As I said in my article, the Fourth Amendment – with it’s relatively-weak “reasonableness” and “probable cause” standards – is not the most reliable refuge for liberty.
     
    You then said:
     

    So what is the real distinction?  Clergy, attorney, and spousal privileges were all common law privileges, MRE 513 isn’t. 

     
    Actually, I’m not sure that’s the distinction.  The modern privileges for spousal immunity and spousal communications have common law analogues.  And, “[t]he attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
     
    As for the clergy privilege, take a look at Cox v. Miller, discussed in my article.  In that case, the Second Circuit noted:
     

    [A]uthorities generally agree that [the clergy-penitent privilege] ‘cannot be said to have been recognized as a rule of the common law, either in England or in the United States’

     
    296 F.3d at 102.
     
    Finally, you said:

     
    But [MRE 513] is a listed exception now, and must be litigated the same as any other privilege.

     
    I agree.  That means, as you said, there must be a remedy for when the privilege denies the court-martial or the accused of evidence deemed necessary to a fair trial.  Gaddis provides that the remedy is for the privilege to yield, allowing the evidence (and the prosecution) to proceed.  Bowser (CAAFlog case page) provides that another possible remedy is to halt the prosecution because a trial may not proceed without the evidence necessary to make it a fair one.

  5. stewie says:

    If this were truly about privacy rights, then that very last option you list (not going forward with the trial) would be talked up more. It isn’t because this isn’t about privacy rights, it’s about making sex assault convictions easier.
     
    It’s woven throughout her article, even if she doesn’t explicitly admit it.

  6. Tami a/k/a Princess Leia says:

    I would say Gaddis has nothing to do with privileges.  MRE 412 isn’t a rule of privilege, it’s a rule of relevance.  The rules on privileges are intended to keep relevant, potentially even exculpatory, evidence out of trial, based on a greater societal good.
     
    Not sure it really matters at this point whether our privileges come from common law or from some other source.  The specified privileges, and their enumerated exceptions, are set in stone and courts don’t have authority to add any exceptions.  CAAF made that clear in Custis.
     

    “Courts cannot engage in a balancing test of constitutional rights because the Supreme Court, Congress, and the President have already performed that test, and the importance of the privilege has prevailed over the unlikely possibility of discovering probative information in all but a few enumerated exceptions.” 

     
    While I agree with the proposition that judges can’t add a “when constitutionally required” exception to balance constitutional rights v. privileges, and I agree the balancing has already been done in MRE 513, I disagree that courts “can’t” do any balancing of the privilege.  The better argument is that courts don’t need to add a “when constitutionally required” exception because a “when constitutionally required” mechanism already exists.  MRE 512(a)(2) allows an adverse inference from the invocation of privilege whenever the military judge determines it may be appropriate “in the interests of justice,” i.e. when constitutionally required.
     
    The clergy-penitent privilege is absolute in the sense that there are no enumerated exceptions.  No crime-fraud exception, no child abuse exception, nothing.  So if a victim confessed to a chaplain that she falsely accused someone of sexual assault, can the chaplain be forced to testify to that in open court?  I don’t think so.  But an adverse inference can be drawn from the invocation of the privilege.  And maybe if the victim says “I lied, it really was consensual, I just lied to keep my significant other,” and if the victim hadn’t told anyone else she lied, and if there is no other exculpatory or impeachment evidence, then maybe.

  7. Dew_Process says:

    With due respect to Princess Leia and her generally impeccable analysis, I respectfully disagree that the “clergy-penitent privilege is absolute . . . .” It is in some jurisdictions, it is not in others, especially where the clergy are included as mandatory reporters for child abuse. Six States abrogate or limit the privilege as they include the clergy in their mandatory reporting requirements, i.e., New Hampshire, North Carolina, Rhode Island, Tennessee, Texas and West Virginia.  Thus, e.g., if a Soldier at Ft. Bragg makes a “confession” to his off-base, civilian clergy about engaging in acts that fall within the State’s mandatory reporting requirements regarding child abuse, what is unsettled is whether or not the language of MRE 503 would preclude that clergyperson from testifying or not. This 2015 ARTICLE does a pretty good job of trying to make sense of this particular issue.
     
    The second problem area is the scope of what is included within the clergy-penitent “confession,” i.e., is it limited to confessions about past sins (misconduct)?  Or, while within the confessional “booth,” and the penitent says that she is going to kill the guy that sexually assaulted her – a future action – is that covered or where required, must the so-called “dangerous person” provision requiring reporting apply? 
     
    That issue bit me (and my client) in the butt some years back where the Accused told his civilian pastor that if he didn’t get leave granted, he was going to go “AWOL,” and then was prosecuted for desertion when leave was denied and he left. The pastor testified against him. [Fortunately, the members did the “right thing” and only convicted him of AWOL in any event.]

  8. Tami a/k/a Princess Leia says:

    Dew_Process,
     
    It doesn’t matter how states treat their clergy-penitent privilege, what matters is how the military treats it, and under our rules, there are no enumerated exceptions under MRE 503.  So a clergyman in NC who receives a confession of child abuse from a Soldier stationed at Fort Bragg must report, BUT we can’t use that as evidence because our rule prohibits it.  The Soldier can refuse to disclose the communication and can prevent the clergyman from disclosing, and any reports by civilians would have to be suppressed.  So if the government wants the Soldier to be prosecuted, the military can agree the state of NC will prosecute, or punt to federal district court, which has no rules of privilege set in stone, so maybe the district court will interpret the privilege consistent with the state.
     
    Now if we didn’t have a specific clergy-penitent privilege, then the MJ could use the state’s version, with its enumerated exception, because military courts are allowed to accept other privileges and analyze like the federal district courts, so long as those privileges are not contrary to our rules.
     
    Regarding the requirements for a communication to be covered by clergy-penitent privilege, the communication has to occur in one of 2 ways:  (1) a formal act of religious rite, i.e. Catholic confession, or (2) as a matter of conscience, i.e. my conscience bothers me so much about whatever, that I feel the need to confess.

  9. DCGoneGalt says:

    As usual, stewie is right and it took him a few sentences.

  10. stewtie says:

    I can never tell if I’m being trolled when folks type that.

  11. DCGoneGalt says:

    The only time I troll you is when I say that concerned defender is a separate personality that lives in your head.  But I haven’t seen any proof that isn’t true so I will continue saying it.

  12. Dew_Process says:

    For those with an academic interest, see also:
     

    1. U.S. v. Jasper, 72 MJ 276, 282 (CAAF 2013) [after finding a “waiver” of MRE 503, CAAF held that preclusion of minister’s testimony “violated Appellant’s rights to confrontation and due process.”  But see, U.S. v. Shelton, 64 MJ 32 (CAAF 2006)[MJ “erred” in admitting Accused’s admissions to his pastor];
     
    2.  Winthrop, Military Law and Precedents, 331-32 (2nd ed., Reprint) [communications to clergymen were not privileged];

     

  13. stewie says:

    Ah Shelton…I remember that case.
     
    DCGG…sigh.

  14. k fischer says:

    It isn’t because this isn’t about privacy rights, it’s about making sex assault convictions easier.

     
    I believe that is why making it virtually impossible for a defense counsel to obtain a complaining witness’s mental health records is so attractive to Congress who is interesting in making it as easy as possible to obtain a conviction in a sexual assault case.  Many people who make false allegations have a mental illness.  In a Crown Prosecution study of 121 cases where the Crown considered prosecuting for making a false allegation, it was determined that almost 1 in 5, or 19%, of those making false allegations suffered from a mental illness.  There is a study of those who made false allegation in divorce situations and there was a higher rate of false allegations when the vic had a personality disorder.
     
    My last two sexual assault cases had mental health issues, one a Borderline  who falsely accused her husband of a host of horrors the day after he served her with divorce papers, and the other a Bipolar baby momma who lost primary custody of her daughter, then coached her to make a false allegation against my client.  It was like pulling teeth to get the mental health records of the Borderline.  The Bipolar baby momma proudly informed me during my interview with her that she was diagnosed with Bipolar when I asked her if she was ever diagnosed Borderline.
     
    I think legislators pushing for convictions at Courts-martial are aware of this issue, and know that some men will be acquitted, such as my two clients above, if the complaining witness’s mental disorders are known.  
     
    So:
    1.  MRE 412.
    2.  Take away the consent element.
    3.  Limit the complaining witness’s exposure to defense counsel at 32.
    4.  Give the complaining witness an attorney, so a military defense counsel would be violating AR 27-26 if he or she even attempted to speak to her.
    5.  Hinder the DC from obtaining mental health records.
    6.  Criminalize the surreptitious recording of sexual encounters (although I tend to agree with this one, but it really victimizes the victim of a false allegation when they can’t introduce evidence to show they have been falsely accused)
     
    Anybody have an idea of what’s next on the horizon by Congress to ensure convictions in sexual assault cases?
     
     

  15. Isaac Kennen says:

    k fisher,
    As I see it, in it’s most recent NDAA, Congress has enacted important protections for the accused:
     
    Sec. 5187 (at p. 904 in the enrolled bill version of the law) – requires 8 members for a general court-martial, rather than a mere 5.  Raising the number of members on a general court-martial panel increases the quality of deliberations, which, as has been empirically proven, reduces the risk of wrongful conviction for the accused.  See Ballew v. Georgia, 435 U.S. 223 (1978) (oyez).
     
    Sec. 5235 (at p. 917 of the enrolled bill version of the law) – requires a 3/4 majority vote to convict, rather than a mere 2/3.  Raising the quorum requirement for a guilty verdict from to 3/4 also increases the quality of deliberations, which reduces the risk of wrongful conviction for the accused.  See Burch v. Louisiana, 441 U.S. 130 (1979) (oyez).
     
    Sec. 5184 (at p. 902 of the enrolled bill version of the law) – requires the President to set minimum terms for military trial judges.  Sec. 5330 (at p. 933 of the enrolled bill version of the law) – requires the President to set minimum terms for military CCA judges.  “fixed term of office . . . is not an end in itself. It is a means of promoting judicial independence, which in turn helps to ensure judicial impartiality.” Weiss v. United States, 510 U.S. 163, 179 (1994) (oyez).  Increasing the independence of the military judiciary aids the accused.
     
    Those are all foundational changes to the military justice system – all of which will make it harder for the government to obtain a conviction and will therefore better aid the accused.  Congress may have made certain evidence rules more favorable to the government and may have given crime victims the ability to exercise new rights through interlocutory procedures, but, in equal measure, Congress has given a great benefit to the accused by shifting more power in the military justice apparatus to military juries.  
     
    If I’m a wrongfully accused person, I’ll take that trade.
     
     
     
     

  16. k fischer says:

    Isaac,
     
    I guess it depends on your definition of “important.” 
     
    The way I see it, what’s the difference between the number of panel members you need for an acquittal when there are 8 panel members under the old 2/3’s rule and under the new 3/4th rule?  Answer: None;  they are both 3.  And, doesn’t the new rule require exactly 8 panel members and everyone else is an alternate?  So, really there is no change from raising the proportion of the vote to convict.  No change certainly does not result in an important change.
     
    I see your point on having an independent judiciary.  I don’t quite agree that it will have a significant impact at trial, particularly if the MJ slots are being filled by former SVP’s.
     
    If I’m a wrongfully accused person, I would gladly trade the term limits for trial judges to get back my counsel’s ability to have a robust Article 32 where I can question alleged vics and my ability to obtain psych records, as well as find some sort of equal treatment in the operation of MRE 412 and 413.
     
    I think that an “important” protection would be to make Article 32 recommendations from Judge Advocates binding on Convening Authorities, raising the burden in making a probable cause determination at the 32, and providing TDS offices with dedicated investigators.

  17. Vulture says:

    Isaac.  Looking at the numbers surrounding the NDAA act I posted this as a comment to the number 1 story last year.  http://www.caaflog.com/2017/01/02/top-ten-military-justice-stories-of-2016-1-the-military-justice-act-of-2016/#comments
    Numbers surrounding people in statistical analysis are notoriously creepy so I’ll give it with that caveat.  But they don’t indicate a straight forward benefit to the Accused.  As always, thanks for posting.

  18. Ed says:

    Isaac Kennen
    My guess is an honorable individual likeyou you would have a very different opinion if you were falsely accused of a 120.

  19. stewie says:

    Term limits I find unimportant to be honest. Nice in theory but what if the term limits are simply 3 years, which is already what the Army sets for MJs now?  There will be a process to remove early just like there is now. So the functional difference is low, and MJ independence is not a pressing issue.
     
    The loss of 32 wayyyy overrides that, even if you add in 2/3d to 3/4ths, or 8 vice 5 for CMs. The removal of consent as an element way overrides that. The increased difficulty of getting 513 evidence before a MJ way overrides it.
     
    You’ve placed too much emphasis on the structural Issac and not enough on pretty important changes that have had pretty dramatic impacts on the ability of an accused to defend themselves at trial.  Theory v. practice in other words.

  20. Will Fight says:

    Stewie, I have run across folks who were right before, but I have never in my life encountered someone as right as you are.

  21. stewie says:

    Time for a new shtick Will et al….this one is getting boring.

  22. k fischer says:

    Will Fight/DCCG,
     
    How do I know beyond doubt that I have written something that is correct in theory and practice? Stewie’s points parallel my points, although I, too, have found this shtick tiresome.  Boom!!!! (That was my mind exploding after realizing I was correct again) 

  23. stewie says:

    Just for the record, I’m not always right, don’t think I’m always right, have been wrong tons of times and will be again, and when I am right there is usually someone(s) on here with a deeper, more complex understanding than I.
     
    If someone thinks I come across as thinking I am never wrong, that is never my intent.

  24. Tami a/k/a Princess Leia says:

    I’m writing an article on how to appropriately balance a victim’s right to maintain privilege with an accused’s right to a fair trial.  My argument is that adding a “when constitutionally required” exception is not only legal error, it’s also unnecessary, in light of the “adverse inference in the interests of justice” option that is already available, but rarely used.
     
    I was bothered by the most recent JPP transcript discussing MRE 513 and the way different judges approached piercing the privilege.  I was shocked to read that one judge actually allowed a defense expert to review mental health records in camera with him.  I realize most defense counsel would support that, but that’s not how an in camera review is done and it will only lead to congress making it harder to get MH records.
     
    If I can show you how to litigate privileges without arguing for a “when constitutionally required” exception, would that be helpful?  My article will address all the privileges for individuals in the MRE, and even an extra privilege under a state law.  And in honor of k fischer, the mental health issue is bi-polar disorder.