Military Rule of Evidence 514 is the Victim Advocate-Victim privilege. It protects:

a confidential communication made between the alleged victim and a victim advocate or between the alleged victim and Department of Defense Safe Helpline staff, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or assistance to the alleged victim.

Mil. R. Evid. 514(a). I discussed the rule in this 2012 post, where I wondered if it really exists (considering its irregular promulgation).

But what happens when the accused asserts the privilege? Last week CAAF granted review in a Coast Guard case that raises that question:

No. 17-0171/CG. U.S. v. Koda M. Harpole. CCA 1420. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. Whether the military judge abused her discretion when she allowed a victim advocate to testify as to appellant’s privileged communications, in violation of M.R.E. 514.

II. Whether the trial defense counsel were ineffective by failing to suppress appellant’s unwarned admissions. These admissions were made to YNI Nipp when she knew he was a suspect and under investigation. She intended to report these admissions to the command and questioned him without advising him of his Art. 31, UCMJ, rights.

III. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable”?

Briefs will be filed under Rule 25 on Issues I and II only.

The CCA’s opinion is available here. It affirmed the military judge’s rejection of application of the Rule on the basis that a third person (the appellant’s friend) was present when the communication occurred.

The CCA also found that it was reasonable for defense counsel to not seek suppression of the statements based on the advocate’s failure to provide Article 31(b) warnings because:

As noted above, Appellant’s counsel did move to suppress HN’s testimony on the ground that his statements to HN were confidential communications to her in her capacity as a Victim Advocate. The theory that HN was acting as a Victim Advocate is factually inconsistent with the theory that HN was required to give Appellant his Article 31(b) rights. Consequently, it would have been difficult to attempt to suppress the testimony on both grounds. At best, the argument would have to be that HN initially was acting as a Victim Advocate and at some point
in the conversation abandoned that role and became an interrogator.

Slip op. at 8 (emphasis added).

2 Responses to “CAAF to review the role of a Victim Advocate and the scope of Mil. R. Evid. 514”

  1. Scott says:

    I think the CCAs is right that the presence of a third party negates the privilege, but it also makes me wonder why the government didn’t avoid this problem by simply calling the friend who was present to testify about what was said during the visit with the VA instead of calling the VA themselves.  Obviously the communications with this friend were not privileged, and it sounds like the accused told him even more than the VA. Maybe he was a bad witness or was spinning things in favor of his friend – or maybe they did call him in addition to the VA. 
     
    An interesting  scenario would be if the third person in the room was an SVC. In that case the victim would have separate sources of privilege for both individuals, but the interaction of those privileges would be complex. for example, the victim turns to the SVC and says “could I be prosecuted if I was caught lying in this case?”… is that a confidential communication when a third party outside the attorney client privilege is present?  Even if it is confidential in so much as the SVC can’t testify about it, could the VA be questioned about the victim’s statements to the SVC – those statements clearly wouldn’t fall under 514 as they were not even addressed to the VA. 

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

    It’s well settled law that when you introduce a third party, with whom you do not have a privileged relationship, and that third party isn’t necessary to further the privileged communication, then anything said in the presence of that third party isn’t privileged.
     
    Scott, if the friend had been an SVC instead, then the communications with the VA would have remained privileged, similar to Shelton, as Shelton had privileged relationships with both his wife and with his pastor.  In your scenario, the SVC has privilege via the attorney-client privilege and the VA has privilege via victim-advocate privilege.  Both of these privileges have an exception when the communication clearly contemplates the future commission of a crime or fraud.  I don’t think asking “can I be prosecuted if I was caught lying” counts as “clearly” contemplating the future commission of a crime or fraud.  I’m not even sure if it clearly communicates a previous crime/fraud, which would remain privileged.  What is this person’s definition of “lying,” is the concern based on differing testimony or is it an outright lie?  If it’s a lie, what is the lie about?  Is the concern being perceived as a liar, even though the alleged victim honestly believes the statement is the truth?  Either way, neither the SVC nor the VA could be called to testify about that statement, it would remain privileged.
     
    A much more clearer case where both the SVC and VA could be called to testify is if the alleged victim told the SVC in front of the VA, something like, “I lied when I first reported it, and it’s snowballed out of control, and I can’t turn back now,” and the alleged victim is scheduled to testify.  In that case, it’s implied the alleged victim will repeat the false statements, therefore “clearly contemplating the future commission” of both a crime and fraud.  But in that case, the SVC has an obligation to convince the client not to go through with the false testimony, up to withdrawing from representation if necessary.  I’m not sure what the rules for the VA are in this situation.
     
    Both the friend and the VA testified at the Article 32 and the trial, according to CGCCA.  Did the defense object to the VA’s testimony at the Article 32 hearing?  Because the rules on privilege apply to the Article 32 hearing.  Failure to object at Article 32 undermines the claim at trial, I think.