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).