Two years ago, in United States v. Harpole, 77 M.J. 231 (C.A.A.F. Feb. 14, 2018) (CAAFlog case page), CAAF held that the accused’s statements to a military victim advocate were not protected by the Mil. R. Evid. 514 victim advocate-victim privilege because a third party was present (to provide moral support to the accused) at the time the statements were made. But the circumstances of the case suggested that the victim advocate suspected the accused of an offense, and so CAAF remanded for a post-trial fact-finding hearing to determine if the accused received ineffective assistance of counsel when his defense counsel failed to move to suppress his statements due to a violation of Article 31.
The fact-finding hearing is complete and last month the Coast Guard CCA issued an opinion in the case finding no ineffective assistance of counsel because “a motion to suppress under Article 31(b) would not have succeeded.” United States v. Harpole, __ M.J. __, No. 1420 (C.G. Ct. Crim. App. Dec. 18, 2019) (link to slip op.). But the primary reason for that finding is surprising; the CCA holds that a victim advocate’s questioning does not trigger Article 31.
Writing for a three-judge panel, Judge Brubaker explains:
A victim advocate’s role is not to participate in a law enforcement or disciplinary inquiry. Rather, a victim advocate—much like a social worker or medical professional—provides support and services to individual servicemembers who report that they are crime victims. Extending Article 31(b) warning requirements to these services would result in precisely the type of “comprehensive and unintended reach” that our superior Court has consistently abjured. We thus hold that questioning by a victim advocate done solely within that role falls outside the intended reach of Article 31(b), UCMJ.
Slip op. at 7-8.
Applying that holding to the facts of Harpole, Judge Brubaker writes:
To reiterate, this is a case-by-case determination. It would be feasible for a victim advocate, particularly one within the same command and relatively senior to the person being questioned, to stray from her role as a victim advocate and ask questions that could only have a law enforcement or disciplinary purpose, or at least reasonably be considered as such. YN1 HN’s [the victim advocate] question about what Appellant was doing in female berthing approached, if not crossed, this line. But, the military judge found, she immediately retracted the question before Appellant could answer and it did not elicit an incriminating response. Her retraction only further demonstrates her awareness of her role as a victim advocate: not to develop information for a law enforcement purpose, but instead to allow him to relate his narrative and support him as a victim.
. . .
We thus conclude that YN1 HN did not “interrogate, or request any statement from” Appellant within the meaning of Article 31(b), so a motion to suppress on that basis would not have succeeded. As such, Appellant has failed to show either deficient performance or prejudice from his counsel’s decision not to pursue such a motion. This moots the CAAF’s final question: whether there is a reasonable probability that the members’ findings would have been different had YN1 HN’s testimony been suppressed.
Slip op. at 11-12.