Argument Preview: Whether an accused’s statements to a victim advocate should have been suppressed (and whether it matters) in United States v. Harpole
CAAF will hear oral argument in the Coast Guard case of United States v. Harpole, No.17-0171/CG (CAAFlog case page), on Wednesday, December 6, 2017, at 9:30 a.m.
The case involves statements made by the appellant to a military victim advocate regarding the sexual encounter forming the basis for his convictions. Those statements were admitted into evidence after the military judge concluded that Mil. R. Evid. 514 (the victim advocate-victim privilege) did not apply because a third party was present when the statements were made. The Coast Guard CCA affirmed that ruling.
CAAF granted review of three 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”?
The third granted issue was not briefed and was resolved by United States v. Bailey, __ M.J. __ (C.A.A.F. Nov. 29, 2017) (CAAFlog case page).
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: