Court-Martial Trial Practice Blog
I am for (and against) the SVC program. I am mostly for it because it is necessary. Over the years and prior to the Air Force start there were regulations in place that required the trial counsel to inform the “victim” of what was happening in the case and get their input. The trial counsel were not doing the job and in some instances deliberately refused to follow the guidance. By example, a trial counsel who refuses to let the complaining witness know about pretrial negotiations, and who got upset when I gave the CW a copy of the pretrial agreement offer. Which leads to two reasons I’m not necessarily in favor of the SVC program.
Because the trial counsel routinely failed in their requirements, I got in the habit of asking the CW during my interview if they “knew what was going on?” They’d say “no, not really.” I would then take the opportunity to tell them what was going on. I would tell them that I was the defense counsel telling them this and they are welcome to confirm with the trial counsel. At that moment the interview had some lessened tension. In several cases I’m convinced that my “helping” the CW understand what was going caused her to modulate anger against my client and it may have helped later. So now that’s a lost opportunity.
I do have some concerns about the potential for SVC’s exceeding the scope of their responsibility to their client and the court. Whether or not those concerns are supported will be open to discussion for some time to come. There is a potential concern for coaching as opposed to preparing a CW for testimony. Trial and defense counsel prepare but don’t (shouldn’t) coach a witness. It’s perfectly proper to prepare for testifying. In one particular case I was concerned about a SVC who objected to questions unrelated to MRE 412 or 513 during an Article 32. That’s not their place or responsibility.
So I’m not sure the SVC program is in crisis. Are there modifications and clarifications that need to be made – yes. Are there some serious ethical issues to be resolved – yes. The biggest ethical questions that must be resolved include:
What is the SVC required to do under the following situations?
- The CW tells them something significantly contradictory to their statements to law enforcement or at a 32.
- The CW tells the SVC about information that if known to the trial counsel must be discovered under the Brady-trilogy. Is the CW sufficiently a party as the rules and practice seem to have constructed, that there is a discovery obligation.
- The SVC observes the CW make a statement on the witness stand which the SVC knows or reasonably believes to be false. Can the SVC condone such behavior and remain silent, or is there some ameliorative action the SVC is required to take in the interest of justice and as an officer of the court. Note, this is similar, very similar to issues faced by a defense counsel. Defense counsel get training on these issues and there is a fairly robust amount of case-law and discussion of counsel responsibility.
I would encourage the Services to jointly consider addressing these questions in their rules of professional responsibility.
The question of a crisis was raised in this blog post at CAAFLog.
The investigation is centered on allegations that an SVC instructed a victim she was advising in an active sexual assault case to destroy information on a personal cellphone that was relevant to the case, but may have reflected negatively on the victim, according to several sources in the Marine Corps’ legal community who are familiar with the case.
I doubt the attorney advised the client to destroy evidence or potential evidence. If there is a concern it likely lies elsewhere. Is the CW blaming it on her lawyer? Talk to a defense counsel about how it is not uncommon to have the client blame them for something, especially after trial, where there is no blame. The media report notes: “Victims’ legal counsel attorneys have been known to push for a case to go to trial against the recommendations of the prosecutor, the official said, and make demands that have no legal precedent or hold up a trial.”
- Expressing the CW’s desire is not improper.
- Seeking to create new legal precedent is not improper, that’s what defense counsel argue for all the time.
To the extent this program is a hydra-headed problem, blame Congress and the leadership. Now, here is my additional thought on the underlying issue in the media report.
In almost all sexual assault cases I’ve dealt with over the last 7-8 years, text messages, FB messages, emails, and other social media communications have played a significant part in the case. Law enforcement seems to routinely cherry-pick, often with the help of the CW what “evidence” they will preserve. They almost never take a forensic mirror image of the cellphone for example. This in my view is a failure to investigate and direct evidence of confirmation bias in work.
There is no reason law enforcement cannot take a forensic mirror image of the phone and then preserve it as evidence, without actually conducting an examination. Should the image become relevant, then the parties can get the judge to order a DFE if appropriate. This respects the CW’s privacy while at the same time preserving potential evidence at trial, and avoiding allegations of evidence spoliation. I would have thought prosecutors and SVC’s would have been all for it—they avoid the attack on the CW’s credibility! Duh!!!
I say this with the following experiences in now my last eight cases. In each case but one, the CW was allowed, with CID assistance to pick the texts to “preserve” through a screen print or photo of the screen. In six cases the CID did not take a forensic image of the cellphone. In five of the eight cases the cellphone became unavailable after the investigation was closed and before the 32 and our request for preservation or production of a DFE. Two were “dropped,” broken and needed to be traded, two others were dropped in the bathtub, and needed to be traded, and one was traded (in this case the witness never told CID or the prosecutor). So, I am concerned. Is there a pattern? Are the CW’s being told to “lose” their texts or phones? If this in fact presents a suspicious pattern who is doing the telling. Not the SVC, least I don’t think so. That would be extraordinarily stupid. I don’t think it’s law enforcement. Despite concerns of competence, I think this unlikely. That leaves Victim Advocates, SARC’s, and others sufficiently knowledgeable to make such a “recommendation.”
So, is there a conspiracy or a theory. Not sure yet. But, here is a non-conspiracy theory thought on what may be happening. (And this comes from thinking about the ‘one drink’ canard.)
I am thinking that it may be the result of VA’s and SARC’s advising CW’s about privacy. Somewhere in that process it is coming out as lose your phone, delete private messages, hide private messages. Something along those lines. That morphs in the CW’s mind. It’s kinda like the not-what-you-said-but-what-they-think-you-said.
So what I’m thinking is someone needs to do some really clear, direct, and hands-on training or retraining with VA’s and SARC’s. Law enforcement needs to routinely image the phone, but not examine it without written consent. The CW needs to know that they are subject to adverse action for destroying potential evidence, and that’s what a cellphone is.
To finalize, let me give you some entertainment on my mind.
- I have a video of a CW interview. The CW is accompanied by a VA chief warrant officer. During the interview the CID agent steps out. You can then see and hear the VA telling the CW what she needs to be telling about. On review it’s somewhat innocuous so I decided not to use that at trial. The funny part is that after about five minutes the CID agent opened the door and motions the VA over. You can then see the agent talking to the VA and the VA then turns several times to look up at the camera. Hello, you’re on candid camera.
- I have videos of CID conducting three interviews, two with the military SVC present. The third has the civilian and military SVC on it. Again the CID agent leaves the room. Hello you are on candid camera giving your client advice. In the first two military SVC interviews there are several places where the audience can see and hear the advice being given. In the third they are just gossiping. I decided not to bring this up at the 32, and maybe won’t at trial. But let me ask, is that a waiver of the attorney-client privilege.