People have been all over the place in terms of like or dislike for the new SVC system the military is putting in place for sexual assault cases. Frankly, most of what the system is doing doesn’t trouble me.
I’ve been more concerned with how it works in practice so that I can either use it to my benefit or prepare for damage control, or something. So, last week I got to address one of my thoughts in court.
We were in a 412 motion and the complaining witness elected to be represented through counsel.
The SVC basically mimic’ed the trial counsel’s objection. Nothing new or compelling. But, unlike trial counsel the SVC was speaking on behalf of the complaining witness. So I was attuned to what the SVC was saying about the events alleged to have happened underlying the charges and also regarding the 412 items.
The SVC represented some “facts” to the court that were attributable to the complaining witness.
What, if anything does MRE 801(d)(2)(D) say about that. Well that Rule applies an exception to what is hearsay.
Step 1. Then,
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity (by an SVC);
(B) is one the party manifested that it adopted or believed to be true (by a SVC with an ethical responsibility to the court);
(C) was made by a person whom the party authorized to make a statement on the subject (by an SVC);
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed (by an SVC); or
So, the squishy bit is whether a complaining witness is a party to the proceedings. Generally we have considered parties limited to those defined in RCM 103(16). But, and this is my argument – based on caselaw and the SVC program the Gov has made a complaining witness and by extension the SVC a party to the litigation. If I’m correct, then you can see why I’m interested in statements made by the SVC to the court, or for that matter to me.
So, another question.
Generally a witness can’t be examined about the exercise of a privilege if it relates to taking the Fifth or Art. 31. United States v. Moore, 36 M.J. 329 (C.A.A.F. 1993), citing United States v. Lyons, 703 F.2d 815 (5th Cir.1983)(party does not have the right to call a witness to the stand simply to force invocation of the right against self-incrimination in the presence of the jury.). Privileges are listed in part five or the MRE. Nowhere does it list a privilege to decline a defense interview or refuse to testify at a 32. So a complaining witness who declines a defense interview or to testify at a 32 can be asked about that. Now, once you do that you are stuck with an answer, so be careful you don’t get what you didn’t ask for.
Can I be present for a TC interview of a CW? If the TC has been present for mine? Is that sufficiently Art. 46 territory?
Can Congress require a TC presence in a defense pretrial interview? Is that Sixth Amendment and Art. 46 territory? I’m fine with a SVC or SAVI rep. That’s been past practice regardless of Congress window dressing and declaring this a new procedure to help victims.
If a TC is in a defense interview, put the TC on the witness list – why not? They are a witness and a perfect one to have testimony about prior inconsistent statements. Just make sure you get a copy of their notes as well through discovery. There’s nothing privileged about the notes if it is an attempt to “record” the CW’s statements to the defense – is there?