Is the “victim” a “party” to the proceeding so that MRE 801(d)(2) applies to her

Yes, is my answer, or at least that is my answer in a brief filed with the Army Court of Criminal Appeals and in several arguments at court-martial.

Under Mil. R. Evid. 801(2), you can offer the out of court statements of an opposing party or certain statements of that parties lawyer as evidence.  Such evidence is not hearsay.

(d) Statements that Are Not Hearsay.

( 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;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

You might think here, Special Victim’s Counsel.  Some years ago I had this come up in an Air Force sexual assault case where the SVC made statements during a Mil. R. Evid. 412 motions session.  After the motions session, I asked the military judge for a ruling that what the SVC said the complaining witness said were statements within Mil. R. Evid. 801(d)(2)–he agreed.

(D) was made by the party’s agent or employee[.]

You might think here SARC or mental health provider.

However, don’t assume that the courts will agree with me, but it’s worth a try.  Sometimes being an effective military defense lawyer is the willingness to try something new or different.

Note in an earlier post I mentioned that RCM 103(16) is helpful in giving a definition of who is a party to a court-martial.  But, I agree the rule does not list a complaining witness (improperly referred to as a “victim” elsewhere).

It seems to me, and I have argued, that the explosion of “rights” afforded a complaining witness (CW) lay a sufficient groundwork for naming the CW a de facto party to the case.  I have laid out quite a few of the new “rights” and privileges which I think, by a totality of the circumstances make the CW a party.  Certainly we are seeing CW’s and their SVC claiming to be able to do much in a case that an accused (or the prosecution) can do.  For example, I am in the middle of a post-trial case where I helped trial defense counsel submit a motion for a post-trial hearing, raising a Griffiths motion (a favorite motion of mine).  The SVC wanted to file an argument against as to why the military judge should deny a finding of not guilty on legal insufficiency grounds.

Don’t get too excited, I’m not, I’ve been practicing as a military appellate defense counsel for too many years–and it doesn’t matter whether it’s the Air Force (AFCCA), Army (ACCA), Coast Guard, Navy, Marine Corps that you practice in–every military appellant has an uphill battle.  But I do think you can’t win a battle unless you make an attack.  That’s how this military defense lawyer thinks about creativity in the court-room.

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