The military’s incorporation of the Crime Victims’ Rights Act into the Uniform Code of Military Justice reportedly has not increased the success rates of prosecutions in sexual assault courts-martial. I recall reviewing the amendments and being particularly troubled by a complainant (though legislation uses and assumes “victim”) being afforded the right to absent herself from testifying at the Article 32(b) hearing, but being permitted to remain in the hearing to hear the testimony of other witnesses; additionally “victims” are allowed to listen to the entire trial prior to and after testifying.
Historically and for policy reasons, no witness is permitted to hear the testimony of other witnesses so as to preserve the integrity of any given witness’ recollection and perspective; such sequestration is not necessarily a normative judgment on a witness’ intent to later construct or amend his story, but is designed, as are all the rules of evidence, to ensure that only reliable evidence is admissible. Sequestration of witnesses, other than expert witnesses who base their opinion in part on the testimony they are able to hear in open court, is and always has been a pillar of any criminal justice system and dates back to the Old Testament story of Daniel and Susanna, verses 48 – 64.
The amendment carves out an exception to the general inclusion of a “victim” to the proceedings, though the exception is nearly impossible to meet. Specifically, if any party can demonstrate that by allowing the “victim” to remain in the proceedings her testimony will be materially altered. The standard by which the party must demonstrate exclusion is proof by clear and convincing evidence.
I litigated this issue of sequestration in a U.S. Marine Corps court-martial in March 2014, soon after the amendments to R.C.M. 806 that incorporated the Crime Victims’ Rights Act went into effect. The provision states that as “victims” of offenses under the Uniform Code of Military Justice, a complaining witness now has the “right not to be excluded from any… [court-martial relating to the offense] unless the military judge…after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding.”
“Clear and convincing evidence” is defined as “proof which will produce . . . a firm belief or conviction as to the facts sought to be established” United States v. Green, 62 M.J. 501, 503 (A.F.C.C.A., 2005) citing D.A. Pam. 27-9, P6-4. In United States v. Dubose, the Court of Appeals for the Armed Forces has also defined “clear and convincing”, although in the context of sufficiency of the defense’s burden regarding lack of mental responsibility. 47 M.J. 386, 388 (1998). There, the Court articulated that “the term ‘clear and convincing’ implies a more stringent standard of proof lying somewhere between ‘preponderance of the evidence’ and ‘beyond a reasonable doubt” Id. The Court included footnote discussion of the standard as well: …“‘clear and convincing’ does not call for the highest levels of proof,” merely “a high probability”…); see also Addington v. Texas, 441 U.S. 418, 431-32, 99 S. Ct. 1804, 1812, 60 L. Ed. 2d 323 (1979) (“clear and convincing” is not defined as “unequivocal” or “proof that admits of no doubt,” but rather is a “middle level burden of proof”), cited in United States v. Owens, 854 F.2d 432 at 436 n.8 (11th Cir. 1988). Dubose at 388 n.3.
In the U.S. Marine Corps court-martial, the complainant availed herself of her right to be present during an M.R.E. 412 hearing (at which she has historically been provided the right to be heard), and during the foundational testimony of two witnesses, she realized a glaring distinction in her own story. At trial, she altered her testimony to come into line with the other two witnesses. I moved the Court to exclude the complainant from the remaining portions of the trial on the grounds that I had established the requisite standard she would materially alter her testimony since she had already done so. I presumed the government would recall her in their rebuttal case and I intended to call her in the defense case. The military judge denied the motion.
After recently reconsidering the issue, I realize the only party to the trial that permitting a complainant into the courtroom to hear other witnesses’ testimony and evidence is the prosecution. Ridding the trial of sequestration actually helps the defense. What do I mean?
In a recent discussion (and significant difference of opinion) among counsel about the debate to waive or not waive the Article 32(b) hearing, I became aware that government counsel in at least one Army jurisdiction are informing the defense of the complainant’s desire to listen in over the phone to the Article 32(b) proceedings. This information is causing military defense counsel and even at least one distinguished civilian colleague to use this as yet another justification to waive the Article 32(b) hearing. But why are you running? Probably for the same reason I filed my motion in the Marine Corps case. It just feels wrong. But that is not where the analysis should end.
By the time of the Article 32(b) hearing, the complainant has made at least one official statement to law enforcement and likely countless other renditions to her friends, colleagues, and family. If the complainant listens to other testimony and evidence during either the military preliminary hearing or even at trial and changes material aspects of the allegation, that provides substantial fodder to the defense. For the same reasons that sequestration came to exist to uphold the integrity of the criminal justice system, embracing its demise is where the defense can take advantage.
In the Marine Corps case, I laid the foundation to argue why her story had changed. I recalled the complainant in the defense case-in-chief to elicit in front of the panel that she had listened into the testimony of two other witnesses during a prior session of the court. I needed to lay the foundation so I could argue in closing the significance of her story changing. I asked very few questions when I called her in my case; she seemed confused as to why it mattered and the prosecution even objected as to the relevance. The military judge understood my point, and he permitted the panel to consider the question and the answer. My Marine Corps client was fully acquitted of sexual assault; I am firmly convinced that the material changes to her testimony played a critical role in that victory and in his attendant retirement.
In a more recent Air Force court-martial, it was clear that a complainant’s attorney had provided her with the defense’s M.R.E. 412 motion so that the complainant understood the significance we were arguing as the basis for admission of the evidence we wanted. Instead of running from the issue, once the evidence was deemed admissible, I approached it head-on during my trial cross-examination and elicited from her that not only had her attorney provided her with the motion but that she understood why we wanted the evidence in; I did not need to ask her why she was so convinced the evidence was not significant – I did not have to. The system’s additional rights to provide complainants with information and evidence is not helping prosecutors win, but I am using it to help me win.
As defense counsel, what do we care if a complainant hears the other testimony and evidence or even theories of admissibility under M.R.E. 412? Some argue it enables her to contort her story to fit the other evidence. Contort away, I say! And then I’m right there to cross-examine about the change, the inconsistency, and the bias.
A defense counsel’s job is not to uphold the integrity of witness sequestration. There, I said it. [And I certainly do not mean to imply a defense counsel should be dispatching a live feed of what is said in court.]
What I mean to point out is that only the prosecution should care about the consistency of a complainant’s story. As a defense counsel, I embrace change, evolution, and contortion; it is the hallmark of meaningful cross-examination and where I do the most damage to the prosecution.
So, madam complainant…you want to hear and be exposed to the other evidence in a case? Come on in. Game on.