A greater “privilege” reminder

From my very first opinion on this Court, I have consistently concluded that Mil.R.Evid. 410 must be applied broadly to be consistent with its purpose. United States v. Barunas, 23 M.J. 71, 75-76 (CMA 1986). See also Fed.R.Evid. 410. Speaking for the Court in Barunas, I said:

The general purpose of Mil.R.Evid. 410 and its federal civilian counterpart, Fed.R.Evid. 410, is to encourage the flow of information during the plea-bargaining process and the resolution of criminal charges without “full-scale” trials. See United States v. Grant, 622 F.2d [308,] at 313 [(8th Cir. Ark. 1980)]; see generally Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 497-98, 30 L. Ed. 2d 427 (1971). An excessively formalistic or technical approach to this rule may undermine these policy concerns in the long run. United States v. Herman, 544 F.2d [791,] at 797 [(5th Cir. Fla. 1977)].See generally Wright and Graham, Federal Practice and Procedure: Evidence § 5345 (1980). A failure to recognize and enforce the military expansion of this rule may have the same effect. 23 M.J. at 76.

United States v. Anderson, 55 M.J. 182 (C.A.A.F. 2001)(Sullivan, J., concurring).

I think it fair to consider Mil. R. Evid. 410 a form of privilege although not found in the 500 series of rules. Fourthamendment.com notes an interesting case about application of Fed. R. Evid. 410. In reading the case it appears the federal courts may take a more restrictive view of the rule compared to application of Mil. R. Evid. 410.

United States v. Merrill, __ F.3d __ (11th Cir. June 27, 2012) (No. 11–11432)

FRE 410 restricts admission of any statements made during plea negotiation meetings. One problem in applying the rule is determining just when plea negotiations have commenced. A recent case of the Eleventh Circuit touches on this question. The circuit focused on how to determine when it was reasonable for a party to consider plea discussions to have started. It did this without examining what was necessary for an objective showing for the belief that plea negotiations were underway, avoiding the need to deal with an inquiry into the party’s subjective view on this issue.

The federal rule does not contain a specific provision relating to requests for discharge in lieu of trial, which explains a significant difference. The military rules of evidence were amended in 1981 to address the issue.

(b) Definitions. A “statement made in the course of plea discussions” includes a statement made by the accused solely for the purpose of requesting disposition under an authorized procedure for administrative action in lieu of trial by court-martial; “on the record” includes the written statement submitted by the accused in furtherance of such request.”.

So, requests for a Chapter 10/OTHIL/SILT/RILO, whatever the Service term, are explicitly covered. Although care still has to be exercised here because the rule appears limited to any written statement given as part of a request package. Oral representations might be a different animal. And it should be clear that requests for disposition at Article 15, UCMJ, hearings ought to be included.

I posted about this topic in February 2009. In that post I referenced United States v. Vasquez, 54 M.J. 303 (C.A.A.F. 2001).

[A]n accused’s pretrial letter to his commander, admitting his guilt and requesting disposition by “any other avenues of punishment short of court-martial,” was a plea discussion within the meaning of Mil. R. Evid. 410.

54 M.J. 305, citing to United States v. Barunas, 23 M.J. 71 (C.M.A. 1986). See also, United States v. Anderson, 55 M.J. 182 (C.A.A.F. 2001)(same issue, same judge). It appears that particular NLSO/TC shop at the time made a habit of offering rejected OTHIL requests on sentencing.

See United States v. Gilchrist, 61 M.J. 785 (A. Ct. Crim. App. 2005), for cases where the accused blows providency or the MJ declines to accept the plea; United States v. Cross, NMCCA 200602310, 2007 CCA LEXIS 414 (N-M Ct. Crim. App. September 27, 2007)(unpub.), for what happens or can happen if the defense does not object on the merits or sentencing; United States v. Price, ACM 33503, 2001 CCA LEXIS 103 (A.F. Ct. Crim. App. March 30, 2001)(an objection, the MJ limits his consideration of contents of the proffer, and the accused states in sentencing much of the contents of the same letter) .

In reading some cases about the rule for this post several themes are apparent.

1. You have to nail down, as in Merrill, what, when, how are negotiations started. 2. Who is the correct person with whom there can be negotiations covered by the rule. 3. OBJECT!, or risk a finding that the error was waived and/or HBRD.

For some history about the military rules, there is an excellent, but dated, Military Law Review symposium at 130 MIL. L. REV. 7 (1990).