This is an interesting discussion from another country on something we are familiar with.

It will be recalled that the right to silence formerly comprises the privilege against self-incrimination and the right not to have adverse inferences drawn from his silence. Prior to the CJPOA, no evidential significance could be attached to an accused’s exercise of the right to silent, save when the accused and the victim were on even terms. However, theprovisions in the CJPOA, particularly ss 34-35 have sought to alter this principle to the extent that the question that this essay grapples with, is whether the right to silence,despite the changes, is still useful in protecting an accused’s supposed ‘constitutionalright’ of innocence, until proven guilty.

We are familiar with this–

Police Interview– a search for truth or guilt? To start with, current police interviewing guidelines describe the investigative interview as a ‘search for truth’. But this assumption to some academics is itself mired. As Kelly Benneworth-Gray argues, ‘truth’ and ‘honesty’ are locally invoked interactional resources, produced, recognised and contested in two very different sequential environments. The upshot of this is that regardless of the offer of truth made by the accused, the main purpose of a police interview is to mark a disjuncture between the testimonies of the suspect and the alleged victim and construct the suspect’s testimony as implausible.

Rule for Courts-Martial (R.C.M.) 705(c)(1) expressly prohibits terms or conditions of a PTA that are not voluntary or that deprive an accused of certain rights. “The interpretation of a pretrial agreement is a question of law, which is reviewed under a de novo standard.” United States v. Acevedo, 50 M.J. 169 172 (C.A.A.F. 1999).

And

“A fundamental principle underlying [CAAF’s] jurisprudence on pretrial agreements is that ‘the agreement cannot transform the trial into an empty ritual.’” United States v. States v. Davis, 50 M.J. 426, 429 (C.A.A.F. 1999) (quoting United States v. Allen, 8 C.M.A. 504, 507, 25 C.M.R. 8, 11 (1957)). With this in mind:

Under RCM 705(a), an accused and the convening authority may enter into a PTA in accordance with the provisions of RCM 705, subject to such limitations as the Secretary concerned may prescribe; RCM 705(b) provides that a PTA may include a variety of promises by the accused and the convening authority; the phrase “may include” reflects that the President has not limited the nature of agreements under the rule to the items listed in RCM 705(b); among the promises that may be made by an accused, the rule includes: (1) a promise to plead guilty to one or more charges and specifications, and (2) a promise to fulfill such additional terms or conditions which may be included in the agreement and which are not prohibited under the rule; among the promises that may be made by a convening authority, the rule includes: (1) a promise to withdraw one or more charges or specifications from the court-martial; (2) a promise to have the trial counsel present no evidence as to one or more specifications or portions thereof; and (3) a promise to take specified action on the sentence adjudged by the court-martial; under RCM 705(c)(1), a term or condition shall not be enforced: (1) if the accused did not freely and voluntarily agree to it; and (2) if it deprives the accused of the right to due process or certain other expressly enumerated rights; RCM 705(c)(2) adds that the prohibition on deprivation of certain rights in subsection (c)(1) does not preclude a voluntary agreement to: provide a stipulation of fact; testify in a subsequent proceeding; provide restitution; conform conduct to probation conditions through the period of any suspended sentence; or waive procedural requirements with respect to an investigation under Article 32, the composition of the court-martial, or the personal appearance of sentencing witnesses; the limitations of RCM 705(c)(1) are the only express limitations on terms of PTAs under the rule; other limitations may be provided under departmental regulations).

See United States v. Smead, 68 M.J. 44 (C.A.A.F. 2008). In United States v. Hoard, the Air Force Court of Criminal Appeals reviewed a challenge to a term.

Appellant argues three bases for why the challenged PTA terms should not be enforced. First, Appellant characterizes the language that would require him to testify against his spouse as being facially inconsistent with the spousal incapacity privilege and improper compulsion. Second, Appellant argues the terms are contrary to the public policy goal of encouraging marital harmony. Finally, Appellant contends that, even if he waived his spousal incapacity by agreeing to the terms, A1C KB’s potentially successful invocation of her confidential communications privilege would frustrate Appellant’s ability to fulfill his obligations under the PTA.

The Court did not agree with the appellant and found the term legal.

As the Court noted, nothing in the appellant’s term required his spouse to waive her marital privilege as to communications, and it’s unlikely she could object to his testimony about facts and what acts were done. And whether he wanted to exercise his right not to testify at all was his to waive–or not waive.

Marital privilege is articulated in Military Rule of Evidence (Mil. R. Evid.) 504 as two distinct privileges: the privilege to refuse to testify against one’s spouse (spousal incapacity) and the privilege to refuse to disclose, or prevent another from disclosing, any confidential communication made to the spouse of the person. “[T]he witness-spouse alone has a [spousal-incapacity] privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying.” Trammel v. United States, 445 U.S. 40, 53 (1980). In contrast, the confidential communication privilege may be claimed by the spouse who made the statement or by the other spouse who heard it.

The Court addressed the balancing of interests where an evidentiary rule of privilege exists.

[T]he waiver reflected Appellant’s own balancing of his best interests and marital harmony with A1C KB. As the Supreme Court observed in Trammel, “[w]hen one spouse is willing to testify against the other in a criminal proceeding – whatever the motivation – their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve.” Id. at 52. In this instance, Appellant chose his interests over those of his spouse. Rather than being against public policy as claimed by Appellant, allowing a witness-spouse this voluntary choice reflects the resolution of the competing public policy interests.

The claim that the spouse’s exercise of her marital privilege frustrates the appellant’s ability to perform under the term. Not so, and the AFCCA easily disposed of that challenge. I doubt that there is any convening authority would consider the situation a wilful non performance on the part of the appellant when the spouse invokes because that invocation is beyond the control of appellant (then again, it is an Air Force case and they do weird things at times).

The CAAF Opinion Digest on-line can be found here for some other PTA related cases.

Or, that’s how I interpret a 2-1 Order in H.V v. Kitchen and Randolph (RPI), MISC D. No. 001-06 (C.G. Ct. Crim. App. 8 July 2016).

At trial, the defense sought mental health records of the complaining witness. After litigation on the issue, the military judge ruled

that M.R.E. 513 did “not prevent the disclosure of dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used.” Accordingly, she ordered the Government to produce for the defense the mental health records of Petitioner for a stated period of time[.]

A decision I personally agree with.

The CGCCA found this to be an issue of first impression within the military. The court found one federal published opinion and one state and one federal unpublished opinions.

Stark v. Hartt Transportation Systems, Inc., 937 F.Supp.2d 88, 92 (D. Me. 2013), a civil case–a particularly important distinction from a criminal trial where a right to defend is an important constitutional principle.

One wonders if the CGCCA considered:

‘blanket assertions of privilege are extremely disfavored,'” because “persons claiming a privilege ‘must establish the elements of privilege as to each record sought . . . so that the court can rule with specificity.'” In re Grand Jury Matters, 751 F.2d 13, 17 n.4 (1st Cir. 1984), quoting In re Grand Jury Witness (Salas), 695 F2d 359, 362 (9th Cir. 1982) and Matter of Walsh, 623 F.2d 489, 493 (7th Cir.), cert. denied, 449 U.S. 994, 66 L. Ed. 2d 291, 101 S. Ct. 531 (1980). In re Grand Jury Subpoenas Duces Tecum, 638 F. Supp. 794, 799 (D. Me. 1986)

Sylvestri v. Smith, No. 14-13137, 2016 WL 778358 (D. Mass. Feb. 26, 2016)(unpub.), a state criminal case which holds the contrary to Stark.

United States v. White, No. 2:12-cr-00221, 2013 WL 1404877 (S.D.W.V. April 5, 2013)(unpub.), a federal criminal case that “aligns with the Stark case.”

After analysis, the CGCCA concluded that the military judge erred, over a vigorous dissent.d