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).

In conspiracy to distribute controlled substances prosecution, physician-defendant could not assert that the medical records of his patients were subject to a doctor-patient privilege because the federal courts do not recognize this privilege under FRE 501, in United States v. Bek, 493 F.3d 790 (7th Cir. July 6, 2007) (No. 05-4198)

It is easy to overlook that the a physician-patient confidential communications privilege is not recognized in the trial of federal question matters. As adopted by Congress, the Federal Rules of Evidence fail to explicitly allow for this privilege.

Belton, Texas, solo John Galligan, who represents Maj. Nidal Malik Hasan, says he has added a close relative of Hasan’s from out of state to the defense team as of Tuesday. Hasan, the Army psychiatrist who allegedly went on a shooting spree at Fort Hood on Nov. 5, is facing a possible court martial. Galligan says he added the relative to make it possible for that relative to visit with Hasan for more than a few hours a week and to do so without being observed and possibly videotaped by Army investigators. Galligan declines to identify the relative.

Law.com reports.

Is this wise in this case. Mil. R. Evid. 502(a)(the attorney-client privilege) extends the privilege to: Mil. R. Evid. 502 (b)(3) defines:

There are situations where an attorney may want to place a family member (parent/sibling) or another person on the defense team. I have done this on occasion. However, I think it is a situation to be used sparingly and where it is actually for the purpose of “rend[ering] legal services.” What we don’t know from the article is why the family member was placed on the defense team, except to allow for private visits. If this is for private visits for the case then that is fine, but if it is a ruse merely to allow private visits between the accused client and a relative and to evade various restrictions is that proper and is it wise.

I’m certain Mr. Galligan has thought this through, and my comment should not be taken to mean that I think he’s doing something improper. But for the purpose of discussion — previous reports raised the question of counsel being denied to Major Hasan while relatives were visiting, there are restrictions on private family visits, and we have the example of some civilian attorney’s who are under investigation/prosecution for allegedly communicating information from their client to terrorists. Whether true or not, does this possibility in the Hasan case not raise a concern?

is it wise in this case to use a family member as part of the defense team?

After many weeks of being listed on the Senate Judiciary Committee business calendar, on December 10, 2009, the Senate Judiciary Committee approved by a vote of 14 to 5 an amended version of S. 448, the Free Flow of Information Act of 2009. The Federal Evidence Review will continue to monitor action on the House and Senate measures. For more information concerning the legislation, see Free Flow of Information Act of 2009 Legislative History Page.

Laurie L. Levenson (Loyola Law School Los Angeles) has posted Prosecutorial Soundbites: When Do They Cross the Line? (Georgia Law Review, Forthcoming) on SSRN. Here is the abstract: Even good prosecutors can cross the line with media soundbites. Especially in high-profile cases, prosecutors must assess if their pretrial remarks about a case meet their ethical obligations. In Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), the United States Supreme Court held that while lawyers have the First Amendment right to make comments to the press, they do not have the right to make comments that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Although ethical codes have adopted this broad standard, many have failed to identify more specifically when a prosecutor’s remarks pose a substantial likelihood of having such a prejudicial effect. Using 28 C.F.R. § 50.2 as a guide, this article seeks to identify those “hot-button” areas.