Using SVC statements against. . .

Teaching point about SVC’s and how the defense may be able to use them to the benefit of the defense.

Not too long ago I had a SVC making oral argument on a MRE 412 motion.

During the course of the SVC presentation it occurred to me that she was representing facts AND statements of the complaining witness which were inconsistent with other statements of the complaining witness.

So, at the close of the hearing and before we moved on I asked the military judge for permission to use the in-court statements of the SVC on cross-examination as prior inconsistent statements, under the party-opponent rule in MRE 801. To my shock, admittedly, the judge agreed.

It appears upon reflection that the SVC had been drinking the cool-aid, and did something no self-respecting defense counsel would do without some fact checking – the SVC “believed the victim.” Having done so she created a problem for herself and her client.

What is the ethical obligation of an SVC who has a client who she knows lied on the witness stand?

What is the ethical obligation of an SVC who believes the client will lie on the witness stand.

Defense counsel go through this ethical quandary when their client prepares to testify. And prosecutors should have the same concerns. In fact, at this years VABar CLE the point was made that a prosecutor has an ethical obligation to speak up when he/she hears a government witness lie on the witness stand.

Anyway, back to the kool-aid.

As it happened for me I didn’t need to get into the issue of what was told the SVC, because on cross-examination the complaining witness admitted the facts. That meant no need to present evidence of a prior inconsistent statement to her lawyer.

Q: Did you do X?

A: No.

Q: Are you sure?

A: I never did that.

Q: Prior to testifying today did you tell your lawyer you did X?

A: Yes.

Your done.

A: No.

This is where it can get interesting. You can imagine the follow on questions, and the issue of whether or not you get to call the lawyer to answer that specific question. Why not. The SVC is an officer of the court, therefore you are entitled to have a good faith belief that the lawyer was told X by the client. And by saying that in open court has not the attorney-client privilege been waived as to that specific item and any other facts and circumstances raised by the SVC? So even if you don’t have an MJ who will consider the statements those of a party opponent, there is still the fact that the complaining witness must have said that to the lawyer, etc., etc., etc.

Let’s take this another step. If SVC’s and thus their client have effectively achieved the status of party opponent or a party to a court-martial, now what in terms of discovery?