LRM v. Kastenberg, 72 M.J. 364

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the military judge erred by determining at the outset of a court-martial for rape, during arraignment proceedings and before any MRE 412 or 513 evidentiary hearings, that the named rape victim would not have standing to be represented through counsel during applicable hearings arising from the MRE; MRE 412(c)(2) provides that, before admitting evidence under the rule, the military judge must conduct a hearing where the alleged victim must be afforded a reasonable opportunity to attend and be heard; MRE 513(a) also provides that a patient has the privilege to refuse to disclose confidential communications covered by the psychotherapist-patient privilege; a reasonable opportunity to be heard at a hearing includes the right to present facts and legal argument, and that a victim or patient who is represented by counsel be heard through counsel; while MRE 412(c)(2) and 513(e)(2) provide a reasonable opportunity to be heard, including potentially the opportunity to present facts and legal argument, and allows a victim or patient who is represented by counsel to be heard through counsel, this right is not absolute; a military judge has discretion under RCM 801, and may apply reasonable limitations, including restricting the victim or patient and their counsel to written submissions if reasonable to do so in context; furthermore, MRE 412 and 513 do not create a right to legal representation for victims or patients who are not already represented by counsel, or any right to appeal an adverse evidentiary ruling; if counsel indicates at a MRE 412 or 513 hearing that the victim or patient’s interests are entirely aligned with those of trial counsel, the opportunity to be heard could reasonably be further curtailed

Military Justice Personnel: Military Judge: Discretion

1. a writ of mandamus was not the appropriate remedy to direct the military judge to provide an opportunity for the named victim in a rape prosecution to be heard through counsel at hearings conducted pursuant to MRE 412 and 513, and to receive any motions or accompanying papers reasonably related to her rights as those may be implicated in those hearings; although the military judge’s ruling must be based on a correct view of the law, and MRE 412 and 513 create certain privileges and a right to a reasonable opportunity to be heard on factual and legal grounds, which may include the right of a victim or patient who is represented by counsel to be heard through counsel, these rights are subject to reasonable limitations and the military judge retains appropriate discretion under RCM 801, and the law does not dictate the particular outcome that the victim requests

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. the military judge erred by determining at the outset of a court-martial for rape, during arraignment proceedings and before any MRE 412 or 513 evidentiary hearings, that the named rape victim would not have standing to be represented through counsel during applicable hearings arising from the MRE; MRE 412(c)(2) provides that, before admitting evidence under the rule, the military judge must conduct a hearing where the alleged victim must be afforded a reasonable opportunity to attend and be heard; MRE 513(a) also provides that a patient has the privilege to refuse to disclose confidential communications covered by the psychotherapist-patient privilege; a reasonable opportunity to be heard at a hearing includes the right to present facts and legal argument, and that a victim or patient who is represented by counsel be heard through counsel; while MRE 412(c)(2) and 513(e)(2) provide a reasonable opportunity to be heard, including potentially the opportunity to present facts and legal argument, and allows a victim or patient who is represented by counsel to be heard through counsel, this right is not absolute; a military judge has discretion under RCM 801, and may apply reasonable limitations, including restricting the victim or patient and their counsel to written submissions if reasonable to do so in context; furthermore, MRE 412 and 513 do not create a right to legal representation for victims or patients who are not already represented by counsel, or any right to appeal an adverse evidentiary ruling; if counsel indicates at a MRE 412 or 513 hearing that the victim or patient’s interests are entirely aligned with those of trial counsel, the opportunity to be heard could reasonably be further curtailed
2. a writ of mandamus was not the appropriate remedy to direct the military judge to provide an opportunity for the named victim in a rape prosecution to be heard through counsel at hearings conducted pursuant to MRE 412 and 513, and to receive any motions or accompanying papers reasonably related to her rights as those may be implicated in those hearings; although the military judge’s ruling must be based on a correct view of the law, and MRE 412 and 513 create certain privileges and a right to a reasonable opportunity to be heard on factual and legal grounds, which may include the right of a victim or patient who is represented by counsel to be heard through counsel, these rights are subject to reasonable limitations and the military judge retains appropriate discretion under RCM 801, and the law does not dictate the particular outcome that the victim requests

Trial Stages: Writs and Interlocutory Appeals: All Writs Act

1. the All Writs Act grants the power to all courts established by act of Congress to issue all writs necessary and appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law; extraordinary writs serve to confine an inferior court to a lawful exercise of its prescribed jurisdiction
2. military courts, like Article III tribunals, are empowered to issue extraordinary writs under the All Writs Act
3. the All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction; rather, the All Writs Act requires two determinations: (1) whether the requested writ is in aid of the court’s existing jurisdiction; and (2) whether the requested writ is necessary or appropriate
4. in the context of military justice, the All Writs Act in aid of jurisdiction includes cases where a petitioner seeks to modify an action that was taken within the subject matter jurisdiction of the military justice system; a writ petition may be in aid of a court’s jurisdiction even on interlocutory matters where no finding or sentence has been entered in the court-martial
5. to establish subject-matter jurisdiction over a writ petition, the harm alleged must have had the potential to directly affect the findings and sentence; there is no jurisdiction to adjudicate what amounts to a civil action, maintained by persons who are strangers to the courts-martial, asking for relief that has no bearing on any findings and sentence that may eventually be adjudged by the court-martial
6. the All Writs Act, 28 USC § 1651, and Article 66, UCMJ, 10 USC § 866, established the CCA’s jurisdiction to hear the writ petition of a rape victim who invited the CCA to evaluate whether a military judge can limit the victim’s right to be heard under MRE 412 and 513 by precluding the victim from presenting the basis for a claim of privilege or exclusion, with or without counsel, during an ongoing general court-martial; the military judge’s ruling had a direct bearing on the information that would be considered by the military judge when determining the admissibility of evidence, and thereafter the evidence considered by the court-martial on the issues of guilt or innocence - which would form the very foundation of a finding and sentence; furthermore, unlike strangers to the courts-martial, the petitioner was the named victim in a court-martial seeking to protect the rights granted to her by the President in duly promulgated rules of evidence, namely to a claim of privilege under MRE 513 and a right to a reasonable opportunity to be heard under MRE 412(c)(2) and 513(e)(2); the victim was not seeking any civil or administrative relief; rather, she was seeking her right to be heard pursuant to the MRE; thus, the harm alleged had the potential to directly affect the findings and sentence, and the CCA had jurisdiction over the writ petition
7. a writ of mandamus was not the appropriate remedy to direct the military judge to provide an opportunity for the named victim in a rape prosecution to be heard through counsel at hearings conducted pursuant to MRE 412 and 513, and to receive any motions or accompanying papers reasonably related to her rights as those may be implicated in those hearings; although the military judge’s ruling must be based on a correct view of the law, and MRE 412 and 513 create certain privileges and a right to a reasonable opportunity to be heard on factual and legal grounds, which may include the right of a victim or patient who is represented by counsel to be heard through counsel, these rights are subject to reasonable limitations and the military judge retains appropriate discretion under RCM 801, and the law does not dictate the particular outcome that the victim requests

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the All Writs Act, 28 USC § 1651, and Article 66, UCMJ, 10 USC § 866, established the CCA’s jurisdiction to hear the writ petition of a rape victim who invited the CCA to evaluate whether a military judge can limit the victim’s right to be heard under MRE 412 and 513 by precluding the victim from presenting the basis for a claim of privilege or exclusion, with or without counsel, during an ongoing general court-martial; the military judge’s ruling had a direct bearing on the information that would be considered by the military judge when determining the admissibility of evidence, and thereafter the evidence considered by the court-martial on the issues of guilt or innocence - which would form the very foundation of a finding and sentence; furthermore, unlike strangers to the courts-martial, the petitioner was the named victim in a court-martial seeking to protect the rights granted to her by the President in duly promulgated rules of evidence, namely to a claim of privilege under MRE 513 and a right to a reasonable opportunity to be heard under MRE 412(c)(2) and 513(e)(2); the victim was not seeking any civil or administrative relief; rather, she was seeking her right to be heard pursuant to the MRE; thus, the harm alleged had the potential to directly affect the findings and sentence, and the CCA had jurisdiction over the writ petition

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF has statutory jurisdiction under Article 67(a)(2), UCMJ, to review the record in all cases reviewed by a CCA which the JAG orders sent to the CAAF for review; the definition of case as used within that statute includes a final action by a CCA on a petition for extraordinary relief; in this case, where the CCA took a final action on a petition for extraordinary relief when it denied a victim’s petition for a writ of mandamus, the CAAF had jurisdiction over a certificate submitted by the JAG pursuant to Article 67(a)(2), UCMJ, with respect to this final action, just as it would in the case of a writ-appeal
2. even though the CCA did not reach the substantive issues raised in the questions of law certified by the Judge Advocate General because it denied a petition for a writ of mandamus for lack of jurisdiction, the CAAF may still take action with respect to all of the certified issues, including whether it should issue a writ of mandamus

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. jurisdiction is a question of law that an appellate court reviews de novo
2. construction of a military rule of evidence, as well as the interpretation of statutes, the UCMJ, and the RCM, are questions of law reviewed by an appellate court de novo

Miscellaneous Matters: Judicial Review: Standing

1. the named victim in a rape prosecution, although a non-party to the court-martial, nonetheless had standing, as a holder of an evidentiary privilege, to seek extraordinary relief, in the nature of a writ of mandamus, from a military judge’s ruling that precluded the victim from presenting the basis for a claim of privilege or exclusion; there is long-standing precedent that a holder of a privilege has a right to contest and protect the privilege; indeed, limited participant standing has been recognized by the Supreme Court and other federal courts; in particular, federal courts have frequently permitted third parties to assert their interests in preventing disclosure of material sought in criminal proceedings or in preventing further access to materials already so disclosed
2. the issue of whether the named victim in a rape prosecution has limited standing to be heard through counsel in hearings related to MRE 412 and 513 is ripe for review by an appellate court when it comes in the form of a challenge by a limited participant to a concrete ruling by a military judge in an adversarial setting; the parties had argued, and the military judge had addressed, the relevant legal issues, and so the issue was ripe for review
3. the military judge erred by determining at the outset of a court-martial for rape, during arraignment proceedings and before any MRE 412 or 513 evidentiary hearings, that the named rape victim would not have standing to be represented through counsel during applicable hearings arising from the MRE; MRE 412(c)(2) provides that, before admitting evidence under the rule, the military judge must conduct a hearing where the alleged victim must be afforded a reasonable opportunity to attend and be heard; MRE 513(a) also provides that a patient has the privilege to refuse to disclose confidential communications covered by the psychotherapist-patient privilege; a reasonable opportunity to be heard at a hearing includes the right to present facts and legal argument, and that a victim or patient who is represented by counsel be heard through counsel; while MRE 412(c)(2) and 513(e)(2) provide a reasonable opportunity to be heard, including potentially the opportunity to present facts and legal argument, and allows a victim or patient who is represented by counsel to be heard through counsel, this right is not absolute; a military judge has discretion under RCM 801, and may apply reasonable limitations, including restricting the victim or patient and their counsel to written submissions if reasonable to do so in context; furthermore, MRE 412 and 513 do not create a right to legal representation for victims or patients who are not already represented by counsel, or any right to appeal an adverse evidentiary ruling; if counsel indicates at a MRE 412 or 513 hearing that the victim or patient’s interests are entirely aligned with those of trial counsel, the opportunity to be heard could reasonably be further curtailed