U.S. v. Harpole, 77 M.J. 231

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. an appellant will prevail on an ineffective assistance of counsel claim if he demonstrates both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice
2. when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious; the appellant must also demonstrate that there is a reasonable probability that the verdict would have been different absent the excludable evidence
3. where the only Article 31(b), UCMJ, predicate in dispute is whether the victim advocate interrogated or requested any statement from appellant, it must be determined whether the victim advocate was participating in an official law enforcement or disciplinary investigation or inquiry, as opposed to having a personal motivation for the inquiry
4. trial defense counsel’s performance is presumed to be competent; however, this presumption may be rebutted by showing specific errors that were unreasonable under prevailing professional norms

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Article 31

1. Article 31(b), UCMJ, warnings are required when: (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected

Core Criminal Law Subjects: Evidence: Privileges › Generally

1. the military’s victim advocate-victim privilege (MRE 514) provides that a victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the alleged victim and a victim advocate, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or supportive assistance to the alleged victim; thus, a communication must be confidential to be privileged; a communication is confidential if made in the course of the victim advocate—victim relationship and not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of advice or assistance to the alleged victim or those reasonably necessary for such transmission of the communication
2. communications made in the presence of third parties, or revealed to third parties, are not generally privileged; however, a privilege still exists if there is a relationship by blood or marriage as well as a commonality of interest between the accused and the third party
3. in this case, the military judge properly concluded that the MRE 514 victim advocate-victim privilege did not apply to appellant’s communication with the victim advocate, where appellant failed to meet his burden of establishing that his statements to the victim advocate were confidential; first, a third party was present during this communication and the record indicates that the third party did not have any special relationship with appellant; rather, the third party was simply appellant’s friend and attended the victim advocate interview for moral support; the mere provision of moral support is not enough to maintain the confidentiality of a statement; second, the record does not support the contention that the third party’s presence at the meeting was in furtherance of the rendition of advice or assistance, that is, for the purpose of facilitating the victim advocate in providing advice or assistance to the victim

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Proof, persuasion

1. the party claiming the military’s victim advocate-victim privilege (MRE 514) privilege has the burden of establishing by a preponderance of the evidence that the communication is privileged

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Proof, persuasion

1. the party claiming the military’s victim advocate-victim privilege (MRE 514) privilege has the burden of establishing by a preponderance of the evidence that the communication is privileged
2. when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious; the appellant must also demonstrate that there is a reasonable probability that the verdict would have been different absent the excludable evidence

Trial Stages: Appeals: Remedies › DuBay/Factfinding hearing

1. in this case, a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), is necessary to develop the record regarding appellant’s ineffective assistance of counsel claim where the record fails to reflect why trial defense counsel did not seek to have appellant’s statements to a victim advocate suppressed pursuant to the provisions of Article 31(b), UCMJ, a legitimate theory that could have substantially and positively affected appellant’s case

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

1. the question of whether a communication is privileged is a mixed question of fact and law; factual findings are reviewed for clear error and legal questions, including the interpretation of a rule’s language, are reviewed de novo
2. the party claiming the military’s victim advocate-victim privilege (MRE 514) privilege has the burden of establishing by a preponderance of the evidence that the communication is privileged
3. an appellate court uses principles of statutory construction when interpreting MRE privileges; these privileges are construed narrowly because they run contrary to a court’s truth-seeking function
4. an appellate court reviews claims of ineffective assistance of counsel de novo
5. when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious; the appellant must also demonstrate that there is a reasonable probability that the verdict would have been different absent the excludable evidence