Representing Guilty Clients: How do defense lawyers sleep at night?
Military Rule of Evidence 615
Military Rule of Evidence 615 (Exclusion of Witnesses) prohibits the military judge from sequestering certain categories of witnesses to prevent them from hearing the testimony of other witnesses, including: “(4) a person authorized by statute to be present at courts- martial, or (5) any victim of an offense from the trial of an accused for that offense because such victim may testify or present any information in relation to the sentence or that offense during the presentencing proceedings.” These provisions of the Military Rules of Evidence were effective on 15 May 2002.
Subparagraph 4 extends to victims at courts-martial the same rights granted to victims by the Victims’ Rights and Restitution Act of 1990, 42 U.S.C. §10606(b)(4). That statute gives crime “victims” “the right to be present at all public proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard the testimony at trial.”
Subpararaph 5 implements the Victims Rights Clarification Act of 1997, 18 U.S.C. §3510, and basically prohibits the military judge from sequestering a “victim” who will only testify in the presentencing proceeding. This section does not incorporate the balancing test of subparagraph 4, and does not permit the military judge to sequester a victim who will testify only on sentencing even where that victim’s testimony may be materially affected by hearing other testimony at trial.
The Victim Rights Clarification Act
The Victim Rights Clarification Act was passed in response to the federal district court judge’s ruling in the Oklahoma City bombing trial of Timothy McVeigh that precluded victims from attending the trial proceedings on the grounds that their victim impact testimony on sentencing would be materially affected by observing other parts of the trial on the merits.
- A “victim” for purposes of Mil. R. Evid. 615 is defined as “a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of a crime, including (A) in the case of a victim that is an institutional entity, an authorized representative of the entity; and (B) in the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, one of the following (in order of preference): (i) a spouse; (ii) a legal guardian; (iii) a parent; (iv) a child; (v) a sibling; (vi) another family member; or (vii) another person designated by the court.”
- The rules allowing victims to remain in the courtroom are subject to other rules, such as those regarding classified information, witness deportment, and conduct in the courtroom.