The Defense Interviewing the Alleged Victim in a Court Martial: Strategic Pitfalls and Best Practices
In military justice, the dynamics of court-martial proceedings can be complex and nuanced, especially when it comes to handling witnesses. One critical question defense attorneys often grapple with is whether to interview the alleged victim prior to the trial. Michael Waddington, a seasoned court-martial attorney, sheds light on this delicate issue, highlighting why an early defense interview of the alleged victim or hostile witnesses could inadvertently harm the defense case.
Understanding the Role of the Article 32 Hearing
The Article 32 hearing serves as a preliminary hearing in the military justice system, akin to a civilian grand jury proceeding. It determines if there is enough evidence to proceed to a court-martial. Defense counsel often attend this hearing to cross-examine witnesses, including the alleged victim.
Waddington points out a common practice: defense attorneys interview the alleged victim before the Article 32 hearing, then cross-examine them during the hearing, and finally, conduct another interview shortly before the trial. While this approach might seem thorough and strategic, it may actually backfire.
Why Multiple Defense Interviews Can Strengthen the Prosecution’s Case
When the defense interviews the alleged victim multiple times, it can unintentionally build the witness’s confidence. Initially, the victim may be wary or intimidated by the defense, but repeated interactions foster familiarity and comfort. This transformation from apprehension to confidence can seriously undermine the defense’s chances at trial.
Confidence on the witness stand is a powerful asset. A confident witness who appears calm, prepared, and assertive can sway the panel or jury, especially in cases involving sensitive issues such as sexual assault. The defense’s goal is often to introduce doubt by highlighting inconsistencies or signs of nervousness, but a polished witness undermines these tactics.
Moreover, the alleged victim often consults with the prosecution’s special victim counsels, further rehearsing and refining their testimony. When combined with repeated defense interviews, the witness becomes well-versed and resilient against defense questioning, which can be devastating for the accused.
The Psychological Impact of Anxiety and Intimidation on Witness Credibility
Waddington emphasizes that when witnesses are unfamiliar and intimidated by the defense counsel, their anxiety is visible and can be perceived by the court. Anxiety can manifest as avoiding eye contact, fidgeting, or hesitancy, which juries and panels may interpret as signs of deception or uncertainty.
While anxiety is not definitive proof of dishonesty, it can create reasonable doubt about the witness’s credibility, which benefits the defense. Conversely, a confident and composed witness, achieved through repeated exposure to defense counsel, loses that vulnerability, making it harder for the defense to challenge their testimony effectively.
Balancing Defense Strategy: When to Interview the Alleged Victim
This discussion does not categorically oppose interviewing the alleged victim; rather, it warns of the potential risks of overexposure. Each case requires a tailored approach. In some instances, a single, well-timed interview might be beneficial to clarify facts or identify inconsistencies. However, multiple interviews can backfire by empowering the witness.
Defense attorneys must weigh the benefits of rapport-building against the risk of creating a confident, rehearsed witness. Sometimes, opting to limit contact and relying on vigorous cross-examination during trial and motions to exclude unreliable testimony can be a better approach.
Contextualizing Within Different Types of Courts-Martial
Understanding the structure of courts-martial is essential. There are three types:
- Summary Court-Martial: The lowest level, with limited punishments and no civilian equivalent.
- Special Court-Martial: An intermediate level with a panel of at least three officers, limited sentencing powers, and free military defense counsel.
- General Court-Martial: The highest level, akin to federal district court, with a panel of at least five officers and the authority to impose severe punishments, including the death penalty in rare cases.
Waddington’s insights apply broadly but may be particularly relevant in special and general courts-martial, where the stakes are high and witness credibility can decisively impact outcomes.
Additional Insights and Recommendations
Military defense counsel should also consider other factors when deciding on witness interviews, including the nature of the charges, witness reliability, and the overall case strategy. Collaborating with experienced civilian defense attorneys can provide valuable perspectives and resources.
Furthermore, defense teams should invest in preparing for cross-examination techniques that capitalize on natural witness anxiety without giving the witness multiple chances to rehearse. They should also explore motions and legal strategies to challenge evidence before trial.
Conclusion
Interviewing the alleged victim multiple times before a court-martial can inadvertently strengthen their testimony by increasing their confidence and familiarity with defense counsel. While thorough preparation is critical in any defense strategy, overexposure of witnesses can be counterproductive. Defense attorneys must carefully balance the benefits of witness interviews against the risks, tailoring their approach to the specifics of each case.
Michael Waddington’s expert insights remind us that in military justice, understanding psychological dynamics and strategic timing can be just as important as legal knowledge. For those facing court-martial proceedings, consulting experienced defense counsel who understand these complexities is essential.
To learn more about military defense and strategies for court-martial cases, visit UCMJDefense.com or contact a qualified civilian defense attorney.