2012 (September Term)
LRM v. Kastenberg, 72 M.J. 364 (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).
(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).
(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).
2008 (September Term)
United
States v. Wuterich, 67 M.J. 32 (the
jurisdictional concept of standing
normally concerns the limitation of the judicial power of the United
States to
cases and controversies under Article III, Section 2 of the US
Constitution;
the CAAF, which was established under Article I of the Constitution,
has
applied the principles from the cases and controversies limitation as a
prudential matter).
2006
United
States v. Lane, 64 M.J. 1 (appellant has standing on direct review
to
challenge the composition of the Air Force Court of Criminal Appeals on
the
grounds that the assignment of a judge to his appellate panel, who was
a United
States Senator and also a lieutenant colonel in the Air Force Standby
Reserve,
violated the Incompatibility Clause of the Constitution which prohibits
Members
of Congress from holding any office under the United States).
(one who makes a challenge to
the
constitutional validity of the appointment of an officer who
adjudicates his
case is entitled to a decision on the merits of the question and
whatever
relief may be appropriate if a violation indeed occurred; the
constitutionality
of the assignment of a person to serve as a judge on a Court of
Criminal
Appeals is not an abstract question; the fact that a Member of Congress
sat as
a judge in this criminal case relates to the rights and liberties of a
specific
individual, appellant; the direct liberty implications for appellant
make this
case distinct from other abstract circumstances where the
Incompatibility
Clause might be implicated; appellant is entitled to a decision as to
the
constitutional validity of the appointment of an officer who
adjudicated his
case).
2005