MISCELLANEOUS MATTERS: Judicial Review: Standing

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). 

(the evidentiary concept of standing in criminal cases concerns the issue of whether a defendant has a sufficient interest in the object of a search, a claim of privilege, or other evidentiary matter to prevail on the merits of the objection; these cases involve the criteria used to assess the merits of a criminal defendant’s evidentiary claims, not the right of a defendant to participate as a litigant in the assessment of those claims).   

(appellant had standing to file a motion to dismiss the government’s interlocutory appeal of the military judge’s evidentiary ruling to quash a subpoena issued to a television network that sought production of the unaired footage of a videotaped interview of appellant regarding his alleged offenses, where appellant had a direct interest in the scope of any ruling at trial or on appeal regarding the evidence that would be available for consideration at his trial). 


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). 


United States v. Disney, 62 M.J. 46 (appellant has standing to challenge the constitutionality of 18 U.S.C. § 842 (h) on Commerce Clause grounds where he was charged under Article 134, Clause 3 for a crime and offense not capital; the MCM provides that if conduct is charged as a violation of Article 134, Clause 3, the proof must establish every element of the crime or offense as required by the applicable law; section 842(h) contains a statutory jurisdictional element that invokes Congress’s Commerce Clause authority (Article I, Section 8, Clause 3) to regulate interstate commerce; were an appellate court to conclude that element is unconstitutional as applied to appellant’s conduct, the statute would no longer constitute a crime or offense of which he could be found guilty; thus, the language of the specified offense itself requires that an appellate court address appellant’s claim).

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