Thursday, October 30, 2008

CAAF grants review of victim impact evidence issue

CAAF yesterday granted review of this issue: "WHETHER THE MILITARY JUDGE ERRED BY ALLOWING THE FATHER OF THE ALLEGED VICTIM TO TESTIFY AS EVIDENCE IN AGGRAVATION, OVER DEFENSE OBJECTION, AS TO THE IMPACT ON THE ALLEGED VICTIM OF THE INVESTIGATION AND COURT-MARTIAL." United States v. Stephens, __ M.J. ___, No. 08-0589/AF (C.A.A.F. Oct. 29, 2008). AFCCA's decision in the case is published at 66 M.J. 520. The portion of the opinion relevant to the granted issue is at 527-28.


Phil Cave said...

Odd, all of the judges I've had have sustained my objection to this type of evidence.

It's the government's decision to prosecute. The accused cannot be punished for exercising his constitutional rights. This type of evidence is intended to punish an accused for exercising his rights.

Dew_Process said...

I agree with Phil, especially under the facts of Stephens. It's one thing to ask the purported victim to testify about "impact" but here, this was the functional equivalent of the "human lie detector" concept. Here's the issue:

"Her father told the members that the process of testifying multiple times and having to retell the story of her victimization “has been totally devastating” to BU and that “[s]he is nowhere near the same daughter that she was before."

Aside from the obvious question as to how or why this is "aggravating," the Accused was not the one who had any control over her testifying at the Article 32, Investigation. There is also a perverse element of "waiver" here - if Dad was so concerned about all of this, why did he let her testify repeatedly?

Unfortunately, in its zeal to prosecute, the government created a really stupid issue.

Dew_Process said...

This case just took on new meaning, since the Supremes denied cert. in 2 pending cases there.