Monday, February 25, 2008

United States v. Cucuzzella

United States v. Cucuzzella, __ M.J. ___, No. 07-0397/AF (C.A.A.F. Feb. 25, 2008), is a medical diagnosis or treatment hearsay exception case without Crawford implications because the declarant testified at trial. Judge Baker wrote for the majority with Judge Stucky concurring in the result and Judge Ryan concurring.

Airman Cucuzzella and his wife attended a new parent program run by a family advocacy nurse aboard an Air Force base. Mrs. Cucuzzella later returned to the family advocacy nurse by herself. After discussing bad check problems, Mrs. Cucuzzella alleged her husband had subjected her to sexual and physical abuse. At trial, over defense objection the military judge admitted the family advocacy nurse's testimony about Mrs. Cucuzzella's statements under the hearsay exception for statements made for the purpose of medical diagnosis or treatment. CAAF agreed.

CAAF emphasized that "as a Family Advocacy Nurse, Ms. Moultrie was engaged in mental health diagnosis and referral." Id., slip op. at 8. CAAF then turned to the issue of whether Mrs. Cucuzzella made her statements with the expectation of receiving medical benefit or treatment. Emphasizing the standard of review and the military judge's superior ability to assess the context in which the statements were made, CAAF held that the military judge's finding were not clearly erroneous when he determined that when Mrs. Cucuzzella spoke to the nurse, she expected to receive counseling help for her marital situation.

In other poetic allusion, Judge Baker wrote:
Learned Hand and Oliver Wendell Holmes both noted that the common law moves with small currents, but through its collective motion, one might well look up to find oneself far from the intended textual and legal shore. In this case, as an appellate court, we have looked up, and still find the legal shore in sight.
Id., slip op. at 11.

Since I prefer the shore to the mountains, I enjoyed this one more than the Dolly Sods simile.

Judge Ryan continued the metaphor, writing in her concurrence: "In my view the facts presented by this case are at the very banks of the legal shore envisioned by the language and purpose of Military Rule of Evidence 803(4) as it has evolved through case law." Emphasizing the standard of review, Judge Ryan also noted that she would have upheld the military judge regardless of whether he held that the statements did or did not fall within the medical diagnosis or treatment hearsay exception.

Judge Stucky separately concurred in the result. While noting that his views were similar to those of the majority, he wrote separately to state, "I do not understand the majority opinion to require military judges, in cases like this one, to engage in a particularized analysis of the reliability of hearsay statements."


Anonymous said...

I hope CAAF is aware that "Family Advocacy" can be a quite misleading label. Ms. Moultrie's status as a "nurse" sounds trumped-up to me. Was she really engaged in "mental health diagnosis and referral?" It was a new baby class - an intimate and trusting setting - and Mrs. Cucuzzella found someone she could trust. But I think CAAF confounded a fuzzy meaning of "trust" with the more precise meaning of "medical diagnosis." If, say, Oprah Winfrey were at that class, Mrs. Cucuzzella could have made the exact same statements to Oprah with the even greater expectations of receiving empathy, understanding, counseling, advice, etc. But that "trust" - even surpassing the trust she would have in a medical person - does not equate to a medical diagnosis.

CAAF probably decided this case right, but I disagree with Judge Ryan that the meaning of the term "medical diagnosis" isn't drifting out to sea.

Mike "No Man" Navarre said...

Anonymous' issue is not with CAAF, but with trial defense counsel. I have heard Navy Defense Counsel complain for 10 years about the FAP. But, that's all I ever hear. With the revolving door of counsel going from government to defense, FAP's programs are no secret. If defense counsel think FAP is fuzzying up medical vs. non-medical, investigatory vs. treatment, etc., than mount a real challenge. Put on some evidence, impeach the system. I for one sat on a FAP Case Review Committee and found it both a great process and a disturbing process. The assistance it provided counselors and ultimately patients was invaluable, but reviewing FAP cases in front of a JAG and an NCIS agent . . . not sure that was the image I would want to give to the counseling arm of my service.

Christopher Mathews said...

Anon, a couple of points of disagreement: first, there was nothing "trumped-up" about Ms. Moultrie's status as a nurse -- she was an RN. It's possible to dispute what role she was performing, of course, but that she was an actual nurse is not really an open question.

Second, Ms. Moultrie's most recent contact with Mrs. Cucuzella prior to the disclosures that led to the appellant's court-martial was not the "new baby class" in September 2003, but rather an intake session in April 2004 after the appellant and his wife experienced some marital problems. Ms. Moultrie gave the couple the names of three marriage counselors and additional information about military health care services. It was about ten days after that meeting that Mrs. Cucuzella contacted Ms. Moultrie and made her disclosures.

One other interesting side note: several weeks after his wife's disclosures, the appellant gave a handwritten statement to the local police, essentially admitting his guilt to the sole litigated specification.

Dwight Sullivan said...

I see that the opinion below was authored by one JMTGst. :-) United States v. Cucuzzella, 64 M.J. 580 (A.F. Ct. Crim. App. 2007).

Anonymous said...

No Man has a great point...trial practitioners, on both sides, need to make sure the record is made or protected!