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  • Outline of Victims’ Appellate Rights Issues Section 547 of FY17 NDAA (Senate Version) [hereinafter Section 547] proposes amendments to Article 6b, UCMJ, that would: (1) allow victims to file appellate pleadings as a “real party in interest” when the government or defense files appellate pleadings and when the victim’s rights under Mil. R. Evid. 412, 513, or 514 are implicated; and (2) require notice to victims of “any appellate matters, including post- trial review.” I. Victim Privacy Interests During Appellate Counsel Review of Record of Trial

    A. Victims’ Concerns Under R.C.M. 1103A, appellate government and defense counsel are authorized to review the entire record of trial, including sealed materials. Special Victims’ Counsel and Victims’ Legal Counsel [collectively SVCs] expressed concern to the JPP that sealed materials, such as mental health records reviewed in camera by the judge and sealed under Mil. R. Evid. 513, are regularly being reviewed on appeal.

    B. Relevant Provisions from Section 547 Section 547 states that “[i]f counsel for the accused or the Government files appellate pleadings under [Articles 66 or 67, UCMJ], the victim of an offense . . . may file pleadings as a real party in interest when the victim’s rights under [Mil. R. Evid. 412, 513, and 514] are implicated.”

    C. Discussion Questions 1) Are current rules, practices, and procedures regarding appellate counsel access to sealed materials

    sufficient to protect a victim’s privacy interests? 2) What would be the ideal mechanism to address victim privacy concerns with respect to appellate

    counsel review of the record of trial without impeding on due process rights of the accused? II. Victim Participation at the Appellate Stage (Direct Appeal)

    A. Victims’ Concerns SVCs expressed concern that they have no standing to file pleadings on direct appeal. If a victim prevails at trial and his/her mental health records are not disclosed to counsel, appellate defense counsel may argue that the military judge erred by not admitting the mental health records at trial. The victim, however, would not have any standing to file pleadings in response to the appellate defense counsel.

    B. Relevant Provisions from Section 547 Section 547 states that “[i]f counsel for the accused or the Government files appellate pleadings under [Articles 66 or 67, UCMJ], the victim of an offense . . . may file pleadings as a real party in interest when the victim’s rights under [Mil. R. Evid. 412, 513, and 514] are implicated.”

    C. Discussion Questions

  • 1) Should a victim be granted standing to file appellate pleadings as a “real party in interest”? What does this term mean and what would this entail?

    2) Would granting victims standing to file appellate pleadings as a real party in interest implicate any due process considerations for the accused?

    3) Should victims be allowed to file pleadings at the appellate stage in other forms (for example, amicus briefs or motions to intervene)?

    4) The proposed amendments appear to treat the privacy interests underlying Mil. R. Evid. 412, 513, and 514 equally with respect to the need for victim standing to file appellate pleadings in response to government and defense appellate pleadings. Is this the correct approach?

    5) Should victims be treated differently from other witnesses seeking to protect privacy interests under Mil. R. Evid. 412, 513, and 514?

    III. Victims’ Right to Appeal Interlocutory Rulings to the Court of Appeals for the Armed Forces

    A. Victims’ Concerns SVCs expressed concern that victims do not have the ability to appeal to the Court of Appeals for the Armed Forces (CAAF) if the CCA denies their petition for a writ of mandamus. See EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F 2016).

    B. Relevant Provisions from Section 547 Section 547 states that “[i]f counsel for the accused or the Government files appellate pleadings under [Articles 66 or 67, UCMJ], the victim of an offense . . . may file pleadings as a real party in interest when the victim’s rights under [Mil. R. Evid. 412, 513, and 514] are implicated.”

    C. Discussion Questions

    1) Should victims be permitted to appeal adverse interlocutory rulings by the CCA to CAAF? If so, does

    Section 547 provide for this right? IV. Victim Notice at Appellate Stage

    A. Victims’ Concerns

    SVCs expressed concerns that victims are often not aware when their cases are reviewed at the appellate level and/or when major events occur at the appellate stage.

    B. Relevant Provisions from Section 547 Section 547 would amend Article 6b, UCMJ, to entitle victims to notice of “any appellate matters, including post-trial review, relating to the offense.”

    C. Discussion Questions 1) If victims should receive notice of appellate matters, how should this be accomplished?

  • SPECIAL VICTIMS’ COUNSEL (SVC) / VICTIMS’ LEGAL COUNSEL (VLC)

    PROGRAM MANAGERS’ PROPOSED AMENDMENTS TO ARTICLES 6b AND 70 OF

    THE UCMJ

    SUGGESTED CHANGES TO THE U.C.M.J. REGARDING VICTIM APPELLATE

    RIGHTS

    §Article 6b. RIGHTS OF THE VICTIM OF AN OFFENSE UNDER THIS CHAPTER

    (a) Rights of a Victim of an Offense Under This Chapter.-A victim of an offense under

    this chapter has the following rights:

    (1) The right to be reasonably protected from the accused.

    (2) The right to reasonable, accurate, and timely notice and all pleadings filed by

    all parties in any of the following:

    (A) A public hearing concerning the continuation of confinement prior to

    trial of the accused.

    (B) A preliminary hearing under section 832 of this title (article 32)

    relating to the offense.

    (C) A court-martial and any appellate matters, to include post trial review,

    relating to the offense.

    (D) A public proceeding of the service clemency and parole board relating

    to the offense.

    (E) The release or escape of the accused, unless such notice may endanger

    the safety of any person.

    (3) The right not to be excluded from any public hearing or proceeding described

    in paragraph (2) unless the military judge or investigating officer, as applicable,

    after receiving clear and convincing evidence, determines that testimony by the

    victim of an offense under this chapter would be materially altered if the victim

    heard other testimony at that hearing or proceeding.

    (4) The right to be reasonably heard at any of the following:

    (A) A public hearing concerning the continuation of confinement prior to

    trial of the accused.

    (B) A sentencing hearing, to include sentence reassessment in accordance

    with review under Article 66, UCMJ, relating to the offense.

    (C) A public proceeding of the service clemency and parole board relating

    to the offense.

    (D) Any and all appellate matters and hearings arising out of the offense.

    (E) Any and all administrative boards and other adverse administrative

    proceedings, arising out of the offense.

    (5) The reasonable right to confer with the counsel representing the Government

    at any proceeding described in paragraph (2).

    (6) The right to receive restitution as provided in law.

    (7) The right to proceedings free from unreasonable delay.

  • (8) The right to be treated with fairness and with respect for the dignity and

    privacy of the victim of an offense under this chapter.

    …..

    (e) Enforcement by Court of Criminal Appeals.-(1) If the victim of an offense under this chapter believes that a preliminary hearing ruling under section 832 of this title (article 32), or a court-martial

    ruling violates the rights of the victim afforded by a section (article) or rule specified in paragraph (54),

    the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary

    hearing officer or the court-martial to comply with the section (article) or rule.

    (2) If the victim of an offense under this chapter is subject to an order to submit to a deposition,

    notwithstanding the availability of the victim to testify at the court-martial trying the accused for the

    offense, the victim may petition the Court of Criminal Appeals for a writ of mandamus to quash such

    order.

    (3) A petition for a writ of mandamus described in this subsection shall be forwarded directly to the

    Court of Criminal Appeals, by such means as may be prescribed by the President, and, to the extent

    practicable, shall have priority over all other proceedings before the court.

    (4) If counsel for the accused or the Government file appellate pleadings in a matter arising out of the

    offense, the victim shall be served notice of the pleadings in accordance with paragraph (a)(2) and may

    file pleadings as a real party in interest when a victim’s statutory, regulatory or Constitutional right is

    implicated.

    (45) Paragraph (1) and (4) appliesy with respect to the protections afforded by the following:

    (A) This section (article).

    (B) Section