United States v. Craven, __ M.J. ___ )N-M Ct. Crim. App. 2022), is an interesting case about the informant privilege. It's a government appeal, which NMCCA grants, but . . .
There are two informant related Rules of Evidence.
Which one would you choose with the following facts (and don't read after the break yet).
In May 2020, after a night of heavy drinking at then MASN Mike’s apartment, MASN Hotel allegedly touched MA3 Sierra on the buttocks while she was asleep. Appellee and MASN Mike were the only two witnesses to this act, for which MASN Hotel pleaded guilty at special court-martial to assault consummated by a battery. At his court-martial, MASN Hotel and the Government stipulated as fact that Appellee “told [MASN Hotel] that he would take a shot of alcohol if [MASN Hotel] touched the lower back and hips area” of MA3 Sierra.
What Rule applies--Mil. R. 506 or 507?
[W]e find no abuse of discretion in the military judge’s order that confirmation or denial of Mr. Mike’s CI status and any related privileged materials in NCIS possession be submitted for an in camera discoverability review, as such information reasonably tends to affect the credibility of Mr. Mike. Like our sister court, we find that when it “fail[s] to provide the Defense with information about the CI status of [its material witnesses], the Government essentially preclude[s] the defense from impeaching their credibility and motivation for being involved in the situation involving [Appellee] and his court-martial.” Since it is the witness’s affiliation with one party over the other that gives rise to such issues of credibility and bias, we find that the impeachment value of a witness’s CI status is not limited to the witness’s service as a CI in the particular case at hand.
Which Rule did you pick?
The central issue in this interlocutory appeal is whether, despite its claim of privilege, the Government is required to identify Mr. Mike as an informant. Both the parties and the military judge cite the Government’s invocation of the government information privilege under Mil. R. Evid. 506 as controlling. However, Mil. R. Evid. 506 expressly states that “[t]his rule does not apply to the identity of an informant” and instead references Mil. R. Evid. 507, which deals specifically with “Identity of Informants.”
What we cab suspect is that the co-actor / witness's "cooperation" activity was unrelated to the instant case. Citing United States v. Claxton, No. ACM 38188 (rem), 2016 CCA LEXIS 649, *7, 19- 20 (A.F. Ct. Crim. App. Oct. 31, 2016) (unpublished), the court concludes that there was error here.
We agree with our sister court. We find that under Mil. R. Evid. 507 an in camera review can be used to address issues involving a witness’s CI status, thus preventing disclosure to the defense of any information over which a privilege has been asserted until the military judge has reviewed it and made a determination as to its privileged status and discoverability. We further find that under Mil. R. Evid. 507 a military judge may order such information to be submitted for in camera review, if the military judge determines the order is “required by the interests of justice.” We also find implicit in the rule that even with respect to an ordered disclosure of information to the court for in camera review,
Because the MJ used the wrong rule and incorrect findings of fact,
Second, we find the military judge’s dismissal of the Charge and Specification as a remedy for nondisclosure of information for in camera review was not predicated on findings of fact that are supported by the evidence of record. Whether under Mil. R. Evid. 506 or Mil. R. Evid. 507, dismissal is appropriate only where the military judge determines that proceeding without the information ordered for review “would materially prejudice a substantial right of the accused.” Based on the record before us, the military judge had no basis to make this determination because, due to the Government’s recalcitrance, he had not yet been able to establish, even in camera, whether Mr. Mike was indeed a CI. He therefore had no basis to find that the Government’s nondisclosure would materially prejudice a substantial right of Appellee.
We'll have to wait and see if there will be another government appeal of the MJ's ruling or a conviction and UCMJ art. 66 review to see whether the MJ found any of the material reviewed to be necessary for disclosure.
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