Gunmen attack Fort Hood, Texas

[jmm99]

MRE Rule 513. Psychotherapist-patient privilege, governs (snip from a 2 page rule)

(a) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.
.....
(c) Who may claim the privilege. The privilege may be claimed by the patient or the guardian or conservator of the patient. A person who may claim the privilege may authorize trial counsel or defense counsel to claim the privilege on his or her behalf. The psychotherapist or assistant to the psychotherapist who received the communication may claim the privilege on behalf of the patient. The authority of such a psychotherapist, assistant, guardian, or conservator to so assert the privilege is presumed in the absence of evidence to the contrary.

Probably testimony as to a specific patient could be kept out, if that patient authorizes trial counsel (prosecutor) to assert the personal privilege.

But, what if the line of questioning never mentions the patients' names ? E.g., MAJ Hasan would you please relate to us, without mentioning names or any other details which would identify the patients, the 101 instances which caused you to form the belief that the armed conflicts in Astan and Iraq were immoral and illegal under the tenets of your religion and Sharia law, as well as the Hague and Geneva Conventions ?

I dunno; I suppose it would depend on the judge. The judge has vast discretion to enter protective (gag) orders, etc., as Boondoggle correctly says.

Regards

Mike

[slapout9]

MRE Rule 513. Psychotherapist-patient privilege, governs (snip from a 2 page rule)



Probably testimony as to a specific patient could be kept out, if that patient authorizes trial counsel (prosecutor) to assert the personal privilege.

But, what if the line of questioning never mentions the patients' names ? E.g., MAJ Hasan would you please relate to us, without mentioning names or any other details which would identify the patients, the 101 instances which caused you to form the belief that the armed conflicts in Astan and Iraq were immoral and illegal under the tenets of your religion and Sharia law ?

I dunno; I suppose it would depend on the judge. The judge has vast discretion to enter protective (gag) orders, etc., as Booindoggle correctly says.

Regards

Mike

In LA(lower Alabama) I am pretty sure that would be considered "hear say" evidence and hence not admissible unless that person was available for cross examination to verify he/she said what was heard. At which time the person could invoke the 5th(at least I would think they would)since they are not the one on trial. But........I don't know enough about the UCMJ to know if the same rules apply.

[jmm99]

It depends on the purpose for which the out of court statement is offered.

Here is the snip from MRE Rule 801, Definitions:

The following definitions apply under this section:
.....
(c) Hearsay. “Hearsay” is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Now check out my question and note the bolded weasel words:

E.g., MAJ Hasan would you please relate to us, without mentioning names or any other details which would identify the patients, the 101 instances which caused you to form the belief that the armed conflicts in Astan and Iraq were immoral and illegal under the tenets of your religion and Sharia law, as well as the Hague and Geneva Conventions ?

For example, let's say that the 101 instances are stories related to Hasan by patients that they (patients) shot women and children. If those statements are submitted to prove as fact that 101 patients actually shot women and children, those statements are hearsay. But, if they are submitted to prove the basis of MAJ Hasan's belief that US troops shot women and children, they would not be hearsay. Beliefs (and intent) may be formed on the basis of asserted facts which are untrue or complete fantasies.

Another area where this could come up are the emails with Anwar al-Awlaki (the Yemeni cleric, etc.), which according to al-Awlaki responded by telling Hasan that it was permissible for him to wage violent jihad against US troops. Again, it depends on who seeks to introduce those statements and for what purpose.

Let's say the defense seeks to introduce them to establish a basis for MAJ Hasan's belief that he was a Soldier of Allah and that his jihadic actions were sanctioned by Sharia law. We probably could find any number of Islamic scholars who would testify that al-Awlaki's extremist Salafist views are contrary to sound Islamic principles. But, the point is not to prove that al-Awlaki's views are true or false, but to prove that Hasan formed a belief based on those views that caused him to act.

All of this is subject to other evidentiary rules. The emails exist (in FBI hands) and say what they say. Hence, the only issue is for what purpose they are introduced. But, what about the 101 interviews ? If MAJ Hasan testifies to them from memory, a definite credibility issue exists. But, what if there are interview notes by him, or recorded interviews, that substantiate his claims ? Can those be used to "refresh recollection" ?

To summarize, not all out of court statements are hearsay. Usually, their admissibility hinges on the purpose; that is, to establish belief, intent, motive for the act; but non-hearsay could also be a prior statement by a witness (that impeaches his testimony), or an admission by a party-opponent (such as a confession or statements proving a conspiracy).

Then, there are numerous exceptions to the hearsay rule; that is, where out of court statements are offered to prove the truth of what is stated in them (and thus are hearsay), but where policy reasons have created a host of exceptions. There are dozens of them; and that critical facet of trial practice and tactics is covered by MRE Rules 801-806.

You might want to download the 2008 Manual for Courts-Martial, which has all of this in Chapter III (Military Rules of Evidence).

Finally, there is MRE 807, Residual Exception, which is the MRE's equivalent of "conduct unbecoming" (it also allows admission of some "battlefield hearsay", a key point in the Gitmo detainee hearings):

Rule 807. Residual exception.

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

So, it depends a lot on the judge.

PS: the non-heasay use of statements to prove a belief is particularly pertinent to mental capacity.

"Objection, your honor, Mr McCarthy is attempting to introduce statements which are pure fantasies and he knows it."

"Quite true, your honor, the statements are pure fantasties. My client is nuts. His beliefs are founded on pure fanasties. That's why he is nuts."

"Objection overruled. The jury will consider what weight, if any, to be given the statements in regard to the defendant's mental capacity."

[slapout9]

But, if they are submitted to prove the basis of MAJ Hasan's belief that US troops shot women and children, they would not be hearsay. Beliefs (and intent) may be formed on the basis of asserted facts which are untrue or complete fantasies.

jmm99, you might be right. I was thinking something along those lines last night.......genrally motive only has to be established.......it does not have to be proven! method/means and opportunity do but that is usually done with physical evidence, the gun with his fingerprints on it and the shell casings, opportunity he was found bleeding at the scene not much problem with any of these IMO.

[jmm99]

As I understand it, MAJ Hasan is charged with 13 counts of premeditated murder under Article 118 (snip from MCM IV-62-63):

43. Article 118—Murder

a. Text of statute.

Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he—

(1) has a premeditated design to kill;
.......
is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct.

b. Elements.

(1) Premeditated murder.

(a) That a certain named or described person is dead;

(b) That the death resulted from the act or omission of the accused;

(c) That the killing was unlawful; and

(d) That, at the time of the killing, the accused had a premeditated design to kill.
.....
c. Explanation.
.....
(2) Premeditated murder.

(a) Premeditation. A murder is not premeditated unless the thought of taking life was consciously conceived and the act or omission by which it was taken was intended. Premeditated murder is murder committed after the formation of a specific intent to kill someone and consideration of the act intended. It is not necessary that the intention to kill have been entertained for any particular or considerable length of time. When a fixed purpose to kill has been deliberately formed, it is immaterial how soon afterwards it is put into execution. The existence of premeditation may be inferred from the circumstances.

(b) Transferred premeditation. When an accused with a premeditated design attempted to unlawfully kill a certain person, but, by mistake or inadvertence, killed another person, the accused is still criminally responsible for a premeditated murder, because the premeditated design to kill is transferred from the intended victim to the actual victim.

While the word "motive" is not mentioned above, the need to prove a "premeditated design" makes a "motive" a nice thing to be able to prove.

That being said, the "premeditated design" is simply "the formation of a specific intent to kill someone and consideration of the act intended." The killing could be totally motiveless ("...just cuz I wanted to do Bubba with a .45, just cuz"), and still meet the elements.

[slapout9]

" The killing could be totally motiveless ("...just cuz I wanted to do Bubba with a .45, just cuz"), and still meet the elements.

I'm a cop man....to me that is a motive and an all to common one in this day an age