It’s Privileged

Military Privileges

There are various rules that prohibit the use of otherwise useful evidence in a court-martial trial. These rules of privilege are found in Section IV and V of the Military Rules of Evidence (MRE). The rules themselves can be found as part of the Manual for Courts-Martial.

The MRE are based on the Federal Rules of Evidence with changes to accommodate special military situations. Under the President’s rulemaking power in Article 36, UCMJ, and MRE 1102, the president publishes the rules of evidence through executive order.

The privileges apply at any “proceeding” conducted under the UCMJ. That’s what MRE 1101 itself says about the applicability and scope of the privilege. So your military defense lawyer should argue they apply at an Article 15, UCMJ, action, at an Article 32, UCMJ, hearing, and at a court-martial.

Keep in mind that the privilege doesn’t mean much unless you assert it, or more importantly your military defense lawyer asserts it on your behalf. Inaction or a failure to raise the objection will often result in a waiver.

Keep in mind that, “The party asserting the privilege must establish its applicability by a preponderance of the evidence.” That means you and your military defense lawyer must do this, usually in a motion in-limine. See e.g., United States v. McCollum, 58 M.J. 323, 336 (C.A.A.F. 2003).

Caution. There is no requirement for law enforcement to tell you what rules might apply when you talk with them. There is no requirement for anyone who holds one of these privileges to talk with law enforcement during an investigation. Now it’s true a military member who is only a witness could be ordered to cooperate in an investigation. But, the privilege applies. So, as one prosecutor tried to do in a case I had some years ago, they cannot order a military spouse to testify against the other spouse if they don’t want to, nor can the non-testifying spouse be punished for exercising the privilege.

Keep in mind that it is a “communication” that is privileged. There may be other observations or interactions that are not privileged. If the spouse decides not to claim spousal incapacity that spouse can testify about physical acts you did/what she saw you do. Your military defense lawyer should be addressing this through a motion in-limine, because there is a potential issue of actions that are considered testimonial and might be inadmissible for that reason.

Keep in mind that the privilege doesn’t apply if the communication is made with a third party present.

Keep in mind there are exceptions to the privileges.

The news in evidentiary privileges. There are two significant changes to privileges as of 2012: a new rule addressing a privilege between a sexual assault complaining witness and a authorized victim advocate, and there is a change to the spousal incapacity and privilege rule because of a 2007 appellate case.

The privileges – the wavetops version.

MRE 412 – Rape shield. Although this is referred to as a military rape shield rule, I prefer to look at it as a rule of privilege.

MRE Rule 501. General Rule.

In United States v. Custis, 65 M.J. 366 (C.A.A.F. 2008), the court noted that privileges should be construed narrowly, as they run contrary to a court’s truth-seeking function.

For an interesting discussion of a potential for a journalists privilege see United States v. Wuterich, 67 M.J. 32 (C.A.A.F. 2008).

MRE Rule 502. Attorney-Client privilege.

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client[.] This covers the phone call to a lawyer to discuss hiring that lawyer to represent you or give a case evaluation, anything you discuss with your lawyers, what’s said to the secretary or paralegal of the lawyer, and what is said to experts or assistants working on the case. Either you or your lawyer can claim the privilege on your behalf.

There are times when even a military lawyer doesn’t understand this privilege. E.g., United States v. Danley, NMCCA 201000677, 2011 CCA LEXIS 179 (N. M. Ct. Crim. App., 8 Nov. 2011)(Unfortunately, since Blunk, improper disclosure of client communications has been a recurring subject of appellate litigation.).

Waiver & Exceptions: you waive the privilege if there is a “non-lawyer” present. For example, statements made in the presence of a parent who is not assigned to assist the lawyer; when you and your lawyer decide it’s in your best interest; or, “if the communication clearly contemplated the future commission of a fraud or crime or if services of the lawyer were sought or obtained to enable or aid” to commit such. You also waive the privilege if there is a later claims of ineffectiveness of counsel. Take a closer look at MRE 510, waiver by voluntary disclosure.

MRE 503 – Clergy privilege.

A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman’s assistant, if such communication is made either as a formal act of religion or as a matter of conscience. See generally, United States v. Shelton, 64 M.J. 32 (C.A.A.F. 2006). Now in United States v. Coleman, 26 M.J. 407 (C.M.A. 1988), the court allowed a pastor to testify about the accused’s statements. The pastor was the accused’s father-in-law and grandfather of the alleged victim. So this privilege is not so broad as some think. In United States v. Napoleon, 46 M.J. 279 (1997), the court focused on what is meant by confidential for the purpose of this rule. Basically the focus is on three points: as a formal act of religion or as matter of conscience, made to the clergyman in his or her capacity as a spiritual advisor; and be intended to be confidential. In United States v. Napoleon, 46 M.J. 279 (C.A.A.F. ), the court decided that statements to a “lay minister” was not within the privilege; “A communication is not privileged, even if made to a clergyman, if it is made for emotional support and consolation rather than as a formal act of religion or as a matter of conscience.”.

So, this can be a particularly troubling privilege to apply with military chaplains. There have been a number of cases where chaplains disclosed confidential communications when they should not have. Apparently some chaplains place their duty to the military over their duty to their religious ethics. this case exemplifies the difficulty. See e.g., United States v. Isham, 48 M.J. 603 (N. M. Ct. Crim. App. 1998); United States v. Benner, 57 M.J. 210 (C.A.A.F. 2002).

MRE 504 – Spousal privilege.

There are two parts to the rule. The spouse can refuse completely to testify, this is the spousal incapacity and the “privilege” belongs to the testifying spouse; or the spouse can be stopped from testifying about communications. In the second situation the spouse can still testify about acts she saw. So some examples.

A spouse agrees to testify about your drug offenses and she’s completely uninvolved. She tells the court that she saw you bring homes some drugs and hide them. And that’s where the CID found them in a search. That’s admissible. But what’s not admissible is what you said to her about where you got them and what you were going to do with them.

Caution. This rule is changed beginning in 2012. Prior to 2012, the rule had several exceptions, most importantly: (1) when the accused is charged with a crime against the person or property of the spouse or the child of either; and (2) when, at the time of the testimony is to be given, the marriage has been terminated by divorce or annulment. In at least one case the courts have given a broad interpretation, United States v. McCarty, 45 M.J. 334 (de facto family members may qualify, e.g., niece who lived with family for 10 years). This is inconsistent with the court’s holding in United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007), and in my opinion is likely overruled by Custis. Custis is the case which lead to this new addition to the exceptions for the spousal privilege.

Caution: 2012 change adds the following exception to the privilege:

(a) M.R.E. 504(c)(2)(D) is added to read as follows:

Where both parties have been substantial participants in illegal activity, those communications between the spouses during the marriage regarding the illegal activity in which they have jointly participated are not marital communications for purposes of the privilege in subdivision (a) and are not entitled to protection under the privilege in subdivision (b) (emphasis added).

Keep in mind that if the spouse is also accused of similar crimes then the Fifth Amendment right to silence will apply to that spouse, so they can still refuse to testify on the basis of their Fifth Amendment right: unless they are given grant of immunity.

Keep in mind that there will be litigation whether the spouse is a “substantial participant.” What exactly that means will be determined on a case-by-case basis. This should be addressed by your military defense lawyer in a motion in-limine.

Keep in mind that there will be litigation over when the spouse began to be a participant. That’s because, “”The majority of [federal] circuits agree that communications made before a spouse begins to participate in the criminal activity are privileged.” ” And apparently ACCA agrees. United States v. Davis, 61 M.J. 530 536 (A. Ct. Crim. App. 2005) pet. denied 62 M.J. 230 (C.A.A.F. 2005).

Keep in mind there will be litigation over the scope of the exception. Any testimony must be directly related to the specific illegal activity in which they have jointly participated. This should be addressed by your military defense lawyer in a motion in-limine.

Caution. Military courts consider adultery a crime against the other spouse, thus there is no privilege. United States v. Taylor, 64 M.J. 416 (C.A.A.F. 2007).

MRE 505 – Classified information. This can be used as a sword or shield against an accused.

MRE 506 – Government information other than classified information . This can be used as a sword or shield against an accused.

MRE 507 – Informant identity. The United States or a State or subdivision thereof has a privilege to refuse to disclose the identity of an informant.

MRE 508 – Political vote. A person has a privilege to refuse to disclose the tenor of the person’s vote at a political election conducted by secret ballot unless the vote was cast. This might apply to a potential court-martial member during voir-dire.

MRE 509 – Deliberations of courts and juries. This happens to be a very important privilege that is sometimes the subject of litigation. The privilege also applies to a military judge who presides over the trial. United States v. Matthews, 68 M.J. 29 (C.A.A.F. 2008). The privilege applies to their “deliberative process” only. There are cases where a military judge had been required to testify about his actions in a case. See e.g., United States v. Hayes, 68 M.J. 190 (C.A.A.F. 2009) (comments made in a “bridging the gap” session).

MRE 510 – Waiver of privilege by voluntary disclosure. This is an important concern that should be addressed immediately with your military defense lawyer. The best advice is always that you should not talk with anyone other than your lawyer about the case – period.

MRE 511 – Privileged matter disclosed under compulsion or without opportunity to claim privilege. This is the rule most applicable to those law enforcement interrogations where the person isn’t advised of the privilege.

MRE 512 – Comment upon or inference from claim of privilege; instruction. This is the privilege’s privilege. No one can use the exercise of the privilege against the person. It would be senseless to have a privilege and then have the prosecution be allowed to hold that against the person.

MRE 513 – Psychotherapist-Patient. This privilege is litigated a great deal in sexual assault and child abuse cases, or when the accused is raises mental competence issues. Typically the prosecution is using this rule as a shield to prevent defense discovery of information that might be helpful to the defense.

In United States v. Paaluhi, 54 M.J. 181 (C.A.A.F. 2000), the Court of Appeals for the Armed Forces adopted the Supreme Court’s decision in Jaffee v. Redmond, to find a privilege. That was incorporated into the MRE as MRE 513.

Caution. This is a narrow privilege and only applies to actions under the UMCJ. There are other laws that may be applicable such as the HIPAA.

As to an accused.

Communications made by an accused as part of a sanity inquiry under MRE 302. United States v. Toledo, 26 M.J. 104 (C.M.A.).

Where psychiatrist or psychotherapist is detailed to assist the defense team, communications protected as part of attorney-client confidentiality. United States v. Tharpe, 38 M.J. 8, 15 n.5 (C.M.A. 1993). This is often the situation where there is an expert detailed for a sexual assault trial.

MRE 514 – Victim advocate-victim. This is a new rule and it is expected to be the subject of significant litigation.

(a) General rule of privilege. A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication between the victim and a victim advocate, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or supportive assistance to the victim.

Not or maybe not privileged. Of course you must review and discuss these evidentiary issues with your military defense lawyer.

Congressional Communications are not privileged. See, United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003). There can be no retaliation for communicating with a congressman; that’s in 10 U. S. Code § 1034. But that doesn’t convey a privilege against the use of communications. So be careful what you say in a Congressional.

Communications to a parent.

Communications made during a command directed mental health referral. United States v. Jenkins, 63 M.J. 426 (C.A.A.F. 2006).