Privileges – Military Rule of Evidence 501-512 – Military Rules Governing Privileges.

Schleuter, Salztburg, Schinasi, and Imwinkelried, in Military Evidentiary Foundations, view the privilege analysis in the following manner; in certain proceedings, the holder has a privilege unless it is waived or there is an applicable exception.  This summary animates six considerations:

The proceedings to which the privileges apply:  pursuant to MRE 1101, the Rules respecting privileges apply at all stages in virtually all proceedings conducted pursuant to the UCMJ, i.e., Article 32 hearings, Article 72 vacation proceedings, as well as search and seizure authorizations, and proceedings involving pretrial confinement.

The holder of the privilege:  The original holder is the intended beneficiary (e.g., the client, the penitent), although in certain cases, the holder’s agent will have authority to assert the privilege.

The nature of the privilege:  Encompasses three rights – to testify and refuse to disclose the privileged information; to prevent third parties from making disclosure; and the right to prevent counsel or the judge from commenting on the invocation of the privilege.

What is privileged?: the confidential communication between properly related parties made incident to their relation.

“Communication” is broadly defined.
“Confidential” implies physical privacy and an intent on the part of the holder to maintain secrecy.

Waiver of the privilege:  Voluntary disclosure of the privileged matter, in-court or out-of-court, will waive the privilege.

Exceptions to the privilege:  For example, communications used to facilitate a crime or fraud would not support a claim of privilege.

To claim a privilege, the elements of the foundation, in general, are:

The privilege applies to this proceeding;

The claimant is asserting the right type of privilege;

The claimant is a proper holder of the privilege;

The information to be suppressed is privileged because it was a communication, it was confidential, it occurred between properly related parties, and it was incident to the relation.


Rule 501.  General Rule.

Rule 501 is the basic rule of privilege, recognizing privileges required by or provided for by the Constitution, acts of Congress, the Military Rules of Evidence, the MCM, and the privileges ‘generally recognized in the trial of criminal cases in the United States district courts pursuant to FRE 501 to the extent that application of those principles to courts-martial is practicable.  United States v. Miller, 32 M.J. 843 (N.M.C.M.R. 1991) (although it was unaware of any case applying 501(a)(4) to a privilege arising entirely from state law, here, accused did not even have standing to claim a statutory privilege for statements made by daughter to state social services officials).

Psychotherapist Patient Privilege MRE 513

The President signed MRE 513 on 7 October 1999.  MRE 513 offers a limited privilege for communications to psychotherapists and counselors.  There are some limitations to the privilege:

Only applies to actions arising under the UCMJ.

Not a broader doctor patient privilege.

No Privilege Before 513.

United States v. Rodriguez, 54 M.J. 156 (2000).  The CAAF affirmed the Army Court’s ruling that Jaffee v. Redmond did not create a psychotherapist-patient privilege in the military.
United States v. Paaluhi, 54 M.J. 181 (2000).  Consistent with Rodriguez, the court ruled that Jaffe v. Redmond did not create a psychotherapist-patient privilege in the military.  The CAAF reversed the conviction, however, holding it was ineffective assistance for the defense counsel to tell the accused to talk to a Navy psychologist without first getting the psychologist appointed to the defense team.

Several Exceptions

Sexual Abuse
Military Necessity

Quasi psychotherapist-patient privilege also exists under limited circumstances:

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)

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.), cert. denied, 488 M.J. 889 (1988).  Note that confidentiality privilege for statements made during mental responsibility exams may not automatically apply retroactively to exams which the military judge deems as adequate substitute for court-ordered R.C.M. 706 examinations.  United States v. English, 44 M.J. 612 (N.M.Ct.Crim.App. 1996), rev’d on other grounds, 47 M.J.  215 (1997).


Rule 502.  Lawyer-Client Privilege.

An attorney-client relationship is created when an individual seeks and receives professional legal service from an attorney.  In addition, there must be an acceptance of the attorney by the client and an acceptance of the client by the attorney before the relationship is established.

United States v. Rust, 41 M.J. 472 (1995).  No reasonable basis for accused physician to have concluded he was providing confidential information to his lawyer when he communicated with hospital lawyer regarding his treatment of pregnant patient.  Lawyer introduced himself as hospital lawyer who was conducting claims investigation, accused did not seek out lawyer, ask for advice, or receive any advice.

United States v. Nelson, 38 M.J. 710 (A.C.M.R. 1993).  Military judge erred in admitting oral statement made by the accused to his civilian defense counsel.   Court rejected the judge’s conclusion that the accused was not a client at the time of the statement, holding he was a “joint client” within the meaning of MRE 502(d)(5).  Evidence showed both soldiers had an intent to seek legal services and for the communications to be confidential.

United States v. Province, 42 M.J. 821 (N.M.Ct.Crim.App. 1995).  Pre-existing documents presented to accused by attorney were not protected under attorney-client privilege.

This privilege may be claimed by the client, or the lawyer on the client’s behalf.  However, MRE 502(d)(1) removes the privilege with respect to future crimes, as does 502(d)(3) with regard to breach of duty by lawyer or client, etc.  United States v. Smith, 33 M.J. 527 (A.C.M.R. 1991).

Waiver.  No abuse of discretion where military judge allowed witness to reclaim attorney-client privilege as to communications “voluntarily” disclosed under cross-examination at Article 32 investigation.  United States v. Romano, 43 M.J. 523 (A.F. Ct. Crim. App. 1995), rev’d on other grounds, 46 M.J. 269 (1997) .  However, defense counsel should first obtain client consent before revealing information to another defense counsel, even where the clients are engaging in a cooperative defense.

Rule 503.  Communications to Clergy.  This privilege protects communications made as a formal act of religion or conscience.  The privilege may be claimed by the penitent or in the absence of contrary evidence, by the clergyman or his/her assistant.  United States v. Napoleon, 46 M.J. 279 (1997).  For privilege to apply, the communication must:

be made either as a formal act of religion or as matter of conscience;

be made to a clergyman in his or her capacity as a spiritual advisor; and

be intended to be confidential.

United States v. Isham, 48 M.J. 603 (N.M.Ct. Crim. App. 1998).  The accused made statements to his chaplain about his depression and his thoughts of suicide and of possibly hurting someone else.  The Chaplain then warned the accused that any such information would need to be disclosed to the proper authorities.  The accused agreed and continued to talk.  At trial, the government called the chaplain to testify against the accused. The judge admitted the evidence over the defense objection.  The Navy Court reversed. The court looked at the language of MRE 503(b)(2) and said that the communication is still privileged even if it is disclosed to “those to whom disclosure is in furtherance of the purpose of the communication” . . .  In this case, the accused could anticipate that the chaplain would disclose to members of the chain of command and mental health people, and this would still keep the communication privileged.  However, the accused never anticipated that the chaplain would testify about the communications in a court-martial.

Rule 504.  Husband-Wife Privilege.

MRE 504 is an adoption of the Supreme Court’s decision in Trammel v. United States, 445 U.S. 40 9198), in which the Court held that the witness spouse alone has a privilege to refuse to testify adversely.  The defendant spouse can only assert the privilege concerning confidential communications.

Thus, one spouse may refuse to testify against the other.  Confidential communications made during marriage are privileged, and that privilege may be asserted by the spouse who made the communication, or on his behalf by or the spouse to whom it was made during or after the marital relationship.

The rule contains several exceptions to the privilege, most importantly: (1) when the accused is charged with a crime against the person or property of the spouse OR A 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.  United States v. McCarty, 45 M.J. 334 (de facto family members may qualify, e.g., niece who lived with family for 10 years).

Waiver. United States v. McElhaney, 54 M.J. 120 (2000).  In this case the accused was charged with attempted rape and carnal knowledge against his niece.  The accused’s wife discovered these incidents when she intercepted letters between the accused and his niece.  The wife then confronted the accused with the illicit nature of these letters.  The accused admitted to his wife of the long running relationship and his attempts to have sexual intercourse with his niece.  The defense sought to suppress these statements between the accused and his wife under the marital privilege.  The government contended that the accused had waived any privilege because the accused had disclosed much of his communication with his wife to the victim and the victim’s parents.  The CAAF agreed.   The court noted that a significant portion of the conversation had been disclosed when the accused told the victim in a letter that the cat was out of the bag, that his wife knew almost everything, and that he had told her parents about stolen kisses.  The court reasoned that this was more than just telling the victim that a conversation had occurred and, taken in context, it was a significant disclosure of the substance of the conversation.

Preserving issue for appellate review.  United States v. Jones, 44 M.J. 708 (A.F. Ct. Crim. App. 1996).  Accused failed to preserve for appellate review military judge’s preliminary “ruling” on scope of privilege against adverse spousal testimony when he declined to call wife at trial.

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