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Rule 501

  1. militarydefenselawyers328Rule 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).
  2. Despite the express provisions of MRE 501 (a)(4), can military courts apply federal common law privileges? See United States v. Custis, 65 M.J. 366, 370-
    71 (2007) (stating that “whereas privileges evolve in other federal courts based
    on case law determinations, in the military system the privileges and their
    exceptions are expressly delineated.”) See also United States v. Wuterich, 68
    M.J. 511 (N-M. Ct. Crim. App. 2009) (refusing to recognize a “reporter’s
    privilege,” in part, because the privilege was not specifically delineated.)

Despite the express provisions of MRE 501 (a)(4)