Court Martial Military Rule of Evidence MRE 503

Court Martial Military Rule of Evidence MRE 504. Husband-Wife Privilege.

Rule 504 reflects the Supreme Courts ruling in Trammel v. United States, 445 U.S. 40 (1998), in which the Supreme Court held that the witness spouse alone has the privilege to not testify adversely. A defendant spouse can only assert the privilege about confidential communications. Hence, one spouse can refuse to testify against the other. Confidential communications made during marriage are privileged, and that privilege can be asserted by the spouse who made the communication, or on his behalf by or the spouse to whom it was made at the time of or after the marital relationship. The rule contains many exceptions to the privilege, most importantly: (1) if the accused is charged with a crime against the person or property of the spouse OR A CHILD OF EITHER; and (2) when, when the testimony is to be given, the marriage has been terminated by divorce or annulment. To prevent unwarranted discrimination among child victims, the term a child of either was amended in 2007 and includes not only a biological child, adopted child, or ward of one of the spouses but also includes a child who is under the permanent or temporary physical custody of one of the spouses, regardless of the existence of a legal parent-child relationship. For purposes of this rule only, a child is: (i) an individual below the age of 18; or (ii) an individual with a mental handicap who functions under the age of 18. Before this amendment, there was no de facto child privilege in the military. See United States v. McCollum, 58 M.J. 323(2003). Rule 504(c)(2)(A) requires a lega parental relationship, as opposed to a custodial relationship, to trigger the child of either exception.