Military Case laws on privileges – UCMJ Attorney
Adultery. United States v. Taylor, 64 M.J. 416 (C.A.A.F. 2007). Adultery refers to a crime against the person or property of the other spouse. Thus, when one spouse is charged with adultery, the marital privilege, as per M.R.E. 504(c)(2)(A) does not apply to communications concerning the adultery.
Presumption of Confidentiality. In United States v. McCollum, 58 M.J. 323 (2003), the appellant raped his wifes 14-year-old sister, who was staying with the family during a summer visit. He made several statements to his wife concerning the incident. During trial, the military judge admitted two of the statements, stating that the appellant did not establish the intent to hold the communications confidential. The CAAF set aside, holding that marital communications have a presumption of confidentiality. When the party asserting the privilege has established that the communication was made privately during a valid marriage, the burden shifts to the opposing party to overcome the presumption.
Joint-Participant Exception. Although civilian federal courts recognize the joint-participant exception to the marital privilege, the joint-participant exception will not apply in military cases. See United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007). In Custis, the Court ruled that unlike privileges in the federal civilian courts that evolve based on case law, privileges in the military system are specifically delineated. Therefore, the only exceptions are those expressly authorized. Therefore, there is no joint-participant exception to the marital privilege. The ACCA in United States v. Davis, 61 M.J. 530 (Army Ct. Crim. App. 2005) had previously accepted a joint-participant exception to marital communications privilege.
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