Court Martial Lawyers Korea

Case laws on privileges in the Military Justice System

Adultery. United States v. Taylor, 64 M.J. 416 (C.A.A.F. 2007). Adultery is a crime ‚against the person or property of the other spouse. So, if a spouse is charged with adultery, the marital privilege, pursuant to M.R.E. 504(c)(2)(A) does not apply to communications about the adultery.

Presumption of Confidentiality. In United States v. McCollum, 58 M.J. 323 (2003), the appellant raped his wife's 14-year-old sister, who was staying with the family for a summer visit. He communicated various statements to his wife about the incident. During trial, the military judge admitted two of the statements, stating that the appellant did not prove the intent to hold the communications confidential. The CAAF set aside, stating that marital communications have a presumption of confidentiality. When the party claiming the privilege has shown 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 accept the joint-participant exception to the marital privilege, the joint-participant exception does not apply in military cases. See United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007). In Custis, the Court held that unlike privileges in the federal civilian courts that evolve based on case law, privileges in the military system are specifically delineated. So, the only exceptions are those expressly authorized. Hence, 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 earlier recognized a joint-participant exception to marital communications privilege.