Expanding the "child of either" exception to the husband-wife privilege under the new M.R.E. 504(D).

• Author: Richard, Damian P.

1. INTRODUCTION II. BACKGROUND OF THE PRIVILEGE A. Spousal Incapacity B. Confidential Communication Made during the Marriage C. Exceptions Common to Both Privileges under M.R.E. 504 D. The "Child of Either" Exception to the Husband-Wife Privilege under M.R.E. 504 III. ANALYSIS A. Growing Trend among Jurisdictions Expanded the Child of the Marriage Exception B. The Call to Expand the "Child of Either" Exception in the Military Courts C. Expanding the Exception through Presidential Executive Order IV. CONCLUSION I. INTRODUCTION

   The 2007 Manual for Courts-Martial will feature an amended husband-wife privilege allowing spousal testimony in cases involving crimes against almost any child. By expanding the "child of either" definition, the rule will no longer prevent spousal testimony in cases where the minor victim may not be a child of either spouse. This article examines the history behind the rule change and the likely impact it will have on future courts-martial. When someone has knowledge of facts relevant to a court proceeding, the common law has long recognized their obligation to testify. (1) Yet specific types of communications, for example those between husband and wife, have been considered privileged, and immune from the compulsion to testify. (2) These privileges are premised on the idea that it is good public policy to promote certain confidential relationships, such as marriage, and encourage candid communications between spouses. The privilege exists today because the public interest protected by the privilege has outweighed the value of the testimony to the truth-seeking function of the judicial system. (3) The President and the drafters of the Manual for Courts-Martial (Manual) have now resolved that when the abuse of children is at issue, the need for truth in criminal proceedings far outweighs any interest in candid communications between spouses, and have modified the rule of privilege accordingly. (4)

   In order to more effectively prosecute child sex offenders, many jurisdictions have lifted evidentiary restrictions and thereby allowed testimony ordinarily barred by the common law husband-wife privilege. (5) The 2006 proposed amendments to the Manual continue this trend by including a new subsection to the husband-wife privilege, Military Rule of Evidence (M.R.E.) 504(d), which greatly broadens an exception to the privilege in cases involving child abuse. (6) This new change will help to ensure that within military communities, all evidence is brought to bear on individuals who prey upon children.

2. BACKGROUND OF THE PRIVILEGE

   Unlike the Federal Rules of Evidence, the Military Rules of Evidence codify the common law evidentiary privileges. (7) Currently, the military justice system recognizes two evidentiary privileges which preclude one spouse from being compelled to testify against the other. Although grouped together under the title "Husband-wife privilege," M.R.E. 504 actually provides for two distinct privileges: first, husband-wife disqualification (which the Rule refers to as "Spousal incapacity"); and second, the privilege for confidential marital communications. (8) Both privileges derived from common law where one spouse was not competent to testify against the other. (9) Modern law now recognizes that spouses are competent to testify against one another; however, the social policies concerned with preserving marital harmony and promoting the privacy of the marital relationship had left relatively intact the privilege to not testify against one's spouse.

   1. Spousal Incapacity

      At common law, each spouse was disqualified from testifying for or against the other. (10) In 1933, the United States Supreme Court abolished spousal disqualification in federal courts, but only to allow an accused's spouse to be able to testify on the accused's behalf. (11) The rule evolved from one of absolute disqualification to one of privilege, and the privilege was vested in the accused. (12) Thus, under the 1969 Manual, an accused could still prevent a spouse from testifying as an adverse witness. (13) This was known as the privilege against adverse spousal testimony.

      In Trammel v. United States, the Supreme Court further modified the rule, vesting the privilege in the witness spouse, rather than the accused. (14) The Court held:

      "Reason and experience" no longer justify so sweeping a rule.... Accordingly, we conclude that the existing rule should be modified so that the witness-spouse alone has privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. This modification--vesting the privilege in the witness spouse--furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs. (15) The modified rule from Trammel is the rule currently recognized under the 2005 Manual. Entitled spousal incapacity, M.R.E. 504(a) provides the witness spouse with the option to testify against the accused or not. (16) However, this "spousal incapacity" rule does not apply if, at the time of trial, the parties are divorced or their marriage has been annulled. (17)

   2. Confidential Communication Made during the Marriage

      The confidential marital communication privilege evolved from the privilege against adverse testimony. Leading scholars realized that the privilege against adverse spousal testimony was inappropriately broad and suggested an alternative privilege patterned after the attorney-client privilege. (18) The Supreme Court, in Wolfe v. United States, (19) recognized that confidential communications between husband and wife are privileged. (20) Moreover, the Court later set forth "the rule that marital communications are presumptively confidential." (21)

      Unlike the privilege of spousal incapacity under M.R.E. 504(a), the confidential communications privilege of M.R.E. 504(b) remains vested in the person who uttered the communication. (22) Therefore, the accused may prevent the disclosure of any confidential spousal communication the accused made during the marriage. Confidential communication between spouses is defined as "any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law," (23) and "not intended to be disclosed to third persons other than those reasonably necessary for transmission of the communication." (24)

      The Court of Appeals for the Armed Forces (CAAF) has set forth a three-part test for determining whether the proffered testimony is a confidential communication and therefore inadmissible. (25) To be deemed inadmissible, the testimony of the spouse must relate to (1) a communication, (2) which was intended to be confidential, and (3) between married persons not separated at the time of the communication. (26) The party claiming the privilege has the burden of establishing that the communication is privileged. (27)

   3. Exceptions Common to Both Privileges under M.R.E. 504

      The spousal incapacity and confidential communication privileges often prevent significant amounts of testimony from being presented at trial and constitute obstacles in the truth-finding process. The spousal incapacity, or "adverse testimonial privilege[,] is the broader of the two privileges because it prohibits the testimony of any facts by a spouse, even if those facts are not learned through confidential marital communications." (28) However, this privilege will not apply if the couple is no longer married. (29) Jurisdictions have further circumscribed the broad reach of both these privileges by creating three general exceptions. (30) Therefore, even if the witness spouse refuses to testify against the accused, or if the testimony is related to confidential communications, the testimony in both circumstances will nevertheless be presented in the following three situations: (A) "In proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other spouse"; (31) (B) if the marriage was a sham; or (C) if the marriage involved prostitution or the immoral exploitation of the other spouse. (32)

   4. The "Child of Either" Exception to the Husband-Wife Privilege under M.R.E. 504

      The leading military case concerning the child of the marriage exception to the husband-wife privilege is United States v. McCullom. (33) In McCullom, the accused admitted to his wife that he raped her 14-year-old, mentally-retarded sister who lived in the marital home for one month. The military judge strictly construed the exception, and because the victim was not a child of either spouse, the wife's testimony concerning his admission was excluded. (34)

      Under the 2005 Manual, the child of the marriage exception to the husband-wife privilege under M.R.E. 504 will only be applied if the proceeding involves a crime against a child of either spouse. (35) Therefore, if the accused's spouse had information relating to a crime against a child that was not the child of either spouse, the privilege would take effect and bar that testimony. In proceedings where one spouse is accused of sexually assaulting or otherwise abusing a child not of the marriage, the testimony of the other spouse is invaluable and may be critical to the determination of guilt or innocence.

      In McCullom, the Court of Appeals for the Armed Forces (CAAF) was asked to broaden the exception to include a "de facto" child, "or a child who is under the care or custody of one of the spouses, regardless of the existence of a formal legal parent-child relationship." (36) The court strictly construed the phrase "'child of either'" and declined to extend the exception to any child other than the biological or legal child of the communicating spouses. (37) Specifically, the court held that an "expansive interpretation of the phrase...