Judicial Privilege. Does It Have a Role in Military Courts-Martial

• Author: Major Robert E Nunley
• Pages: 02

1. Introduction

   What is '3judicial privilege"? Is it like pornography, evaswe of any common definition, but one knows it when he or she 8688 it?' Very few reported cases have mentloned the words 'pdicial privilege," and even fewer have addressed it in the content of a testimonial and discovery privilege.2 Only a couple of legal scholars have attempted to define judicial pnvdege, and their articles have addressed it from an hmtoncal perspectwe, leavmg the practicing attorney and Judge to ponder ita practical, daytoday application 3

   The purpose of this artlcle 1s to define the scope of judicml privilege, Identify its bases, and review its development as a testimonial and discovery pri~ilege.~

   The article wdl examme the

   'Malor. Umred Sfstea Marine Coros'Jacabellll v Ohlo 378 US 184. 197 119641 ISteaarr. J , cmeumng) 1'1 shall not tadas sttempt further to define the kinds af material I underatand to be embraced wthm fhsf shorthand descnptmn, and perhaps I codd never succeed intellipbly doing so But I know ~t when I bee It"?

   'See lnfm notes 122-30, 157-59 185-284, and accompanilng text The term "judrcial prw~loge" has many emtexts Moat authors and c a w use the term to describe claim& of pnv~lege other than the tesnmamal and dmcovery pr~mlego corered by this article. Another context of the term IS to generally describe all judicially created--as apposed LO leglalatlvels created-mdentisry pr~deges Seee 8 , Boyd Y Gulletf 64 F R D 169 1D Md 19741 Gerald Wetlaufer Justify& S~circy An Objection to the General Del&bwnlme Priiilrgr 66 IKD L j 845 841 11990) Frequently the term E used to descrhe a form of Immumty from h&hty for statement8 made ~n the C O U ~ D of judicial proceedings Sse. eg Sliver Y

   Mendel. 894 F2d 598 13d Cr). rrrt denied. 110 S Ct 2620 11990;, Owen v Kronheim, 304 F 2d 957 (D C Clr 1962, Others use the term to desenbe B covrt's

   judicral pnwlege ta condemn thlngs the judges da not hke or cannot

   understand ", For more on rhe dannitmn between judicial privilege and judmal Imniunrty. me infin notes 115-21 and accompanpng text.

   'See Robert S Cam 8: Jill

   J Lange, Judicial P~iiilege, 22 Ga L RE\ 89

   119871, Kevin C Mhe. The Doifrine of Judicio1 Piriiiigi The Historical and Conatifulmd Basis Supporhg a Piirtiege foi the Fedrid Judrcinry, 44 WASH a. LEX L REV 213 (19871

   .See infra notea 16-308 and acc~mpanylng text

   5s

   role of judicial privilege in courts-martial, focusing on the role it plays in the military's unique trial procedure, which permits the "or dire of the military judge.6

   The exmtence and scope of judmal privilege 1s important to all practitioners and judges-both military and civilian-in light of recent politicized struggles between the branches of government invoking the separation of powers doetnne.6 Furthermore. both the military courts7 and the federal bar5 recently have experienced several publicized inquiries into alleged judicial misconduct. Investigations into theae allegations necessarily involve the potential for, and have resulted in the increased invocation of, judicial pnvilege.g

   an aasertlon of mdependence~ from the other branches '

   'Three recent cases mvolnng the NavyYanne Corps Court of Military Reiiew (SMCMR,hare muen iince 1988 See Umted Sfaten Naiy-Manne Carp8 Court of Military Renew Y Csrlucc~, 25 hl J 326 (C M A 19861, Wdaon \ Ovellette Na 913025M IN Y C Y R 9 Dec 19911, pefrf~ondenied No 92-07MC (CY A 17 Jan 19921 Clarke v Breekenndge, No 893618C 'K41 C %l R 10 Jan1991, mer eunam' iunpub ) These case% me diwurred m depth later I" the article .See infra nates 147-84 and aecampanymg texteNo federal udms were rmoeached bv the United States Senate from 1936

   of Bribery, A B A J. Sept 1991 -at 32

   *See Matter of Certam Corndsmts Under Inreaf~eafmn bv anlnrest~gafing Eamm of the Judicial Cm&I of the Eleventh C&t. 753.FZd 1488 (11th Cir , (Haslings 11). cert denied sub nmn Hasfmgs 3 Gadbold, 177 US904 119861 (suit objecting to the enforcement of aubpoenai eeeklng reanmony and dorumenla from preaenr and former staff members af the Honorable Alcee L Harlmgs, United Stater Dsfnct Judge), Clarke Y Breckenridge No 893616C I S M C M R 10 Jan 19911 (her cunaml runoub I cremated muocatmn of iudicial

   When a military judge claims judicial privilege in a court-martial, an inherent fnction ames. The conflict is between the interests served by the protections of the privilege, and the interests of the parties in a criminal trial in securing a fair and impartial trier af fact through uoir dire lo Before practitioners and judges can appreciate this friction, and ultimately resolve the conflict, they must understand the development of judicial privilege and Ita bases.

   An examination of the historical evolution of primleges, up through and including the adoption of the Federal Rules of Evidence in 1975," 1s fundamental to the analysis of any pnvilege Additionally, a review of the Military Rules of Evidence is necessary in this cane because two rules provide potential bases for a judicial pnvilege.12

   The Constitution and the federal common law are also sources of specific bases gmng rise to judicial privilege. The Constitution expressly provides for a legislative privilege, and courts have recognized an implied executive pnvilege since the 1970s 13 Through an examination of the development of the legislative and executive privileges, this article analyzes court dicta and decisions leading to the ultimate reeogmtion of a coequal, implied judicial privilege. This constitutional judicial privilege is broad in scope, yet qualified, and it applies to Article I judges--mcluding military judges--as well as to Article I11 judges 14 Finally, this author recognizes a federal common law "deliberative process" privilege for the judiciary through analom to the well-recognized "deliberative process" privilege held by the executive branch 1s

   Having established the development and bases of judicial privdege, the article next examines the history and purposes of

   o . 0 ~

   dre, focusing an the interests served by uov dire of the military judge in a court-martial.16 Finally, the article discusses the conflicting interests created by a military judge's claim of judicial privilege, and proposes the adoption of a bright-line rule to best protect the interests of both the judiciary and the parties to a court-martial 11

   "See infra nates 259-54, 375-85 and accompanylng text"Sir infra notes 20-41 and accampanying text'"See infra notee 42-87 and mampanying text"See infro nates 90-101, 160-83, and arcampanpng text2'S~iinfra notes 206-99 and accompanpng text'ISrr infra notea 131-48, 172, 180 300-04, and aecompan)lng text -'See mfra notes 309-69 and accompan)lng text--Srr Infra notes 36047 and accompanymg text

   11. The Development of a Judicial Privilege

   1. Historical Decelopment of Priuileges

      To understand the purposes and scope of the specific

      privileges, including judicial pnnlege,ls one must first review the history and purposes of privileges in general 1s The earliest pnvdeges arose in England during the sixteenth century m response to the imposition of compulsory process and the creation of the universal duty to testify when called.20 Unlike other rules of evidence designed to exclude unreliable evidence in the search for truth, privileges implement other societal interests and preclude the admission of otherwise reliable evidence. Invoking a privilege effectively subordinates the truth-seeking goal to the particular societal interest giving m e to the pnviiege.2l

      I Common Lac and State Prmileges -The first privilege was created in the 1500s to protect the communications between an attorney and client 22 A second, broader privilege fallowed in

      "Far pupores of thii article the author uses the teto testimonial and evidenrmry pnvdeges available to a pproceeding The testim~nialpmdegee or 'pnvdrged comm'rratements made by aertsm persons nthm a protected re1whxh the law prorams from faread dliclasure on the wlfnesi afand BLACKSLAW DICTIOKARY

      1073 (5th ed 19791 Evidentiary pr~vilege~include governmental

      secrets or recorda identity ai Informants. grand JUT? proeeedmgs certsin sendenr reports. and attorney work product Id !''pr~vileged endence' I

      see Diwiopmints >n the Lnu-Prirtirgrd Cammunimhons 98 HARV L 1455-71 ,19861 [heremafter Deirlopmenls in the Law1 Cat8 & Lange 3 at 91-100

      ZcDai.dopnienls m fhr Lou, supra note 19 at 14% leiting I J W m m m EVIDEY~E

      IsFar more complete coverage of the historical development of

      IZ T a l ~ ~ a

      AT Coiiiloz- LAX 33 6. 8. 8s IP Tillere rev ed 1983., 21 C Wnioiir & K GFAHA~~,

      FEDERAL

      PUCIICE *TD PBOCIOLRE

      EVIDLYCE

      CE I 2192 83d ed 8 ) Dean Bigmore stated,

      For more than three centuries ~t has no- been recognized as a fundamental maxim fhar the public Ihn the words asnctioned by Lard Hardwickem has B nght to eier) mans eiidmre :We sfsit with the pnmary ab~umption that there II a general duty to w e what

      teetlmon) m e II capable of mimg, and that any exempnons rhlrh may enst are dintinelly exceptional, bemg PO man) derogafmna from s posltlve genera1 l"leId (quoting Wlchion~.

      EYIDEXCE

      E 2192 13d ed 693 11812, 'apeeeh of Lord Chancellor Hardwirke af Lords 18

      2 Di~dopmonis zn the La& supio nore 19, at 1154 S o %ingle theory or lushficstmn for all ~rivileeed exiata Over time. authors and C ~ U ~ P

      ham fried

      >'Id 81 1446 Calz & Lsnge, supra note 3, at 93 (the earlieat recorded

      5s 5001-05

      Mast authors and mnrfi cite to Dean Kigmore's summarmn of the duty

      United States v Bryan. 339 U S 323 331 '19601 #quoting Bicvoni

      ~ud~ficafmns

      i

      beyond the scope of this article

      recognnmn of the privilege by a muit was ~n 16571

      the 1600s, developed to shield the communications between spouses.Z3 The primary rationale for these first two privileges was to protect and foster private communications in the attorney-client and spousal relationships 24 This purpose of protecting and fostering private communications is the basis upon which all privdeges, including judicial privilege, are founded.26

      By the 18OOs, the...