Privileged Communications in Military Law

• Author: By Captain Thomas C. Oldham
• Pages: 02

The primary goal of a judicial action is the ascertainment of truth. To the extent that a witness possessing information relevant to the inquiry is permitted to refuse to discloae that information, the search for truth is frustrated. Nevertheless, this obstacle to the just conclusion of litigation has been deemed not too great a price to pay for cloaking in secrecy certain fundamental human assoeiations. In order to protect the confidential character of these important relationships, the participants are "privileged" to withhold their communications to each other from judicial scrutiny.

Dean Wigmore once formulated four conditions precedent to the establishment of a privilege against disclosure of communications which have since become the cornerstone of the development of this portion of the Law of Evidence:

"(11 The eemmunieationa mnat originate in a confidenor that they will not be disclosed; (2) This element of oonfidentiohty mist be essential to the full and satisfactory maintenance of the relation between the parties; (3) The relalion must be one which in the opinion of the community ought to be sedulously fastwed; and (4) The injm-v that would Inure to the ?elation by the diacloiiure of the cornmvnieationa muit be greater than the benefit thereby gained for the eerreet dinpaasi of litigation."'

The initial and primary problem is, of course, whether the relation in which the communications originated is "one which in the opinion of the community ought to be sedulolusly fostered." Certainly the marital relation, freedom to warship, and the right to untrammeled legal representation are three of the sturdiest pillars of our democratic awiety. Our faith in their unalterable status is inviolable. In addition, the delicacy of the physician's consuitation, treatment, and care has been deemed worthy of consideration in many jurisdictions. When coupled with the very real necessity far protecting governmental secrets, the circle of relationships justifying a privilege not to disclose is complete. Represented in this orbit

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'This srtiela was adapted from B thesie preaented to The Judge Adwaste

General's School, U. S. Army, Chadotteaville. Virginia, while the author was a member of the Sixth Advanoed Ciaaii. The opinions and eonelu-&ions presented herein are those ai the author and do not necessarily repiesent the view8 of The Judge Adwesite Generai's School nor any other governmental agency.

** Omce of The Judge Advocate General, U. S. Amy, Washington 25, D. C.; member of the Florida State Bar: gIaduate of the University of Miami Law Sehwl.' 8 Wigmore, Evidence $2186, at 631 (8d ed. 1840) (hereinafter oited 88

Wigmorel.

AGO mlB 17

are sociolopical, political, and psychological forces which command the respect and protection of the vast majority of the American populace.

Unfortunately, however, members of a number of trades and professions who enter confidential relationships with their clients have decided that preservation of their communications from disclosure in the courts would be of great benefit to the community. Accordingly, they have made strenuous attempts to erect a wall of evidential privilege around their confidential communications. These inroads into the effectire and just administration of justice have intensified opposition to all the privileges and swelled the ranks of those who believe that the judicial search for truth outweighs any of the relationships protected by the confidential communication privileges.

In a case involving a claim by a factor of a privilege not to disclose the confidential communications of his principal, the United States Supreme Court aptly expressed the reason for the severe limitations which must be placed upon a privilege to conceal.

"It would be of yeis dangerous eanmquenee, if it >,as established, that a e~mmeieisl agent XBQ not amenable a8 a witness in a court of judice, in

B cause against his constituent. It is atraining the matter of privilege

tw far. And, if the law makes him a witness, we are too fond of gettingat the truth, to permit him to excuse himself from declaring it, because he eoneeives, that, in point of delicacy, it would be a breach of eonfidenee."'

It remains true that the overriding necessity for full and complete disclosure of relevant facts by a testifying party will not be curtailed by the mere existence af a confidential relationship. Onlythose relations which have received the full approval of the courts, predicated upan the general demands of the public, are accorded exemption.

Military law has long acknowledged that communications arising from certain confidential relations require protection for reasons of public The early rules of evidence which were established in this respect have been continued through the years without material change other than the addition or deletion of qualifying language concerning a particular relationship.* The only major development-that extending the rules to embrace communications

'Holmes V. Comegys, 1 U.S. (1 Dall.) 489 (1789).'Winthrop, Military Law and Precedents 38W82. 385 (Id ed. 1920 re. print). Colonel Winthrop ineivdes the following; state and police secrets, attorney and client, and huibsnd and wfe (the latter, hawwar, con-sidered as part of the testimonial plivilege). Re also atster that corn-munieations to clergymen and physicians, being udmown s the eomrnon law and not subject to Federal statutes, are not pri*ieged.'See pars. 227. 228-282, MCM, 1817: p a n 227, 280, MCM, 1921: par. 123. MCP. 1828; PBT. 137. MCM, 1949.

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PRIVILEGED COMMUNICATIONS IN MILITARY LAW

made to clergymen-is of fairly recent origin: and has seen little practical application in courts-martial.

The Manual for Courts-Martiel, United States, 1951, defines the concept of privileged communications and emphasizes its importance in clear terms :

"A privileged communication is a communication made ai an incidentof B confidential relation which It IP the publie policy to protect Sincepubiie Policy is involved, the court, of Lts o m motion, should refuse toreceiw evidence of aueh B communication unless it appears that the privi-lege has been waived by the pemon or government entitled to the benefitof it, or unless the evidence emanate8 from a perm" or source not bound by theThe present military law' places the shield of privilege over certain communications derived from sources which may be categorized as personal and governmental. The personal privileges apply to communications between attorney and client, husband and wife, and penitent and clergyman. The governmental or executive privileges embrace the deliberations of courts and juries, dipb matic correspondence, official communications (disclosure of which would be detrimental to the public interest), communications of informants to public officers engaged in the discovery of crime, and investigations of Inspectors General and their assistants. Privileges are not recognized far Communications made by wire or radio or those made to medical officers and civilian physicians.8 All of the privileged relationships acknowledged in military jurisprudence are accorded the same status in Federal law, albeit in varying degrees.

The problems common to all privileges are met both in civilian and military trials. In general, the same evidentiary principlea apply in both forums. However, many of the rules which have evolved in the law relate principally to civil rather than criminal proceedings and therefore are not entirely adaptable to courts-martial. In some instances, the fundamental differences between a military and a civilian society are manifested in conflicting standards. To appreciate the underlying reasons for these variations, it is necessary that the relationships be examined separately

1. ATTORNEY AND CLIENT

   The attorney-client privilege is the oldest of the common-law exemptions for confidential communications and has been flrmly embedded in military law by the Court of Military Appeals, which

   'Par. 157, MCM, 1948.'Par. 1510, MCM, 1951 (emphasis added) 'Par. 161b, MCM, 1961.' Pair. 151% MOM, 1951.

   recently declared that "once the attorney-client relationship has been shown to exist, no couri-either Federal or state-has been more zealous in safeguarding and strengthening the privilege arising therefrom than has this

   In Ilaited States v. Marrelli,lo the late Judge Brosman explained that the privilege "exists for the purpose of providing a client with assurances that he may disclose all relevant facts to his attorney safe from fear that his confidences will return to haunt him." Preservation of this confidential relation between client and attorney is "essential to the rendition of legal services-for without knowiedge of the facts a lawyer cannot properly perform his role in repreaenting his client and in effecting a satisfactory disposition of disputes and difficulties."1' It was also pointed out in United States v. Fairiz that there is even more justification in the military than in the civil sphere to encourage a complete disclosure to the attorney by a serviceman who is accused of a crime. This is 80

   because of the natural reluctance on the part of an enlisted man to divulge the details of possible wrongdoing to a superior officer.

   The duty to preserve a client's confidences which is demanded of a lawyer finds formal expression in Canon 31 of the American Bar Association Canons of Professio?ml ethic^,'^ and the responsibilities in this regard of military counsel are recited in paragraph 48 of the Xanuai for C~urts-Rlartiai.'~ The required standards

   ' U.S. V. Turley, 8 USCMA 262. 265, 24 CMR 72, 75 (1967). See 8

   Klgmare $2290 for 8 treatment of the history of the privilege. Briely, the privilege dates daek to the 16th eentury and originally WPI in con-slderation of the oath and honor of the attorney rather than far the protection of the client. The privilege was limited to Communications received since the beginning of the litigation at bar and for its...