Privileges Under the Military Rules of Evidence

• Author: by Captain Joseph A Woodruff
• Pages: 01

The Military Rules of Evidence became lswin 1980 by executive order of the President. The new rules are based largely upon the Federal Rules of Evidence, signed into isw in 1975, and upon former chapter XXVII of the Manual for Couits.Yartiai. Captain Woodruff's article focuses on section \'of the Military Rules. This section states rules caneerningprivileged communications, such as ststementsmade to BD attorney bye client

Captain Woodruff rev~ewssection V, ruie by rule, and compares

its text wrth that of the previous .Wanual providons, and with the text ot he privilege rules proposed by the drafters of the Federal Ruiej of Evidence but rejected by Congress. He concludes that for the most part the new rules do not represent B drastic change from prior military isw, and that in certain respects they improve significantly upon that jaw.

1. INTRODUCTIONThis article reviews the military law of privileged eommunica. tions Statements made by certain persans within protected rela. tionships are protected by the law from forced disclosure on the witness stand, at the option of one of the participants in the rela. tionship.' Weli.known examples include statements made in the

   *This Brtlcle 13 baaed upon an essay submitied by the author m partla1 lulfillmeni of the l~~ulr~rnenfifor the degree of Juris Dar - 81 the Cnweriify of Alabama School of Law

   context of an attorneyclient relationship, or between priest and penitent. or husband and wife. and sometimes doctor and patient.

   In civilian proceedings, the law of privileged communications is generally part of the common iaw. varying from state to state 4t the federal level an ambitious attempt was made to codify the law of privileged communications in section V of the Federal Ruler of Evidence I This attempt was rebuffed by Congress when the pro. posed rules were enacted in 1976.3 Section V as it now reads is a

   'See rhi Nates of the Houae and Senare Cammitrees on the Judiciary. the text of which is reproduced after Rule 601 of the Federal Rules of Evidence 28ar566-Eg 119761 S C BPP

   4rticle i

   or section V of the Rules conbibls of Rule SO1 aboie As originally pro possed by the Onired States Supreme Court, Lhsf section contained thirteen oropaied rules Nme different non.con~t~tutmna1prwilagei were defined Therr were re quired reports pmdeged by st~tut~.the lawyer client privilege the phymisn. patient or pgyoholharaplii-parienf privilege the husband wife p n v h e rho clergyman-penirenr priiilege B pdmral vote pnvdege. a trade BOCIO~prwilsge B

   pm~lege

   for ~ecreii of ifate and other official infarmatian and Idenriry of criminal infarmant3 The Conpress di3apprared the propoled section I

   See diieuisian in

   footnote J infra

   . .

   . .

   The Federal Rules of E\idence were oreoared chiefly hv an Advisory Comm~ILeo

   ofEvidenceManual3-6 119751

   'According to rho Voles ui the Houie and Senate Carnmitieer on the Judiciary JOG.

   m n I as ~riginslly w r ~ l i i n

   XBI repfad by Congress because jt WBJ too oanfraver-sisl Mart of the proposed pmv~sionr %ere vigorously attacked by C~L~ICI far many

   difierenl resrons. no concise summsry of objections IS possible Tho cangre~rional cammilfees concluded that section I'would have to he sacrificed to make poxmble thi paisage 01 the remainder of the Federal Rules of Evidence Apparently no other iecllon of the pmpomd rule6 wai changed so dramcall) by Congress K Redden & S Saltzhurg s~pisnofa2 at130

   . . . . . . . .. .

   19811 EVIDESTIARY PRIVlLEGES

   relatirely short statement that privileges "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."'

   In military practice. the law of privileged communications was formerly set forth in chapter XXVII of the Manual for Courts. Martial.b replaced in 1980 by the Mllitary Rules of Evidence.' Since 1950, military courts have been obliged by statute to canform their procedures and modes of proof to those recognized in the trial of criminal cases in the United States district courts.' Accordingly, iarge portions of the Military Ruler ai Evidence were taken with lit-tle or no change from the Federal Rules of Evidence.' As an excep. tion. section V of the Military Rules diflers drastically from section V in the Federal Rules. The military Section V is an elaborate

   'Fed R b i d 501 in cl\il aetionr In which the rule of decman 18 found an b m e rather than federal la% sfate law not federal La1 controls any pmdsges ssrerfed Id

   m E ~ e c

   Order Yo 12 198, 46 Fed Reg 16 932 11980l Thx order WBQ Iigned by Presv dent Ca..er on \larch 12, 1980. effective pmrpectirely from September 1, 1980 Far diirviiion of the Military Rules of Evidence and comparison beiuesn them and the ald chapter XX\ 11 01 the hlanval for Courts-\larrial. nore 6 suypr~. me the symposium ~ b m e

   \fay 1980, of The Army Laiyer the monrhly companion Io the qmrterly VJiIrtary LawReview See nore 3, infra'IO US C 5 83618) 119761 or U C \I J art 36lal The Uniform Code 01 \filltar) Justice. 64 IIQ~ I08 119EO1, as amandad an 110 numbered a~ficlei 13 codified aL 10 US C S5801-94011916I

   Casis ~n ahwh the Court ai hlilifary hilpiali has changed military evidentiary IIR to eaniom 10 federal pract~co include United Stalea~s. Johnion 3 hl J 143IC \1 A 19711 eancemmng admissibility af statements gain sf penal interest 81 anexception to the haarrav rule. and United Sfstel \ Miller 23 C MA 247, 49 C if R 380 119131 concerning admisiibhry of laboracory reports BI bviinars eniriei

   codification of the law of privileged communications,? and ISsimilar m many respects to the proposed codifieanon which Con-gress relected for the Federal Rules ,)

   This article focuses on section V of the Military Rules, comparing its twelve rules with prior military la% and practice on the subject. and with the privilege rules proposed by the framers of the Federal Rules but repcted by Congress In addition to the privileges themselves, waiver of privileges and mvoluntary disclosure of privileged information are briefly discussed Mention is made also of the problems of comment by an adverse party on his or her opponent's assertion of a privilege. and ad\erse inferences drawn by a iury from such assertion.

   of E~ideneeiodifie8 and ~mpaje$order upon the federal common la% of ~xclu&l~ne

   C O ~ S ~ ~ ~ Y L ~ O ~ P I I ~ msndsred by rhe fovrrh and fifth amandmenfr to the U S Canstlru

   ~im For B dircursmn of rhe fourth amendment ~rpecfr of the 11 R E see Elsenhew

   members af rhe iatulry nl The Judge idvocate General I School Charlotlesillle

   \ "glnla hates 9upra

   19811 EVIDENTIARY PRIVILEGES

   11. RULE 501: GENERAL PROVISIONSRule 501 states the nature and scape of evidentiary privileges allowed under the new rules.'1 Xeither its limned incorporation of federal rules'i nor its provision describing the kinds of assertions availabie to a privilege holder'l are significant departures from prior practice.

   "Rule SO1 reads as follow8 (81 A peraan may nm claim a privilege rich respect IO m y matter except

   Ill The Connrirvrion of the United States BS 8ppli.d IO members of rho

   BQ required by 01 provided for in armed ~OTCPJ.

   Ibi A ~ l s m

   p"""afaprlrllegeto

   131 Refuse fO produce any oblecr 01 ~ntlng. or

   \lll R Evid 601

   "\111 R Evid SOlls!ll! rd N a l . however. Rule 1102 af Che \Iiilfary Rulea uhLch a~f~mallesllyincarporates into thole rules any amendment rn the Federal Rules of Evidence Amendment of the Military Rules under thin pmvmmn takes effect 180 days after the effective dare of amendment of the Federal Rules I" the absence of contrary ~efionby the President

   ai pr8v~lege miudes but LQ nablimited to the aimtion by m y

   Ill Refuae to he a witnesn.121 Refuse LO disclose any matter,

   141 Prevent another from b m g a wntness 01 dmlosmg any mstrer or pro. during any ohlector wntmg

   1 ~ 1

   The term ' person' inchden an appropriate repreb~nmtivi of rhe federal gwernmeni. a State ~rpoimcaliubdivisianthereof 01 any orher 8" tit? elaimrng to be the holder of B privilege

   Id1 Karuithsfanding any other pmvmon of these rule8 informarion not otherrise prnhged does not become prwhgsd on the hami that ~f u.81 ac. qv>ced by amedicsl officeror ~ivilisnphysician in B profeiaianal capacity

   Subditision Id) is a reiteration of the military 5 iongstandmg nonrecognition of any physician-patient privilege 'I In Liiited States Y. Wmght" the Army Court of Military Revlew held that so iong BS the medical officer was engaged in his professional capacity as a physician. and was not acting 8s an investigator. all statements made to him by the accused were nonpribileged and could be received into evidence The physician in Riightnas a doctor on duty at the base hospital whom the accused had sought Out ioluntarily That fact distinguishes WrJght from cases m\ol\ing compulsory psychiatric evaluations or sanity boards ,* The argument wms made that during such compulsory examinations the physician had an investigative or quasl-judicial function. therefore statements by the accused merited protection. as surely as if he or she were being interrogated by a CID investigator

   This issue was resolved in a series of eases. In Lhited States v Shae a 1958 decision of the Army Courr of Military &Lie%, the court found that if a physician.patient privilege existed. the accused had waiwd IC at trial by failing to object and by introdue ing similar evidence himself Having thus disposed of the case. the court did not reach the issue of whether B privilege attached. In the 1989 case of CnjtedStates Y Burke.'m the defense alleged that E~C-

   121 Commuaicali~nr Io medicel aff>ceir and rrvilren ph?i,cians It 13 the duly ofmedlcalaff~er~rosuppl) medicalaori,ceotomember.af rha armed forces ID make periodical physical examinauoni SI Iequuod hi regula-tions and to exnmini persona far appointment and enllirment, and medical offieeri may be ipecifically directed f~ obierie examine or atrend members of the armed forces Thi8 observation exammatian. or attendance 13 official and the...