Current through Register Vol. 48, No. 12, March 22, 2024
a) General
1) A person may not claim a privilege with
respect to any matter except as required by or provided for in:
A) The U.S. Constitution as applied to
members of the armed forces;
B) An
Act of Congress applicable to trials by courts-martial;
C) This Manual; or
D) The principles of common law generally
recognized in the trial of criminal cases in the United States district courts
pursuant to Rule 501 of the Federal Rules of Evidence insofar as the
application of those principles in trials by courts-martial is practicable and
not contrary to or inconsistent with the Code or this Manual.
2) A claim of privilege includes,
but is not limited to, the assertion by any person of a privilege to:
A) Refuse to be a witness;
B) Refuse to disclose any matter;
C) Refuse to produce any object or writing;
or
D) Prevent another from being a
witness or disclosing any matter or producing any object or writing.
3) The term "person" includes an
appropriate representative of the federal government, a state or political
subdivision thereof, or any other entity claiming to be the holder of a
privilege. Including any other provision of this Section, information not
otherwise privileged does not become privileged on the basis that it was
acquired by a medical officer or civilian physician in a professional capacity.
(Il. Mil. R. Evid. 501)
b) Lawyer-Client Privilege
1) Definitions. As used in this Section:
A) "Client" means a person, public officer,
corporation, association, organization or other entity, either public or
private, who receives professional legal services from a lawyer, or who
consults a lawyer with a view to obtaining professional legal services from the
lawyer.
B) "Confidential
Communication" or "Communication" means a communication not intended to be
disclosed to third persons other than those to whom disclosure is in
furtherance of the rendition of professional legal services to the client or
those reasonably necessary for the transmission of the communication.
C) "Lawyer" means a person authorized, or
reasonably believed by the client to be authorized, to practice law, or a
member of the armed forces detailed, assigned or otherwise provided to
represent a person in a court-martial case or in any military investigation or
proceeding. The term "lawyer" does not include a member of the armed forces
serving in a capacity other than as a judge advocate, legal officer, or law
specialist as defined in Code Section 1, unless the member:
i) is detailed, assigned or otherwise
provided to represent a person in a court-martial case or in any military
investigation or proceeding;
ii) is
authorized by the armed forces, or reasonably believed by the client to be
authorized, to render professional legal services to members of the armed
forces; or
iii) is authorized to
practice law and render professional legal services during off-duty
employment.
D)
"Representative" means a lawyer or a person employed by or assigned to assist a
lawyer in providing professional legal services.
2) General Rule of Privilege. A client has a
privilege to refuse to disclose, and to prevent any other person from
disclosing, confidential communications made for the purpose of facilitating
the rendition of professional legal services:
A) to the client;
B) between the client or the client's
representative and the lawyer or the lawyer's representative;
C) between the lawyer and the lawyer's
representative;
D) by the client or
the client's lawyer to a lawyer representing another in a matter of common
interest;
E) between
representatives of the client or between the client and a representative of the
client; or
F) between lawyers
representing the client.
3) Who May Claim the Privilege. The privilege
may be claimed by the client, the guardian or conservator of the client, the
personal representative of a deceased client, or the successor, trustee or
similar representative of a corporation, association or other organization,
whether or not in existence. The lawyer or the lawyer's representative who
received the communication may claim the privilege on behalf of the client. The
authority of the lawyer to do so is presumed in the absence of evidence to the
contrary.
4) Exceptions. There is
no privilege under this Section in the following circumstances:
A) Crime or Fraud: If the communication
clearly contemplated the future commission of a fraud or crime, or if services
of the lawyer were sought or obtained to enable or aid anyone to commit or plan
to commit what the client knew or reasonably should have known to be a crime or
fraud;
B) Claimants Through Same
Deceased Client: As to a communication relevant to an issue between parties who
claim, through the same deceased client, regardless of whether the claims are
by testate or intestate succession or by inter vivos transaction;
C) Breach of Duty by Lawyer or Client: As to
a communication relevant to an issue of breach of duty by the lawyer to the
client or by the client to the lawyer;
D) Document Attested to by Lawyer: As to a
communication relevant to an issue concerning an attested document to which the
lawyer is an attesting witness; or
E) Joint Clients: As to a communication
relevant to a matter of common interest between 2 or more clients, if the
communication was made by any of them to a lawyer retained or consulted in
common, when offered in an action between any of the clients. (Il. Mil. R.
Evid. 502)
c)
Communications to Clergy
1) Definitions. As
used in this subsection (c):
A) "Clergyman"
means a minister, priest, rabbi, chaplain or other similar functionary of a
religious organization, or an individual reasonably believed to be so by the
person consulting the clergyman.
B)
"Clergyman's Assistant" means a person employed by or assigned to assist a
clergyman in his or her capacity as a spiritual advisor.
C) "Confidential Communication" or
"Communication" means a communication made to a clergyman in the clergyman's
capacity as a spiritual adviser, or to a clergyman's assistant in the
assistant's official capacity, that is not intended to be disclosed to third
persons other than those to whom disclosure is in furtherance of the purpose of
the communication or to those reasonably necessary for the transmission of the
communication.
2)
General Rule of Privilege. A person has a privilege to refuse to disclose and
to prevent another from disclosing a confidential communication by the person
to a clergyman or to a clergyman's assistant if that communication is made
either as a formal act of religion or as a matter of conscience.
3) Who May Claim the Privilege. The privilege
may be claimed by the person, by the guardian or conservator, or by a personal
representative if the person is deceased. The clergyman or clergyman's
assistant who received the communication may claim the privilege on behalf of
the person. The authority of the clergyman or clergyman's assistant to do so is
presumed in the absence of evidence to the contrary. (Il. Mil. R. Evid.
503)
d) Husband-Wife
Privilege
1) Definitions. As used in this
subsection (d):
A) "Confidential
Communication" or "Communication" means a confidential communication made
privately by any person to the spouse of the person and is not intended to be
disclosed to third persons other than those reasonably necessary for
transmission of the communication.
B) "A Child of Either" includes not only a
biological child, adopted child, or ward of one of the spouses, but also
includes a child who is under the permanent or temporary physical custody of
one of the spouses, regardless of the existence of a legal parent-child
relationship. For purposes of this subsection (d) only, a child is:
i) an individual under the age of 18;
or
ii) an individual over the age
of 18 with a mental disability that results in the individual functioning at
the capacity of a person under the age of 18.
C) "Temporary Physical Custody" includes
instances in which a parent entrusts his or her child to another. There is no
minimum amount of time necessary to establish temporary physical custody, nor
must there be a written agreement. Rather, the focus is on the parent's
agreement with another for assuming parental responsibility for the child. For
example, temporary physical custody may include instances in which a parent
entrusts another with the care of his or her child for recurring care or during
absences due to temporary duty or deployments.
2) Spousal Incapacity. A person has a
privilege to refuse to testify against his or her spouse.
3) Confidential Communication Made During
Marriage
A) General Rule of Privilege. A
person has a privilege during and after the marital relationship to refuse to
disclose, and to prevent another from disclosing, any confidential
communication made to the spouse of the person while they were husband and wife
and not separated as provided by law.
B) Who May Claim the Privilege. The privilege
may be claimed by the spouse who made the communication or by the other spouse
on his or her behalf. The authority of the latter spouse to do so is presumed
in the absence of evidence of a waiver. The privilege will not prevent
disclosure of the communication at the request of the spouse to whom the
communication was made if that spouse is an accused, regardless of whether the
spouse who made the communication objects to its disclosure.
4) Exceptions
A) Spousal Incapacity Only. There is no
privilege under subsection (d)(2) when, at the time the testimony of one of the
parties to the marriage is to be introduced in evidence against the other
party, the parties are divorced or the marriage has been annulled.
B) Spousal Incapacity and Confidential
Communications. There is no privilege under subsection (d)(2) or (3):
i) 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;
ii) When the marital
relationship was entered into with no intention of the parties to live together
as spouses, but only for the purpose of using the purported marital
relationship as a sham, and:
* with respect to the privilege in subsection (d)(2), the
relationship remains a sham at the time the testimony or statement of one of
the parties is to be introduced against the other; or
* with respect to the privilege in subsection (d)(3), the
relationship was a sham at the time of the communication;
iii) In proceedings in which a spouse is
charged, in accordance with Code Section 133 or 134:
* with importing the other spouse as an alien for
prostitution or other immoral purposes in violation of
8 USC
1328;
* with transporting the other spouse in interstate commerce
for immoral purposes or other offense in violation of
18 USC
2421 through
2424;
or
* with violation of other similar statutes under which the
privilege may not be claimed in the trial of criminal cases in the United
States district courts; or
iv) When both parties have been substantial
participants in illegal activity, communications between the spouses during the
marriage regarding the illegal activity in which they have jointly
participated. (Il. Mil. R. Evid. 504)
e) Classified Information
1) Definitions. As used in this subsection
(e):
A) "Classified Information" means:
i) any information or material that has been
determined by the U.S. government, pursuant to an executive order, statute or
regulations, to require protection against unauthorized disclosure for reasons
of national security; and
ii) any
restricted data, as defined in Section 2014(6) of the federal Atomic Energy Act
of 1954.
B) "National
Security" means the national defense and foreign relations of the United
States.
2) General Rule
of Privilege. Classified information is privileged from disclosure if
disclosure would be detrimental to the national security. As with other rules
of privilege, this rule applies to all stages of the proceedings.
3) Who May Claim the Privilege. The privilege
may be claimed by the head of the concerned executive or military department or
government agency based on a finding that the information is properly
classified and that disclosure would be detrimental to the national security. A
person who may claim the privilege may authorize a witness or trial counsel to
claim the privilege on his or her behalf. The authority of the witness or trial
counsel to do so is presumed in the absence of evidence to the
contrary.
4) Action Prior to
Referral of Charges. Prior to referral of charges, the convening authority
shall respond in writing to a request by the accused for classified information
if the privilege in this subsection (e) is claimed for that information. The
convening authority may:
A) Delete specified
items of classified information from documents made available to the
accused;
B) Substitute a portion or
summary of the information for the classified documents;
C) Substitute a statement admitting relevant
facts that the classified information would tend to prove;
D) Provide the document subject to conditions
that will guard against the compromise of the information disclosed to the
accused; or
E) Withhold disclosure
if action under subsections (e)(4)(A) through (D) cannot be taken without
causing identifiable damage to the national security. Any objection by the
accused to withholding of information or to the conditions of disclosure shall
be raised through a motion for appropriate relief at a pretrial
session.
5) Pretrial
Session. At any time after referral of charges and prior to arraignment, any
party may move for a session under Code Section 39(a) to consider matters
relating to classified information that may arise in connection with the trial.
Following such motion or sua sponte, the military judge promptly shall hold a
session under Code Section 39(a) to establish the timing of requests for
discovery, the provision of notice under subsection (e)(8), and the initiation
of the procedure under subsection (e)(9). In addition, the military judge may
consider any other matters that relate to classified information or that may
promote a fair and expeditious trial.
6) Action After Referral of Charges. If a
claim of privilege has been made under this subsection (e) with respect to
classified information that apparently contains evidence that is relevant and
necessary to an element of the offense or a legally cognizable defense and is
otherwise admissible in evidence in the court-martial proceeding, the matter
shall be reported to the convening authority. The convening authority may:
A) institute action to obtain the classified
information for use by the military judge in making a determination under
subsection (e)(9);
B) dismiss the
charges;
C) dismiss the charges or
specifications, or both, to which the information relates; or
D) take such other action as may be required
in the interests of justice. If, after a reasonable period of time, the
information is not provided to the military judge in circumstances in which
proceeding with the case without that information would materially prejudice a
substantial right of the accused, the military judge shall dismiss the charges
or specifications or both to which the classified information
relates.
7) Disclosure
of Classified Information to the Accused
A)
Protective Order. If the government (i.e., the prosecution) agrees to disclose
classified information to the accused, the military judge, at the request of
the government, shall enter an appropriate protective order to guard against
the compromise of the information disclosed to the accused. The terms of the
protective order may include provisions:
i)
Prohibiting the disclosure of the information, except as authorized by the
military judge;
ii) Requiring
storage of material in a manner appropriate for the level of classification
assigned to the documents to be disclosed;
iii) Requiring controlled access to the
material during normal business hours and at other times upon reasonable
notice;
iv) Requiring appropriate
security clearances for persons having a need to examine the information in
connection with the preparation of the defense. All persons requiring security
clearances shall cooperate with investigatory personnel in any investigations
that are necessary to obtain a security clearance.
v) Requiring the maintenance of logs
regarding access by all persons authorized by the military judge to have access
to the classified information in connection with the preparation of the
defense;
vi) Regulating the making
and handling of notes taken from material containing classified information;
or
vii) Requesting the convening
authority to authorize the assignment of government security personnel and the
provisions of government storage facilities.
B) Limited Disclosure
i) The military judge, upon motion of the
government, shall authorize the deletion of specified items of classified
information from documents to be made available to the defendant, the
substitution of a portion or summary of the information for the classified
documents, or the substitution of a statement admitting relevant facts that the
classified information would tend to prove, unless the military judge
determines that disclosure of the classified information itself is necessary to
enable the accused to prepare for trial.
ii) The government's motion and any materials
submitted in support of the motion shall, upon request of the government, be
considered by the military judge in camera and shall not be disclosed to the
accused.
C) Disclosure
of Certain Statements Previously Made by a Witness
i) Scope. After a witness called by the
government has testified on direct examination, the military judge, on motion
of the accused, may order production of statements in the possession of the
government under Code Section 46. This provision does not preclude discovery or
assertion of a privilege otherwise authorized under this Manual.
ii) Closed Session. If the privilege in this
subsection (e) is invoked during consideration of a motion under Code Section
46, the government may deliver the statement for the inspection only by the
military judge in camera and may provide the military judge with an affidavit
identifying the portions of the statement that are classified and the basis for
the classification assigned. If the military judge finds that disclosure of any
portion of the statement identified by the government as classified could
reasonably be expected to cause damage to the national security in the degree
required to warrant classification under the applicable executive order,
statute or regulation and that such portion of the statement is consistent with
the witness' testimony, the military judge shall excise that portion from the
statement. With the material excised, the military judge shall direct delivery
of the statement to the accused for use by the accused. If the military judge
finds that the portion of the statement is inconsistent with the witness'
testimony, the government may move for a proceeding under subsection
(e)(9).
D) Record of
Trial. If, under this subsection (e), any information is withheld from the
accused, the accused objects to that withholding, and the trial is continued to
an adjudication of guilt of the accused, the entire unaltered text of the
relevant documents, as well as the government's motion and any materials
submitted in support of the motion, shall be sealed and attached to the record
of trial as an appellate exhibit. This material shall be made available to
reviewing authorities in closed proceedings for the purpose of reviewing the
determination of the military judge.
8) Notice of the Accused's Intentions to
Disclose Classified Information
A) Notice by
the Accused. If the accused reasonably expects to disclose or to cause the
disclosure of classified information in any manner in connection with a
court-martial proceeding, the accused shall notify the trial counsel in writing
of that intention and file a copy of the notice with the military judge. The
notice shall be given within the time specified by the military judge under
subsection (e)(5) or, if no time has been specified, prior to arraignment of
the accused.
B) Continuing Duty to
Notify. Whenever the accused learns of classified information not covered by a
notice under subsection (e)(8)(A) that the accused reasonably expects to
disclose at any proceeding, the accused shall notify the trial counsel and the
military judge in writing as soon as possible thereafter.
C) Content of Notice. The notice required by
this subsection (e)(8) shall include a brief description of the classified
information. The description, to be sufficient, must be more than a mere
general statement of the areas about which evidence may be introduced. The
accused must state, with particularity, which items of classified information
he or she reasonably expects will be revealed by his or her defense.
D) Prohibition Against Disclosure. The
accused may not disclose any information known or believed to be classified
until notice has been given under this subsection (e)(8) and until the
government has been afforded a reasonable opportunity to seek a determination
under subsection (e)(9).
E) Failure
to Comply. If the accused fails to comply with the requirements of this
subsection (e)(8), the military judge may preclude disclosure of any classified
information not made the subject of notification and may prohibit the
examination by the accused of any witness with respect to any such
information.
9) In
Camera Proceedings for Cases Involving Classified Information
A) Definition. For purposes of this
subsection (e)(9), an "in camera proceeding" is a session under Code Section
39(a) from which the public is excluded.
B) Motion for In Camera Proceeding. Within
the time specified by the military judge for the filing of a motion under this
subsection (e), the government may move for an in camera proceeding concerning
the use at any proceeding of any classified information. Thereafter, either
prior to or during trial, the military judge, for good cause shown or otherwise
upon a claim of privilege under this subsection (e) may grant the government
leave to move for an in camera proceeding concerning the use of additional
classified information.
C)
Demonstration of National Security Nature of the Information. In order to
obtain an in camera proceeding under this subsection (e)(9), the government
shall submit the classified information and an affidavit ex parte for
examination by the military judge only. The affidavit shall demonstrate that
disclosure of the information reasonably could be expected to cause damage to
the national security in the degree required to warrant classification under
the applicable executive order, statute or regulation.
D) In Camera Proceeding
i) Procedure. Upon finding that the
government has met the standard set forth in subsection (e)(9)(C) with respect
to some or all of the classified information at issue, the military judge shall
conduct an in camera proceeding. Prior to the in camera proceeding, the
government shall provide the accused with notice of the information that will
be at issue. This notice shall identify the classified information that will be
at issue whenever that information previously has been made available to the
accused in connection with proceedings in the same case. The government may
describe the information by generic category, in such form as the military
judge may approve, rather than identifying the classified information, when the
government has not previously made the information available to the accused in
connection with pretrial proceedings. Following briefing and argument by the
parties in the in camera proceeding, the military judge shall determine whether
the information may be disclosed at the court-martial proceeding. When the
government's motion under subsection (e)(5) is filed prior to the proceeding at
which disclosure is sought, the military judge shall rule prior to the
commencement of the relevant proceeding.
ii) Standard. Classified information is not
subject to disclosure under this subsection (e) unless the information is
relevant and necessary to an element of the offense or a legally cognizable
defense and is otherwise admissible in evidence. In presentencing proceedings,
relevant and material classified information pertaining to the appropriateness
of, or the appropriate degree of, punishment shall be admitted only if no
unclassified version of that information is available.
iii) Ruling. Unless the military judge makes
a written determination that the information meets the standard set forth in
subsection (e)(9)(D)(ii), the information may not be disclosed or otherwise
elicited at a court-martial proceeding. The record of the in camera proceeding
shall be sealed and attached to the record of trial as an appellate exhibit.
The accused may seek reconsideration of the determination prior to or during
trial.
iv) Alternatives to Full
Disclosure. If the military judge makes a determination under this subsection
(e)(9) that would permit disclosure of the information, or if the government
elects not to contest the relevance, necessity and admissibility of any
classified information, the government may proffer a statement admitting, for
purposes of the proceeding, any relevant facts the information would tend to
prove. The government may submit a portion of summary to be used in lieu of the
information. The military judge shall order that the statement, portion or
summary be used by the accused in place of the classified information unless
the military judge finds that use of the classified information itself is
necessary to afford the accused a fair trial.
v) Sanctions. If the military judge
determines that alternatives to full disclosure may not be used and the
government continues to object to disclosure of the information, the military
judge shall issue any order that the interests of justice require, including an
order:
* striking or precluding all or part of the testimony of a
witness;
* declaring a mistrial;
* finding against the government on any issue as to which the
evidence is relevant and material to the defense;
* dismissing the charges, with or without prejudice;
or
* dismissing the charges or specifications, or both, to which
the information relates.
vi) Any such order shall permit the
government to avoid the sanction for nondisclosure by permitting the accused to
disclose the information at the pertinent court-martial proceeding.
10) Introduction of
Classified Information
A) Classification
Status. Writing, recordings and photographs containing classified information
may be admitted into evidence without change in their classification
status.
B) Precautions by the
Military Judge. In order to prevent unnecessary disclosure of classified
information, the military judge may order admission into evidence of:
i) only part of a writing, recording or
photograph; or
ii) the whole
writing, recording or photograph with excision of some or all of the classified
information.
C) Contents
of Writing, Recording or Photograph. The military judge may permit proof of the
contents of a writing, recording or photograph that contains classified
information without requiring introduction into evidence of the original or a
duplicate.
D) Taking of Testimony.
During the examination of a witness, the government (i.e., the prosecution) may
object to any question or line of inquiry that may require the witness to
disclose classified information not previously found to be relevant and
necessary to the defense. Following such an objection, the military judge shall
take suitable action to determine whether the response is admissible,
considering whether the action will safeguard against the compromise of any
classified information. The action may include requiring:
i) the government to provide the military
judge with a proffer or the witness' response to the question or line of
inquiry; and
ii) the accused to
provide the military judge with a proffer of the nature of the information the
accused seeks to elicit.
E) Closed Session. The military judge may
exclude the public during that portion of the presentation of evidence that
discloses classified information.
F) Record of Trial. The record of trial with
respect to any classified matter will be prepared in accordance with Code
Section 54 and RCM 1103(h) and 1104(b)(1)(D).
11) Security Procedures to Safeguard Against
Compromise of Classified Information Disclosed to Courts-Martial. The Secretary
of Defense may prescribe security procedures for protection against the
compromise of classified information submitted to courts-martial and appellate
authorities. (Il. Mil. R. Evid. 505)
f) Government Information Other Than
Classified Information
1) General Rule of
Privilege. Except when disclosure is required by law, government information is
privileged from disclosure if disclosure would be detrimental to the public
interest.
2) Scope. "Government
information" includes official communication and documents and other
information within the custody or control of the government. This subsection
(f) does not apply to classified information, which is addressed in subsection
(e), or to the identity of an informant, which is addressed in subsection
(g).
3) Who May Claim the
Privilege. The privilege may be claimed by the head of the executive or
military department or government agency concerned. The privilege for records
and information of the Inspector General may be claimed by the immediate
superior of the inspector general officer responsible for creation of the
records or information, the Inspector General, or any other superior authority.
A person who may claim the privilege may authorize a witness or the trial
counsel to claim the privilege on his or her behalf. The authority of a witness
or the trial counsel to do so is presumed in the absence of evidence to the
contrary.
4) Action Prior to
Referral of Charges. Prior to referral of charges, the government shall respond
in writing to a request for government information if the privilege in this
subsection (f) is claimed for that information. The government shall:
A) delete specified items of government
information claimed to be privileged from documents made available to the
accused;
B) substitute a portion or
summary of the information for those documents;
C) substitute a statement admitting relevant
facts that government information would tend to prove;
D) provide the document subject to conditions
similar to those set forth in subsection (f)(7); or
E) withhold disclosure if actions under
(f)(4)(A) through (D) cannot be taken without causing identifiable damage to
the public interest.
5)
Pretrial Session. At any time after referral of charges and prior to
arraignment, any party may move for a session under Code Section 39(a) to
consider matters relating to government information that may arise in
connection with the trial. Following that motion, or sua sponte, the military
judge promptly shall hold a pretrial session under Code Section 39(a) to
establish the timing of requests for discovery, the provision of notice under
subsection (f)(8), and the initiation of the procedure under subsection (f)(9).
In addition, the military judge may consider any other matters that relate to
government information or that may promote a fair and expeditious
trial.
6) Action After Motion for
Disclosure of Information. After referral of charges, if the defense moves for
disclosure of government information for which a claim of privilege has been
made under this subsection (f), the matter shall be reported to the convening
authority. The convening authority may:
A)
institute action to obtain the information for use by the military judge in
making a determination under subsection (f)(9);
B) dismiss the charges;
C) dismiss the charges or specifications, or
both, to which the information relates; or
D) take other action as may be required in
the interests of justice. If, after a reasonable period of time, the
information is not provided to the military judge, the military judge shall
dismiss the charges or specifications or both to which the information
relates.
7) Disclosure
of Government Information to the Accused. If the government agrees to disclose
government information to the accused subsequent to a claim of privilege under
this subsection (f), the military judge, at the request of the government,
shall enter an appropriate protective order to guard against the compromise of
the information disclosed to the accused. The terms of any such protective
order may include provisions:
A) Prohibiting
the disclosure of the information, except as authorized by the military
judge;
B) Requiring storage of the
material in a manner appropriate for the nature of the material to be
disclosed, upon reasonable notice;
C) Requiring controlled access to the
material during normal business hours and at other times upon reasonable
notice;
D) Requiring the
maintenance of logs recording access by persons authorized by the military
judge to have access to the government information in connection with the
preparation of the defense;
E)
Regulating the making and handling of notes taken from material containing
government information; or
F)
Requesting the convening authority to authorize the assignment of government
security personnel and the provision of government storage
facilities.
8)
Prohibition Against Disclosure. The accused may not disclose any information
known or believed to be subject to a claim of privilege under this subsection
(f) unless the military judge authorizes that disclosure.
9) In Camera Proceedings in Cases Involving
Nonclassified Government Information
A)
Definition. For the purpose of this subsection (f)(8), an "in camera
proceeding" is a session under Code Section 39(a) from which the public is
excluded.
B) Motion for In Camera
Proceeding. Within the time specified by the military judge for the filing of a
motion under this subsection (f)(9), the government may move for an in camera
proceeding concerning the use at any proceeding of any government information
that may be subject to a claim of privilege. Thereafter, either prior to or
during trial, the military judge, for good cause shown, or otherwise upon a
claim of privilege, may grant the government leave to move for an in camera
proceeding concerning the use of additional government information.
C) Demonstration of Damage to the Public
Interest. In order to obtain an in camera proceeding under this subsection
(f)(9), the government shall demonstrate, through the submission of affidavits
and information for examination only by the military judge, that disclosure of
the information reasonably could be expected to cause identifiable damage to
the public interest.
D) In Camera
Proceedings
i) Finding of Identifiable
Damage. Upon finding that the disclosure of some or all of the information
submitted by the government under subsection (f)(9)(C) reasonably could be
expected to cause identifiable damage to the public interest, the military
judge shall conduct an in camera proceeding.
ii) Disclosure of the Information to the
Defense. Subject to subsection (f)(9)(D)(vi), the government shall disclose
government information for which a claim of privilege has been made to the
accused, for the limited purpose of litigating in camera the admissibility of
the information at trial. The military judge shall enter an appropriate
protective order to the accused and all other appropriate trial participants
concerning the disclosure of the information according to subsection (f)(7).
The accused shall not disclose any information provided under this subsection
(f)(9)(D)(ii) unless, and until, that information has been admitted into
evidence by the military judge. In the in camera proceeding, both parties shall
have the opportunity to brief and argue the admissibility of the government
information at trial.
iii)
Standard. Government information is subject to disclosure at the court-martial
proceeding under this subsection (f)(9)(D)(iii) if the party making the request
demonstrates a specific need for information containing evidence that is
relevant to the guilt or innocence or to punishment of the accused and is
otherwise admissible in the court-martial proceeding.
iv) Ruling. No information may be disclosed
at the court-martial proceeding or otherwise unless the military judge makes a
written determination that the information is subject to disclosure under the
standard set forth in subsection (f)(9)(D)(iii). The military judge will
specify in writing any information that he or she determines is subject to
disclosure. The record of the in camera proceeding shall be sealed and attached
to the record of trial as an appellate exhibit. The accused may seek
reconsideration of the determination prior to or during trial.
v) Alternatives to Full Disclosure. If the
military judge makes a determination under this subsection (f)(9) that the
information is subject to disclosure, or if the government elects not to
contest the relevance, necessity and admissibility of the government
information, the government may proffer a statement admitting, for purposes of
the court-martial, any relevant facts the information would tend to prove. The
government may submit a portion or summary to be used in lieu of the
information. The military judge shall order that the statement, portion or
summary, or some other form of information the military judge finds to be
consistent with the interests of justice, be used by the accused in place of
the government information unless the military judge finds that use of the
government information itself is necessary to afford the accused a fair
trial.
vi) Sanctions. Government
information may not be disclosed over the government's objection. If the
government continues to object to disclosure of the information following
rulings by the military judge, the military judge shall issue any order that
the interests of justice require, including an order:
* striking or precluding all or part of the testimony of a
witness;
* declaring a mistrial;
* finding against the government on any issue as to which the
evidence is relevant and necessary to the defense;
* dismissing the charges, with or without prejudice;
or
* dismissing the charges or specifications, or both, to which
the information relates.
10) Appeals of Orders and Rulings. In a
court-martial in which a punitive discharge may be adjudged, the government may
appeal an order or ruling of the military judge that terminates the proceedings
with respect to a charge or specification, directs the disclosure of government
information, or imposes sanctions for nondisclosure of government information.
The government may also appeal an order or ruling in which the military judge
refuses to issue a protective order sought by the State to prevent the
disclosure of government information, or to enforce such an order previously
issued by appropriate authority. The government may not appeal an order or
ruling that is, or amounts to, a finding of not guilty with respect to the
charge or specification.
11)
Introduction of Government Information Subject to a Claim of Privilege
A) Precautions by Military Judge. In order to
prevent unnecessary disclosure of government information after there has been a
claim of privilege under this subsection (f), the military judge may order
admission into evidence of:
i) only part of a
writing, recording or photograph; or
ii) the whole writing, recording or
photograph with excision of some or all of the government
information.
B) Contents
of Writing, Recording or Photograph. The military judge may permit proof of the
contents of a writing, recording or photograph that contains government
information that is the subject of a claim of privilege under this subsection
(f) without requiring introduction into evidence of the original or a
duplicate.
C) Taking of Testimony.
During examination of a witness, the prosecution may object to any question or
line of inquiry that may require the witness to disclose government information
not previously found relevant and necessary to the defense if that information
has been or is reasonably likely to be the subject of a claim of privilege
under this subsection (f). Following such an objection, the military judge
shall take suitable action to determine if the response is admissible,
considering whether the action will safeguard against the compromise of any
government information. The action may include requiring:
i) the government to provide the military
judge with a proffer of the witness' response to the question or line of
inquiry; and
ii) the accused to
provide the military judge with a proffer of the nature of the information the
accused seeks to elicit.
12) Procedures to Safeguard Against
Compromise of Government Information Disclosed to Courts-Martial. The Secretary
of Defense or the Adjutant General may prescribe procedures for protection
against the compromise of government information submitted to courts-martial
and appellate authorities after a claim of privilege. (Il. Mil. R. Evid.
506)
g) Identity of
Informants
1) Rule of Privilege. The United
States or a State or subdivision thereof has a privilege to refuse to disclose
the identity of an informant. An "informant" is a person who has furnished
information relating to or assisting in an investigation of a possible
violation of law to a person whose official duties include the discovery,
investigation or prosecution of crime. Unless otherwise privileged under this
Section, the communications of an informant are not privileged except to the
extent necessary to prevent the disclosure of the informant's
identity.
2) Who May Claim the
Privilege. The privilege may be claimed by an appropriate representative of the
United States, regardless of whether information was furnished to an officer of
the United States or a State or subdivision thereof. The privilege may be
claimed by an appropriate representative of a State or subdivision if the
information was furnished to an officer thereof, except the privilege shall not
be allowed if the prosecution objects.
3) Exceptions
A) Voluntary Disclosures; Informant as
Witness. No privilege exists under this subsection (g):
i) if the identity of the informant has been
disclosed to those who would have cause to resent the communication by a holder
of the privilege or by the informant's own action; or
ii) if the informant appears as a witness for
the prosecution.
B)
Testimony on the Issue of Guilt or Innocence. If a claim of privilege has been
made under this subsection (g), the military judge shall, upon motion by the
accused, determine whether disclosure of the identity of the informant is
necessary to the accused's defense on the issue of guilt or innocence. Whether
such a necessity exists will depend on the particular circumstances of each
case, taking into consideration the offense charged, the possible defense, the
possible significance of the informant's testimony, and other relevant factors.
If it appears from the evidence in the case or from another showing by a party
that an informant may be able to give testimony necessary to the accused's
defense on the issue of guilt or innocence, the military judge may make any
order required by the interests of justice.
C) Legality of Obtaining Evidence. If a claim
of privilege has been made under this subsection (g) with respect to a motion
under Section 400.635, the military judge shall, upon motion of the accused,
determine whether disclosure of the identity of the informant is required by
the U.S. Constitution as applied to members of the armed forces. In making this
determination, the military judge may make any order required by the interests
of justice.
4)
Procedures. If a claim of privilege has been made under this subsection (g),
the military judge may make any order required by the interests of justice. If
the military judge determines that disclosure of the identity of the informant
is required under the standards set forth in this subsection (g), and the
prosecution elects not to disclose the identity of the informant, the matter
shall be reported to the convening authority. The convening authority may
institute action to secure disclosure of the identity of the informant,
terminate the proceedings, or take such other action as may be appropriate
under the circumstances. If, after a reasonable period of time, disclosure is
not made, the military judge, sua sponte or upon motion of either counsel and
after a hearing, if requested by either party, may dismiss the charge or
specifications, or both, to which the information regarding the informant would
relate if the military judge determines that further proceedings would
materially prejudice a substantial right of the accused. (Il. Mil. R. Evid.
507)
h) Political Vote. A
person has a privilege to refuse to disclose the tenor of the person's vote at
a political election conducted by secret ballot unless the vote was cast
illegally. (Il. Mil. R. Evid. 508)
i) Deliberations of Courts and Juries. Except
as provided in Section 400.705(f), the deliberations of courts, courts-martial,
military judges, and grand and petit juries are privileged to the extent that
the deliberations are privileged, but the results of the deliberations are not
privileged. (Il. Mil. R. Evid. 509)
j) Waiver of Privilege by Voluntary
Disclosure
1) A person upon whom this Section
confers a privilege against disclosure of a confidential matter or
communication waives the privilege if the person or the person's predecessor,
while holder of the privilege, voluntarily discloses or consents to disclosure
of any significant part of the matter or communication under such circumstances
that it would be inappropriate to allow the claim of privilege. This subsection
(j)(1) does not apply if the disclosure is itself a privileged
communication.
2) Unless testifying
voluntarily concerning a privileged matter or communication, an accused who
testifies in his or her own behalf or a person who testifies under a grant or
promise of immunity does not, merely by reason of testifying, waive a privilege
to which he or she may be entitled pertaining to the confidential matter or
communication. (Il. Mil. R. Evid. 510)
k) Disclosure Under Compulsion or Without
Opportunity to Claim Privilege
1) Evidence of
a statement or other disclosure of privileged matter is not admissible against
the holder of the privilege if disclosure was compelled erroneously or was made
without an opportunity for the holder of the privilege to claim the
privilege.
2) The telephonic
transmission of information otherwise privileged under this Section does not
affect its privileged character. Use of electronic means of communication other
than the telephone for transmission of information otherwise privileged under
this Section does not affect the privileged character of that information if
use of electronic means of communication is necessary and in furtherance of the
communication. (Il. Mil. R. Evid. 511)
l) Comment Upon or Inference from Claim of
Privilege; Instruction
1) The claim of a
privilege by the accused, whether in the present proceeding or upon a prior
occasion, is not a proper subject of comment by the military judge or counsel
for any party. No inference may be drawn from that claim of
privilege.
2) The claim of a
privilege by a person other than the accused, whether in the present proceeding
or upon a prior occasion, normally is not a proper subject of comment by the
military judge or counsel for any party. An adverse inference may not be drawn
from that claim of privilege except when determined by the military judge to be
required by the interests of justice.
3) In a trial before a court-martial with
members, proceedings must be conducted, to the extent practicable, so as to
facilitate the making of claims of privilege without the knowledge of the
members. This subsection (l)(3) does not apply to a special court-martial
without a military judge.
4) Upon
request, any party against whom the members might draw an adverse inference
from a claim of privilege is entitled to an instruction that no inference may
be drawn from the claim except as provided in subsection (l)(2). (Il. Mil. R.
Evid. 512)
m)
Psychotherapist and Patient Privilege
1)
Definitions. For purposes of this subsection (m):
A) "Assistant to a Psychotherapist" or
"Assistant" means a person directed by or assigned to assist a psychotherapist
in providing professional services, or who is reasonably believed by the
patient to be an assistant to a psychotherapist.
B) "Confidential Communication" or "
Communication" not intended to be disclosed to third persons other than those
to whom disclosure is in furtherance of the rendition of professional services
to the patient or those reasonably necessary for transmission of the
communication.
C) "Evidence of a
Patient's Records or Communications" means testimony of a psychotherapist or
assistant psychotherapist, or patient records, that pertain to communications
by a patient to a psychotherapist or assistant to a psychotherapist for the
purposes of diagnosis or treatment of the patient's mental or emotional
condition.
D) "Patient" means a
person who consults with or is examined or interviewed by a psychotherapist for
purposes of advice, diagnosis or treatment of a mental or emotional
condition.
E) "Psychotherapist"
means a psychiatrist, clinical psychologist or clinical social worker who is
licensed in any state, territory, possession, the District of Columbia or
Puerto Rico to perform professional services as such, or who holds credentials
to provide these services from any military health care facility, or is a
person reasonably believed by the patient to have the appropriate license or
credentials.
2) General
Rule of Privilege. A patient has a privilege to refuse to disclose, and to
prevent any other person from disclosing, a confidential communication made
between the patient and a psychotherapist or assistant, in a case arising under
the UCMJ, if the communication was made for the purpose of facilitating
diagnosis or treatment of the patient's mental or emotional
condition.
3) Who May Claim the
Privilege. The privilege may be claimed by the patient or the guardian or
conservator of the patient. A person who may claim the privilege may authorize
trial counsel or defense counsel to claim the privilege on his or her behalf.
The psychotherapist or assistant who received the communication may claim the
privilege on behalf of the patient. The authority of such a psychotherapist,
assistant, guardian, or conservator to so assert the privilege is presumed in
the absence of evidence to the contrary.
4) Exceptions. There is no privilege under
this subsection (m):
A) when the patient is
dead;
B) when the communication is
evidence of child abuse or neglect, or in a proceeding in which one spouse is
charged with a crime against a child of either spouse;
C) when federal law, State law, or service
regulation imposes a duty to report information contained in a
communication;
D) when a
psychotherapist or assistant believes that a patient's mental or emotional
condition makes the patient a danger to any person, including the
patient;
E) if the communication
clearly contemplated the future commission of a fraud or crime or if the
services of the psychotherapist are sought or obtained to enable or aid anyone
to commit or plan to commit what the patient knew or reasonably should have
known to be a crime or fraud;
F)
when necessary to ensure the safety and security of military personnel,
military dependents, military property, classified information or the
accomplishment of a military mission;
G) when an accused offers statements or other
evidence concerning his or her mental condition in defense, extenuation or
mitigation, under circumstances not covered by Section 400.615. In these
situations, the military judge may, upon motion, order disclosure of any
statement made by the accused to a psychotherapist as may be necessary in the
interests of justice; or
H) when
admission or disclosure of a communication is constitutionally
required.
5) Procedure
to Determine Admissibility of Patient Records or Communications
A) In any case in which the production or
admission of records or communications of a patient other than the accused is a
matter in dispute, a party may seek an interlocutory ruling by the military
judge. In order to obtain such a ruling, the party shall:
i) file a written motion at least 5 days
prior to entry of pleas specifically describing the evidence and stating the
purpose for which it is sought or offered, or objected to, unless the military
judge, for good cause shown, requires a different time for filing or permits
filing during trial; and
ii) serve
the motion on the opposing party and the military judge and, if practical,
notify the patient or the patient's guardian, conservator or representative
that the motion has been filed and that the patient has an opportunity to be
heard as set forth in subsection (m)(5)(B).
B) Before ordering the production or
admission of evidence of a patient's records or communication, the military
judge shall conduct a hearing. Upon the motion of counsel for either party and
upon good cause shown, the military judge may order the hearing closed. At the
hearing, the parties may call witnesses, including the patient, and offer other
relevant evidence. The patient shall be afforded a reasonable opportunity to
attend the hearing and be heard at the patient's own expense unless the patient
has been otherwise subpoenaed or ordered to appear at the hearing. However, the
proceedings shall not be unduly delayed for this purpose. In a case before a
court-martial composed of a military judge and members, the military judge
shall conduct the hearing outside the presence of the members.
C) The military judge shall examine the
evidence or a proffer of evidence in camera, if that examination is necessary
to rule on the motion.
D) To
prevent unnecessary disclosure of evidence of a patient's records or
communications, the military judge may issue protective orders or may admit
only portions of the evidence.
E)
The motion, related papers, and record of the hearing shall be sealed and shall
remain under seal unless the military judge or an appellate court orders
otherwise. (Il. Mil. R. Evid. 513)
n) Victim Advocate and Safe Helpline
Privilege
1) Definitions. As used in this
subsection (n):
A) "Assistant to a Victim
Advocate" or "Assistant" means a person directed by or assigned to assist a
victim advocate in providing victim and victim advocate services or who is
reasonably believed by the victim to be an Assistant to a victim
advocate.
B) "Confidential
Communication" or "Communication" means a communication made to a victim
advocate acting in the capacity of a victim advocate that is not intended to be
disclosed to third persons other than:
i)
those to whom disclosure is made in furtherance of the rendition of advice or
assistance to the victim; or
ii) an
assistant to a victim advocate reasonably necessary for transmission of the
communication.
C)
"Evidence of a Victim's Records or Communications" means testimony of a victim
advocate, or record that pertains to communications by a victim to a victim
advocate, for the purposes of advising or providing supportive assistance to
the victim.
D) "Victim" means any
person who suffered direct physical or emotional harm as the result of a sexual
or violent offense.
E) "Victim
Advocate" means a person who is:
i) designated
in writing as a victim advocate;
ii) authorized to perform victim advocate
duties in accordance with service regulations, and acting in the performance of
those duties; or
iii) certified as
a victim advocate pursuant to federal or State requirements.
2) General Rule of
Privilege. A victim has a privilege to refuse to disclose, and to prevent any
other person from disclosing, a confidential communication between the victim
and a victim advocate, in a case arising under the UCMJ, if that communication
was made for the purpose of facilitating advice or supportive assistance to the
victim.
3) Who May Claim the
Privilege. The privilege may be claimed by the victim or any guardian or
conservator of the victim. A person who may claim the privilege may authorize
trial counsel or a defense counsel representing the victim to claim the
privilege on his or her behalf. The victim advocate who received the
communication may claim the privilege on behalf of the victim. The authority of
the a victim advocate, guardian or conservator, or a defense counsel
representing the victim, to so assert the privilege is presumed in the absence
of evidence to the contrary.
4)
Exceptions. There is no privilege under this subsection (n):
A) when the victim is dead;
B) when federal law, State law or service
regulation imposes a duty to report information contained in a
communication;
C) if the
communication clearly contemplated the future commission of a fraud or crime or
if the services of the victim advocate are sought or obtained to enable or aid
anyone to commit or plan to commit what the victim knew or reasonably should
have known to be a crime or fraud;
D) when necessary to ensure the safety and
security of military personnel, military dependents, military property,
classified information or completion of a mission;
E) when necessary to ensure the safety of any
other person (including the victim) when a victim advocate believes that a
victim's mental or emotional condition makes the victim a danger; or
F) when admission or disclosure of a
communication is constitutionally required.
5) Procedure to Determine Admissibility of
Victim Records or Communications
A) In any
case in which the production or admission of records or communications of a
victim is a matter in dispute, a party may seek an interlocutory ruling by the
military judge. In order to obtain such a ruling, the party shall:
i) file a written motion at least 5 days
prior to entry of pleas specifically describing the evidence and stating the
purpose for which it is sought or offered, or objected to, unless the military
judge, for good cause shown, requires a different time for filing or permits
filing during trial; and
ii) serve
the motion on the opposing party and the military judge and, if practical,
notify the victim or the victim's guardian, conservator or representative that
the motion has been filed and that the victim has an opportunity to be heard as
set forth in subsection (n)(5)(B).
B) Before ordering the production or
admission of evidence of a victim's records or communication, the military
judge shall conduct a hearing. Upon the motion of counsel for either party and
upon good cause shown, the military judge may order the hearing closed. At the
hearing, the parties may call witnesses, including the victim, and offer other
relevant evidence. The victim shall be afforded a reasonable opportunity to
attend the hearing and be heard at the victim's own expense unless the victim
has been otherwise subpoenaed or ordered to appear at the hearing. However, the
proceedings shall not be unduly delayed for this purpose. In a case before a
court-martial composed of a military judge and members, the military judge
shall conduct the hearing outside the presence of the members.
C) The military judge shall examine the
evidence or a proffer thereof in camera, if that examination is necessary to
rule on the motion.
D) To prevent
unnecessary disclosure of evidence of a victim's records or communications, the
military judge may issue protective orders or may admit only portions of the
evidence.
E) The motion, related
papers, and record of the hearing shall be sealed and shall remain under seal
unless the military judge or an appellate court orders otherwise. (Il. Mil. R.
Evid. 514)