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Military Rule of Evidence 504(c)(2)(A) bars either party from disclosing private marital communications unless the spouse asserting the privilege is accused of a crime against "the person or property" of the other spouse or a child of either spouse. The question presented is:
Whether the Court of Appeals for the Armed Forces erred when, in a trial for adultery, it ignored this Court's precedent in Bassett v. United States, 137 U.S. 496 (1890), and held that adultery is a crime against the "the person or property" of the other spouse for purposes of the marital communications privilege?
Here's the mea culpa. Upon rereading Taylor today, I discovered that the very argument I had previously contended should have been in the majority opinion -- the importance of narrowly construing privilege rules to enhance the court's truth-seeking function -- actually is in the majority opinion. Sorry -- my bad!
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While I agree that courts should always narrowly construe privilege exceptions to enhance the truth seeking function at courts-martial, courts should not so narrowly construe privileges so as to judicially eliminate them. That is precisely what the CAAF did in Taylor. If adultery is in fact a “crime against the person or property” of the spouse for purposes of M.R.E. 504 simply because it is morally offensive or upsetting to the other spouse, then there are few, if any, crimes that are covered by the privilege.
Was the wife of Commodore James Barron upset or morally offended by his misbehavior before the enemy in the Chesapeake-Leopard Affair of 1807, for which he was later court-martialed? President Jefferson said of the incident, “Never since the battle of Lexington have I seen this country in such a state of exasperation.” Surely her husband’s cowardice was far more publicly humiliating than Sergeant Taylor’s adultery.
Was the wife of Stephen Decatur, Susan Wheeler, upset when Commodore Barron challenged her husband to a duel at the Bladensburg Dueling Field thirteen years later? Would Commodore Barron’s tearful confession to his wife that he had in fact shot and killed a national hero have been admissible at his fictional court-martial for dueling? Judging by the attendance at Commodore Decatur’s funeral, which numbered in the thousands and included the President and the Supreme Court, Commodore Barron’s wife would have likely been sufficiently humiliated and embarrassed so as to place his confession outside of the scope of the marital privilege adopted by the CAAF in Taylor.
As Judge Ryan notes in her dissent, such a departure from the common law should be clearly expressed in M.R.E. 504. It is not. In fact, in promulgating M.R.E. 504, the President changed the language of the military marital communications privilege to mirror the common law marital privilege, which excepted crimes against the “person or property” of the spouse and not simply “injurious” to the spouse as in the 1969 Manual for Courts-Martial.
Judge Ryan urged her brethren to give the rule its plain meaning. The majority relied upon the narrow construction doctrine advanced by the CAAFlog. According to the majority, the President drastically changed the marital communications privilege in 1980, but intended for it to remain the same as the old privilege codified in the 1969 Manual. JOC, this is judicial CAAFtivism at its best. If only the Supreme Court cared about military jurisprudence outside of Cuba.
Regardless of how one views the CAAF's decision in Taylor, it is hard to imagine the Supreme Court deciding to hear the case. The appellant has craftily drafted the issue to catch the eye of the Court: Whether the CAAF erred by failing to follow the Supreme Court's 1890 precedent. But the actual issue is whether a rule of evidence expressing the marital privilege must apply the 1890 precedent interpreting the common law privilege, or whether it can instead apply the historical military interpretation of the privilege. Contrary to federal common law, the military did not require that the crime against the person of the spouse mean injury to the person of the spouse. If the clerks who review the petitions see through to the real issue, I don't think the Court will grant on the petition.
Sacrementum,
Both the 1951 and 1969 Manuals excluded from the marital communications privilege crimes that caused “injury” to the other spouse. While the Manual did not define injury, it did list a number of offenses including bigamy and polygamy as offenses injurious to the spouse. In both United States v. Massey, 15 C.M.A. 274 (C.M.A. 1965), and later in United States v. Rener, 16 C.M.A. 65 (1967), the Court held that a crime was not "injurious" to the spouse unless it involved physical injury to the spouse. The Court noted that the framers of the Code had drafted the marital communications privilege to conform with the practice in Federal district court, which conformed with the common law. “If the exception to the privilege is not limited to a direct invasion of the wife’s rights, the rule will soon be judicially eliminated. Cf. Hawkins v. United States, Hawkins, 358 U.S. 74 (1958).” Massey, 15 C.M.A. at 282.
In 1969, the President superceded both cases by adding to the Manual and specifically listing adultery and crimes against the child of either spouse as exceptions outside of the scope of the marital privilege as crimes "injurious" to the spouse. It was then, beginning in 1969 (and really in 1973 with the Menchaca case), that the CAAF started its short strange trip of holding that the military marital communications privilege diverged from the common law.
In 1980, the President replaced the amorphous term "injurious,” with the common law language "crimes against the person or property" of the other spouse, which was cited by the Supreme Court in Hawkins and Bassett (among other cases) since 1836. And while the President specifically kept crimes against the children of either spouse as an exception to the privilege, he removed adultery, bigamy, and polygamy from M.R.E. 504. According to the CAAF in Taylor, the President adopted language from the common law and Supreme Court precedent, which hold that crimes against the spouse involve only physical injury in accordance with the common law, in order to preserve exceptions such as polygamy and adultery that do not involve physical injury and that the Supreme Court expressly held were not crimes “against the person or property” of the other spouse. At the same time, the President specifically removed the offense of adultery, while keeping other exceptions listed in the 1951 and 1969 editions of the Manual, again to ensure that adultery remained an exception to the marital communications privilege.
If the Supreme Court were to look at the “real issue,” Sacrementum, of whether the CAAF correctly applied the “historical military interpretation of the privilege” as it existed between 1775 and 1969/1973, and between 1980 and 2007, I dare say the answer would be the same as given by Judge Ryan.
But I do agree that the Supreme Court will certainly not review this issue. In the roughly one dozen cases that the Court has granted cert since 1984, only one, United States v. Scheffer, 523 U.S. 303 (1998), has involved a substantive issue not related to a jurisdictional aspect of military justice. And in that case, the Solicitor General asked the Court to resolve a split among the circuits. Accordingly, the Court is unlikely to grant cert until the CAAF starts docketing cases under the Tucker Act…and only then if the SG complains. Homer Ferguson where are you?
Captain Elliot, welcome aboard! I note that you were born in Hagerstown (on Bastille Day, no less -- though 7 years before the storming of the Bastille). It's always a pleasure to see a fellow Marylander posting on CAAFlog. Heck, for that matter it's a pleasure, albeit a somewhat strange pleasure, to see another dead Navy officer posting on CAAFlog.
By the way Mr. Elliott, your boss was a jerk and the fact that he won the duel was the greatest injustice/loss in U.S. Naval History. He should have been court-martialed again with you. Keel hauling was still en vogue in those days.
Here's a quick note on SCOTUS review of CAAF cases. Since the Military Justice Act of 1983 gave the Supremes statutory cert jurisdiction over CMA/CAAF cases, it has granted plenary review in only 8 cases. (There are some additional cases in which it granted, vacated, and remanded (GVRed).) Davis is another case in which the Supremes granted review in a military case to resolve a circuit split -- in that case, the effect of an ambiguous reference to counsel during the course of a custodial interrogation. (None, ruled the Court.)
Here is a discussion by THE military justice Guru -- Gene Fidell -- on the topic:
The cases in which plenary review was granted are, in reverse chronological order, Clinton v. Goldsmith, concerning the scope of [CAAF's] power under the All Writs Act; United States v. Scheffer, concerning the validity of a Manual for Courts-Martial provision barring the use of lie detectors in courts-martial; Edmond v. United States, concerning the status of certain Coast Guard Court of Criminal Appeals judges under the Appointments Clause; Loving v. United States, concerning the validity of military capital sentencing criteria; Ryder v. United States, again concerning the Appointments Clause; Davis v. United States, concerning t6he duty to suspend questioning of a suspect who requests counsel; Weiss v. United States, concerning both the Appointments Clause and whether due process requires military trial and appellate judges to have the protection of fixed terms of office; and Solorio v. United States, concerning whether there can be court-martial jurisdiction over non-service-connected offenses in peacetime.
Eugene R. Fidell, Review of Decisions of the United States Court of Appeals for the Armed Forces by the Supreme Court of the United States, in Evolving Military Justice 156 (Eugene R. Fidell & Dwight H. Sullivan, eds. 2002).
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