2008 edition - Fort Sam Houston - U.S. Army

a third party had access to the communication. Compare Rule
Para. 151 a of the 1969 Manual. The broader rule has been
adopted for the reasons set forth in the Advisory Committee’s
notes on proposed Federal Rule 504(a)(4). The provision permitting
disclosure to persons in furtherance of legal services or
reasonably necessary for the transmission of the communication
is similar to the provision in the 1969 Manual for communications
through agents.
Although Para. 151 c of the 1969 Manual precluded a claim of
the privilege when there is transmission through wire or radio
communications, the new Rules protect statements made via telephone,
or, “if use of such means of communication is necessary
and in furtherance of the communication,” by other “electronic
means of communication.” Rule 511(b).
(c) Who may claim the privilege. Rule 502(c) is taken from
proposed Federal Rule 503(b) and expresses who may claim the
lawyer-client privilege. The Rule is similar to but slightly broader
than Para. 151 b(2) of the 1969 Manual. The last sentence of the
subdivision states that “the authority of the lawyer to claim the
privilege is presumed in the absence of evidence to the contrary.”
The lawyer may claim the privilege on behalf of the client
unless authority to do so has been withheld from the lawyer or
evidence otherwise exists to show that the lawyer lacks the authority
to claim the privilege.
(d) Exceptions. Rule 502(d) sets forth the circumstances in which
the lawyer-client privilege will not apply notwithstanding the general
application of the privilege.
Subdivision (d)(1) excludes statements contemplating the future
commission of crime or fraud and combines the substance of
1969 Manual Para. 151 b(2) with proposed Federal Rule of Evidence
503(d). Under the exception a lawyer may disclose information
given by a client when it was part of a “communication
(which) clearly contemplated the future commission of a crime of
fraud,” and a lawyer may also disclose information when it can
be objectively said that the lawyer’s services “were sought or
obtained to commit or plan to commit what the client knew or
reasonably should have known to be a crime or fraud.” The latter
portion of the exception is likely to be applicable only after the
commission of the offense while the former is applicable when
the communication is made.
S u b d i v i s i o n s ( d ) ( 2 ) t h r o u g h ( d ) ( 5 ) p r o v i d e e x c e p t i o n s w i t h
respect to claims through the same deceased client, breach of duty
by lawyer of client, documents attested by lawyers, and communications
to an attorney in a matter of common interest among
joint clients. There were no parallel provisions in the 1969 Manual
for these rules which are taken from proposed Federal Rule
503(d). The provisions are included in the event that the circumstances
described therein arise in the military practice.
Rule 503 Communications to clergy
(a) General rule of privilege. Rule 503(a) states the basic rule of
privilege for communications to clergy and is taken from proposed
Federal Rule of Evidence 506(b) and 1969 Manual Para.
151b(2). Like the 1969 Manual, the Rule protects communications
to a clergyman’s assistant in specific recognition of the
nature of the military chaplaincy, and deals only with communications
“made either as a formal act of religion or as a matter of
conscience.”
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
(b) Definitions.
(1) Clergyman. Rule 503(b)(1) is taken from proposed Federal
Rule of Evidence 506(a)(1) but has been modified to include
specific reference to a chaplain. The Rule does not define “a
religious organization” and leaves resolution of that question to
precedent and the circumstances of the case. “Clergyman” includes
individuals of either sex.
(2) Confidential. Rule 503(b)(2) is taken generally from proposed
Federal Rule of Evidence 506(a)(2) but has been expanded
to include communications to a clergyman’s assistant and to explicitly
protect disclosure of a privileged communication when
“disclosure is in furtherance of the purpose of the communication
or to those reasonably necessary for the transmission of the communication.”
The Rule is thus consistent with the definition of
“confidential” used in the lawyer-client privilege, Rule 502(b)(4),
and recognizes that military life often requires transmission of
c o m m u n i c a t i o n s t h r o u g h t h i r d p a r t i e s . T h e p r o p o s e d F e d e r a l
R u l e ’ s l i m i t a t i o n o f t h e p r i v i l e g e t o c o m m u n i c a t i o n s m a d e
“privately” was deleted in favor of the language used in the actual
Military Rule for the reasons indicated. The Rule is somewhat
more protective than the 1969 Manual because of its application
to statements which although intended to be confidential are overheard
by others. See Rule 502(b)(4) and 510(a) and the Analysis
thereto.
2007 Amendment: The previous subsection (2) of MRE 503(b)
was renumbered subsection (3) and the new subsection (2) was
inserted to define the term “clergyman’s assistant”.
(c) Who may claim the privilege. Rule 503(c) is derived from
proposed Federal Rule of Evidence 506(c) and includes the substance
of 1969 Manual Para. 151 b(2) which provided that the
privilege may be claimed by the “penitent.” The Rule supplies
additional guidance as to who may actually claim the privilege
and is consistent with the other Military Rules of Evidence relating
to privileges. See Rule 502(c); 504(b)(3); 505(c); 506(c).
Rule 504 Husband-wife privilege
App. 22, M.R.E. 504(b)(1)
( a ) S p o u s a l i n c a p a c i t y . R u l e 5 0 4 ( a ) i s t a k e n g e n e r a l l y f r o m
Trammel v. United States, 445 U.S. 40 (1980) and significantly
changes military law in this area. Under prior law, see 1969
Manual Para. 148 e, each spouse had a privilege to prevent the
use of the other spouse as an adverse witness. Under the new
rule, the witness’ spouse is the holder of the privilege and may
choose to testify or not to testify as the witness’ spouse sees fit.
But see Rule 504(c) (exceptions to the privilege). Implicit in the
rule is the presumption that when a spouse chooses to testify
against the other spouse the marriage no longer needs the protection
of the privilege. Rule 504(a) must be distinguished from Rule
5 0 4 ( b ) , C o n f i d e n t i a l c o m m u n i c a t i o n m a d e d u r i n g m a r r i a g e ,
which deals with communications rather than the ability to testify
generally at trial.
Although the witness’ spouse ordinarily has a privilege to refuse
to testify against the accused spouse, under certain circumstances
no privilege may exists, and the spouse may be compelled
to testify. See Rule 504(c).
( b ) C o n f i d e n t i a l c o m m u n i c a t i o n m a d e d u r i n g m a r r i a g e . R u l e
504(b) deals with communications made during a marriage and is
distinct from a spouse’s privilege to refuse to testify pursuant to
Rule 504(a). See 1969 Manual Para. 151 b(2).
(1) General rule of privilege. Rule 504(b)(1) sets forth the
A22-39