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

83, 87 (1963). Subsection (i)(4)(C) was redesignated as (i)(4)(D),
but was otherwise unchanged. The amended procedures provide
for full disclosure of the government information in question to
the accused for purposes of litigating the admissibility of the
i n f o r m a t i o n i n t h e p r o t e c t e d e n v i r o n m e n t o f t h e i n c a m e r a
proceeding; i.e., the Article 39(a) session is closed to the public
and neither side may disclose the information outside the in
camera proceeding until the military judge admits the information
as evidence in the trial. Under subsection (i)(4)(E), the military
judge may authorize alternatives to disclosure, consistent with a
military judge’s authority concerning classified information under
M.R.E. 505. Subsection (i)(4)(F) allows the Government to determine
whether the information ultimately will be disclosed to the
accused. However, the Government’s continued objection to disclosure
may be at the price of letting the accused go free, in that
subsection (i)(4)(F) adopts the sanctions available to the military
judge under M.R.E. 505(i)(4)(E). See United States v. Reynolds,
345 U.S. 1, 12 (1953).
(k) Introduction of government information subject to a claim of
privilege. Rule 506(k) is derived from Rule 505(j) with appropriate
modifications being made to reflect the nonclassified nature of
the information involved.
1995 Amendment: Subsection (j) was added to recognize the
G o v e r n m e n t ’ s r i g h t t o a p p e a l c e r t a i n r u l i n g s a n d o r d e r s . S e e
R.C.M. 908. The former subsection (j) was redesignated as subsection
(k). The subsection speaks only to government appeals;
the defense still may seek extraordinary relief through interlocutory
appeal of the military judge’s orders and rulings. See generally,
28 U.S.C. § 1651(a); Waller v. Swift, 30 M.J. 139 (C.M.A.
1990); Dettinger v. United States, 7 M.J. 216 (C.M.A. 1979).
(l) Procedures to safeguard against compromise of government
information disclosed to courts-martial. Rule 506(k) is derived
from Rule 505(k). Such procedures should reflect the fact that
material privileged under Rule 506 is not classified.
Rule 507 Identity of informant
(a) Rule of privilege. Rule 507(a) sets forth the basic rule of
privilege for informants and contains the substance of 1969 Manual
Para. 151 b(1). The new Rule, however, provides greater
detail as to the application of the privilege than did the 1969
manual.
The privilege is that of the United States or political subdivision
thereof and applies only to information relevant to the identity
of an informant. An “informant” is simply an individual who
has supplied “information resulting in an investigation of a possible
violation of law” to a proper person and thus includes good
citizen reports to command or police as well as the traditional
“ c o n f i d e n t i a l i n f o r m a n t s ” w h o m a y b e c o n s i s t e n t s o u r c e s o f
information.
(b) Who may claim the privilege. Rule 507(b) provides for claiming
the privilege and distinguishes between representatives of the
United States and representatives of a state or subdivision thereof.
Although an appropriate representative of the United States may
always claim the privilege when applicable, a representative of a
state or subdivision may do so only if the information in question
was supplied to an officer of the state or subdivision. The Rule is
taken from proposed Federal Rule of Evidence 510(b), with appropriate
modifications, and is similar in substances to Para. 151
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
App. 22, M.R.E. 508
b(1) of the 1969 Manual which permitted “appropriate governmental
authorities” to claim the privilege.
The Rule does not specify who an “appropriate representative”
is. Normally, the trial counsel is an appropriate representative of
the United States. The Rule leaves the question open, however,
for case by case resolution. Regulations could be promulgated
which could specify who could be an appropriate representative.
(c) Exceptions. Rule 507(c) sets forth the circumstances in which
the privilege is inapplicable.
(1) Voluntary disclosures; informant as witness. Rule 507(c)(1)
makes it clear that the privilege is inapplicable if circumstances
have nullified its justification for existence. Thus, there is no
reason for the privilege, and the privilege is consequently inapplicable,
if the individual who would have cause to resent the informant
has been made aware of the informant’s identity by a
holder of the privilege or by the informant’s own action or when
the witness testifies for the prosecution thus allowing that person
to ascertain the informant’s identity. This is in accord with the
intent of the privilege which is to protect informants from reprisals.
The Rule is taken from Para. 151 b(1) of the 1969 Manual.
( 2 ) T e s t i m o n y o n t h e i s s u e o f g u i l t o r i n n o c e n c e . R u l e
507(c)(2) is taken from 1969 Manual Para. 151 b (1) and recognizes
that in certain circumstances the accused may have a due
process right under the Fifth Amendment, as well as a similar
right under the Uniform Code of Military Justice, to call the
informant as a witness. The subdivision intentionally does not
specify what circumstances would require calling the informant
and leaves resolution of the issue to each individual case.
(3) Legality of obtaining evidence. Rule 507(c)(3) is new. The
Rule recognizes that circumstances may exist in which the Constitution
may require disclosure of the identity of an informant in
the context of determining the legality of obtaining evidence
under Rule 311; see, e.g., Franks v. Delaware, 438 U.S. 154, 170
(1978); McCray v. Illinois, 386 U.S. 300 (1976) (both cases
indicate that disclosure may be required in certain unspecified
circumstances but do not in fact require such disclosure). In view
of the highly unsettled nature of the issue, the Rule does not
specify whether or when such disclosure is mandated and leaves
the determination to the military judge in light of prevailing case
law utilized in the trial of criminal cases in the Federal district
courts.
(d) Procedures. Rule 507(d) sets forth the procedures to be followed
in the event of a claim of privilege under Rule 507. If the
prosecution elects not to disclose the identity of an informant
when the judge has determined that disclosure is required, that
matter shall be reported to the convening authority. Such a report
is required so that the convening authority may determine what
action, if any, should be taken. Such actions could include disclosure
of the informant’s identity, withdrawal of charges, or some
appropriate appellate action.
Rule 508 Political vote
Rule 508 is taken from proposed Federal Rule of Evidence 507
and expresses the substance of 18 U.S.C. § 596 (1976) which is
applicable to the armed forces. The privilege is considered essential
for the armed forces because of the unique nature of military
life.
A22-43