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

App. 22, M.R.E. 509 APPENDIX 22
Rule 509 Deliberation of courts and juries
Rule 509 is taken from 1969 Manual Para. 151 but has been
modified to ensure conformity with Rule 606(b) which deals
specifically with disclosure of deliberations in certain cases.
Rule 510 Waiver of privilege by voluntary
disclosure
Rule 510 is derived from proposed Federal Rule of Evidence
511 and is similar in substance to 1969 Manual Para. 151 a which
notes that privileges may be waived. Rule 510(a) simply provides
that “disclosure of any significant part of the matter or communication
under such circumstances that it would be inappropriate to
claim the privilege” will defeat and waive the privilege. Disclosure
of privileged matter may be, however, itself privileged; see
Rules 502(b)(4); 503(b)(2); 504(b)(2). Information disclosed in
the form of an otherwise privileged telephone call ( e.g., information
overheard by an operator) is privileged, Rule 511(b), and
information disclosed via transmission using other forms of communication
may be privileged; Rule 511(b). Disclosure under
certain circumstances may not be “inappropriate” and the information
will retain its privileged character. Thus, disclosure of an
informant’s identity by one law enforcement agency to another
may well be appropriate and not render Rule 507 inapplicable.
Rule 510(b) is taken from Para. 151 b(1) of the 1969 Manual
and makes it clear that testimony pursuant to a grant of immunity
does not waive the privilege. Similarly, an accused who testifies
in his or her own behalf does not waive the privilege unless the
a c c u s e d t e s t i f i e s v o l u n t a r i l y t o t h e p r i v i l e g e d m a t t e r o f
communication.
Rule 511 Privileged matter disclosed under
compulsion or without opportunity to claim
privilege
Rule 511(a) is similar to proposed Federal Rule of Evidence
512. Placed in the context of the definition of “confidential”
utilized in the privilege rules, see, Rule 502(b)(4), the Rule is
substantially different from prior military law inasmuch as prior
law permitted utilization of privileged information which had
been gained by a third party through accident or design. See Para.
151 b (1), MCM, 1969 (Rev.). Such disclosures are generally
safeguarded against via the definition “confidential” used in the
new Rules. Generally, the Rules are more protective of privileged
information than was the 1969 Manual.
Rule 511(b) is new and deals with electronic transmission of
information. It recognizes that the nature of the armed forces
today often requires such information transmission. Like 1969
Manual Para. 151 b(1), the new Rule does not make a nonprivileged
communication privileged; rather, it simply safeguards
already privileged information under certain circumstances.
The first portion of subdivision (b) expressly provides that
o t h e r w i s e p r i v i l e g e d i n f o r m a t i o n t r a n s m i t t e d b y t e l e p h o n e
remains privileged. This is in recognition of the role played by
the telephone in modern life and particularly in the armed forces
where geolineartal separations are common. The Committee was
of the opinion that legal business cannot be transacted in the 20th
century without customary use of the telephone. Consequently,
privileged communications transmitted by telephone are protected
A22-44
even though those telephone conversations are known to be monitored
for whatever purpose.
Unlike telephonic communications, Rule 511(b) protects other
forms of electronic communication only when such means “is
necessary and in furtherance of the communication.” It is irrelevant
under the Rule as to whether the communication in question
was in fact necessary. The only relevant question is whether, once
the individual decided to communicate, the means of communication
was necessary and in furtherance of the communication.
Transmission of information by radio is a means of communication
that must be tested under this standard.
Rule 512 Comment upon or inference from claim
of privilege; instruction
(a) Comment or inference not permitted. Rule 512(a) is derived
from proposed Federal Rule 513. The Rule is new to military law
but is generally in accord with the Analysis of Contents of the
1969 Manual; United States Department of the Army, Pamphlet
No. 27–2, Analysis of Contents, Manual for Courts-Martial 1969,
Revised Edition, 27–33, 27–38 (1970).
Rule 512(a)(1) prohibits any inference or comment upon the
exercise of a privilege by the accused and is taken generally from
proposed Federal Rule of Evidence 513(a).
Rule 512(a)(2) creates a qualified prohibition with respect to
any inference or comment upon the exercise of a privilege by a
person not the accused. The Rule recognizes that in certain circumstances
the interests of justice may require such an inference
and comment. Such a situation could result, for example, when
the government’s exercise of a privilege has been sustained, and
an inference adverse to the government is necessary to preserve
the fairness of the proceeding.
( b ) C l a i m i n g p r i v i l e g e w i t h o u t k n o w l e d g e o f m e m b e r s . R u l e
512(b) is intended to implement subdivision (a). Where possible,
claims of privilege should be raised at an Article 39(a) session or,
if practicable, at sidebar.
(c) Instruction. Rule 512(c) requires that relevant instructions be
given “upon request.” Cf. Rule 105. The military judge does not
have a duty to instruct sua sponte.
Rule 513 Psychotherapist-patient privilege
1999 Amendment: Military Rule of Evidence 513 establishes a
psychotherapist-patient privilege for investigations or proceedings
authorized under the Uniform Code of Military Justice. Rule 513
clarifies military law in light of the Supreme Court decision in
Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135 L.Ed.2d 337
(1996). Jaffee interpreted Federal Rule of Evidence 501 to create
a federal psychotherapist-patient privilege in civil proceedings
and refers federal courts to state laws to determine the extent of
privileges. In deciding to adopt this privilege for courts-martial,
the committee balanced the policy of following federal law and
rules, when practicable and not inconsistent with the UCMJ or
MCM, with the needs of commanders for knowledge of certain
types of information affecting the military. The exceptions to the
rule have been developed to address the specialized society of the
military and separate concerns that must be met to ensure military
readiness and national security. See Parker v. Levy, 417 U.S. 733,
743 (1974); U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955);
Dept. of the Navy v. Egan, 484 U.S. 518, 530 (1988). There is no
intent to apply Rule 513 in any proceeding other than those