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

authorized under the UCMJ. Rule 513 was based in part on
proposed Fed. R. Evid. (not adopted) 504 and state rules of
evidence. Rule 513 is not a physician-patient privilege. It is a
separate rule based on the social benefit of confidential counseling
recognized by Jaffee, and similar to the clergy-penitent privilege.
In keeping with American military law since its inception,
there is still no physician-patient privilege for members of the
Armed Forces. See the analyses for Rule 302 and Rule 501.
(a) General rule of privilege. The words “under the UCMJ” in
this rule mean Rule 513 applies only to UCMJ proceedings, and
do not limit the availability of such information internally to the
services, for appropriate purposes.
(d) Exceptions These exceptions are intended to emphasize that
military commanders are to have access to all information that is
necessary for the safety and security of military personnel, operations,
installations, and equipment. Therefore, psychotherapists
are to provide such information despite a claim of privilege.
WITNESSES
SECTION VI
Rule 601 General rule of competency
Rule 601 is taken without change from the first portion of
Federal Rule of Evidence 601. The remainder of the Federal Rule
was deleted due to its sole application to civil cases.
In declaring that subject to any other Rule, all persons are
competent to be witnesses, Rule 601 supersedes Para. 148 of the
1969 Manual which required, among other factors, that an individual
know the difference between truth and falsehood and understand
the moral importance of telling the truth in order to
testify. Under Rule 601 such matters will go only to the weight of
the testimony and not to its competency. The Rule’s reference to
other rules includes Rules 603 (Oath or Affirmation), 605 (Competency
of Military Judge as Witness), 606 (Competency of Court
Member as Witness), and the rules of privilege.
The plain meaning of the Rule appears to deprive the trial
j u d g e o f a n y d i s c r e t i o n w h a t s o e v e r t o e x c l u d e t e s t i m o n y o n
grounds of competency unless the testimony is incompetent under
those specific rules already cited supra, see, United States v.
Fowler, 605 F.2d 181 (5th Cir. 1979), a conclusion bolstered by
the Federal Rules of Evidence Advisory Committee’s Note. S.
Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE
MANUAL 270 (2d ed. 1977). Whether this conclusion is accurate,
especially in the light of Rule 403, is unclear. Id. at 269; see
a l s o U n i t e d S t a t e s v . C a l a h a n , 4 4 2 F . S u p p . 1 2 1 3 ( D . M i n n .
1978).
Rule 602 Lack of personal knowledge
Rule 602 is taken without significant change from the Federal
Rule and is similar in content to Para. 138 d, MCM, 1969 (Rev.).
Although the 1969 Manual expressly allowed an individual to
testify to his or her own age or date of birth, the Rule is silent of
the issue.
Notwithstanding that silence, however, it appears that it is
within the meaning of the Rule to allow such testimony. Rule
8 0 4 ( b ) ( 4 ) ( H e a r s a y E x c e p t i o n s ; D e c l a r a n t U n a v a i l a b l e — S t a t e -
ment of Personal or Family History) expressly permits a hearsay
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
App. 22, M.R.E. 606(a)
statement “concerning the declarant’s own birth ... or other similar
fact of personal or family history, even though declarant had
no means of acquiring personal knowledge of the matter stated.”
It seems evident that if such a hearsay statement is admissible, incourt
testimony by the declarant should be no less admissible. It
is probable that the expression “personal knowledge” in Rule
804(b)(4) is being used in the sense of “first hand knowledge”
while the expression is being used in Rule 602 in a somewhat
broader sense to include those matters which an individual could
be considered to reliably know about his or her personal history.
Rule 603 Oath or affirmation
Rule 603 is taken from the Federal Rule without change. The
oaths found within Chapter XXII of the Manual satisfy the requirements
of Rule 603. Pursuant to Rule 1101(c), this Rule is
inapplicable to the accused when he or she makes an unsworn
statement.
Rule 604 Interpreters
Rule 604 is taken from the Federal Rule without change and is
consistent with Para. 141, MCM, 1969 (Rev.). The oath found in
Paras. 114 e, MCM, 1969 (Rev.) (now R.C.M. 807(b)(2) (Discussion),
MCM, 1984), satisfies the oath requirements of Rule 604.
Rule 605 Competency of military judge as
witness
R u l e 6 0 5 ( a ) r e s t a t e s t h e F e d e r a l R u l e w i t h o u t s i g n i f i c a n t
change. Although Article 26(d) of the Uniform Code of Military
Justice states in relevant part that “no person is eligible to act as a
military judge if he is a witness for the prosecution ...” and is
silent on whether a witness for the defense is eligible to sit, the
Committee believes that the specific reference in the code was not
intended to create a right and was the result only of an attempt to
highlight the more grievous case. In any event, Rule 605, unlike
Article 26(d), does not deal with the question of eligibility to sit
as a military judge, but deals solely with the military judge’s
competency as a witness. The rule does not affect voir dire.
Rule 605(b) is new and is not found within the Federal Rules
of Evidence. It was added because of the unique nature of the
military judiciary in which military judges often control their own
dockets without clerical assistance. In view of the military’s string
e n t s p e e d y t r i a l r o l e s , s e e , U n i t e d S t a t e s v . B u r t o n , 2 1
U.S.C.M.A 112, 44 C.M.R. 166 (1971), it was necessary to preclude
expressly any interpretation of Rule 605 that would prohibit
the military judge from placing on the record details relating to
docketing in order to avoid prejudice to a party. Rule 605(b) is
consistent with present military law.
Rule 606 Competency of court member as
witness
(a) At the court-martial. Rule 606(a) is taken from the Federal
Rule without substantive change. The Rule alters prior military
law only to the extent that a member of the court could testify as
a defense witness under prior precedent. Rule 606(a) deals only
with the competency of court members as witnesses and does not
affect other Manual provisions governing the eligibility of the
individuals to sit as members due to their potential status as
A22-45