U.S. v. Durbin, 68 M.J. 271

Core Criminal Law Subjects: Evidence: Privileges › Husband-wife privilege

1. a person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law; the rule allows the privilege to be claimed by the spouse who made the communication or the other spouse on his or her behalf; however, where the privilege is claimed by one spouse on behalf of the other, the spouse upon whose behalf the privilege is claimed may waive the privilege
2. while the marital privilege rule in MRE 504 on its face allows either spouse to claim the privilege on behalf of the other, it also allows the spouse upon whose behalf the privilege was claimed to waive the privilege; the rule requires “evidence” of a waiver; in this case, the voluntary testimony of the wife as to her statements made during the marital communication constituted a waiver of the privilege claimed on her behalf by her husband
3. while the federal marital privilege protects both sides of a marital communication, that privilege is based on federal common law while the marital privilege in the military justice system is created by MRE 504; because the President has chosen to adopt a more restrictive marital privilege for the military, the federal court cases interpreting federal common law are not relevant to an analysis of the waiver issue
4. when appellant’s wife testified at his court-martial about statements she made during a marital communication with him concerning suspected child pornography she found on his laptop computer, she waived the marital communications privilege as to those statements, after appellant claimed the privilege on her behalf, where her testimony did not repeat or reveal any of appellant’s protected statements

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Marital privilege

1. the party asserting the marital privilege has the burden of establishing its applicability by a preponderance of the evidence

Trial Stages: Appeals: Harmless / Prejudicial Error

1. an appellate court evaluates prejudice from an erroneous evidentiary ruling by weighing (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
2. assuming without deciding that appellant’s actions with his laptop computer after his wife confronted him with suspected child pornography she found on it were a communication protected by the marital privilege under MRE 504 and that the testimony of his wife concerning his actions was erroneously admitted, the admission of that testimony was harmless at a trial on a charge of possessing child pornography and had no prejudicial impact on appellant’s substantial rights, where the government’s case was very strong, including hard drives seized from appellant’s desktop and laptop computers containing 32 known or suspected images of child pornography, where appellant’s case was markedly less substantial, primarily consisting of attempting, through cross-examination, to establish that other individuals who had access to his computer may have accessed and retained the images, and where the testimony of appellant’s wife was not material to the government’s case

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; whether a marital communication is privileged is a mixed question of fact and law; an appellate court reviews a trial court’s legal conclusions de novo, but gives its factual findings more deference, and will not reverse such findings unless they are clearly erroneous; the party asserting the marital privilege has the burden of establishing its applicability by a preponderance of the evidence