Trial Practice Note: Privileges Again

United States v. Custis, __ M.J. ___, No. 07-0188 (C.A.A.F. Dec. 5, 2007), is a decision dealing with the Spousal privilege and exceptions to the privilege.

The issue was whether there was a crime or fraud or joint participant exception to the spousal privilege. In the federal district courts there is such an exception. However, CAAF says there is no such exception under the military rule of evidence, and that they are without power to create one.

As our colleague at CAAFLog points out, expect a change in the next iteration of MCM and MRE changes.