CAAF Grant

As earlier reported at CAAFlog, on 29 May, CAAF granted review of another case involving the spousal communication privilege -- United States v. Custis, No. 07-0188/AF. The Air Force Court of Criminal Appeals held that "the appellant's communications with his wife were not entitled to the spousal communication privilege of Mil. R. Evid. 504, because the communications were 'intended to perpetuate a fraud on the court or the criminal proceeding' and thus fell within a common-law exception to the privilege." United States v. Custis, ACM S30875 (A.F. Ct. Crim. App. 31 Oct. 2006). Although the decision mentions Mil. R. Evid. 504, it does not discuss it. Instead it relies on an earlier Air Force case -- United States v. Smith, 30 M.J. 1022 (A.F.C.M.R. 1990), aff'd on other grounds, 33 M.J. 114 (C.M.A. 1991) -- for the proposition that the crime-fraud exception applies in the military. But Smith did not attempt to reconcile its adoption of the crime-fraud exception with the fact that the crime-fraud exception is not one of the exceptions listed in Mil. R. Evid. 504. It seems the Air Force court should have attempted some discussion of the issue.

The Air Force court's bottom line was that "the evidence was sufficient, even absent any mention of the conversations between the appellant and his wife, for a reasonable trier of fact to conclude that they conspired to impede, and did impede, investigation of the appellant's DUI." But that is the test for legal sufficiency of the evidence when there is no error. If the AFCCA was assuming arguendo that there was error, they should have applied the harmless error test: For nonconstitutional errors, the government bears the burden of showing "that the error did not have a substantial influence on the findings." United States v. Clark, 62 M.J. 195, 200 (C.A.A.F. 2005).

This may wind up being an interesting case. Recently, in United States v. Taylor, 64 M.J. 416 (C.A.A.F. 2007), the CAAF held that adultery fit within the spousal communication exception for "proceedings in which one spouse is charged with a crime against the person . . . of the other spouse." Mil. R. Evid. 504(c)(2)(A). Judge Ryan dissented, arguing that the Court should strictly interpret the language of the Rule, and the "common and approved usage" of the term "crimes against the person" refers to crimes of violence. The majority specifically expressed its sympathy with Judge Ryan's concern for strictly interpreting the language of the Rule, but concluded that the history of the spousal communication privilege in military practice favored a broader meaning of crime against the other spouse. There doesn't appear to be any similar history in the President's definition of the spousal communications privilege that would suggest the common law crime-fraud exception applies in the military.