JAG CENTRAL

In the newest published opinion from the U.S. Army Court of Criminal Appeals, U.S. v. Davis, No. ARMY 20010469, the court claims to clarify its interpretation of the husband-wife privilege, Military Rule of Evidence 504. Does it really do so? The soldier in question, when faced with an impending search of his computer laden with child pornography, called his wife on the telephone and demanded she delete all the files on the computer. She complied with the request. At trial, she recounted the telephone conversation to the court, over defense objections. ACCA decided that since the joint criminal venture of obstruction of justice didn't begin until she actually began deleting the files, the ongoing joint criminal venture exception to MRE 504 did not apply, and the conversation was privileged. Since the judge's error was harmless, the defendant receives no relief.

Actually, this leaves open a very important question in military law: does the Army Court still recognize a joint criminal venture exception to MRE 504? The court in U.S. v. Martel, 19 M.J. 917 (A.C.M.R. 1985) held that MRE 504 does not apply to conversations regarding crimes in which the spouses are jointly participating. In U.S. v. Archuleta, 40 M.J. 505 (A.C.M.R. 1994), the court seemed to place this holding in doubt. While not expressly overruling Martel, the court did conclude that "there is no basis to limit [MRE 504]'s applicability solely to confidential communications . . . that are not part of a joint venture in criminal activity." Id. at 507. Since ACCA today rested its decision on fact-finding error rather than legal error, it continues to leave the resolution of this important legal question for another day.