(a) General rule.
(1) A person may not claim a privilege with
respect to any matter except as required by or provided for in:
(i) the Constitution of the United States as
applied to members of the Armed Forces;
(ii) the Constitution of the State of New
York;
(iii) an Act of Congress
applicable to trials by courts-martial;
(iv) New York Military Law;
(v) these rules or this Chapter; or
(vi) the principles of common law generally
recognized in the trial of criminal cases in the United States district courts
pursuant to rule 501 of the Federal Rules of Evidence insofar as the
application of such principles in trials by courts-martial is practicable and
not contrary to or inconsistent with the State code, these rules, or this
Chapter.
(2) A claim of
privilege includes, but is not limited to, the assertion by any person of a
privilege to:
(i) refuse to be a
witness;
(ii) refuse to disclose
any matter;
(iii) refuse to produce
any object or writing; or
(iv)
prevent another from being a witness or disclosing any matter or producing any
object or writing.
(3)
The term person includes an appropriate representative of the Federal
Government, a State, or political subdivision thereof, or any other entity
claiming to be the holder of a privilege.
(4) Notwithstanding any other provision of
these rules, information not otherwise privileged does not become privileged on
the basis that it was acquired by a medical officer or civilian physician in a
professional capacity.
(b) Lawyer-client privilege.
(1) General rule of privilege. A client has a
privilege to refuse to disclose and to prevent any other person from disclosing
confidential communications made for the purpose of facilitating the rendition
of professional legal services to the client:
(i) between the client or the client's
representative and the lawyer or the lawyer's representative;
(ii) between the lawyer and the lawyer's
representative;
(iii) by the client
or the client's lawyer to a lawyer representing another in a matter of common
interest;
(iv) between
representatives of the client or between the client and a representative of the
client; or
(v) between lawyers
representing the client.
(2) Definitions. As used in this subdivision:
(i) A client is a person, public officer,
corporation, association, organization, or other entity, either public or
private, who receives professional legal services from a lawyer, or who
consults a lawyer with a view to obtaining professional legal services from the
lawyer.
(ii) A lawyer is a person
authorized, or reasonably believed by the client to be authorized, to practice
law; or a member of the Armed Forces or State organized militia detailed,
assigned, or otherwise provided to represent a person in a court-martial case
or in any military investigation or proceeding. The term lawyer does not
include a member of the Armed Forces or State organized militia serving in a
capacity other than as a judge advocate, legal officer, or law specialist,
unless the member:
(a) is detailed, assigned,
or otherwise provided to represent a person in a court-martial case or in any
military investigation or proceeding;
(b) is authorized by the Armed Forces or
State organized militia, or reasonably believed by the client to be authorized,
to render professional legal services to members of the Armed Forces or State
organized militia; or
(c) is
authorized to practice law and renders professional legal services during
off-duty employment.
(iii) A representative of a lawyer is a
person employed by or assigned to assist a lawyer in providing professional
legal services.
(iv) A
communication is confidential if not intended to be disclosed to third persons
other than those to whom disclosure is in furtherance of the rendition of
professional legal services to the client or those reasonable necessary for the
transmission of the communication.
(3) Who may claim the privilege. The
privilege may be claimed by the client, the guardian or conservator of the
client, the personal representative of a deceased client, or the successor,
trustee, or similar representative of a corporation, association, or other
organization, whether or not in existence. The lawyer or the lawyer's
representative who received the communication may claim the privilege on behalf
of the client. The authority of the lawyer to do so is presumed in the absence
of evidence to the contrary.
(4)
Exceptions. There is no privilege under this subdivision under the following
circumstances:
(i) Crime or fraud. If the
communication clearly contemplated the future commission of a fraud or crime or
if services of the lawyer were sought or obtained to enable or aid anyone to
commit or plan to commit what the client knew or reasonably should have known
to be a crime or fraud.
(ii)
Claimants through same deceased client. As to a communication relevant to an
issue between parties who claim through the same deceased client, regardless of
whether the claims are by testate or intestate succession or by inter vivos
transaction.
(iii) Breach of duty
by lawyer or client. As to communication relevant to an issue of breach of duty
by the lawyer to the client or by the client to the lawyer.
(iv) Document attested by lawyer. As to a
communication relevant to an issue concerning an attested document to which the
lawyer is an attesting witness.
(v)
Joint clients. As to a communication relevant to a matter of common interest
between two or more clients if the communication was made by any of them to a
lawyer retained or consulted in common, when offered in an action between any
of the clients.
(c) Communications to clergy.
(1) General rule of privilege. A person has a
privilege to refuse to disclose and to prevent another from disclosing a
confidential communication by the person to a clergyman or to a clergyman's
assistant, if such communication is made either as a formal act of religion or
as a matter of conscience.
(2)
Definitions. As used in this subdivision:
(i)
A clergyman is a minister, priest, rabbi, chaplain, or other similar
functionary of a religious organization, or an individual reasonably believed
to be so by the person consulting the clergyman.
(ii) A communication is confidential if made
to a clergyman in the clergyman's capacity as a spiritual adviser to a
clergyman's assistant in the assistant's official capacity and is not intended
to be disclosed to third persons other than those to whom disclosure is in
furtherance of the purpose of the communication or to those reasonably
necessary for the transmission of the communication.
(3) Who may claim the privilege. The
privilege may be claimed by the person, by the guardian, or conservator, or by
a personal representative if the person is deceased. The clergyman or
clergyman's assistant who received the communication may claim the privilege on
behalf of the person. The authority of the clergyman or clergyman's assistant
to do so is presumed in the absence of evidence to the contrary.
(d) Husband-wife privilege.
(1) Spousal incapacity. A person has a
privilege to refuse to testify against his or her spouse.
(2) Confidential communication made during
marriage.
(i) General rule of privilege. 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.
(ii) Definition. A communication is
confidential if made privately by any person to the spouse of the person and is
not intended to be disclosed to third persons other than those reasonably
necessary for transmission of the communication.
(iii) Who may claim the privilege. The
privilege may be claimed by the spouse who made the communication or by the
other spouse on his or her behalf. The authority of the latter spouse to do so
is presumed in the absence of evidence of a waiver. The privilege will not
prevent disclosure of the communication at the request of the spouse to whom
the communication was made if that spouse is an accused regardless of whether
the spouse who made the communication objects to its disclosure.
(3) Exceptions.
(i) Spousal incapacity only. There is no
privilege under paragraph (1) of this subdivision when, at the time the
testimony of one of the parties to the marriage is to be introduced in evidence
against the other party, the parties are divorced or the marriage has been
annulled.
(ii) Spousal incapacity
and confidential communications. There is no privilege under paragraph (1) or
(2) of this subdivision:
(a) in proceedings in
which one spouse is charged with a crime against the person or property of the
other spouse or a child of either, or with a crime against the person or
property of a third person committed in the course of committing a crime
against the other spouse;
(b) when
the marital relationship was entered into with no intention of the parties to
live together as spouses, but only for the purpose of using the purported
marital relationship as a sham, and with respect to the privilege in paragraph
(1) of this subdivision, the relationship remains a sham at the time the
testimony or statement of one of the parties is to be introduced against the
other; or with respect to the privilege in paragraph (2) of this subdivision,
the relationship was a sham at the time of the communication.
(e)
Classified information.
(1) General rule of
privilege. Classified information is privileged from disclosure if disclosure
would be detrimental to the national security.
(2) Definitions. As used in this subdivision:
(i) Classified information means any
information or material that has been determined by the United States
Government pursuant to an executive order, statute, or regulation, to require
protection against unauthorized disclosure for reasons of national security,
and any restricted data, as defined in
42
U.S.C. section
2014(y).
(ii) National security means the national
defense and foreign relations of the United States.
(3) Who may claim the privilege. The
privilege may be claimed by the head of the executive or military department or
government agency concerned based on a finding that the information is properly
classified and that disclosure would be detrimental to the national security. A
person who may claim the privilege may authorize a witness or trial counsel to
claim the privilege on his or her behalf. The authority of the witness or trial
counsel to do so is presumed in the absence of evidence to the
contrary.
(4) Action prior to
referral of charges. Prior to referral of charges, the convening authority
shall respond in writing to a request by the accused for classified information
if the privilege in this subdivision is claimed for such information. The
convening authority may:
(i) delete specified
items or classified information from the documents made available to the
accused;
(ii) substitute a portion
or summary of the information for such classified documents;
(iii) substitute a statement admitting
relevant facts that the classified information would tend to prove;
(iv) provide the document subject to
conditions that will guard against the compromise of the information disclosed
to the accused; or
(v) withhold
disclosure if actions under subparagraphs (i) through (iv) of this paragraph
cannot be taken without causing identifiable damage to the national security.
Any objection by the accused to withholding of information
or to the conditions of disclosure shall be raised through a motion for
appropriate relief at a pretrial session.
(5) Pretrial session. At anytime after
referral of charges and prior to arraignment, any party may move for a session
under Military Law section 130.39(a) to consider matters relating to classified
information that may arise in connection with the trial. Following such motion
or sua sponte, the military judge promptly shall hold a session under Military
Law section 130-39(a) to establish the timing of requests for discovery, the
provision of notice under paragraph (8) of this subdivision, and the initiation
of the procedure under paragraph (9) of this subdivision. In addition, the
military judge may consider any other matters that relate to classified
information or that may promote a fair and expeditious trial.
(6) Action after referral of charges. If a
claim of privilege has been made under this subdivision with respect to
classified information that apparently contains evidence that is relevant and
necessary to an element of the offense or a legally cognizable defense and is
otherwise admissible in evidence in the court-martial proceeding, the matter
shall be reported to the convening authority. The convening authority may:
(i) institute action to obtain the classified
information for use by the military judge in making a determination under
paragraph (9) of this subdivision;
(ii) dismiss the charges;
(iii) dismiss the charges or specifications
or both to which the information relates; or
(iv) take such action as may be required in
the interests of justice.
If, after a reasonable period of time, the information is
not provided to the military judge in circumstances where proceeding with the
case without such information would materially prejudice a substantial right of
the accused, the military judge shall dismiss the charges or specifications or
both to which the classified information relates.
(7) Disclosure of classified information to
the accused.
(i) Protective order. If the
government agrees to disclose classified information to the accused, the
military judge, at the request of the government, shall enter an appropriate
protective order to guard against the compromise of the information disclosed
to the accused. The terms of any such protective order may include provisions:
(a) prohibiting the disclosure of the
information except as authorized by the military judge;
(b) requiring storage of material in a manner
appropriate for the level of classification assigned to the documents to be
disclosed;
(c) requiring controlled
access to the material during normal business hours and at other times upon
reasonable notice;
(d) requiring
appropriate security clearances for persons having a need to examine the
information in connection with the preparation of the defense;
(e) requiring the maintenance of logs
regarding access by all persons authorized by the military judge to have access
to the classified information in connection with the preparation of the
defense;
(f) regulating the making
and handling of notes taken from material containing classified information;
or
(g) requesting the convening
authority to authorize the assignment of government security personnel and the
provision of government storage facilities.
(ii) Limited disclosure. The military judge,
upon motion of the government, shall authorize:
(a) the deletion of specified items of
classified information from documents to be made available to the
defendant;
(b) the substitution of
a portion or summary of the information for such classified documents;
or
(c) the substitution of a
statement admitting relevant facts that the classified information would tend
to prove, unless the military judge determines that disclosure of the
classified information itself is necessary to enable the accused to prepare for
trial. The government's motion and any materials submitted in support thereof
shall, upon request of the government, be considered by the military judge in
camera and shall not be disclosed to the accused.
(iii) Disclosure at trial of certain
statements previously made by a witness:
(a)
Scope. After a witness called by the government has testified on direct
examination, the military judge, on motion of the accused, may order production
of statements in the possession of the State under N.Y.R.C.M. 914. This
provision does not preclude discovery or assertion of a privilege otherwise
authorized under these rules or this Chapter.
(b) Closed session. If the privilege in this
subdivision is invoked during consideration of a motion under N.Y.R.C.M. 914,
the government may deliver such statement for the inspection only by the
military judge in camera and may provide the military judge with an affidavit
identifying the portions of the statement that are classified and the basis for
the classification assigned. If the military judge finds that disclosure of any
portion of the statement identified by the government as classified could
reasonably be expected to cause damage to the national security in the degree
required to warrant classification under the applicable executive order,
statute, or regulation and that such portion of the statement is consistent
with the witness' testimony, the military judge shall excise the portion from
the statement. With such material excised, the military judge shall then direct
delivery of such statement to the accused for use by the accused. If the
military judge finds that such portion of the statement is inconsistent with
the witness' testimony, the government may move for a proceeding under
paragraph (9) of this subdivision.
(iv) Record of trial. If, under this
paragraph, any information is withheld from the accused, the accused objects to
such withholding, and the trial is continued to an adjudication of guilt of the
accused, the entire unaltered text of the relevant documents as well as the
government's motion and any materials submitted in support thereof shall be
sealed and attached to the record of trial as an appellate exhibit. Such
material shall be made available to reviewing authorities in closed proceedings
for the purpose of reviewing the determination of the military judge.
(8) Notice of the accused's
intention to disclose classified information.
(i) Notice by the accused. If the accused
reasonably expects to disclose or to cause the disclosure of classified
information in any manner in connection with a court-martial proceeding, the
accused shall notify the trial counsel in writing of such intention and file a
copy of such notice with the military judge. Such notice shall be given within
the time specified by the military judge under paragraph (5) of this
subdivision or, if no time has been specified, prior to arraignment of the
accused.
(ii) Continuing duty to
notify. Whenever the accused learns of classified information not covered by a
notice under subparagraph (i) of this paragraph that the accused reasonably
expects to disclose at any such proceeding, the accused shall notify the trial
counsel and the military judge in writing as soon as possible
thereafter.
(iii) Content of
notice. The notice required by this paragraph shall include a brief description
of the classified information.
(iv)
Prohibition against disclosure. The accused may not disclose any information
known or believed to be classified until notice has been given under this
paragraph and until the government has been afforded a reasonable opportunity
to seek a determination under paragraph (9) of this subdivision.
(v) Failure to comply. If the accused fails
to comply with the requirements of this paragraph, the military judge may
preclude disclosure of any classified information not made the subject of
notification and may prohibt the examination by the accused of any witness with
respect to any such information.
(9) In camera proceedings for cases involving
classified information.
(i) Definition. For
purposes of this paragraph, an in camera proceeding is a session under N.Y.S.
Military Law, section 130.39(a) from which the public is excluded.
(ii) Motion for in camera proceeding. Within
the item specified by the military judge for the filing of a motion under this
subdivision, the government may move for an in camera proceeding concerning the
use at any proceeding of any classified information. Thereafter, either prior
to or during trial, the military judge for good cause shown or otherwise upon a
claim of privilege under this subdivision may grant the government leave to
move for an in camera proceeding concerning the use of additional classified
information.
(iii) Demonstration of
national security nature of the information. In order to obtain an in camera
proceeding under this subdivision, the government shall submit the classified
information for examination only by the military judge and shall demonstrate by
affidavit that disclosure of the information reasonably could be expected to
cause damage to the national security in the degree required to warrant
classification under the applicable executive order, statute, or
regulation.
(iv) In camera
proceeding.
(a) Procedure. Upon finding that
the government has met the standard set forth in subparagraph (iii) of this
paragraph with respect to some or all of the classified information at issue,
the military judge shall conduct an in camera proceeding. Prior to the in
camera proceeding, the government shall provide the accused with notice of the
information that will be at issue. This notice shall identify the classified
information that will be at issue whenever that information previously has been
made available to the accused in connection with proceedings in the same case.
The government may describe the information by generic category, in such form
as the military judge may approve, rather than identifying the classified
information when the government has not previously made the information
available to the accused in connection with pretrial proceedings. Following
briefing and argument by the parties in the in camera proceeding the military
judge shall determine whether the information may be disclosed at the
court-martial proceeding. Where the government's motion under this paragraph is
filed prior to the proceeding at which disclosure is sought, the military judge
shall rule prior to the commencement of the relevant proceeding.
(b) Standard. Classified information is not
subject to disclosure under this paragraph unless the information is relevant
and necessary to an element of the offense or a legally cognizable defense and
is otherwise admissible in evidence.
(c) Ruling. Unless the military judge makes a
written determination that the information meets the standard set forth in
clause (b) of this subparagraph, the information may not be disclosed or
otherwise elicited at a court-martial proceeding. The record of the in camera
proceeding shall be sealed and attached to the record of trial as an appellate
exhibit. The accused may seek reconsideration of the determination prior to or
during trial.
(d) Alternatives to
full disclosure. If the military judge makes a determination under this
paragraph that would permit disclosure of the information or if the government
elects not to contest the relevance, necessity, and admissibility of any
classified information, the government may proffer a statement admitting for
purposes of the proceeding any relevant facts such information would tend to
prove or may submit a portion of summary to be used in lieu of the information.
The military judge shall order that such statement, portion, or summary be used
by the accused in place of the classified information unless the military judge
finds that use of the classified information itself is necessary to afford the
accused a fair trail.
(e)
Sanctions. If the military judge determines that alternatives to full
disclosure may not be used and the government continues to object to disclosure
of the information, the military judge shall issue any order that the interests
of justice require. Such an order may include an order:
(1) striking or precluding all or part of the
testimony of a witness;
(2)
declaring a mistrial;
(3) finding
against the government on any issue as to which the evidence is relevant and
material to the defense;
(4)
dismissing the charges, with or without prejudice; or
(5) dismissing the charges or specifications
or both which the information relates.
Any such order shall permit the government to avoid the
sanction for nondisclosure by permitting the accused to disclose the
information at the pertinent court-martial proceeding.
(10)
Introduction of classified information.
(i)
Classification status. Writings, recordings, and photographs containing
classified information may be admitted into evidence without change in their
classification status.
(ii)
Precautions by the military judge. In order to prevent unnecessary disclosure
of classified information, the military judge may order admission into evidence
of only part of a writing, recording, or photograph or may order admission into
evidence of the whole writing, recording, or photograph with excision of some
or all of the classified information contained therein.
(iii) Contents of writing, recording, or
photograph. The military judge may permit proof of the contents of a writing,
recording, or photograph that contains classified information without requiring
introduction into evidence of the original or a duplicate.
(iv) Taking of testimony. During the
examination of a witness, the government may object to any question or line of
inquiry that may require the witness to disclose classified information not
previously found to be relevant and necessary to the defense. Following such an
objection, the military judge shall take such suitable action to determine
whether the response is admissible as will safeguard against the compromise of
any classified information. Such action may include requiring the government to
provide the military judge with a proffer of the witness' response to the
question or line of inquiry and requiring the accused to provide the military
judge with a proffer of the nature of the information the accused seeks to
elicit.
(v) Closed session. If
counsel for all parties, the military judge, and the members have received
appropriate security clearances, the military judge may exclude the public
during that portion of the testimony of a witness that discloses classified
information.
(vi) Record of trial.
The record of trial with respect to any classified matter will be prepared
under N.Y.R.C.M. 1103(h) and 1104(b)(D).
(11) Security procedures to safeguard against
compromise of classified information disclosed to courts-martial. The Secretary
of Defense may prescribe security procedures for protection against the
compromise of classified information submitted to courts-martial and appellate
authorities.
(f)
Government information other than classified information.
(1) General rule of privilege. Except where
disclosure is required by an Act of Congress, government information is
privileged from disclosure if disclosure would be detrimental to the public
interest.
(2) Scope. "Government
information" includes official communication and documents and other
information within the custody or control of the Federal Government. This rule
does not apply to classified information (Mil. R. Evid. 505) or to the identity
of an informant (Mil. R. Evid. 507).
(3) Who may claim the privilege. The
privilege may be claimed by the head of the executive or military department of
government agency concerned. The privilege for investigations of the Inspectors
General may be claimed by the authority ordering the investigation or any
superior authority. A person who may claim the privilege may authorize a
witness or the trial counsel to claim the privilege on his or her behalf. The
authority of a witness or the trial counsel to do so is presumed in the absence
of evidence to the contrary.
(4)
Action prior to referral of charges. Prior to referral of charges, the
government shall respond in writing to a request for government information if
the privilege in this subdivision is claimed for such information. The
government shall:
(i) delete specified items
of government information claimed to be privileged from documents made
available to the accused;
(ii)
substitute a portion or summary of the information for such
documents;
(iii) substitute a
statement admitting relevant facts that the government information would tend
to prove;
(iv) provide the document
subject to conditions similar to those set forth in paragraph (7) of this
subdivision; or
(v) withhold
disclosure if actions under subparagraphs (i) through (iv) of this paragraph
cannot be taken without causing identifiable damage to the public
interest.
(5) Action
after referral of charges. After referral of charges, if a claim of privilege
has been made under this subdivision with respect to government information
that apparently contains evidence that is relevant and necessary to an element
of the offense or a legally cognizable defense and is otherwise admissible in
evidence in the court-martial proceeding, the matter shall be reported to the
convening authority. The convening authority may:
(i) institute action to obtain the
information for use by the military judge in making a determination under
paragraph (9) of this subdivision;
(ii) dismiss the charges;
(iii) dismiss the charges or specifications
or both to which the information relates; or
(iv) take other action as may be required in
the interests of justice.
If, after a reasonable period of time, the information is
not provided to the military judge, the military judge shall dismiss the
charges or specifications or both to which the information relates.
(6) Pretrial session.
At any time after referral of charges and prior to arraignment any party may
move for a session under N.Y.S. Military Law section 130.39(a) to consider
matters relating to government information that may arise in connection with
the trial. Following such motion, or sua sponte, the military judge promptly
shall hold a pretrial session under N.Y.S. Military Law section 130.39(a) to
establish the timing of requests for discovery, the provision of notice under
paragraph (8) of this subdivision, and the initiation of the procedure under
paragraph (9). In addition, the military judge may consider any other matters
that relate to government information or that may promote a fair and
expeditious trial.
(7) Disclosure
of government information to the accused. If the government agrees to disclose
government information to the accused subsequent to a claim of privilege under
this subdivision, the military judge, at the request of the government, shall
enter an appropriate protective order to guard against the compromise of the
information disclosed to the accused. The terms of any such protective order
may include provisions:
(i) prohibiting the
disclosure of the information except as authorized by the military
judge;
(ii) requiring storage of
the material in a manner appropriate for the nature of the material to be
disclosed upon reasonable notice;
(iii) requiring controlled access to the
material during normal business hours and at other times upon reasonable
notice;
(iv) requiring the
maintenance of logs recording access by persons authorized by the military
judge to have access to the government information in connection with the
preparation of the defense;
(v)
regulating the making and handling of notes taken from material containing
government information; or
(vi)
requesting the convening authority to authorize the assignment of government
security personnel and the provision of government storage
facilities.
(8)
Prohibition against disclosure. The accused may not disclose any information
known or believed to be subject to a claim of privilege under this subdivision
until the government has been afforded a reasonable opportunity to seek a
determination under paragraph (9) of this subdivision.
(9) In camera proceedings.
(i) Definition. For the purpose of this
subdivision, an in camera proceeding is a closed session under N.Y.S. Military
Law section 130.39(a).
(ii) Motion
for in camera proceeding. Within the time specified by the military judge for
the filing of a motion under this subdivision, the government may move for an
in camera proceeding concerning the use at any proceeding of any government
information that may be subject to a claim of privilege. Thereafter, either
prior to or during trial, the military judge for good cause shown or otherwise
upon a claim of privilege may grant the government leave to move for an in
camera proceeding concerning the use of additional government
information.
(iii) Demonstration of
public interest nature of the information. In order to obtain an in camera
proceeding under this subdivision, the government shall demonstrate through
submission of affidavits and the information for examination only by the
military judge that disclosure of the information reasonably could be expected
to cause identifiable damage to the public interest.
(iv) In camera proceeding.
(a) Procedure. Upon finding that disclosure
of some or all of the information submitted by the government under
subparagraph (i) of this paragraph reasonably could be expected to cause
identifable damage to the public interest, the military judge shall conduct an
in camera proceeding. Prior to the in camera proceeding, the government shall
provide the accused with notice of the information that will be at issue. This
notice shall identify the information that will be at issue whenever that
information previously has been made available to the accused in connection
with proceedings in the same case. The government may describe the information
by generic category, in such form as the military judge may approve, rather
than identifying the specific information of concern to the government when the
government has not previously made the information available to the accused in
connection with pretrial proceedings. Following briefing and argument by the
parties in the in camera proceedings, the military judge shall determine
whether the information may be disclosed at the court-martial proceeding at
which disclosure is sought, the military judge shall rule prior to commencement
of the relevant proceeding.
(b)
Standard. Government information is subject to disclosure under this paragraph
if the party making the request demonstrates a specific need for information
containing evidence that is relevant to the guilt or innocence of the accused
and otherwise inadmissible in the court-martial proceeding.
(c) Ruling. Unless the military judge makes a
written determination that the information is not subject to disclosure under
the standard set forth in clause (b) of this subparagraph, the information may
be disclosed at the court-martial proceeding. The record of the in camera
proceeding shall be sealed and attached to the record of trial as an appellate
exhibit. The accused may seek reconsideration of the determination prior to or
during trial.
(d) Sanction. If the
military judge makes a determination under this paragraph that permits
disclosure of the information and the government continues to object to
disclosure of the information, the military judge shall dismiss the charges or
specifications or both to which the information relates.
(10) Introduction of government
information subject to a claim of privilege.
(i) Precautions by military judge. In order
to prevent unnecessary disclosure of government information after there has
been a claim of privilege under this subdivision, the military judge may order
admission into evidence of only part of a writing, recording, or photograph or
may order admission into evidence of the whole writing, recording, or
photograph with excision of some or all of the government information contained
therein.
(ii) Contents of writing,
recording, or photograph. The military judge may permit proof of the contents
of a writing, recording, or photograph that contains government information
that is the subject of a claim of privilege under this subdivision without
requiring introduction into evidence of the original or a duplicate.
(iii) Taking of testimony. During examination
of a witness, the prosecution may object to any question or line of inquiry
that may require the witness to disclose government information not previously
found relevant and necessary to the defense if such information has been or is
reasonably likely to be the subject of a claim of privilege under this
subdivision. Following such an objection, the military judge shall take such
suitable action to determine whether the response is admissible as will
safeguard against the compromise of any government information. Such action may
include requiring the government to provide the military judge with a proffer
of the witness' response to the question or line of inquiry and requiring the
accused to provide the military judge with a proffer of the nature of the
information the accused seeks to elicit.
(11) Procedures to safeguard against
compromise of government information disclosed to courts-martial. The Secretary
of Defense may prescribe procedures for protection against the compromise of
government information submitted to courts-martial and appellate authorities
after a claim of privilege.
(g) Identity of informant.
(1) Rule of privilege. The United States or a
state or subdivision thereof has a privilege to refuse to disclose the identity
of an informant. An informant is a person who has furnished information
relating to or assisting in an investigation of a possible violation of law to
a person whose official duties include the discovery, investigation, or
prosecution of crime. Unless otherwise privileged under these rules, the
communications of an informant are not privileged except to the extent
necessary to prevent disclosure of the informant's identity.
(2) Who may claim the privilege. The
privilege may be claimed by an appropriate representative of the State,
regardless of whether information was furnished to an officer of the United
States or a state or subdivision thereof. The privilege may be claimed by an
appropriate representative of a state or subdivision if the information was
furnished to an officer thereof, except the privilege shall not be allowed if
the prosecution objects.
(3)
Exceptions.
(i) Voluntary disclosures;
informant as witness. No privilege exists under this subdivision:
(a) if the identity of the informant has been
disclosed to those who would have caused to resent the communication by a
holder of the privilege or by the informant's own action; or
(b) if the informant appears as a witness for
the prosecution.
(ii)
Testimony on the issue of guilt or innocence. If a claim of privilege has been
made under this subdivision, the military judge shall, upon motion by the
accused, determine whether disclosure of the identity of the informant is
necessary to the accused's defense on the issue of guilt or innocence. Whether
such a necessity exists will depend on the particular circumstances of each
case, taking into consideration the offense charge, the possible defense, the
possible significance of the informant's testimony, and other relevant factors.
If it appears from the evidence in the case or from other showing by a party
that an informant may be able to give testimony necessary to the accused's
defense on the issue of guilt or innocence, the military judge may make any
order required by the interests of justice.
(iii) Legality of obtaining evidence. If a
claim of privilege has been made under this subdivision with respect to a
motion under Mil. R. Evid. 311, the military judge shall, upon motion of the
accused, determine whether disclosure of the identity of the informant is
required by the Constitution of the United States, or the State of New York as
applied to members of the Armed Forces. In making this determination, the
military judge may make any order required by the interests of
justice.
(4) Procedures.
If a claim of privilege has been made under this subdivision, the military
judge may make any order required by the interests of justice. If the military
judge determines that disclosure of the identity of the informant is required
under the standards set forth in this subdivision, and the prosecution elects
not to disclose the identity of the informant, the matter shall be reported to
the convening authority. The convening authority may institute action to secure
disclosure of the identity of the informant, terminate the proceedings, or take
such other action as may be appropriate under the circumstances. If, after a
reasonable period of time disclosure is not made, the military judge, sua
sponte or upon motion of either counsel and after a hearing if requested by
either party, may dismiss the charge or specifications or both to which the
information regarding the informant would relate if the military judge
determines that further proceedings would materially prejudice a substantial
right of the accused.
(h) Political vote. A person has a privilege
to refuse to disclose the tenor of the person's vote at a political election
conducted by secret ballot unless the vote was cast illegally.
(i) Deliberations of courts and juries.
Except as provided in Mil. R. Evid. 606, the deliberations of courts and grand
and petit juries are privileged to the extent that such matters are privileged
in trial of criminal cases in the United States district courts, but the
results of the deliberations are not privileged.
(j) Waiver of privilege by voluntary
disclosure.
(1) A person upon whom these rules
confer a privilege against disclosure of a confidential matter or communication
waives the privilege if the person or person's predecessor while holder of the
privilege voluntarily discloses or consents to disclosure of any significant
part of the matter or communication under such circumstances that it would be
inappropriate to allow the claim of privilege. This subdivision does not apply
if the disclosure is itself a privileged communication.
(2) Unless testifying voluntarily concerning
a privileged matter or communication, an accused who testifies in his or her
own behalf or a person who testifies under a grant or promise of immunity does
not, merely by reason of testifying, waive a privilege to which he or she may
be entitled pertaining to the confidential matter or communication.
(k) Privileged matter disclosed
under compulsion or without opportunity to claim privilege.
(1) Evidence of a statement or other
disclosure of privileged matter is not admissible against the holder of the
privilege if disclosure was compelled erroneously or was made without an
opportunity for the holder of the privilege to claim the privilege.
(2) The telephonic transmission of
information otherwise privileged under these rules does not affect its
privileged character. Use of electronic means of communication other than the
telephone for transmission of information otherwise privileged under these
rules does not affect the privileged character of such information if use of
such means of communication is necessary and in furtherance of the
communication.
(l)
Comment upon or inference from claim of privilege; instruction.
(1) Comment or inference not permitted.
(i) The claim of a privilege by the accused
whether in the present proceeding or upon a prior occasion is not a proper
subject of comment by the military judge or counsel for any party. No inference
may be drawn therefrom.
(ii) The
claim of a privilege by a person other than the accused whether in the present
proceeding or upon a prior occasion normally is not a proper subject of comment
by the military judge or counsel for any party. An adverse inference may not be
drawn therefrom except when determined by the military judge to be required by
the interests of justice.
(2) Claiming privilege without knowledge of
members. In a trial before a court-martial with members, proceedings shall be
conducted, to the extent practicable, so as to facilitate the making of claims
of privilege without the knowledge of the members. This paragraph does not
apply to a special court- martial without a military judge.
(3) Instruction. Upon request, any party
against whom the members might draw an adverse inference from a claim of
privilege is entitled to an instruction that no inference may be drawn
therefrom except as provided in subparagraph (1)(ii) of this
subdivision.