Section 400.700 Privilege

Section 400.700  Privilege

a)         General

1)         A

person may not claim a privilege with respect to any matter except as required

by or provided for in:

A)        The U.S.

Constitution as applied to members of the armed forces;

B)        An Act

of Congress applicable to trials by courts-martial;

C)        This

Manual; or

D)        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 those principles in trials by

courts-martial is practicable and not contrary to or inconsistent with the Code

or this Manual.

2)         A

claim of privilege includes, but is not limited to, the assertion by any person

of a privilege to:

A)        Refuse

to be a witness;

B)        Refuse

to disclose any matter;

C)        Refuse

to produce any object or writing; or

D)        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.  Including any other provision of this Section,

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. (Il. Mil. R. Evid. 501)

b)         Lawyer-Client

Privilege

1)         Definitions.

As used in this Section:

A)        "Client"

means 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

y. (Il. Mil. R. Evid. 501)

b)         Lawyer-Client

Privilege

1)         Definitions.

As used in this Section:

A)        "Client"

means 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.

B)        "Confidential

Communication" or "Communication" means a communication 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 reasonably necessary for the transmission of the communication.

C)        "Lawyer"

means a person authorized, or reasonably believed by the client to be

authorized, to practice law, or a member of the armed forces 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 serving in a capacity other than as a

judge advocate, legal officer, or law specialist as defined in Code Section 1,

unless the member:

i)          is

detailed, assigned or otherwise provided to represent a person in a

court-martial case or in any military investigation or proceeding;

ii)         is

authorized by the armed forces, or reasonably believed by the client to be

authorized, to render professional legal services to members of the armed

forces; or

iii)        is

authorized to practice law and render professional legal services during

off-duty employment.

D)        "Representative"

means a lawyer or a person employed by or assigned to assist a lawyer in

providing professional legal services.

2)         General

Rule of Privilege

ved by the client to be

authorized, to render professional legal services to members of the armed

forces; or

iii)        is

authorized to practice law and render professional legal services during

off-duty employment.

D)        "Representative"

means a lawyer or a person employed by or assigned to assist a lawyer in

providing professional legal services.

2)         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:

A)        to the

client;

B)        between

the client or the client's representative and the lawyer or the lawyer's

representative;

C)        between

the lawyer and the lawyer's representative;

D)        by the

client or the client's lawyer to a lawyer representing another in a matter of

common interest;

E)        between

representatives of the client or between the client and a representative of the

client; or

F)         between

lawyers representing the client.

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

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 Section in the following circumstances:

A)        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;

B)        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;

C)        Breach

of Duty by Lawyer or Client:  As to a communication relevant to an issue of

breach of duty by the lawyer to the client or by the client to the lawyer;

D)        Document

Attested to by Lawyer:  As to a communication relevant to an issue concerning

an attested document to which the lawyer is an attesting witness; or

E)        Joint

Clients:  As to a communication relevant to a matter of common interest between

2 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. (Il. Mil. R. Evid. 502)

c)         Communications

to Clergy

1)         Definitions.

As used in this subsection (c):

A)        "Clergyman"

means 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

ulted in common, when offered in an action between any of the

clients. (Il. Mil. R. Evid. 502)

c)         Communications

to Clergy

1)         Definitions.

As used in this subsection (c):

A)        "Clergyman"

means 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.

B)        "Clergyman's

Assistant" means a person employed by or assigned to assist a clergyman in

his or her capacity as a spiritual advisor.

C)        "Confidential

Communication" or "Communication" means a communication made to

a clergyman in the clergyman's capacity as a spiritual adviser, or to a

clergyman's assistant in the assistant's official capacity, that 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.

2)         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 that communication is made either as

a formal act of religion or as a matter of conscience.

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. (Il. Mil. R. Evid. 503)

d)         Husband-Wife

Privilege

1)         Definitions

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. (Il. Mil. R. Evid. 503)

d)         Husband-Wife

Privilege

1)         Definitions.

As used in this subsection (d):

A)        "Confidential

Communication" or "Communication" means a confidential

communication 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.

B)        "A

Child of Either" includes not only a biological child, adopted child, or

ward of one of the spouses, but also includes a child who is under the

permanent or temporary physical custody of one of the spouses, regardless of

the existence of a legal parent-child relationship.  For purposes of this subsection

(d) only, a child is:

i)          an

individual under the age of 18; or

ii)         an

individual over the age of 18 with a mental disability that results in the

individual functioning at the capacity of a person under the age of 18.

C)        "Temporary

Physical Custody" includes instances in which a parent entrusts his or her

child to another.  There is no minimum amount of time necessary to establish

temporary physical custody, nor must there be a written agreement.  Rather, the

focus is on the parent's agreement with another for assuming parental

responsibility for the child.  For example, temporary physical custody may

include instances in which a parent entrusts another with the care of his or

her child for recurring care or during absences due to temporary duty or

deployments.

2)         Spousal

Incapacity.  A person has a privilege to refuse to testify against his or her

spouse

arent's agreement with another for assuming parental

responsibility for the child.  For example, temporary physical custody may

include instances in which a parent entrusts another with the care of his or

her child for recurring care or during absences due to temporary duty or

deployments.

2)         Spousal

Incapacity.  A person has a privilege to refuse to testify against his or her

spouse.

3)         Confidential

Communication Made During Marriage

A)        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.

B)        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.

4)         Exceptions

A)        Spousal

Incapacity Only.  There is no privilege under subsection (d)(2) 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.

B)        Spousal

Incapacity and Confidential Communications.  There is no privilege under subsection

.

4)         Exceptions

A)        Spousal

Incapacity Only.  There is no privilege under subsection (d)(2) 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.

B)        Spousal

Incapacity and Confidential Communications.  There is no privilege under subsection

(d)(2) or (3):

i)          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;

ii)         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 subsection (d)(2), 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 subsection (d)(3), the relationship was a sham at

the time of the communication;

iii)        In

proceedings in which a spouse is charged, in accordance with Code Section 133

or 134:

•           with

importing the other spouse as an alien for prostitution or other immoral

purposes in violation of 8 USC 1328;

•           with

transporting the other spouse in interstate commerce for immoral purposes or

other offense in violation of 18 USC 2421 through 2424; or

•           with

violation of other similar statutes under which the privilege may not be

claimed in the trial of criminal cases in the United States district courts; or

iv)        When

both parties have been substantial participants in illegal activity,

communications between the spouses during the marriage regarding the illegal

activity in which they have jointly participated. (Il. Mil. R. Evid

with

violation of other similar statutes under which the privilege may not be

claimed in the trial of criminal cases in the United States district courts; or

iv)        When

both parties have been substantial participants in illegal activity,

communications between the spouses during the marriage regarding the illegal

activity in which they have jointly participated. (Il. Mil. R. Evid. 504)

e)         Classified

Information

1)         Definitions.

As used in this subsection (e):

A)        "Classified

Information" means:

i)          any

information or material that has been determined by the U.S. government,

pursuant to an executive order, statute or regulations, to require protection

against unauthorized disclosure for reasons of national security; and

ii)         any restricted

data, as defined in Section 2014(6) of the federal Atomic Energy Act of 1954.

B)        "National

Security" means the national defense and foreign relations of the United

States.

2)         General

Rule of Privilege.  Classified information is privileged from disclosure if

disclosure would be detrimental to the national security.  As with other rules

of privilege, this rule applies to all stages of the proceedings.

3)         Who May

Claim the Privilege.  The privilege may be claimed by the head of the concerned

executive or military department or government agency 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 subsection (e) is claimed for that

information

ilege 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 subsection (e) is claimed for that

information.  The convening authority may:

A)        Delete

specified items of classified information from documents made available to the

accused;

B)        Substitute

a portion or summary of the information for the classified documents;

C)        Substitute

a statement admitting relevant facts that the classified information would tend

to prove;

D)        Provide

the document subject to conditions that will guard against the compromise of

the information disclosed to the accused; or

E)        Withhold

disclosure if action under subsections (e)(4)(A) through (D) 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 any time after referral of charges and prior to arraignment, any

party may move for a session under Code Section 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 Code Section 39(a) to establish the timing of requests for

discovery, the provision of notice under subsection (e)(8), and the initiation

of the procedure under subsection (e)(9).  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 subsection

of requests for

discovery, the provision of notice under subsection (e)(8), and the initiation

of the procedure under subsection (e)(9).  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 subsection

(e) 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:

A)        institute

action to obtain the classified infor­mation for use by the military judge in

making a determination under subsection (e)(9);

B)        dismiss

the charges;

C)        dismiss

the charges or specifications, or both, to which the information relates; or

D)        take

such 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 in

circumstances in which proceeding with the case without that 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

A)        Protective

Order.  If the government (i.e., the prosecution) 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

ssified

information relates.

7)         Disclosure

of Classified Information to the Accused

A)        Protective

Order.  If the government (i.e., the prosecution) 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 the protective order

may include provisions:

i)          Prohibiting

the disclosure of the information, except as authorized by the military judge;

ii)         Requiring

storage of material in a manner appropriate for the level of classification

assigned to the documents to be disclosed;

iii)        Requiring

controlled access to the material during normal business hours and at other

times upon reasonable notice;

iv)        Requiring

appropriate security clearances for persons having a need to examine the

information in connection with the preparation of the defense.  All persons

requiring security clearances shall cooperate with investigatory personnel in

any investigations that are necessary to obtain a security clearance.

v)         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;

vi)        Regulating

the making and handling of notes taken from material containing classified

information; or

vii)       Requesting

the convening authority to authorize the assignment of government security

personnel and the provisions of government storage facilities

ized by the

military judge to have access to the classified information in connection with

the preparation of the defense;

vi)        Regulating

the making and handling of notes taken from material containing classified

information; or

vii)       Requesting

the convening authority to authorize the assignment of government security

personnel and the provisions of government storage facilities.

B)        Limited

Disclosure

i)          The

military judge, upon motion of the government, shall authorize the deletion of

specified items of classified information from documents to be made available

to the defendant, the substitution of a portion or summary of the information

for the classified documents, or 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.

ii)         The government's

motion and any materials submitted in support of the motion shall, upon request

of the government, be considered by the military judge in camera and shall not

be disclosed to the accused.

C)        Disclosure

of Certain Statements Previously Made by a Witness

i)          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 government under Code Section 46.  This

provision does not preclude discovery or assertion of a privilege otherwise

authorized under this Manual.

ii)         Closed

Session.  If the privilege in this subsection (e) is invoked during

consideration of a motion under Code Section 46, the government may deliver the

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

.

ii)         Closed

Session.  If the privilege in this subsection (e) is invoked during

consideration of a motion under Code Section 46, the government may deliver the

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 that portion from the statement.  With the

material excised, the military judge shall direct delivery of the statement to

the accused for use by the accused.  If the military judge finds that the

portion of the statement is inconsistent with the witness' testimony, the government

may move for a proceeding under subsection (e)(9).

D)        Record

of Trial.  If, under this subsection (e), any information is withheld from the

accused, the accused objects to that 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 of the motion, shall be sealed and attached to the record

of trial as an appellate exhibit.  This 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 Intentions to Disclose Classified Information

A)        Notice

by the Accused

ny materials

submitted in support of the motion, shall be sealed and attached to the record

of trial as an appellate exhibit.  This 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 Intentions to Disclose Classified Information

A)        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 that intention and file a copy of the notice with the military judge.  The

notice shall be given within the time specified by the military judge under subsection

(e)(5) or, if no time has been specified, prior to arraignment of the accused.

B)        Continuing

Duty to Notify.  Whenever the accused learns of classified information not

covered by a notice under subsection (e)(8)(A) that the accused reasonably

expects to disclose at any proceeding, the accused shall notify the trial

counsel and the military judge in writing as soon as possible thereafter.

C)        Content

of Notice.  The notice required by this subsection (e)(8) shall include a brief

description of the classified information.  The description, to be sufficient,

must be more than a mere general statement of the areas about which evidence

may be introduced.  The accused must state, with particularity, which items of

classified information he or she reasonably expects will be revealed by his or

her defense.

D)        Prohibition

Against Disclosure.  The accused may not disclose any information known or

believed to be classified until notice has been given under this subsection

(e)(8) and until the government has been afforded a reasonable opportunity to

seek a determination under subsection (e)(9).

E)        Failure

to Comply.  If the accused fails to comply with the requirements of this subsection

Prohibition

Against Disclosure.  The accused may not disclose any information known or

believed to be classified until notice has been given under this subsection

(e)(8) and until the government has been afforded a reasonable opportunity to

seek a determination under subsection (e)(9).

E)        Failure

to Comply.  If the accused fails to comply with the requirements of this subsection

(e)(8), the military judge may preclude disclosure of any classified

information not made the subject of notification and may prohibit the

examination by the accused of any witness with respect to any such information.

9)         In Camera

Proceedings for Cases Involving Classified Information

A)        Definition.

For purposes of this subsection (e)(9), an "in camera proceeding" is

a session under Code Section 39(a) from which the public is excluded.

B)        Motion

for In Camera Proceeding.  Within the time specified by the military judge for

the filing of a motion under this subsection (e), 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 subsection

(e) may grant the government leave to move for an in camera proceeding

concerning the use of additional classified information.

C)        Demonstration

of National Security Nature of the Information.  In order to obtain an in

camera proceeding under this subsection (e)(9), the government shall submit the

classified information and an affidavit ex parte for examination by the

military judge only.  The affidavit shall demonstrate 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.

D)        In Camera

Proceeding

i)          Procedure

classified information and an affidavit ex parte for examination by the

military judge only.  The affidavit shall demonstrate 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.

D)        In Camera

Proceeding

i)          Procedure.

Upon finding that the government has met the standard set forth in subsection

(e)(9)(C) 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.  When the government's motion under subsection (e)(5)

is filed prior to the proceeding at which disclosure is sought, the military

judge shall rule prior to the commencement of the relevant proceeding.

ii)         Standard.

Classified information is not subject to disclosure under this subsection (e)

unless the information is relevant and necessary to an element of the offense

or a legally cognizable defense and is otherwise admissible in evidence

filed prior to the proceeding at which disclosure is sought, the military

judge shall rule prior to the commencement of the relevant proceeding.

ii)         Standard.

Classified information is not subject to disclosure under this subsection (e)

unless the information is relevant and necessary to an element of the offense

or a legally cognizable defense and is otherwise admissible in evidence.  In

presentencing proceedings, relevant and material classified information

pertaining to the appropriateness of, or the appropriate degree of, punishment

shall be admitted only if no unclassified version of that information is

available.

iii)        Ruling.

Unless the military judge makes a written determination that the information

meets the standard set forth in subsection (e)(9)(D)(ii), 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.

iv)        Alternatives

to Full Disclosure.  If the military judge makes a determination under this subsection

(e)(9) 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 the information would tend to

prove.  The government may submit a portion of summary to be used in lieu of

the information.  The military judge shall order that the 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 trial.

v)         Sanctions

mation would tend to

prove.  The government may submit a portion of summary to be used in lieu of

the information.  The military judge shall order that the 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 trial.

v)         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, including an order:

•           striking

or precluding all or part of the testimony of a witness;

•           declaring

a mistrial;

•           finding

against the government on any issue as to which the evidence is relevant and

material to the defense;

•           dismissing

the charges, with or without prejudice; or

•           dismissing

the charges or specifications, or both, to which the information relates.

vi)        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

A)        Classification

Status.  Writing, recordings and photographs containing classified information

may be admitted into evidence without change in their classification status.

B)        Precautions

by the Military Judge.  In order to prevent unnecessary disclosure of

classified information, the military judge may order admission into evidence of:

i)          only

part of a writing, recording or photograph; or

ii)         the

whole writing, recording or photograph with excision of some or all of the

classified information.

C)        Contents

of Writing, Recording or Photograph

ecautions

by the Military Judge.  In order to prevent unnecessary disclosure of

classified information, the military judge may order admission into evidence of:

i)          only

part of a writing, recording or photograph; or

ii)         the

whole writing, recording or photograph with excision of some or all of the

classified information.

C)        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.

D)        Taking

of Testimony.  During the examination of a witness, the government (i.e., the

prosecution) 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 suitable action to determine whether the response is admissible, considering

whether the action will safeguard against the compromise of any classified

information.  The action may include requiring:

i)          the

government to provide the military judge with a proffer or the witness'

response to the question or line of inquiry; and

ii)         the

accused to provide the military judge with a proffer of the nature of the

information the accused seeks to elicit.

E)        Closed

Session.  The military judge may exclude the public during that portion of the

presentation of evidence that discloses classified information.

F)         Record

of Trial.  The record of trial with respect to any classified matter will be prepared

in accordance with Code Section 54 and RCM 1103(h) and 1104(b)(1)(D).

11)        Security

Procedures to Safeguard Against Compromise of Classified Information Disclosed

to Courts-Martial

de the public during that portion of the

presentation of evidence that discloses classified information.

F)         Record

of Trial.  The record of trial with respect to any classified matter will be prepared

in accordance with Code Section 54 and RCM 1103(h) and 1104(b)(1)(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. (Il. Mil. R. Evid. 505)

f)         Government

Information Other Than Classified Information

1)         General

Rule of Privilege.  Except when disclosure is required by law, 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 government.

This subsection (f) does not apply to classified information, which is

addressed in subsection (e), or to the identity of an informant, which is

addressed in subsection (g).

3)         Who May

Claim the Privilege.  The privilege may be claimed by the head of the executive

or military department or government agency concerned.  The privilege for

records and information of the Inspector General may be claimed by the

immediate superior of the inspector general officer responsible for creation of

the records or information, the Inspector General, or any other 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

sible for creation of

the records or information, the Inspector General, or any other 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 subsection (f) is claimed for that information.  The government shall:

A)        delete

specified items of government information claimed to be privileged from

documents made available to the accused;

B)        substitute

a portion or summary of the information for those documents;

C)        substitute

a statement admitting relevant facts that government information would tend to

prove;

D)        provide

the document subject to conditions similar to those set forth in subsection (f)(7);

or

E)        withhold

disclosure if actions under (f)(4)(A) through (D) cannot be taken without

causing identifiable damage to the public interest.

5)         Pretrial

Session.  At any time after referral of charges and prior to arraignment, any

party may move for a session under Code Section 39(a) to consider matters

relating to government information that may arise in connection with the

trial.  Following that motion, or sua sponte, the military judge promptly shall

hold a pretrial session under Code Section 39(a) to establish the timing of

requests for discovery, the provision of notice under subsection (f)(8), and

the initiation of the procedure under subsection (f)(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.

6)         Action

After Motion for Disclosure of Information

er Code Section 39(a) to establish the timing of

requests for discovery, the provision of notice under subsection (f)(8), and

the initiation of the procedure under subsection (f)(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.

6)         Action

After Motion for Disclosure of Information.  After referral of charges, if the

defense moves for disclosure of government information for which a claim of

privilege has been made under this subsection (f), the matter shall be reported

to the convening authority.  The convening authority may:

A)        institute

action to obtain the information for use by the military judge in making a

determination under subsection (f)(9);

B)        dismiss

the charges;

C)        dismiss

the charges or specifications, or both, to which the information relates; or

D)        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.

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 subsection (f), 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

nformation relates.

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 subsection (f), 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 the material in a manner appropriate for the nature of the material

to be disclosed, upon reasonable notice;

C)        Requiring

controlled access to the material during normal business hours and at other

times upon reasonable notice;

D)        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;

E)        Regulating

the making and handling of notes taken from material containing government

information; or

F)         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 subsection (f) unless

the military judge authorizes that disclosure.

9)         In

Camera Proceedings in Cases Involving Nonclassified Government Information

A)        Definition.

For the purpose of this subsection (f)(8), an "in camera proceeding"

is a session under Code Section 39(a) from which the public is excluded.

B)        Motion

for In Camera Proceeding

a claim of privilege under this subsection (f) unless

the military judge authorizes that disclosure.

9)         In

Camera Proceedings in Cases Involving Nonclassified Government Information

A)        Definition.

For the purpose of this subsection (f)(8), an "in camera proceeding"

is a session under Code Section 39(a) from which the public is excluded.

B)        Motion

for In Camera Proceeding.  Within the time specified by the military judge for

the filing of a motion under this subsection (f)(9), 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.

C)        Demonstration

of Damage to the Public Interest.  In order to obtain an in camera proceeding

under this subsection (f)(9), the government shall demonstrate, through the

submission of affidavits and 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.

D)        In

Camera Proceedings

i)          Finding

of Identifiable Damage.  Upon finding that the disclosure of some or all of the

information submitted by the government under subsection (f)(9)(C) reasonably

could be expected to cause identifiable damage to the public interest, the

military judge shall conduct an in camera proceeding.

ii)         Disclosure

of the Information to the Defense.  Subject to subsection (f)(9)(D)(vi), the government

shall disclose government information for which a claim of privilege has been

made to the accused, for the limited purpose of litigating in camera the

admissibility of the information at trial

le damage to the public interest, the

military judge shall conduct an in camera proceeding.

ii)         Disclosure

of the Information to the Defense.  Subject to subsection (f)(9)(D)(vi), the government

shall disclose government information for which a claim of privilege has been

made to the accused, for the limited purpose of litigating in camera the

admissibility of the information at trial.  The military judge shall enter an

appropriate protective order to the accused and all other appropriate trial

participants concerning the disclosure of the information according to

subsection (f)(7).  The accused shall not disclose any information provided

under this subsection (f)(9)(D)(ii) unless, and until, that information has

been admitted into evidence by the military judge.  In the in camera

proceeding, both parties shall have the opportunity to brief and argue the

admissibility of the government information at trial.

iii)        Standard.

Government information is subject to disclosure at the court-martial proceeding

under this subsection (f)(9)(D)(iii) if the party making the request

demonstrates a specific need for information containing evidence that is

relevant to the guilt or innocence or to punishment of the accused and is

otherwise admissible in the court-martial proceeding.

iv)        Ruling.

No information may be disclosed at the court-martial proceeding or otherwise

unless the military judge makes a written determination that the information is

subject to disclosure under the standard set forth in subsection (f)(9)(D)(iii).

The military judge will specify in writing any information that he or she

determines is subject to disclosure.  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.

v)         Alternatives

to Full Disclosure

t forth in subsection (f)(9)(D)(iii).

The military judge will specify in writing any information that he or she

determines is subject to disclosure.  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.

v)         Alternatives

to Full Disclosure.  If the military judge makes a determination under this

subsection (f)(9) that the information is subject to disclosure, or if the government

elects not to contest the relevance, necessity and admissibility of the

government information, the government may proffer a statement admitting, for

purposes of the court-martial, any relevant facts the information would tend to

prove.  The government may submit a portion or summary to be used in lieu of

the information.  The military judge shall order that the statement, portion or

summary, or some other form of information the military judge finds to be

consistent with the interests of justice, be used by the accused in place of

the government information unless the military judge finds that use of the

government information itself is necessary to afford the accused a fair trial.

vi)        Sanctions.

Government information may not be disclosed over the government's objection.

If the government continues to object to disclosure of the information

following rulings by the military judge, the military judge shall issue any

order that the interests of justice require, including an order:

•           striking

or precluding all or part of the testimony of a witness;

•           declaring

a mistrial;

•           finding

against the government on any issue as to which the evidence is relevant and

necessary to the defense;

•           dismissing

the charges, with or without prejudice; or

•           dismissing

the charges or specifications, or both, to which the information relates.

10)       Appeals

of Orders and Rulings

art of the testimony of a witness;

•           declaring

a mistrial;

•           finding

against the government on any issue as to which the evidence is relevant and

necessary to the defense;

•           dismissing

the charges, with or without prejudice; or

•           dismissing

the charges or specifications, or both, to which the information relates.

10)       Appeals

of Orders and Rulings.  In a court-martial in which a punitive discharge may be

adjudged, the government may appeal an order or ruling of the military judge

that terminates the proceedings with respect to a charge or specification,

directs the disclosure of government information, or imposes sanctions for

nondisclosure of government information.  The government may also appeal an order

or ruling in which the military judge refuses to issue a protective order

sought by the State to prevent the disclosure of government information, or to

enforce such an order previously issued by appropriate authority.  The government

may not appeal an order or ruling that is, or amounts to, a finding of not

guilty with respect to the charge or specification.

11)        Introduction

of Government Information Subject to a Claim of Privilege

A)        Precautions

by Military Judge.  In order to prevent unnecessary disclosure of government

information after there has been a claim of privilege under this subsection (f),

the military judge may order admission into evidence of:

i)          only

part of a writing, recording or photograph; or

ii)         the

whole writing, recording or photograph with excision of some or all of the

government information.

B)        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 subsection

, recording or photograph; or

ii)         the

whole writing, recording or photograph with excision of some or all of the

government information.

B)        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 subsection

(f) without requiring introduction into evidence of the original or a

duplicate.

C)        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 that information has been or is reasonably likely to be the subject

of a claim of privilege under this subsection (f).  Following such an

objection, the military judge shall take suitable action to determine if the

response is admissible, considering whether the action will safeguard against

the compromise of any government information.  The action may include requiring:

i)          the government

to provide the military judge with a proffer of the witness' response to the

question or line of inquiry; and

ii)         the

accused to provide the military judge with a proffer of the nature of the

information the accused seeks to elicit.

12)        Procedures

to Safeguard Against Compromise of Government Information Disclosed to Courts-Martial.

The Secretary of Defense or the Adjutant General may prescribe procedures for

protection against the compromise of government information submitted to

courts-martial and appellate authorities after a claim of privilege. (Il. Mil.

R. Evid. 506)

g)         Identity

of Informants

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

djutant General may prescribe procedures for

protection against the compromise of government information submitted to

courts-martial and appellate authorities after a claim of privilege. (Il. Mil.

R. Evid. 506)

g)         Identity

of Informants

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 this Section, the communications of an informant are not

privileged except to the extent necessary to prevent the disclosure of the

informant's identity.

2)         Who May

Claim the Privilege.  The privilege may be claimed by an appropriate

representative of the United States, 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

A)        Voluntary

Disclosures; Informant as Witness.  No privilege exists under this subsection

(g):

i)          if

the identity of the informant has been disclosed to those who would have cause

to resent the communication by a holder of the privilege or by the informant's

own action; or

ii)         if

the informant appears as a witness for the prosecution.

B)        Testimony

on the Issue of Guilt or Innocence.  If a claim of privilege has been made

under this subsection (g), 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

wn action; or

ii)         if

the informant appears as a witness for the prosecution.

B)        Testimony

on the Issue of Guilt or Innocence.  If a claim of privilege has been made

under this subsection (g), 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 charged, 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 another 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.

C)        Legality

of Obtaining Evidence.  If a claim of privilege has been made under this subsection

(g) with respect to a motion under Section 400.635, the military judge shall,

upon motion of the accused, determine whether disclosure of the identity of the

informant is required by the U.S. Constitution 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 subsection (g), 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 subsection (g), 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

required

under the standards set forth in this subsection (g), 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. (Il. Mil. R. Evid. 507)

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. (Il. Mil. R. Evid. 508)

i)          Deliberations

of Courts and Juries.  Except as provided in Section 400.705(f), the

deliberations of courts, courts-martial, military judges, and grand and petit

juries are privileged to the extent that the deliberations are privileged, but

the results of the deliberations are not privileged. (Il. Mil. R. Evid. 509)

j)          Waiver

of Privilege by Voluntary Disclosure

1)         A

person upon whom this Section confers a privilege against disclosure of a confidential

matter or communication waives the privilege if the person or the 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 subsection (j)(1) does not apply if the disclosure is itself a privileged

communication

communication waives the privilege if the person or the 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 subsection (j)(1) 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. (Il. Mil. R. Evid. 510)

k)         Disclosure

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 this Section

does not affect its privileged character.  Use of electronic means of

communication other than the telephone for transmission of information

otherwise privileged under this Section does not affect the privileged

character of that information if use of electronic means of communication is

necessary and in furtherance of the communication. (Il. Mil. R. Evid. 511)

l)          Comment

Upon or Inference from Claim of Privilege; Instruction

1)         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 from that claim of privilege

ssary and in furtherance of the communication. (Il. Mil. R. Evid. 511)

l)          Comment

Upon or Inference from Claim of Privilege; Instruction

1)         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 from that claim of privilege.

2)         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 from that claim of privilege except when determined by the

military judge to be required by the interests of justice.

3)         In a

trial before a court-martial with members, proceedings must be conducted, to

the extent practicable, so as to facilitate the making of claims of privilege

without the knowledge of the members.  This subsection (l)(3) does not apply to

a special court-martial without a military judge.

4)         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 from the claim except as provided in subsection (l)(2). (Il. Mil. R.

Evid. 512)

m)        Psychotherapist

and Patient Privilege

1)         Definitions.

For purposes of this subsection (m):

A)        "Assistant

to a Psychotherapist" or "Assistant" means a person directed by

or assigned to assist a psychotherapist in providing professional services, or who

is reasonably believed by the patient to be an assistant to a psychotherapist.

B)        "Confidential

Communication" or " Communication" not intended to be disclosed

to third persons other than those to whom disclosure is in furtherance of the

rendition of professional services to the patient or those reasonably necessary

for transmission of the communication

ng professional services, or who

is reasonably believed by the patient to be an assistant to a psychotherapist.

B)        "Confidential

Communication" or " Communication" not intended to be disclosed

to third persons other than those to whom disclosure is in furtherance of the

rendition of professional services to the patient or those reasonably necessary

for transmission of the communication.

C)        "Evidence

of a Patient's Records or Communications" means testimony of a

psychotherapist or assistant psychotherapist, or patient records, that pertain

to communications by a patient to a psychotherapist or assistant to a

psychotherapist for the purposes of diagnosis or treatment of the patient's

mental or emotional condition.

D)        "Patient"

means a person who consults with or is examined or interviewed by a

psychotherapist for purposes of advice, diagnosis or treatment of a mental or

emotional condition.

E)        "Psychotherapist"

means a psychiatrist, clinical psychologist or clinical social worker who is

licensed in any state, territory, possession, the District of Columbia or

Puerto Rico to perform professional services as such, or who holds credentials

to provide these services from any military health care facility, or is a

person reasonably believed by the patient to have the appropriate license or

credentials.

2)         General

Rule of Privilege.  A patient has a privilege to refuse to disclose, and to

prevent any other person from disclosing, a confidential communication made

between the patient and a psychotherapist or assistant, in a case arising under

the UCMJ, if the communication was made for the purpose of facilitating

diagnosis or treatment of the patient's mental or emotional condition.

3)         Who May

Claim the Privilege.  The privilege may be claimed by the patient or the

guardian or conservator of the patient.  A person who may claim the privilege

may authorize trial counsel or defense counsel to claim the privilege on his or

her behalf

, if the communication was made for the purpose of facilitating

diagnosis or treatment of the patient's mental or emotional condition.

3)         Who May

Claim the Privilege.  The privilege may be claimed by the patient or the

guardian or conservator of the patient.  A person who may claim the privilege

may authorize trial counsel or defense counsel to claim the privilege on his or

her behalf.  The psychotherapist or assistant who received the communication

may claim the privilege on behalf of the patient.  The authority of such a

psychotherapist, assistant, guardian, or conservator to so assert the privilege

is presumed in the absence of evidence to the contrary.

4)         Exceptions.

There is no privilege under this subsection (m):

A)        when

the patient is dead;

B)        when

the communication is evidence of child abuse or neglect, or in a proceeding in

which one spouse is charged with a crime against a child of either spouse;

C)        when

federal law, State law, or service regulation imposes a duty to report

information contained in a communication;

D)        when a

psychotherapist or assistant believes that a patient's mental or emotional

condition makes the patient a danger to any person, including the patient;

E)        if the

communication clearly contemplated the future commission of a fraud or crime or

if the services of the psychotherapist are sought or obtained to enable or aid

anyone to commit or plan to commit what the patient knew or reasonably should

have known to be a crime or fraud;

F)         when

necessary to ensure the safety and security of military personnel, military

dependents, military property, classified information or the accomplishment of

a military mission;

G)        when

an accused offers statements or other evidence concerning his or her mental

condition in defense, extenuation or mitigation, under circumstances not

covered by Section 400.615

me or fraud;

F)         when

necessary to ensure the safety and security of military personnel, military

dependents, military property, classified information or the accomplishment of

a military mission;

G)        when

an accused offers statements or other evidence concerning his or her mental

condition in defense, extenuation or mitigation, under circumstances not

covered by Section 400.615.  In these situations, the military judge may, upon

motion, order disclosure of any statement made by the accused to a

psychotherapist as may be necessary in the interests of justice; or

H)        when

admission or disclosure of a communication is constitutionally required.

5)         Procedure

to Determine Admissibility of Patient Records or Communications

A)        In any

case in which the production or admission of records or communications of a

patient other than the accused is a matter in dispute, a party may seek an

interlocutory ruling by the military judge. In order to obtain such a ruling,

the party shall:

i)          file

a written motion at least 5 days prior to entry of pleas specifically

describing the evidence and stating the purpose for which it is sought or

offered, or objected to, unless the military judge, for good cause shown,

requires a different time for filing or permits filing during trial; and

ii)         serve

the motion on the opposing party and the military judge and, if practical,

notify the patient or the patient's guardian, conservator or representative

that the motion has been filed and that the patient has an opportunity to be

heard as set forth in subsection (m)(5)(B).

B)        Before

ordering the production or admission of evidence of a patient's records or

communication, the military judge shall conduct a hearing.  Upon the motion of

counsel for either party and upon good cause shown, the military judge may

order the hearing closed.  At the hearing, the parties may call witnesses,

including the patient, and offer other relevant evidence

ection (m)(5)(B).

B)        Before

ordering the production or admission of evidence of a patient's records or

communication, the military judge shall conduct a hearing.  Upon the motion of

counsel for either party and upon good cause shown, the military judge may

order the hearing closed.  At the hearing, the parties may call witnesses,

including the patient, and offer other relevant evidence.  The patient shall be

afforded a reasonable opportunity to attend the hearing and be heard at the

patient's own expense unless the patient has been otherwise subpoenaed or

ordered to appear at the hearing.  However, the proceedings shall not be unduly

delayed for this purpose.  In a case before a court-martial composed of a

military judge and members, the military judge shall conduct the hearing

outside the presence of the members.

C)        The

military judge shall examine the evidence or a proffer of evidence in camera,

if that examination is necessary to rule on the motion.

D)        To

prevent unnecessary disclosure of evidence of a patient's records or

communications, the military judge may issue protective orders or may admit

only portions of the evidence.

E)        The

motion, related papers, and record of the hearing shall be sealed and shall

remain under seal unless the military judge or an appellate court orders otherwise.

(Il. Mil. R. Evid. 513)

n)         Victim

Advocate and Safe Helpline Privilege

1)         Definitions.

As used in this subsection (n):

A)        "Assistant

to a Victim Advocate" or "Assistant" means a person directed by

or assigned to assist a victim advocate in providing victim and victim advocate

services or who is reasonably believed by the victim to be an Assistant to a

victim advocate

(Il. Mil. R. Evid. 513)

n)         Victim

Advocate and Safe Helpline Privilege

1)         Definitions.

As used in this subsection (n):

A)        "Assistant

to a Victim Advocate" or "Assistant" means a person directed by

or assigned to assist a victim advocate in providing victim and victim advocate

services or who is reasonably believed by the victim to be an Assistant to a

victim advocate.

B)        "Confidential

Communication" or "Communication" means a communication made to

a victim advocate acting in the capacity of a victim advocate that is not

intended to be disclosed to third persons other than:

i)          those

to whom disclosure is made in furtherance of the rendition of advice or

assistance to the victim; or

ii)         an

assistant to a victim advocate reasonably necessary for transmission of the

communication.

C)        "Evidence

of a Victim's Records or Communications" means testimony of a victim

advocate, or record that pertains to communications by a victim to a victim

advocate, for the purposes of advising or providing supportive assistance to

the victim.

D)        "Victim"

means any person who suffered direct physical or emotional harm as the result

of a sexual or violent offense.

E)        "Victim

Advocate" means a person who is:

i)          designated

in writing as a victim advocate;

ii)         authorized

to perform victim advocate duties in accordance with service regulations, and

acting in the performance of those duties; or

iii)        certified

as a victim advocate pursuant to federal or State requirements.

2)         General

Rule of Privilege.  A victim has a privilege to refuse to disclose, and to

prevent any other person from disclosing, a confidential communication between

the victim and a victim advocate, in a case arising under the UCMJ, if that

communication was made for the purpose of facilitating advice or supportive

assistance to the victim.

3)         Who May

Claim the Privilege

nts.

2)         General

Rule of Privilege.  A victim has a privilege to refuse to disclose, and to

prevent any other person from disclosing, a confidential communication between

the victim and a victim advocate, in a case arising under the UCMJ, if that

communication was made for the purpose of facilitating advice or supportive

assistance to the victim.

3)         Who May

Claim the Privilege.  The privilege may be claimed by the victim or any

guardian or conservator of the victim.  A person who may claim the privilege

may authorize trial counsel or a defense counsel representing the victim to

claim the privilege on his or her behalf.  The victim advocate who received the

communication may claim the privilege on behalf of the victim.  The authority

of the a victim advocate, guardian or conservator, or a defense counsel

representing the victim, to so assert the privilege is presumed in the absence

of evidence to the contrary.

4)         Exceptions.

There is no privilege under this subsection (n):

A)        when

the victim is dead;

B)        when federal

law, State law or service regulation imposes a duty to report information

contained in a communication;

C)        if the

communication clearly contemplated the future commission of a fraud or crime or

if the services of the victim advocate are sought or obtained to enable or aid

anyone to commit or plan to commit what the victim knew or reasonably should

have known to be a crime or fraud;

D)        when

necessary to ensure the safety and security of military personnel, military

dependents, military property, classified information or completion of a

mission;

E)        when

necessary to ensure the safety of any other person (including the victim) when

a victim advocate believes that a victim's mental or emotional condition makes

the victim a danger; or

F)         when

admission or disclosure of a communi­cation is constitutionally required

litary personnel, military

dependents, military property, classified information or completion of a

mission;

E)        when

necessary to ensure the safety of any other person (including the victim) when

a victim advocate believes that a victim's mental or emotional condition makes

the victim a danger; or

F)         when

admission or disclosure of a communi­cation is constitutionally required.

5)         Procedure

to Determine Admissibility of Victim Records or Communications

A)        In any

case in which the production or admission of records or communications of a

victim is a matter in dispute, a party may seek an interlocutory ruling by the

military judge.  In order to obtain such a ruling, the party shall:

i)          file

a written motion at least 5 days prior to entry of pleas specifically

describing the evidence and stating the purpose for which it is sought or

offered, or objected to, unless the military judge, for good cause shown,

requires a different time for filing or permits filing during trial; and

ii)         serve

the motion on the opposing party and the military judge and, if practical,

notify the victim or the victim's guardian, conservator or representative that

the motion has been filed and that the victim has an opportunity to be heard as

set forth in subsection (n)(5)(B).

B)        Before

ordering the production or admission of evidence of a victim's records or

communication, the military judge shall conduct a hearing. Upon the motion of

counsel for either party and upon good cause shown, the military judge may

order the hearing closed.  At the hearing, the parties may call witnesses,

including the victim, and offer other relevant evidence.  The victim shall be

afforded a reasonable opportunity to attend the hearing and be heard at the

victim's own expense unless the victim has been otherwise subpoenaed or ordered

to appear at the hearing.  However, the proceedings shall not be unduly delayed

for this purpose

hearing closed.  At the hearing, the parties may call witnesses,

including the victim, and offer other relevant evidence.  The victim shall be

afforded a reasonable opportunity to attend the hearing and be heard at the

victim's own expense unless the victim has been otherwise subpoenaed or ordered

to appear at the hearing.  However, the proceedings shall not be unduly delayed

for this purpose.  In a case before a court-martial composed of a military

judge and members, the military judge shall conduct the hearing outside the

presence of the members.

C)        The

military judge shall examine the evidence or a proffer thereof in camera, if that

examination is necessary to rule on the motion.

D)        To

prevent unnecessary disclosure of evidence of a victim's records or

communications, the military judge may issue protective orders or may admit

only portions of the evidence.

E)        The

motion, related papers, and record of the hearing shall be sealed and shall

remain under seal unless the military judge or an appellate court orders

otherwise. (Il. Mil. R. Evid. 514)