# 95 Ill. Adm. Code 400.700: Section 400.700 Privilege

> Illinois · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_700

## Section

- **Citation:** 95 Ill. Adm. Code 400.700
- **Heading:** Section 400.700 Privilege
- **Jurisdiction:** Illinois
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Illinois Administrative Code / Title 95 VETERANS AND MILITARY AFFAIRS / CHAPTER II: DEPARTMENT OF MILITARY AFFAIRS / Part 400 ILLINOIS MANUAL FOR COURT-MARTIAL AND NONJUDICIAL PUNISHMENT / Section 400.700 Privilege

## Text

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)

## Nearby sections

- [95 Ill. Adm. Code 400.600 Section 400.600  General](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_600.md)
- [95 Ill. Adm. Code 400.605 Section 400.605  Judicial Notice](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_605.md)
- [95 Ill. Adm. Code 400.610 Section 400.610  Self-Incrimination](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_610.md)
- [95 Ill. Adm. Code 400.615 Section 400.615  Privilege Concerning Mental Examination of an Accused](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_615.md)
- [95 Ill. Adm. Code 400.620 Section 400.620  Confessions; Admissions; Statements](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_620.md)
- [95 Ill. Adm. Code 400.625 Section 400.625  Warnings About Rights](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_625.md)
- [95 Ill. Adm. Code 400.630 Section 400.630  Standards for Nonmilitary Interrogations](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_630.md)
- [95 Ill. Adm. Code 400.635 Section 400.635  Evidence Obtained from Unlawful Searches and Seizures](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_635.md)
- [95 Ill. Adm. Code 400.640 Section 400.640  Body Views and Intrusions](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_640.md)
- [95 Ill. Adm. Code 400.645 Section 400.645  Inspections and Inventories in the Armed Forces](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_645.md)
- [95 Ill. Adm. Code 400.650 Section 400.650  Searches](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_650.md)
- [95 Ill. Adm. Code 400.655 Section 400.655  Seizures](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_655.md)
- [95 Ill. Adm. Code 400.660 Section 400.660  Eyewitness Identification](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_660.md)
- [95 Ill. Adm. Code 400.665 Section 400.665  Relevant Evidence](https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_665.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/STATE_IL_IAC_T95_P400_S400_700. Check the current official text before relying on it. Not legal advice.