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nich gut wife were legally one person. Because of per

separate problems involving testimony by W. rule of competency is subject to the general rule CON

First there is the husband and wife privilege of privilege which entitles both to prohibit the concerning the use of a spouse's testimony, the use of one of them as a witness against the competency rule, and second, the husband and other. That is clear enough. But the general wife privileged communication rule. The rules rule of privilege has been made subject to excep

tions, and in this area difficulties arise. The are based on public policy of long standing but are different.

hypothetical factual situation set up at the be

ginning of this article is intended to illustrate But pretrial preparation limited to a study of

one of the exceptions to this rule of privilege and the Manual for Courts-Martial for the applicable

some possible situations which have arisen, and rules of evidence is inadequate. For interpreta

may arise, in courts-martial. W was one of the tions of these rules and their applications in

persons injured by the offenses charged against varied factual situations, a search must be made

H. W is a necessary witness for the proof of of the decisions of the Court of Military Appeals

the two specifications alleging assault consumand of the published decisions of the Boards of

mated by a battery. Review of the Armed Forces as published in the Court-Martial Reports. Our system of military COMPELLING INJURED SPOUSE TO TESTIFY law under the Uniform Code of Military Justice

The case of United States v. Moore? is disis still a young body of law. Many legal prob

positive of several issues, has clarified the exceplems which are raised in court-martial practice

tion to the rule of privilege under the Uniform have not yet reached the Court of Military Ap

Code of Military Justice, and has brought the peals or one of the Boards of Review for decision.

application of the rule into line with the rule In those instances the researcher must seek legal

prevailing in the Federal courts. Moore was authorities from outside the realm of military

charged with four specifications of assault and law. The facilities of the District Legal Office,

battery on his wife. Over her repeated objecBase, Station, or Staff Legal Office should be

tions Mrs. Moore was compelled to testify used.

against her husband. On the basis of her testiTHE TESTIMONIAL PRIVILEGE

mony he was convicted on all four specifications. Since there are two separate rules involved,

The first issue before the Court of Military Apthe husband and wife privilege prohibiting the

peals was “. . . whether, in view of her objecuse of testimony by one against the other will be discussed first. While it is not the purpose of

tion, Mrs. Moore was properly compelled to this article to go into the historical background

testify against her husband." ,

Mrs. Moore of this rule, a brief comment is appropriate as was the injured party and was injured by the to why this is placed under a rule pertaining to

offenses with which the accused was charged. competency of witnesses. Under the common

The reported facts do not show whether or not law neither a husband nor a wife was permitted Mrs. Moore brought the offenses to the attention to be a witness either for or against the other. of military authorities. The Court briefly reThis was under the theory that a husband and stated the policy behind the rule giving both a

husband and wife a privilege to prohibit the use sonal interest the one testifying would be biased

of one of them as a witness against the other. and tend to distort his or her testimony. It was

In reviewing this rule as set forth by the United also based on public policy believing that it

States Supreme Court, the Court of Military would cause domestic strife and disrupt the marriage relationship. This was the general rule

Appeals stated : followed in the Federal courts of the United Both tradition and modern practice recognize an exStates until the United States Supreme Court in ception to the rule. The exception deals with offenses 1933 expressly ruled that a wife was not incom

by one spouse against the other. In such cases, the petent to testify in behalf of her husband, the

policy of the law is vindicated by recognizing that the defendant in a Federal court on a criminal

victim still has the right to refuse to testify, although offense.

the defendant-spouse, by the injury, forfeits the right

to prevent the victim-spouse from testifying. In other The Manual states that under military law a words, the general rule is that, as to offenses against husband and wife are competent to testify as third persons, one spouse cannot testify against the witnesses both for and against each other. This defendant-spouse over objection; as to offenses 3. United States v. Trudeau, 8 USCMA 22, 23, 23 CMR 246, 247 6. MCM, 1951, par. 148e.

7. 14 USCMA 635, 34 CMR 415 (1964). 4. 58 Am. Jur., Witnesses, sec. 175.

8. Id. at 639, 34 CMR at 419. 5. Funk v. United States, 290 U.S. 371 (1933).

9. Id. at 636, 34 CMR at 416.

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against the spouse, the victim-spouse may testify voluntarily, but cannot be compelled to testify over her protest.“ (Emphasis supplied.)

The Court reviewed the language of the Manual, paragraph 148e, at page 277, to determine if a rule of law had been created under which an injured spouse could be compelled to testify against the other spouse over the objection of the witness, or if Manual statement of the rule and exception was no more than a comment on the rule prevailing in the Federal courts. The accused, of course, as the person inflicting the injury had no standing to invoke the privilege. The Court noted that there was one Congressional enactment 11 which made a husband and wife competent as witnesses for or against each other, but not compellable as witnesses for or against each other. That portion of the Legal and Legislative Basis, quoted above, stating that an injured spouse may be compelled to testify against the other spouse, was considered to be a “supposition" and not a statement of the Manual rule. The rule of military law is the rule prevailing in the Federal courts. Accordingly, the Court of Military Appeals held that it was improper to compel Mrs. Moore to testify against her husband over her objections.


STANDING OF ACCUSED TO OBJECT The second issue involved in Moore was whether or not the accused, who had lost his personal privilege of prohibiting his wife's testimony, had any "standing to seek reversal of his conviction because of the erroneous denial of the wife's privilege to refuse to testify." 12 The Court of Military Appeals then reviewed the public policy behind the rule of testimonial privilege by a spouse. The Court noted that if the accused was denied standing to raise the error, then there would be no other person who could raise the issue, nor any other forum in which the error could be righted. Thus, if the rule of testimonial privilege could be ignored, this long standing public policy would be thwarted, and the rule might as well be stricken from the rules of evidence. The Court held that the accused did have standing to raise the error on appeal. The issue was before the Court and the error was corrected. The findings of guilty and the sentence were set aside. The Court noted that the wife's testimony was the sole basis for his conviction.13

As noted by Judge Kilday in his concurring opinion, the Moore case was not one of first im10. Id. at 637, 34 CMR at 417, 11. Title 14, District of Columbia Code, 1961 edition, Section 14-306. 12. United States v. Moore, supra note 7, at 640, 34 CMR at 420. 13. Id. at 642, 34 CMR at 422.

pression before the Court of Military Appeals." Prior to summarizing the import of Moore, it is appropriate to review the previously decided and published cases pertaining to the issue of compellability under the rule of testimonial privilege by a spouse.

The issue of compellability requiring an injured spouse to testify against her husband first came before the Court of Military Appeals in United States v. Strand.15 The wife was subpoenaed by the government. She had "testified that the court-martial proceeding was ‘against... (her) objections', and that she was told that 'if ... (she) didn't come ... (she) would get thrown in jail' " 16 The accused had claimed the privilege, but his claim was denied on the grounds that the wife was an injured party by reason of the accused's abandonment of her. The Court noted that the wife did not specifically refuse to testify nor did she specifically claim the privilege under the rule of marital privilege. The Court declined to decide the issue of compellability, finding that other witnesses and the testimony of the accused covered all the material evidence given by the wife. Therefore, the wife's testimony was not prejudicial. In light of the Moore decision, it would seem that the injured spouse witness would not be required to observe the specific legal technicalities of stating that she was refusing to testify under her privilege granted by the Husband and Wife Rule. An ultimatum to appear as a witness against your husband or be imprisoned certainly sounds involuntary and compelling.

In United States v. Moore the government relied on two prior decisions under military law. In United States v. Leach,18 the accused was charged with wrongful cohabitation, adultery, and an allegation of fraud. His wife was called as a witness for the government. At the beginning of her testimony she stated, "if ... permitted, I would not like to testify against my husband.” 19 The accused objected to her testimony. That objection was overruled and the wife was ordered to answer trial counsel's questions. Out of this arose the issue of the appeal. Each Judge wrote a separate opinion. Judge Latimer, the author of the principal opinion, stated at the beginning that the only issue dispositive of the appeal was whether or not the accused was prejudiced by his wife's testimony. But since this area of law was important in 14. Id. at 643, 34 CMR at 423. 15, 6 USCMA 297, 20 CMR 13 (1955). 16. Id. at 304, 20 CMR at 20. 17. Supra note 7. 18. 7 USCMA 388, 22 CMR 178 (1956). 19. Id, at 392, 22 CMR 182.



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:d and testify against the spouse responsible for the isels injury. In that circumstance the witness spouse

military law, his opinion would discuss the issue Again, where the testimony of the injured come i of compellability of an injured spouse and spouse, even though compelled over objection by derile whether or not an accused spouse had any stand the witness claiming the privilege, is merely

cumulative and other material evidence estabing to raise on appeal such error, if any. The timoni principal opinion indicated that the wife was an lishes all of the elements of the offense charged,

injured party by an act of adultery by the hus the erroneously compelled testimony will not be

band. The offending party, the husband, lost held prejudicial and requiring reversal of the and his

the privilege to prohibit the wife's testimony. conviction. As the injured party, the wife could be com

WHAT OFFENSES INJURE THE SPOUSE? pelled to testify and the accused-husband had no

Another problem is the determination of what standing to complain of error, even if the

offenses committed by one spouse will be conwitness-wife was erroneously compelled to

sidered as an offense injuring the other spouse testify against the husband. However, Judge

thereby coming within the exception. Stated Latimer specifically declined to decide if the

another way, when will the defendant-spouse be Manual rule was one of compellability requiring

considered to have lost his privilege to prohibit an injured spouse to testify against her will.20

the use of the testimony of the other spouse? Judges Latimer and Ferguson concluded that

The Manual lists the following offenses which the wife's testimony was cumulative and did not

come under the exception: prejudice the accused and this was the basis of the majority's holding. However, Judge

prosecution for an assault upon one spouse by

the other, for bigamy, polygamy, unlawful cohabitaFerguson, in his concurring opinion, indicated

tion, abandonment of wife or children or failure to that adultery was an offense against the wife.

support them, for using or transporting the wife for While not deciding on the issue of compellabil

“white slave" or other immoral purposes, or for fority, he considered that the accused would not

gery by one spouse of the signature of the other to have any standing to raise the issue. In a sepa

a writing when the writing would, if genuine, aprate opinion Chief Judge Quinn stated that he

parently operate to the prejudice of such other. would hold that adultery is not such an offense

In prosecutions under the White Slave Traffic against the wife as would permit her to testify

Act or Mann Act 24 when the husband is being over an accused-husband's objection. Also the wife could not be compelled to testify over her

prosecuted for transporting the wife in inter

state or foreign commerce for the purposes of objection, and the accused-husband should have

prostitution or other immoral purposes, the wife standing to raise the error on appeal if the wit

is a competent witness against the husband. ness spouse was erroneously compelled to testify.

Further, the wife may be compelled to testify The second case on which the Government relied in United States v. Moore was United

against the husband over her personal claim of States v. Riska.21 In the latter case the wife was

privilege.25 The majority opinion in Wyatt conthe victim of an assault with a dangerous

sidered that the Congressional policy and the

intent of Congress required the denial of the weapon. The accused-husband was the offender. At the trial the wife objected to testifying

privilege in Mann Act prosecutions. But in a

Mann Act prosecution the wife and the husband against her husband. Over objection by the defense, the wife was directed to testify. A

may invoke the privilege when the husband is Board of Review held under the Manual, para

not charged with transporting the wife but is graph 148e, that under military law an injured

charged with transporting another woman.26

The Court of Military Appeals has considered spouse does not have a privilege to refuse to

the list of offenses set forth in the Manual, para

graph 148e, which offenses are examples of inmay be compelled to testify. The Court in Moore

jurious acts by one spouse against another. stated that the denial of Riska's petition for In fact, we have several times held that the latter al online review by the Court of Military Appeals was not

part of the paragraph is merely “illustrative", i.e., conclusive of the issue and concluded:

discoursive, and indicative only of the ordinary rule The record of trial showed the accused's own testimony

of evidence recognized in the Federal courts. (cases amounted to a judicial confession of guilt of the assault charge. There was, therefore, no good cause for

The Court concluded that the Manual, parafurther review, and we denied the petition.”

23. MCM, 1951, par, 148e.
20. ld. at 400, 22 CMR 190.

24. 18 U.S.C. 2421.
21. ACM 18521, Riska, 33 CMR 939 (1963), petition for review de 25. Wyatt v. United States, 362 U.S. 525 (1960).
nied, 14 USCMA 684, 33 CMR 436 (1963).

26. Hawkins v. United States, 358 U.S. 74 (1938).
22. Supra note 7 at 640, 34 CMR at 420.

27. Supra note 7 at 639, 34 CMR at 419.

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graph 148e, did not create a new rule of law, or new rule of evidence. The Manual rule does

One spouse has been held to be competent to

voluntarily testify against an accused spouse in no more than comment on the prevailing rule in Federal courts. The commission of any of

a bigamy prosecution.93 the listed offenses by a defendant-spouse against

The Manual, paragraph 148e, lists “abandon

ment of wife or children or failure to support the other spouse, does not remove the privilege them” as an offense injurious to the wife under from the witness spouse and give a court the the marital privilege rule. In United States v. right to compel the testimony of the witness Strand,34 in an opinion by Chief Judge Quinn, spouse.

the Court of Military Appeals held: The Court of Military Appeals has indicated It is also clear that injury to a testifying spouse is not that this illustrative list of offenses which may confined to physical wrong but includes injury to perbe injurious to one spouse will not be enlarged sonal rights. See: United States v. Ryno, 130 F Supp by judicial decision. The offense of sodomy is 685 (SD Calif). The Manual does not define the full not listed. A majority of the Court of Military scope of the exception, and neither need we mark out Appeals has declined to hold that sodomy com

its metes and bounds. mitted with a third person is an offense person

Abandonment is a spousal injury which falls within ally injurious to a wife. An accused-spouse

the exception to the general rule ....* may assert the privilege, and the wife may not It must be noted that abandonment is a testify against her defendant husband.28

factual issue which must be proved by the In a case where the accused was charged with prosecution in the same manner as any other the murder of his minor daughter, a Board of factual issue. Under an abandonment situation, Review held that the accused's wife could not the parties remain legally married. Therefore, testify against him over his objection since the in view of United States v. Moore, the abandoned offense charged was not an offense against the spouse could claim the marital privilege and rewife.29 In the same decision the Board of Re fuse to testify against the accused spouse. This view held that since the wife was incompetent statement in United States v. Strand that to testify against her husband, it was improper abandonment of a spouse is an injury within the to permit a physician to relate to the court the exception to the marital privilege rule differs contents of the wife's statements concerning the from the common law rule. Under the common offense charged against the accused.

law the offense against the witness spouse had The most recent case in this area, and one to be a physical assault, personal violence, or an which contains an excellent review of authori attempt or offer to do physical harm.36 ties, is United States v. Massey.30 Judge Fergu The question of the forgery of the wife's name son, writing for the majority, held that "the

to a government dependency allotment check offense of carnal knowledge, even when incestu

has been considered by the Court of Military ous, is not a direct injury to a spouse, which Appeals. In United States v. Wooldridge, 37 the causes her testimony to fall without the ac

accused-husband and his wife were not living cused's properly invoked privilege.” 31 The

together. The wife refused to join the husband Court was convinced "that the proper approach

at his duty station. The accused cashed four alto consideration of whether an offense charged

lotment checks made out to the wife by endorsagainst one spouse injured the other depends not

ing the wife's name on each check. The wife upon the outrage to her sensibilities or a viola

testified over the accused's objection, and tion of marital bonds, but upon some direct con

against her wishes, that none of the endorsenection with her person or property. Almost

ments on the checks were made by her or with any crime by one of the spouses can be said to

her authority, and that the endorsements were affect the nature and status of the regard of the

made by her husband. On appeal the accused parties to the marriage one for the other ..

assigned as error the law officer's ruling permitBut if the exception to the privilege is not

ting his wife to testify against him. The prinlimited to a direct invasion of the wife's rights,

cipal opinion by Chief Judge Quinn held that the the rule will soon be judicially eliminated." 32

evidence of record was insufficient to show that 28. United States v. Parker, 13 USCMA 579, 33 CMR 111 (1963).

the accused's actions resulted in injury to the While not a part of the subject matter of this article, the Parker decision contains a helpful dissertation on the questions of proof wife. Failing to show such injury, the wife's of marriage and divorce. Questions of proof of the existence of

testimony was inadmissible. The principal the marriage relationship or the termination thereof may be a

1 preliminary issue prior to the assertion of the privilege.

33. United States v. Wise, 10 USCMA 539, 28 CMR 105 (1959).

34. Supra note 15. 29. ACM 7732, Hanley, 14 CMR 927 (1954),

35. Id. at 304, 20 CMR at 20. 30. 15 USCMA 274, 35 CMR 246 (1965).

36. 58 Am. Jur., Witnesses, secs. 193 and 202. 31. Id. at 282, 35 CMR at 254.

37. 10 USCMA 510, 28 CMR 76 (1959). 32. Ibid.


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opinion discussed whether or not a husband had name, since the crime of forgery is not considered

as a crime against the person within the meaning of a property interest in an allotment check con

the common law exception (23 Am Jur, Forgery, Secsidering his contribution thereto, his liability

tion 65; Meade v. Commonwealth, 186 Va 775, 43 to the government for over-payments, and the

SE 2d 848, Anno 173 ALR 378; see also Anno 11 husband's position as head of the household.

ALR 2d 646).
Without deciding the question, Chief Judge

In any event, whatever eventually may be military
Quinn indicated that if the husband has a vested

law regarding a husband's implied authorization to interest in the allotment check, he may have

sign allotment checks, and thus negate forgery, implied authority to cash the check and use the

we see no inclination on the part of the Court of proceeds for the common purposes of his family.

Military Appeals to depart from the ordinary common If that was the situation, the wife would not be

law rules.co injured under the rule of the Manual, paragraph

In both Wooldridge and Wise, the majority of 148e. Judge Ferguson concurred in the result,

the Court decided only the issue of the testiindicating his belief that there was insufficient

monial competency of the wife on the basis of showing of injury to the wife to establish her

the facts in each case. The common law rule of competency as a witness over the accused's ob

marital privilege as it pertains to forgery was jection. Specifically not decided was whether

noted, but its application to military law was or not the husband had a sufficient property

not decided. Under the decision of United interest in the check to bar a conviction of for

States v. Moore, 41 the witness spouse would have gery of the check. Judge Latimer dissented on

the right to claim the privilege and refuse to the basis that the wife was injured by the

testify against the accused-husband. The hisaccused's forgery of the wife's signature on the

torical application of the rule would appear to check.

hold that forgery of the wife's signature is not In United States v. Wise,38 the accused was

such an injury to the wife as to permit the use charged with forging the signature of his wife

of her voluntary testimony over the accusedto nine allotment checks among other offen

husband's objection. 42
ses. By deposition, the wife testified that she
did not endorse any of the checks, nor had she

authorized the accused to sign her name to the
checks. The accused's testimony showed that

The Manual rule, paragraph 148e, is that the the wife had refused to live with him, had lived marital privilege "may be waived by the consent, with another man, had been aware that the ac

express or implied, of both spouses to the use cused had cashed some of the checks, had re

of one of them as a witness against the other." ceived a portion of the proceeds of one check,

In a case when the wife was called by the governand had stated her indifference as to what the

ment and gave material testimony concerning accused did with the checks. In the majority

the accused's intent to desert, a Board of Review opinion by Chief Judge Quinn concurred in by held that the privilege had been waived by the Judge Ferguson the Court held that the sign

failure of both the accused and the wife to ing of the wife's name to the checks did not con object. The Board specifically noted that the stitute an injury to the wife. Therefore, she accused was represented by qualified counsel.43 was not competent to testify against the ac

There is language in Hawkins v. United States 44 cused over his objection. The majority indi

that indicates both spouses may consent to the cated that the husband had “a substantial in testimony of one against the other. This should terest in the check and its proceeds." 39 The

imply a recognition of the doctrine of waiver, majority of the Court did not specifically decide

since the rule is one of privilege which may be whether the husband had a sufficient property

asserted. interest in the check which would bar his con

In one reported case prejudicial error was as

signed by reason of the accused's wife being comWhile not an issue in the decision, a Board pelled to appear as a government witness, thus of Review included the following interpretation

forcing the accused to assert his privilege before of United States v. Wooldridge and United 40. ACM 16252, Wilson, 28 CMR 844, 852 (1959). See also 58 Am. States v. Wise in its opinion:

Jur., Witnesses, sec. 197,

41. Supra note 7. It should be noted also that under the common law

42. See United States v. McFerrin, 11 USCMA 31, 28 CMR 255, 259 rule a wife is not competent as a witness against

(1959) for problems of prosecution of an accused for forgery of

the wife's allotment check where the wife is not called as a the husband in a prosecution for forgery of her

43. CGCM 9832, Yzaguirre, 19 CMR 585 (1955).
44. Supra note 26.

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38. Supra note 33.
39. Id. at 542, 28 CMR at 108.

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