We occasionally receive questions about whether communications between a husband and wife are admissible in a court-martial.
The basic rule is in Military Rule of Evidence 504. The rule basically provides that a person has a privilege to refuse to testify against his or her spouse during and after the marriage about communications while they were married.
Like all things in the law, there are exceptions when it does not apply:
-When both spouses are participants in illegal activity;
-When one spouse is charged with a crime against the other spouse or a child;
-When the marriage was a sham marriage;
-When one spouse is being used by the other for human trafficking.
I've spent the last week trying a major sexual assault case at Fort Bragg. An Army master sergeant was accused of raping his adult biological daughter. It's a rare type of accusation. Our expert psychiatrist searched over 12 million records in a medical database and could not find any literature on the topic.
Fight Over the Definition of Reasonable Doubt in the Air Force Headed to the Military's Highest Court
As a litigator, I can say that I have memorized the definition of reasonable doubt in each of the branches. Many times I have stood in front of a jury and discussed that definition.
Each of the branches has slightly different definitions of reasonable doubt. The definition of reasonable doubt can often mean the difference between guilt or innocence.
In an interesting development, 23 June 2016, the Court of Appeals for the Armed Forces granted review in an Air Force case over the definition of reasonable doubt. See United States v. McClour. The Court is going to examine whether there is an inconsistent application of the definition of reasonable doubt between the branches.
The Air Force defines reasonable doubt under the "firmly convinced" standard:
A “reasonable doubt” is a conscientious doubt, based upon reason and common sense, and arising from the state of the evidence. Some of you may have served as jurors in civil cases, or as members of an administrative board, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government’s proof must be more powerful than that.
It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the accused’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find the accused guilty. If, on the other hand, you think there is a real possibility that the accused is not guilty, you must give the accused the benefit of the doubt and find the accused not guilty.
We like the Army the definition - and I hope we don't lose it in this case. The Army definition states that the evidence must exclude every fair and rational hypothesis except for that of guilt. I have won many cases referencing that standard in closing:
A “reasonable doubt” is not a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt suggested by the material evidence or lack of it in the case. It is an honest misgiving generated by insufficiency of proof of guilt. “Proof beyond a reasonable doubt” means proof to an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt.
The Navy and Marine Corps uses a definition that talks about general misgivings:
By reasonable doubt is intended not a fanciful, speculative, or ingenious doubt or conjecture, but an honest and actual doubt suggested by the material evidence or lack of it in the case. It is a genuine misgiving caused by insufficiency of proof of guilt. Reasonable doubt is a fair and rational doubt based upon reason and common sense and arising from the state of the evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the accused's guilt.
There are very few things in this world that we know with absolute certainty, and in criminal cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him/her guilty. If, on the other hand, you think there is a real possibility that he/she is not guilty, you shall give him/her the benefit of the doubt and find him/her not guilty.
I will be watching this case with great interest to see whether we wind up with a uniform definition of reasonable doubt.
A copy of the grant order and a Motion for Appropriate Relief that the accused filed in Mclour is attached for some light reading. Hats off to the Air Force appellate attorneys for preparing a draft motion for others to use.