The Court stated that had the note been obtained by the prosecution through the connivance of the wife, then the privileged communication prohibition would have been applicable. In United States v. Guidry,69 a prosecution for bigamy, the prosecution introduced into evidence over defense objection a letter written by the accused to his alleged first wife. The accused had denied that he had entered into the alleged first marriage. The letter was introduced to rebut the accused's denial. The Board found that the letter was a confidential communication between spouses and was privileged. The government contended that the accused had waived the privilege by showing or disclosing the contents of the letter to his purported second wife. But the Board found that the disclosure to wife #2, if any, had been made after the first wife had received the letter and after the government had obtained possession of it from her. Without citing authority, the Board noted that waiver was usually found only in the cases where disclosure was made prior to dispatch of the communication.

The doctrine of waiver was involved in United States v. Trudeau.70 In an effort to bolster his own testimony, the accused recounted to the court-martial the contents of a conversation that he had with his wife concerning the offense of which the accused was charged. Over the defense objection, the accused's wife was called as a prosecution witness. Her testimony did not corroborate that of the accused. The Court of Military Appeals held that there was a confidential communication between husband and wife. But the accused, as the one communicating, had voluntarily thrown the subject open; therefore, he was subject to cross-examination, and the government had the right to challenge his credibility on the content of his voluntary disclosures.

A Navy Board of Review held that where the accused had abandoned the marriage relationship, had gone through marriage ceremonies

68. Id. at 317, 20 CMR at 33.

69. CM 393338, 22 CMR 615 (1956).

70. Supra note 3.

with two other women, and had written an incriminating letter to his first wife about twentytwo months after the abandonment, the accused did not have a right to the marital communication privilege in order to keep that letter out of evidence. The Board found that the marriage relationship had ceased to exist despite the fact that there was no judicial decree of separation."1 The decision indicates that the letter was written after the accused had been charged with bigamy and the accused was asking the wife to obtain an annulment.

A revengeful ex-wife disclosed information of the accused's misconduct during the period of their marriage. The agents of the government investigated and obtained admissible evidence against the accused. The ex-wife did not testify nor did anyone testify to the content of any privileged communication. The evidence came from official records and independent sources. There was no wrongful act by the agents of the government nor any connivance with the ex-wife. The Court of Military Appeals held that the privilege of marital communications had no application on those facts. The Court refused to extend this exclusionary rule "to non-testimonial evidence," 72 stating:

We, too, believe the marital privilege has no applicability to extra-judicial occurrences, where the spouse does not herself testify and no privileged communication is introduced into evidence.TM

While the ex-wife had disclosed to government investigators information which she had obtained from the accused during the existence of the marital relationship, the right to claim the privilege is limited to the prohibition of testimony during a trial or judicial proceedings.

The rule is a rule of evidence limited to testimonial disclosures of the content of privileged communications exchanged during the existence of the marriage relationship, and between the parties to a valid marriage. Its application is limited to the prohibiting of the testimony of one's spouse. Third parties obtaining knowledge of the content of the privileged communication are not prohibited from testifying under the rule. This privilege does not extend to communications made between the parties prior to the marriage. It does apply to the husband and wife after the marriage has been terminated as far as to confidential communications between the parties during the existence of the marriage.

71. WC NCM 62-00346, McDonald, 32 CMR 689 (1962). 72. United States v. Seiber, 12 USCMA 520, 31 CMR 103 (1961). 73. Id. at 523, 31 CMR at 109.

graph 148e, did not create a new rule of law, or new rule of evidence. The Manual rule does no more than comment on the prevailing rule in Federal courts. The commission of any of the listed offenses by a defendant-spouse against the other spouse, does not remove the privilege from the witness spouse and give a court the right to compel the testimony of the witness

spouse.

The Court of Military Appeals has indicated that this illustrative list of offenses which may be injurious to one spouse will not be enlarged by judicial decision. The offense of sodomy is not listed. A majority of the Court of Military Appeals has declined to hold that sodomy committed with a third person is an offense personally injurious to a wife. An accused-spouse may assert the privilege, and the wife may not testify against her defendant husband.28

In a case where the accused was charged with the murder of his minor daughter, a Board of Review held that the accused's wife could not testify against him over his objection since the offense charged was not an offense against the wife.29 In the same decision the Board of Review held that since the wife was incompetent to testify against her husband, it was improper to permit a physician to relate to the court the contents of the wife's statements concerning the offense charged against the accused.

The most recent case in this area, and one which contains an excellent review of authorities, is United States v. Massey.30 Judge Ferguson, writing for the majority, held that "the offense of carnal knowledge, even when incestuous, is not a direct injury to a spouse, which causes her testimony to fall without the accused's properly invoked privilege." 31 The Court was convinced "that the proper approach to consideration of whether an offense charged against one spouse injured the other depends not upon the outrage to her sensibilities or a violation of marital bonds, but upon some direct connection with her person or property. Almost any crime by one of the spouses can be said to affect the nature and status of the regard of the parties to the marriage one for the other But if the exception to the privilege is not limited to a direct invasion of the wife's rights, the rule will soon be judicially eliminated." 32

28. United States v. Parker, 13 USCMA 579, 33 CMR 111 (1963). While not a part of the subject matter of this article, the Parker decision contains a helpful dissertation on the questions of proof of marriage and divorce. Questions of proof of the existence of the marriage relationship or the termination thereof may be a preliminary issue prior to the assertion of the privilege.

29. ACM 7732, Hanley, 14 CMR 927 (1954).

30. 15 USCMA 274, 35 CMR 246 (1965).

31. Id. at 282, 35 CMR at 254.

32. Ibid.

One spouse has been held to be competent to voluntarily testify against an accused spouse in a bigamy prosecution.33

The Manual, paragraph 148e, lists "abandonment of wife or children or failure to support them" as an offense injurious to the wife under the marital privilege rule. In United States v. Strand, in an opinion by Chief Judge Quinn, the Court of Military Appeals held:

It is also clear that injury to a testifying spouse is not confined to physical wrong but includes injury to personal rights. See: United States v. Ryno, 130 F Supp 685 (SD Calif). The Manual does not define the full scope of the exception, and neither need we mark out its metes and bounds.

Abandonment is a spousal injury which falls within the exception to the general rule . . . .

It must be noted that abandonment is a factual issue which must be proved by the prosecution in the same manner as any other factual issue. Under an abandonment situation, the parties remain legally married. Therefore, in view of United States v. Moore, the abandoned spouse could claim the marital privilege and refuse to testify against the accused spouse. This statement in United States v. Strand that abandonment of a spouse is an injury within the exception to the marital privilege rule differs from the common law rule. Under the common law the offense against the witness spouse had to be a physical assault, personal violence, or an attempt or offer to do physical harm.86

The question of the forgery of the wife's name to a government dependency allotment check has been considered by the Court of Military Appeals. In United States v. Wooldridge, the accused-husband and his wife were not living together. The wife refused to join the husband at his duty station. The accused cashed four allotment checks made out to the wife by endorsing the wife's name on each check. The wife testified over the accused's objection, and against her wishes, that none of the endorsements on the checks were made by her or with her authority, and that the endorsements were made by her husband. On appeal the accused assigned as error the law officer's ruling permitting his wife to testify against him. The principal opinion by Chief Judge Quinn held that the evidence of record was insufficient to show that the accused's actions resulted in injury to the wife. Failing to show such injury, the wife's testimony was inadmissible. The principal

33. United States v. Wise, 10 USCMA 539, 28 CMR 105 (1959). 34. Supra note 15.

35. Id. at 304, 20 CMR at 20.

36. 58 Am. Jur., Witnesses, secs. 193 and 202.

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

opinion discussed whether or not a husband had a property interest in an allotment check considering his contribution thereto, his liability to the government for over-payments, and the husband's position as head of the household. Without deciding the question, Chief Judge Quinn indicated that if the husband has a vested interest in the allotment check, he may have implied authority to cash the check and use the proceeds for the common purposes of his family. If that was the situation, the wife would not be injured under the rule of the Manual, paragraph 148e. Judge Ferguson concurred in the result, indicating his belief that there was insufficient showing of injury to the wife to establish her competency as a witness over the accused's objection. Specifically not decided was whether or not the husband had a sufficient property interest in the check to bar a conviction of forgery of the check. Judge Latimer dissented on the basis that the wife was injured by the accused's forgery of the wife's signature on the check.

In United States v. Wise,38 the accused was charged with forging the signature of his wife to nine allotment checks among other offenses. 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 wife had refused to live with him, had lived with another man, had been aware that the accused had cashed some of the checks, had received a portion of the proceeds of one check, and had stated her indifference as to what the accused did with the checks. In the majority opinion by Chief Judge Quinn concurred in by Judge Ferguson the Court held that the signing of the wife's name to the checks did not constitute an injury to the wife. Therefore, she was not competent to testify against the accused over his objection. The majority indicated that the husband had "a substantial interest in the check and its proceeds." 39 The majority of the Court did not specifically decide whether the husband had a sufficient property interest in the check which would bar his conviction of forgery.

While not an issue in the decision, a Board of Review included the following interpretation of United States v. Wooldridge and United States v. Wise in its opinion:

It should be noted also that under the common law rule a wife is not competent as a witness against the husband in a prosecution for forgery of her 38. Supra note 33.

39. Id. at 542, 28 CMR at 108.

41

In both Wooldridge and Wise, the majority of the Court decided only the issue of the testimonial competency of the wife on the basis of the facts in each case. The common law rule of marital privilege as it pertains to forgery was noted, but its application to military law was not decided. Under the decision of United States v. Moore, the witness spouse would have the right to claim the privilege and refuse to testify against the accused-husband. The historical application of the rule would appear to hold that forgery of the wife's signature is not such an injury to the wife as to permit the use of her voluntary testimony over the accusedhusband's objection.12

WAIVER OF THE PRIVILEGE

The Manual rule, paragraph 148e, is that the marital privilege "may be waived by the consent, express or implied, of both spouses to the use of one of them as a witness against the other." In a case when the wife was called by the government and gave material testimony concerning the accused's intent to desert, a Board of Review held that the privilege had been waived by the failure of both the accused and the wife to object. The Board specifically noted that the accused was represented by qualified counsel.43 There is language in Hawkins v. United States "4 that indicates both spouses may consent to the testimony of one against the other. This should imply a recognition of the doctrine of waiver, since the rule is one of privilege which may be asserted.

In one reported case prejudicial error was assigned by reason of the accused's wife being compelled to appear as a government witness, thus forcing the accused to assert his privilege before

40. ACM 16252, Wilson, 28 CMR 844, 852 (1959). See also 58 Am. Jur., Witnesses, sec. 197.

41. Supra note 7.

42. See United States v. McFerrin, 11 USCMA 31, 28 CMR 255, 259 (1959) for problems of prosecution of an accused for forgery of the wife's allotment check where the wife is not called as a witness.

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

the court-martial.45

The wife was not an injured party. Other than answering preliminary questions the wife gave no testimony. The Board of Review held that the language of the Manual made the wife a competent witness, and the trial counsel "could not know whether the privilege would be asserted until it was done." 46 The Board further found that there was no prohibition against calling the spouse without prior consent. This was held not to be error. While the procedure used by the government may not be prohibited by any rule of military law, it would appear that the calling of an accused's wife as a witness against him, wherein she is not an injured party, and offering her testimony against the accused, places the accused in a very bad light with the triers of fact. The accused must invoke the privilege. This results in a withholding of material testimony, and can only influence the court to believe that there is incriminating evidence against the accused. By his pretrial preparation, trial counsel should ascertain if the witness spouse will testify voluntarily. If not, it is recommended that the witness spouse not be subpoenaed and the trial counsel should reevaluate his case. At a general court-martial, the question may be decided at a hearing out of the presence of the court members.17

The case of United States v. Trudeau 48 involves a circumstance wherein the accused was held to have waived his right to assert the marital privilege by his own testimony. The accused was charged with committing an indecent act with a nine year old boy. At the trial the accused testified that he told his wife everything about the incident and related the details of that conversation. Over the accused's objection the wife was called as a prosecution witness. Her testimony differed materially from the accused's account of the conversation. The summarized facts do not reveal that the wife offered any objection to testifying, or if there was any question of the wife being an injured party under the Manual, paragraph 148e. The accused objected both on the basis of the marital privilege to prevent the testimony of his spouse, and on the basis that his statement to his wife was a privileged confidential communication. The Court of Military Appeals held there was no error. The accused voluntarily opened up an otherwise legally closed subject. Having made the subject of the conversation with his wife a defense, the government had the right

45. ACM 17828, Lee, 31 CMR 743 (1962).

46. Id. at 746.

47. Cf. Poston v. United States, 322 F. 2d 432, 434 (D.C. Cir. 1963). 48. 8 USCMA 22, 23 CMR 246 (1957).

to challenge his credibility. The accused cannot remove the shield of privilege in order to bolster his defense, then slip back behind that same shield in order to deny the prosecution the right of rebuttal.

COMMON LAW MARRIAGE

A common law marriage recognized under the laws of the state in which the marriage is contracted will be recognized in military law. The marital privilege may be claimed by one or both parties to a common law marriage.19 Normally, the determination of the marriage relationship is an interlocutory question to be ruled on by the law officer.50 However, when the marital privilege is claimed on the basis of a common law marriage, the existence of a common law marriage may become a question of fact to be determined by the court under appropriate instructions from the law officer.51 The burden of proof has been held to be on the accused to establish the existence of a of a common law marriage.52

TERMINATION OF THE PRIVILEGE

Where the marriage has been terminated by divorce prior to trial, one former spouse is competent to testify generally against the other former spouse.53 The privilege of prohibiting the use of one spouse as a witness against the other depends on a valid existing marriage at the time of trial. Where there is a finding by the court that the parties to the marriage entered into the marriage as a sham, and in order to further a criminal scheme for obtaining illegal entry of aliens into the United States, one party to the sham marriage is competent to testify against the other.54 It would seem that under a finding of a sham marriage the rule of marital privilege would not be applicable.

SUMMARY

In summation, under military law either spouse is a competent witness to testify for or against the other spouse. When neither spouse has been injured by the offense charged against the other, both may claim the marital privilege to prohibit the testimony of the other. When one spouse has been injured by the offense charged against the other spouse, the defendant

49. United States v. Richardson, 1 USCMA 588, 4 CMR 150 (1952). 50. Supra note 23.

51. United States v. Richardson, supra note 49. 52. CM 395341, Boone, 24 CMR 400 (1957).

53. Pereira v. United States, 347 U.S. 1 (1954).

54. Lutwak v. United States, 344 U.S. 604 (1953); Anno. 97 L. ed. 607, 615; Anno. 3 L. ed. 2d 1607, 1611.