CAAF released two unanimous opinions today. One of them resolves an important legal issue: whether the common law “joint crime participant” or “crime/fraud” exception applies to Military Rule of Evidence 504 spousal communications privilege. In an opinion by Judge Ryan, CAAF unanimously concludes that it does not. United States v. Custis, __ M.J. ___, No. 07-0188 (C.A.A.F. Dec. 5, 2007). The opinion acknowledges that “[e]very federal circuit that has addressed the issue has found a ‘joint crime participant’ or ‘crime/fraud’ exception to the common law marital communication privilege.” Id., slip op. at 8-9. But, the opinion holds, no such exception is included in Military Rule of Evidence 504 and “the authority to add exceptions to the codified privileges within the military justice system lies not with this Court or the Courts of Criminal Appeal, but with the policymaking branches of government.” Id., slip op. at 9. CAAF also rejects the view that Military Rule of Evidence 501(a)(4), which authorizes the application of some federally recognized common law privileges to the military justice system, can be used to create an exception to an enumerated privilege. Id., slip op. at 10-11.
I think Custis is absolutely correct (a view with which JMTGst will likely disagree) and will almost certainly lead to a change in Military Rule of Evidence 504 to adopt a joint crime participant exception — as the opinion expressly recognizes that the President is empowered to adopt. Id., slip op. at 9 n.8.
Today’s second opinion is United States v. Parrish, __ M.J. ___, No. 07-0079/AR (C.A.A.F. Dec. 5, 2007), a unanimous opinion by Judge Erdmann. Parrish is a fact intensive decision involving application of the Ginn factors to determine whether ACCA could resolve a factual dispute itself or was required to remand the case for a DuBay hearing. CAAF concludes — correctly, in my opinion — that a DuBay hearing is necessary to resolve the factual conflict. But the whole Ginn approach cries out for a Manual change far more than does any need to tinker with Military Rule of Evidence 504. This is because every state and the federal civilian criminal justice system has a “post-conviction” proceeding or its equivalent to allow a convicted defendant who has completed direct appeal to challenge his or her conviction or sentence based on evidence from outside the record. See generally Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure 190 (4th ed. 2001). The House Armed Services Committee intended the petition for new trial to play a similar role in the military justice system, but it hasn’t proved to be an effective counterpart, which has led CAAF to create the whole DuBay/Ginn framework. But this framework seems an inadequate substitute for a post-conviction proceeding because it plays out at the appellate level rather than the trial level, which in turn leads to enormous difficulties in fact finding and fact proving. Battles of affidavits ensue, leading to opinions like today’s Parrish decision. There has got to be a better way. Any judge advocates who are now at TJAGLCS or who will be going there soon might want to make that their thesis topic — is the current military justice analog to a post-conviction/28 U.S.C. § 2255 proceeding adequate and, if not, what system should be adopted in its place?