We previously discussed NMCCA’s published en banc decision rejecting application of a reporter’s privilege in the military justice system. United States v. Wuterich, 68 M.J. 511 (N-M. Ct. Crim. App. 2009) (en banc). Today the Judge Advocate General of the Navy certified the case to CAAF for review of these issues:
I. Whether a “reporter’s privilege” applies in military courts-martial under the First Amendment to the Constitution of the United States and Military Rule of Evidence 501(a)(1)?
II. Whether a “reporter’s privilege” applies in military courts-martial under Military Rule of Evidence 501(a)(4) as a principle 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?
III. Whether the military judge abused his discretion in applying a “reporter’s privilege” under Military Rule of Evidence 501(a)(4) as the basis for quashing a government subpoena for CBS’s nonbroadcast audiot-visual “outtakes” of an interview with the accused that were otherwise discoverable under Rule for Courts-Martial 703?
[Familiar disclosure: I’m one of SSgt Wuterich’s appellate counsel.]