Privileged Communication

Chris Hamp-Lyons, Professor Alistair Newbern and Andrew Free

Chris Hamp-Lyons, Professor Alistair Newbern and Andrew Free

Military Rule of Evidence 504 is nine lines long and confers the privilege of confidential communication between military personnel and their spouses. This privilege extends to communication that occurred during a marriage even after the marriage ends. "It's an essential privilege," says Professor Mike Newton, who taught law at West Point before joining Vanderbilt's faculty. "Strong marital bonds play an important role in helping military personnel manage the inherent stresses of military life and their personal challenges in order to maintain readiness. Rule 504 gives military personnel the right to complete assurance with regard to spousal confidences."

In U.S. v. Durbin, the defendant sought to claim the privilege of confidential communication under Rule 504(b) in order to exclude his wife's testimony about a conversation the couple had after she discovered child pornography on a laptop computer in their home. The judge ruled that Technical Sergeant Durbin could claim the privilege of confidential communication for his portion of the conversation, but not for his wife's. The defendant appealed his conviction to the U.S. Court of Appeals for the Armed Forces. Oral arguments in the case were heard in a special court session in the law school's Flynn Auditorium on November 3.

The arguments presented at Vanderbilt included an amicus brief addressing the interpretation of Rule 504(b) prepared by Christopher Hamp-Lyons and Andrew Free. As students in Professor Alistair Newbern's Appellate Litigation Clinic, Hamp-Lyons and Free approached the case from a unique posture. "The Legal Clinic was our client, and it acted as a friend to the court," Free explains. "We prepared a brief on the Clinic's behalf in which it offered an analysis intended to further the development of Rule 504(b)."

Before writing the final version of the brief, Free and Hamp-Lyons spent six weeks thinking about how Rule 504 should be interpreted, in general and in its application in the case of U.S. v. Durbin. "I was warned when I signed onto this case that we would spend our time staring at that those nine lines of text, reading them over and over again," Hamp-Lyons recalls.

The pair split up their research. Free examined what other courts had said about similar marital communication privileges, while Hamp-Lyons examined the rule itself. They discovered that the original rule from which Rule 504 had evolved had excluded any testimony from a spouse. "That had splintered off into two privileges, Rule 504, and a rule that states that no spouse could be forced to testify, but could choose to do so voluntarily," Hamp-Lyons says.

The pair ultimately concluded that "The marital communications privilege of Military Rule of Evidence 504(b) protects both T.Sgt. Durbin's own statements made in a private marital conversation and statements made by his wife that reveal his confidential communications," and that "the lower courts erred in finding that the marital communications privilege of Rule 504(b) does not apply to prevent disclosure of T.Sgt. Durbin's confidential communications through his wife's testimony as to her own statements made in a private marital conversation."

"We spent several weeks focusing on different words in the rule and how they could be interpreted," Hamp-Lyons says.

Free adds, "There were no fewer than 23 drafts of the brief."

"We ultimately focused on the word 'disclose' as the key to our argument," Hamp-Lyons says. "If his confidential conversation can be inferred by his wife's testimony about her portion of the conversation, the defendant has effectively been denied the privilege of confidential communication."

Hamp-Lyons argued this position to the Court of Appeals for the Armed Forces in its Vanderbilt Law School sitting on November 3. "Three weeks after the brief was filed, Chris and Andrew were putting their arguments to the test in front of the Court, responding to its questions and to the arguments of the other counsel in the case," Professor Newbern says. "Rarely are students able to apply their work so quickly and in such an exciting setting."

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