Spousal privilege

The NMCCA has issued an interesting published opinion on a government appeal.

United States v. Rios. From the opinion.

• The appellee is currently facing trial by special court-martial on numerous charges regarding larceny from the Marine Corps Exchange (MCX) on Camp Pendleton, California.
• He is alleged to have conspired with his wife to commit larceny[.]
• Among the evidence the Government seeks to offer to prove the appellant’s guilt is Mrs. Rios’ testimony regarding her husband’s involvement in the purportedly criminal activity. Mrs. Rios’ attorney, however, informed the military judge that his client intends to invoke her privilege (spousal incapacity) under MILITARY RULE OF EVIDENCE 504(a), MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.).
• The Government sought a preliminary ruling on whether the appellee’s wife could be compelled to testify under the exception found in MIL. R. EVID. 504(c)(2)(D). The military judge ruled that the appellee’s wife may validly invoke the privilege under MIL. R. EVID. 504(a), and that the exception found at MIL. R. EVID. 504(c)(2)(D) in no way limits that invocation.
• The Government now appeals that ruling under Article 62, UCMJ. We have thoroughly reviewed the record of trial and the briefs submitted by the parties. Following that review and our consideration of all the materials before us, we conclude that the appeal is properly before us and find no error in the military judge’s findings of fact and conclusions of law.

Interestingly the opinion does not address the wife’s Fifth Amendment privilege or immunity. Perhaps that was not an issue at the time.