In general a court-martial accused can waive most rights and privileges in a pretrial agreement. A common term where there are multiple accuseds (drug or sexual assault cases for example) is an agreement to testify truthfully in another court-martial. But,
Rule for Courts-Martial (R.C.M.) 705(c)(1) expressly prohibits terms or conditions of a PTA that are not voluntary or that deprive an accused of certain rights. “The interpretation of a pretrial agreement is a question of law, which is reviewed under a de novo standard.” United States v. Acevedo, 50 M.J. 169 172 (C.A.A.F. 1999).
“A fundamental principle underlying [CAAF’s] jurisprudence on pretrial agreements is that ‘the agreement cannot transform the trial into an empty ritual.’” United States v. States v. Davis, 50 M.J. 426, 429 (C.A.A.F. 1999) (quoting United States v. Allen, 8 C.M.A. 504, 507, 25 C.M.R. 8, 11 (1957)). With this in mind:
Under RCM 705(a), an accused and the convening authority may enter into a PTA in accordance with the provisions of RCM 705, subject to such limitations as the Secretary concerned may prescribe; RCM 705(b) provides that a PTA may include a variety of promises by the accused and the convening authority; the phrase “may include” reflects that the President has not limited the nature of agreements under the rule to the items listed in RCM 705(b); among the promises that may be made by an accused, the rule includes: (1) a promise to plead guilty to one or more charges and specifications, and (2) a promise to fulfill such additional terms or conditions which may be included in the agreement and which are not prohibited under the rule; among the promises that may be made by a convening authority, the rule includes: (1) a promise to withdraw one or more charges or specifications from the court-martial; (2) a promise to have the trial counsel present no evidence as to one or more specifications or portions thereof; and (3) a promise to take specified action on the sentence adjudged by the court-martial; under RCM 705(c)(1), a term or condition shall not be enforced: (1) if the accused did not freely and voluntarily agree to it; and (2) if it deprives the accused of the right to due process or certain other expressly enumerated rights; RCM 705(c)(2) adds that the prohibition on deprivation of certain rights in subsection (c)(1) does not preclude a voluntary agreement to: provide a stipulation of fact; testify in a subsequent proceeding; provide restitution; conform conduct to probation conditions through the period of any suspended sentence; or waive procedural requirements with respect to an investigation under Article 32, the composition of the court-martial, or the personal appearance of sentencing witnesses; the limitations of RCM 705(c)(1) are the only express limitations on terms of PTAs under the rule; other limitations may be provided under departmental regulations).
See United States v. Smead, 68 M.J. 44 (C.A.A.F. 2008). In United States v. Hoard, the Air Force Court of Criminal Appeals reviewed a challenge to a term.
Appellant argues three bases for why the challenged PTA terms should not be enforced. First, Appellant characterizes the language that would require him to testify against his spouse as being facially inconsistent with the spousal incapacity privilege and improper compulsion. Second, Appellant argues the terms are contrary to the public policy goal of encouraging marital harmony. Finally, Appellant contends that, even if he waived his spousal incapacity by agreeing to the terms, A1C KB’s potentially successful invocation of her confidential communications privilege would frustrate Appellant’s ability to fulfill his obligations under the PTA.
The Court did not agree with the appellant and found the term legal.
As the Court noted, nothing in the appellant’s term required his spouse to waive her marital privilege as to communications, and it’s unlikely she could object to his testimony about facts and what acts were done. And whether he wanted to exercise his right not to testify at all was his to waive–or not waive.
Marital privilege is articulated in Military Rule of Evidence (Mil. R. Evid.) 504 as two distinct privileges: the privilege to refuse to testify against one’s spouse (spousal incapacity) and the privilege to refuse to disclose, or prevent another from disclosing, any confidential communication made to the spouse of the person. “[T]he witness-spouse alone has a [spousal-incapacity] privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying.” Trammel v. United States, 445 U.S. 40, 53 (1980). In contrast, the confidential communication privilege may be claimed by the spouse who made the statement or by the other spouse who heard it.
The Court addressed the balancing of interests where an evidentiary rule of privilege exists.
[T]he waiver reflected Appellant’s own balancing of his best interests and marital harmony with A1C KB. As the Supreme Court observed in Trammel, “[w]hen one spouse is willing to testify against the other in a criminal proceeding – whatever the motivation – their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve.” Id. at 52. In this instance, Appellant chose his interests over those of his spouse. Rather than being against public policy as claimed by Appellant, allowing a witness-spouse this voluntary choice reflects
the resolution of the competing public policy interests.
The claim that the spouse’s exercise of her marital privilege frustrates the appellant’s ability to perform under the term. Not so, and the AFCCA easily disposed of that challenge. I doubt that there is any convening authority would consider the situation a wilful non performance on the part of the appellant when the spouse invokes because that invocation is beyond the control of appellant (then again, it is an Air Force case and they do weird things at times).
The CAAF Opinion Digest on-line can be found here for some other PTA related cases.