United States v. McCollum

UNITED STATES, Appellee

v.

Terry MCCOLLUM, Staff Sergeant
U.S. Air Force, Appellant

No. 02-0474

Crim. App. No. 34324

___________________________________________________________

United States Court of Appeals for the Armed Forces

Argued November 6, 2002 and February 5, 2003

Decided June 24, 2003

BAKER, J., delivered the opinion of the Court, in which GIERKE,
EFFRON, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed a
separate concurring opinion.

Counsel

For Appellant: Major Jefferson B. Brown (argued); Colonel
Beverly B. Knott, Major Maria A. Fried, Major Terry L.
McElyea, and Major Jeffrey A. Vires (on brief).

For Appellee: Major Linette I. Romer (argued); Lieutenant
Colonel LeEllen Coacher, and Lieutenant Colonel Lance B.
Sigmon (on brief).

Military Judge: Linda S. Murnane
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. MCCOLLUM, No. 02-0474/AF

Judge BAKER delivered the opinion of the Court.

Appellant was tried by a general court-martial

composed of a military judge alone. Contrary to his pleas,

Appellant was convicted of rape, indecent acts with a child

under the age of 16, and carnal knowledge, on divers

occasions in violation of Articles 120 and 134, Uniform

Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§

920, 934 (2000), respectively. Appellant was sentenced to

a dishonorable discharge, eighteen years' confinement, and

reduction to E-1. The convening authority approved the

sentence as adjudged. The Air Force Court of Criminal

Appeals affirmed the findings and sentence. United States

v. McCollum, 56 M.J. 837 (A.F. Ct. Crim. App. 2002). We

granted review on the following issues:

I

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
ERROR BY REQUIRING THE ABSENCE OF APPELLANT
DURING THE TESTIMONY OF AN ALLEGED VICTIM (CS),
IN VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHT
TO CONFRONT HIS ACCUSER, WHEN THERE WAS NO BASIS
TO SUPPORT SUCH A RULING.

II

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
ERROR BY DENYING THE DEFENSE’S MOTION TO SUPPRESS
AND HOLDING THAT CERTAIN STATEMENTS MADE BY
APPELLANT TO HIS WIFE DID NOT FALL WITHIN THE
PRIVILEGE FOR CONFIDENTIAL MARITAL
COMMUNICATIONS.

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Subsequent to holding oral argument on these issues on

November 6, 2002, we specified the following additional

issue:

IS THERE A “DE FACTO CHILD” EXCEPTION TO THE HUSBAND-
WIFE PRIVILEGE UNDER THE MILITARY RULES OF EVIDENCE,
AND, IF SO, IS IT APPLICABLE TO THE PRESENT CASE?

On Issue I, we affirm the Court of Criminal Appeals.

The military judge did not violate Appellant’s Sixth

Amendment right to confront a witness against him by

allowing CS to testify outside of Appellant's presence.

The military judge correctly applied Military Rule of

Evidence [hereinafter M.R.E.] 611(d) consistent with

Maryland v. Craig, 497 U.S. 836 (1990). In addition, the

military judge properly protected the other aspects of

Appellant’s confrontation rights.

On Issue II, we conclude that Appellant’s statements

were privileged under M.R.E. 504(b)(1). We also hold that

there is no de facto child exception to M.R.E.

504(c)(2)(A). As such, because MW was not a biological

child or a legally recognized child or ward of Appellant or

his wife, RM, Appellant’s statements were not admissible

under that exception and should have been excluded. The

military judge therefore abused her discretion by admitting

those statements. Nevertheless, for the reasons discussed

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below, we affirm Appellant’s conviction because any errors

committed by the military judge were harmless.

Issue I: Right to Confront Witnesses

A. Factual Background

In 1999, Appellant met SK over the Internet.

Eventually, the two began a romantic relationship and, at

Appellant’s request, SK and her four children moved from

Connecticut to Seymour Johnson Air Force Base, North

Carolina, to live with him in his base housing. Because of

the number of people in the house, SK’s 11-year old

daughter, CS, slept on the couch in the living room. One

night, SK awoke, entered the living room, and found

Appellant naked, sexually aroused, and poised over CS. SK

testified that “as I approached him even more, I saw him

naked and her panties were down and he was kissing on her

and I just exploded in an outrage.” Some days later,

during an argument, Appellant admitted to SK to having

sexually assaulted CS on another occasion. SK then called

the police and reported that Appellant had raped CS.

Appellant was thereafter charged with rape and

indecent acts with a child, in violation of Articles 120

and 134. At one point during Appellant’s trial, trial

counsel moved to allow CS, then 12 years old, to testify

from a remote location via two-way closed circuit

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television, as authorized by M.R.E. 611(d). Defense

counsel contested the motion, arguing that trial counsel

had not met the requirements of M.R.E. 611(d)(3) and Craig.

Defense counsel also argued that there was insufficient

evidence to establish that CS would suffer such trauma that

she would be unable to testify in Appellant’s presence.

Allowing CS to testify outside of Appellant’s presence,

asserted defense counsel, would therefore violate

Appellant’s Sixth Amendment right to confront a witness

against him. In the alternative, Appellant volunteered to

withdraw from the courtroom during CS’s testimony, as

permitted by M.R.E. 611(d)(4), if the military judge found

that the requirements of M.R.E. 611(d)(3) and Craig had

been met.

During a hearing on the motion, trial counsel called

Ms. Joan Prior, a licensed clinical social worker, as an

expert to testify about the potential harm to CS from

having to testify in Appellant’s presence. Ms. Prior had

counseled CS 11 or 12 times in weekly sessions. The

military judge accepted Ms. Prior as an expert in the field

of diagnosing and treating children who have been sexually

abused, and allowed her to testify about CS’s expected

response to testifying in front of Appellant.

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In her testimony, Ms. Prior opined that CS would

suffer emotional harm if required to testify in Appellant’s

presence. Testifying in front of Appellant, she stated,

would cause CS to “decompensate” or “function in a more

disorganized way . . . . She would become highly agitated,

her anxiety would increase so that her level of functioning

would change overall. She might have a reoccurrence of

nightmares, she might become more withdrawn.” She added

that it could setback her healing process and reactivate

some of the symptoms of CS’s Post Traumatic Stress Disorder

(PTSD). While noting that testifying in court, by itself,

would be harmful to CS, Ms. Prior added that the harm would

be “extremely” aggravated if Appellant were present. When

asked about CS’s desire to testify in Appellant’s presence,

Ms. Prior explained that although CS wanted to testify in

front of Appellant, doing so would be, in her opinion,

“detrimental to her.” Finally, in response to the military

judge’s questions about whether CS had expressed any fear

of Appellant, Ms. Prior testified, without objection, that

CS had told her that she was afraid Appellant would beat

her if she ever told anyone about the abuse.

Based on Ms. Prior’s testimony, the military judge

found that CS “would be traumatized if required to testify

in open court in the presence of the accused.” CS, the

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military judge said, “is unable to testify in open court

because of the presence of the accused because of her fear

the accused would beat her.” This fear, stated the

military judge, causes CS “emotional trauma.” Therefore,

she held that trial counsel had met the requirements of

M.R.E. 611(d)(3)(A) and Craig. The military judge then

granted the Government’s motion to have CS testify from a

remote location by two-way closed circuit television. The

military judge, however, explained that if Appellant chose

to absent himself from the courtroom, CS would have to

testify in the courtroom as required by M.R.E. 611(d)(4).

When trial counsel called CS to testify, Appellant

informed the military judge that he wanted to withdraw from

the courtroom. After determining that Appellant’s choice

was voluntarily made and that he understood his right to be

present in the courtroom during the entire trial, the

military judge granted his request to withdraw and ordered

that CS testify in the courtroom. The military judge,

however, ensured that Appellant would be able to view the

proceedings via closed circuit television and allowed him

to communicate with his counsel by telephone at all times

during CS’s testimony.

The military judge ultimately convicted Appellant of

raping CS and engaging in indecent acts with her.

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Appellant appealed his conviction to the Air Force Court of

Criminal Appeals, arguing that the military judge violated

his Sixth Amendment right to confront a witness against him

by not allowing him to be present during CS’s testimony.

McCollum, 56 M.J. at 838. The Court of Criminal Appeals

affirmed the military judge’s decision, concluding that

there was “ample evidence” to establish that the military

judge, “applying the criteria of both M.R.E. 611(d)(3) and

Craig, properly found that the child was unable to testify

because of her fear of [A]ppellant.” Id. at 840. This

conclusion, together with the fact that CS “testified under

oath, and was subjected to cross-examination by opposing

counsel, in the presence of the court-martial, and in the

view of [A]ppellant and his counsel,” led the lower court

to conclude that Appellant had not been denied his right to

confront CS. Id. at 841.

On appeal before this Court, Appellant maintains that

the military judge applied M.R.E. 611(d) in such a way as

to deprive him of his Sixth Amendment right to confront a

witness against him. He argues that CS’s fear and her

trauma resulted from testifying generally, and not, as the

military judge found, from Appellant’s presence. Appellant

also contends that the military judge should have

questioned CS, or allowed defense counsel to question CS,

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before making her M.R.E. 611(d) ruling. In addition,

Appellant claims that “the ‘fear’ that the military judge

found existed--that Appellant would beat CS--was

unreasonable.” Finally, Appellant asserts that the

military judge erred when she found that CS would suffer

more than de minimis trauma from testifying in his

presence.

B. Sixth Amendment Confrontation Case Law

The Confrontation Clause of the Sixth Amendment

guarantees that “[i]n all prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses

against him.” The Supreme Court has explained that this

right contains several protections:

[T]he right guaranteed by the Confrontation
Clause includes not only a “personal
examination,” but also “(1) insures that the
witness will give his statements under oath -
thus impressing him with the seriousness of the
matter and guarding against the lie by the
possibility of a penalty for perjury; (2) forces
the witness to submit to cross-examination, the
‘greatest legal engine ever invented for
discovery of the truth’; [and] (3) permits the
jury that is to decide the defendant’s fate to
observe the demeanor of the witness in making his
statement, thus aiding the jury in assessing his
credibility.

Craig, 497 U.S. at 845-46 (quoting California v. Green, 399

U.S. 149, 158 (1970)). Although each of these protections

serves to “ensure the reliability of the evidence against a

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criminal defendant,” the Court has stressed that an

accused’s right to physical, face-to-face confrontation

with witnesses against him forms the core of the

Confrontation Clause. See id. at 844-50; Coy v. Iowa, 487

U.S. 1012, 1016 (1988)(noting that although there is “some

room for doubt” about whether the clause protects against

the admission of out-of-court statements or restricts the

scope of cross-examination, the Court has “never doubted .

. . that the Confrontation Clause guarantees the defendant

a face-to-face meeting with witnesses appearing before the

trier of fact.”).

Despite the Confrontation Clause’s emphasis on

physical, face-to-face confrontation, it is not an absolute

right. Craig, 497 U.S. at 844-50. The Supreme Court in

Craig provided the following guidance for analyzing

exceptions to physical confrontation:

That the face-to-face confrontation requirement
is not absolute does not, of course, mean that it
may be easily dispensed with. As we suggested in
Coy, our precedents confirm that a defendant’s
right to confront accusatory witnesses may be
satisfied absent physical, face-to-face
confrontation at trial only where denial of such
confrontation is necessary to further an
important public policy and only where the
reliability of the testimony is otherwise
assured.

Id. at 850 (citations omitted). Therefore, Craig stands

for the proposition that a witness may testify out of an

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accused’s presence only where the trial court finds (1)

that there is an important public interest that will be

served by denying physical confrontation, (2) that such

denial is necessary to further that interest, and (3) that

other measures will ensure the reliability of the

testimony.

In Craig, the Court determined that society has an

important public interest in “the physical and

psychological well-being of a minor victim.” Id. at 852.

Hence, it held, “if the State makes an adequate showing of

necessity, the state interest in protecting child witnesses

from the trauma of testifying in a child abuse case is

sufficiently important to justify the use of a special

procedure that permits a child witness in such cases to

testify at trial against a defendant in the absence of

face-to-face confrontation with the defendant.” Id. at

855.

The Court also explained the essential aspects of a

finding of necessity in cases where the physical or

psychological well being of a child witness is at stake.

The showing of necessity, determined the Court, must not be

a generalized one. The trial judge must make a case-

specific finding that testimony outside the presence of the

accused is “necessary to protect the welfare of the

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particular child who seeks to testify.” Id. Moreover,

denial of face-to-face confrontation is only necessary to

protect a child witness from trauma where “it is the

presence of the defendant that causes the trauma.” Id. at

856. Finally, before a court denies an accused the right

to confront a witness face-to-face, “the trial court must

find that the emotional distress suffered by the child

witness in the presence of the defendant is more than de

minimis, i.e., more than ‘mere nervousness or excitement or

some reluctance to testify.’” Id. (quoting Wildermuth v.

State, 530 A.2d 275, 289 (Md. 1987)). While the Court

declined to establish a minimum level of distress necessary

for a child witness to testify outside of the accused's

presence, it upheld a Maryland law allowing such a

procedure where a judge finds that the child will suffer

“’serious emotional distress such that the child cannot

reasonably communicate[.]’” Id. at 856 (quoting Md. Code

Ann. Cts. & Jud. Proc. § 9-102 (1989)).

In our most recent application of Craig, we echoed

these requirements when we upheld a military judge’s

decision to let two child witnesses testify behind a screen

because they were unable to testify in the accused’s

presence. See United States v. Anderson, 51 M.J. 145, 150

(C.A.A.F. 1999).

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C. M.R.E. 611(d)

In response to Craig and subsequent to this Court’s

decision in Anderson, M.R.E. 611 was amended in 1999 to

include subsection (d). Executive Order No. 13,140, 64

Fed. Reg. 55, 115 (Oct. 12, 1999). As a result, this is

our first occasion to consider the amended rule. M.R.E.

611(d) is similar to 18 U.S.C. § 3509(b)(1) (2000), a

federal provision enacted in the wake of Craig, which

authorizes a child to testify via two-way closed circuit

television when certain conditions are met. See United

States v. Daulton, 45 M.J. 212, 218 (C.A.A.F. 1996); United

States v. Moses, 137 F.3d 894, 897-98 (6th Cir. 1998);

United States v. Garcia, 7 F.3d 885, 887-88 (9th Cir.

1993).

M.R.E. 611(d)(3), like § 3905(b)(1)(B), authorizes

remote live testimony

where the military judge makes a finding on the
record that a child is unable to testify in open
court in the presence of the accused, for any of
the following reasons:

(A) The child is unable to testify because of
fear;
(B) There is substantial likelihood, established
by expert testimony, that the child would
suffer emotional trauma from testifying;
(C) The child suffers from a mental or other
infirmity; or
(D) Conduct by an accused or defense counsel
causes the[ ]child to be unable to continue
testifying.

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However, M.R.E. 611(d) does not allow the use of remote

live testimony where the accused voluntarily withdraws from

the courtroom during the child’s testimony, as the military

judge correctly concluded in this case. See M.R.E.

611(d)(4).

Appellant argues that M.R.E. 611(d)(3) “differs in key

respects” from the statute upheld in Craig. He asserts

that the rule can only pass “constitutional muster” if we

read certain language into it, as the Supreme Court did to

the Maryland statute in Craig, and as the 9th Circuit did

to § 3509 in Garcia. Specifically, Appellant asserts that

M.R.E. 611(d)(3) is constitutional as applied only if (1)

the military judge finds that the child witness will suffer

such trauma that he or she will be unable to testify; and

(2) the potential trauma or fear causing trauma is the

result of an accused’s presence.

M.R.E. 611(d) was adopted to “give substantive

guidance to military judges regarding the use of

alternative examination methods for child victims and

witnesses in light of the U.S. Supreme Court’s decision in

Maryland v. Craig, 497 U.S. 836 (1990) and the change in

Federal law in 18 U.S.C. section 3509.” Manual for Courts-

Martial, United States (2002 ed.) [hereinafter MCM],

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Analysis of the Military Rules of Evidence A22-48

[hereinafter Drafter's Analysis]. Prior to the addition of

M.R.E. 611(d), it was unclear whether § 3509 applied to

courts-martial. See Daulton, 45 M.J. at 218-19 ; United

States v. Longstreath, 45 M.J. 366, 372 (C.A.A.F. 1996).

It therefore follows that we should interpret M.R.E. 611(d)

consistently with Craig.

M.R.E. 611(d)(3) authorizes the use of remote live

testimony where “the military judge makes a finding on the

record that a child is unable to testify in open court in

the presence of the accused[.]” (Emphasis added.) Apparent

in this language is Craig’s requirement that the inability

to reasonably testify result from the presence of the

accused and not the overall court experience. Moreover, we

interpret this language, in light of Craig, as limiting the

use of remote live testimony to situations where the

military judge makes a finding that the child witness would

suffer more than de minimis emotional distress from

testifying in the accused’s presence, whether brought on by

fear or some form of trauma.1 In other words, under M.R.E.

611(d)(3), such distress must be sufficiently serious that

it would prevent the child from reasonably testifying.

1
We do not address Military Rule Evidence 611(d)(3)(C) or (D)
[hereinafter M.R.E.] as they are inapplicable in the present case.

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Whether such a standard is required as a matter of

constitutional law is an issue the Court did not address in

Craig. It is sufficient for our purposes in this case to

note that the standard established in M.R.E. 611(d)(3) is

similar to that upheld in Craig.

Our conclusion that M.R.E. 611(d)(3) must be

interpreted in light of Craig is consistent with the manner

in which federal circuits have interpreted the parallel

language of § 3509 to include the necessity requirements of

Craig. See Moses, 137 F.3d at 898; United States v. Rouse,

111 F.3d 561, 568-69 (8th Cir. 1997); Garcia, 7 F.3d at

888. In Garcia, for example, the Ninth Circuit Court of

Appeals addressed the constitutionality of § 3509(b)(1)(B).

Id. at 888. The defendant in Garcia argued that the

provision must either implicitly incorporate the

requirements imposed by Craig or be unconstitutional in

application. Id. The Ninth Circuit agreed. Looking at

the statute, it concluded that Congress intended the

provision to codify the requirements of Craig. Id. It

interpreted the phrase “the child is unable to testify in

open court in the presence of the defendant” as requiring

trial judges to find that the child is unable to testify

“due to the presence of the defendant.” Id. Moreover, the

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court held that Congress intended the same phrase to

require more than a finding of de minimis trauma. Id.

Finally, the court concluded that the degree of trauma

necessary to find that a child was unable to testify, and

thus invoke § 3509(b)(1), was akin to that upheld “in Craig

which required that the child’s emotional distress be such

that he ‘cannot reasonably communicate.’” Id.

Before authorizing the use of remote live testimony in

this case, the military judge looked to both M.R.E. 611(d)

and Craig and stated on the record:

Military Rule of Evidence 611(d) states, in
pertinent part: “Remote live testimony will be
used only where the military judge makes a
finding on the record that a child is unable to
testify in open court in the presence of the
accused, for any of the following reasons: (A)
the child is unable to testify because of fear.”

Maryland v. Craig, 497 U.S. 836 (1990), . .
. in pertinent part held that prior to allowing
out-of-court testimony[,] in order to meet the
accused’s constitutional right to confront
witnesses against him, a trial court must find
the witness would suffer emotional trauma if
forced to testify in the conventional manner; the
trauma would be caused by the presence of the
accused and not by the formal courtroom setting;
and the trauma must be more than de minimis . . .
.
Combining the requirements of Maryland v.
Craig with M.R.E. 611(d), the questions which
must be answered affirmatively before this
[c]ourt can authorize the remote live testimony
of [CS] are as follows: Does the case involve the
abuse of a child? Is the witness a child witness
or a child victim? Is the child unable to
testify in open court because of the presence of

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the accused, and because of her fear of the
accused which causes her emotional trauma as
shown by expert testimony?

By combining the requirements of Craig and M.R.E.

611(d)(3), the military judge derived the appropriate legal

standard for a proper finding of necessity. She determined

that prior to authorizing remote live testimony, a military

judge must find that the witness would be unable to testify

because of the accused’s presence. She also concluded that

the fear or trauma caused by the presence of the accused

must be more than de minimis. While the military judge

appears to have concluded that both fear and trauma were

required for a finding of necessity, the Supreme Court’s

language in Craig is sufficient to uphold the

constitutionality of both M.R.E. 611(d)(3)(A) and (B),

independent of each other. Federal circuit courts

addressing the constitutionality of § 3509(b)(1)(B)(i) and

(ii) have reached the same conclusion. See Moses, 137 F.3d

at 898 (explaining that § 3509(b)(1)(B)(i) “requires a

case-specific finding that a child witness would suffer

substantial fear or trauma and be unable to testify or

communicate reasonably because of the physical presence of

the defendant.”)(emphasis added); United States v. Farley,

992 F.2d 1122, 1125 (10th Cir. 1993)(affirming the use of

remote live testimony under both § 3509(b)(1)(B)(i) and

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(ii)). The military judge therefore applied the

appropriate constitutional and statutory requirements in

making her finding of necessity.

D. The Military Judge’s Finding of Necessity

While we agree with Appellant that M.R.E. 611(d)(3)

must be applied in a manner consistent with Craig, we

disagree that the military judge failed to do so in this

case. A military judge’s finding of necessity is a

question of fact that will not be reversed on appeal unless

such finding is “clearly erroneous or unsupported by the

record.” Longstreath, 45 M.J. at 373. A military judge's

application of M.R.E. 611(d) and Craig is a question of law

that we review de novo. Daulton, 45 M.J. at 219; United

States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995).

Appellant argues that the military judge incorrectly

applied M.R.E. 611(d)(3) in light of Craig because she

found that CS would suffer fear and trauma from testifying

in Appellant’s presence, when it was clear from Ms. Prior’s

testimony that CS would suffer fear and trauma from

testifying irrespective of Appellant's presence. While it

is true that Craig requires the finding of necessity to be

based on trauma resulting from the accused’s presence, see

Craig, 497 U.S. at 856 (“Denial of face-to-face

confrontation is not needed to further the state interest

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in protecting the child witness from trauma unless it is

the presence of the defendant that causes the trauma.”),

Craig did not require that a child’s trauma derive solely

from the presence of the accused. Rather, it simply

prohibited judges from considering trauma resulting from

sources other than the accused in making a finding of

necessity. Where the finding relates to fear, we read

Craig and M.R.E. 611(d)(3) as imposing a similar

restriction on a military judge’s finding of necessity.

Thus, so long as the finding is based on the fear or trauma

caused by the accused’s presence alone, it is irrelevant

whether the child witness would also suffer some fear or

trauma from testifying generally. A contrary reading would

undermine the very interest the Court sought to protect in

Craig.

In the present case, it is clear that CS was afraid of

both testifying in open court and testifying in front of

Appellant. Ms. Prior testified that it would be

“stressful” for CS to testify in the courtroom, even if the

accused were not present. However, when asked whether the

harm would be aggravated if Appellant were present, she

stated “extremely so.” Moreover, Ms. Prior stated that CS

was afraid that Appellant would beat her if she told anyone

about the abuse. In addition, the military judge asked Ms.

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Prior a series of questions to clarify the sources of the

potential trauma to CS and to ensure that the trauma would

be the product of Appellant's presence. Under these

circumstances, there was sufficient evidence for the

military judge to conclude that the fear or trauma, brought

on by CS’s fear of Appellant alone, would have prevented CS

from reasonably testifying.

Appellant also argues that the military judge erred by

not questioning CS prior to making her ruling. We

disagree. The Sixth Amendment does not require a military

judge, as a matter of course, to interview or observe a

child witness prior to allowing the child to testify

outside of an accused’s presence. In Craig, the Supreme

Court stated:

Although we think such evidentiary requirements
could strengthen the grounds for use of
protective measures, we decline to establish, as
a matter of federal constitutional law, any such
categorical evidentiary prerequisites for the use
of the one-way television procedure. The trial
court in this case, for example, could well have
found, on the basis of the expert testimony
before it, that testimony by the child witnesses
in the courtroom in the defendant’s presence
“will result in [each] child suffering serious
emotional distress such that the child cannot
reasonably communicate[.]”

497 U.S. at 860 (quoting Md. Code Ann. Cts. & Jud. Proc. §

9-102(a)(1)(ii)(1989)) (emphasis added).

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Neither do we conclude that M.R.E. 611(d) require a

military judge to interview a child witness before ruling

on a motion for remote live testimony. The language of

M.R.E. 611(d) requires a “finding on the record,” without

any specific evidentiary prerequisites. While it may be

appropriate, and even necessary, in some circumstances for

a military judge to question or observe a child witness

before ruling that he or she may testify outside of an

accused’s presence, such action is not required per se.

Rather, a proper finding may be based on unrebutted expert

testimony alone, if such testimony provides the military

judge with sufficient information.

In this case, Ms. Prior provided the military judge

with sufficient expert-opinion evidence to make a finding

as to whether CS would suffer trauma and be unable to

testify in Appellant’s presence. Appellant does not

dispute before this Court that Ms. Prior was an expert in

the field of diagnosing and treating child sexual abuse

victims. Ms. Prior was well acquainted with CS, having met

with her 11 or 12 times. She had also observed changes in

CS’s behavior during the trial. Upon this basis, Ms. Prior

was able to conclude that CS was afraid of Appellant and

would be traumatized if forced to testify in front of him.

Moreover, both parties and the military judge had the

22
United States v. MCCOLLUM, No. 02-0474/AF

opportunity to extensively probe the basis of Ms. Prior’s

conclusions. Under these circumstances, the military judge

was not required to question CS or observe her before

ruling on the Government’s motion.

Appellant next maintains that “the ‘fear’ that the

military judge found existed--that Appellant would beat CS-

-was unreasonable,” as there was no immediate danger to CS

from testifying in Appellant’s presence. Appellant’s

argument, however, misconstrues M.R.E. 611(d)(3)(A). That

provision does not require a finding that a child fear

imminent harm from the accused. Nor does the rule require

that the fear be reasonable. It provides that the fear of

the accused be of such a nature that it prevents the child

from being able to testify in the accused’s presence. Ms.

Prior testified, without objection, that CS was afraid

Appellant would beat her if she told anyone about the abuse

and that that fear would interfere with CS’s ability to

reasonably testify.

In his final argument, Appellant asks us to find that

the military judge’s finding of trauma was erroneous in two

respects. Appellant contends that her finding that CS

would be “traumatized” is insufficient to determine whether

the level of trauma was more than de minimis as required by

Craig. Second, Appellant implies that the facts do not

23
United States v. MCCOLLUM, No. 02-0474/AF

support a conclusion that the trauma to CS would be more

than de minimis. Again, we disagree with Appellant.

As to Appellant’s first concern, we agree with the

lower court that in making her findings, the military judge

clearly took into account the requirement that the trauma

be more than de minimis. She, therefore, made her findings

using the correct standard of necessity. We conclude that

by using the word “traumatized,” the military judge found

more than de minimis trauma.

As to Appellant’s factual argument, we conclude that

there was an adequate factual basis for the military judge

to conclude that CS would suffer more than de minimis

trauma if compelled to testify in Appellant’s presence.

Ms. Prior stated that if CS testified, CS would

“decompensate,” her PTSD symptoms might recur, and she

might regress in her treatment. She went on to add that

the trauma would be “extremely” exacerbated if CS testified

in Appellant’s presence. Moreover, Ms. Prior testified

that CS was afraid Appellant would beat her. Taken

together, this testimony provides a sufficient basis for

the military judge to conclude that CS would suffer trauma

that would prevent her from reasonably testifying in

Appellant’s presence, and that this trauma would be more

24
United States v. MCCOLLUM, No. 02-0474/AF

than de minimis. As a result, the military judge’s finding

of fact was not clearly erroneous.2

We therefore conclude that the military judge properly

interpreted and applied M.R.E. 611(d) and Craig in making

her finding of necessity. We hold that the military judge

did not clearly err in finding that CS would have been

unable to testify in Appellant’s presence under M.R.E.

611(d)(3)(A) because of CS’s fear of Appellant. Further,

we note that although the military judge did not expressly

rely on M.R.E. 611(d)(3)(B), her findings support a

conclusion that CS would have been unable to testify in

Appellant’s presence due to the trauma caused by his

presence. Finally, the procedure implemented by the

military judge properly protected other aspects of

Appellant’s right to confrontation. The military judge

ensured that Appellant was able to communicate with his

counsel at all times during CS’s testimony. The military

judge also required CS to testify in court, under oath, and

in the presence of the fact-finder. In addition,

Appellant’s counsel was able to cross-examine CS. These

2
That CS wanted to testify in Appellant’s presence does not, by itself,
establish that CS would have been able to reasonably testify in
Appellant’s presence. On the facts of this case, the military judge
was free, despite CS’s desire, to defer to Ms. Prior’s conclusion that
CS would be harmed by testifying in front of Appellant in making her
determination that CS would be unable to reasonably testify. We cannot
say this finding is clearly erroneous.

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United States v. MCCOLLUM, No. 02-0474/AF

protections were sufficient to ensure the reliability of

CS’s testimony despite Appellant’s absence. We therefore

hold that the military judge did not violate Appellant’s

Sixth Amendment right to confront a witness against him by

allowing CS to testify outside of Appellant’s presence.

Issue II: Marital Communications Privilege

A. Factual Background

Appellant married RM in September 1991. In 1996, RM’s

sister, MW, came to stay with the couple for one month

during the summer. MW was 14 years old at the time of the

visit and was described by her mother as “mildly mentally

retarded.” Because of MW’s condition, RM saw to many of

her sister’s needs.

One morning, between 2:00 and 3:00 a.m., RM entered

the living room and found Appellant and MW watching

television. Appellant was lying on the couch in his

underwear, and MW was lying on the floor in her nightgown.

The nightgown was “up above her waist,” exposing her

panties, and MW was rubbing her stomach. The scene

disturbed RM, but she eventually went back into her room

and went to sleep. Later that morning, RM asked MW whether

anything had happened earlier with Appellant. After some

hesitation, MW became emotional and began to cry. RM

confronted Appellant in the bathroom, asking him whether he

26
United States v. MCCOLLUM, No. 02-0474/AF

had had sex with MW earlier that day. When he initially

denied having sex with her, RM asked him, “[W]hy would she

[(MW)] say that it happened[?]” Eventually, Appellant

admitted to having had sex with MW, saying, “Yeah, okay.”

RM and Appellant had several more confrontations about

the event. No other people were present during the

discussions. During one of these conversations, RM

expressed her fear that MW might be pregnant. In response,

Appellant told her that he did not ejaculate during the

sexual encounter with MW. Out of fear that MW might be

pregnant, RM took MW to a clinic for a pregnancy test.

Sometime thereafter, Appellant went to Saudi Arabia

for several months on temporary duty. When Appellant

returned home, the couple again discussed the incident with

MW. RM testified that during one of these conversations,

Appellant said that he “was trying to get his life together

and trying to live right, and live better than he had been

in the past. He had started reading the Bible a lot[.]”

She further stated, “I just remember us having a

conversation about him just trying to start over and you

know take responsibility [for] the things he did in the

past, and he mentioned telling my family about what

happened and telling his, and you know, just taking

responsibility for it.” She also added that he

27
United States v. MCCOLLUM, No. 02-0474/AF

specifically wanted to tell his mother what had happened.

In response, RM told Appellant that she did not want him to

tell her family.

Defense counsel moved to suppress all of Appellant’s

statements made to RM on the ground that they were

privileged marital communications. The Government opposed

the motion, arguing that because RM “stood in loco parentis

to [MW] at the time of the relevant events, . . . the

exception to the marital privilege found in [M.R.E.]

504(c)(2)(A) should apply.” In addition, the Government

argued that the statements are admissible because they were

intended to be disclosed to third parties and were

therefore not privileged.

The military judge declined to extend the exception

contained in M.R.E. 504(c)(2)(A) to this case, concluding

that the exception was meant to apply narrowly. The

military judge also held that Appellant’s statement, “Yeah,

okay,” fell within the privilege and should be excluded.

However, she determined that the other two statements were

admissible. With regard to Appellant’s statement that he

did not ejaculate, the military judge determined that the

defense had “failed to establish that this communication

was ‘privileged’ as defined in M.R.E. 504(b)(2).” Rather,

the military judge found that Appellant and his wife

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United States v. MCCOLLUM, No. 02-0474/AF

intended to disclose the information to medical authorities

to help them determine whether MW was pregnant. Finally,

as to Appellant’s statements made upon his return from

Saudi Arabia, the military judge found that those

statements were not intended to be confidential because

Appellant intended to tell his mother and RM’s family about

his conduct with MW. She therefore granted the defense

motion to suppress as to the first statement, but denied

the motion as to the second and third statements.

Appellant was ultimately convicted of raping MW. He

appealed his conviction to the Air Force Court of Criminal

Appeals, arguing, among other things, that the military

judge should have excluded all three statements pursuant to

the marital communications privilege. See McCollum, 56

M.J. at 841. He maintained that he never intended to

disclose any of the statements to third parties, nor did he

give his wife permission to disclose the statements. Id.

at 842.

The lower court affirmed the military judge’s

decision. The court held that because there was “some

evidence” supporting the view that Appellant intended his

statement about his not having ejaculated to be

communicated to medical authorities, the military judge did

not abuse her discretion by admitting it. Id. at 843.

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United States v. MCCOLLUM, No. 02-0474/AF

Because the statement was subject to contrasting

interpretations, the court determined that the “military

judge obviously concluded that [A]ppellant did not meet his

burden of proving the existence of the privilege.” Id.

Regarding Appellant’s statements made to his wife after his

return from Saudi Arabia, the court determined that

although Appellant never actually disclosed the information

to the families, he gave his wife consent to disclose the

information and thus waived the privilege under M.R.E.

510(a). Id.

Appellant appealed his conviction to this Court,

arguing that his statements to his wife were intended to be

confidential marital communications and should have been

excluded by the military judge under M.R.E. 504(b)(1).

During oral argument before this Court, the issue of

whether Appellant’s statements were admissible under the

exception contained in M.R.E. 504(c)(2)(A) again arose.

Because this Court viewed that exception as potentially

relevant in this context, it ordered supplemental briefs

and additional oral argument on the applicability of M.R.E.

504(c)(2)(A) to this case.

Whether the military judge erred by admitting

Appellant’s two statements to his wife therefore depends on

(1) whether Appellant’s statements were privileged under

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United States v. MCCOLLUM, No. 02-0474/AF

M.R.E. 504(b)(1); and (2) if so, whether the exception

contained in M.R.E. 504(c)(2)(A) applies, making the

statements admissible nonetheless. We address both issues

in turn.

B. M.R.E. 504

(1) Discussion

A military judge’s decision to admit or exclude

evidence is reviewed for an abuse of discretion. United

States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F. 2000); see

United States v. Westmoreland, 312 F.3d 302, 306 (7th Cir.

2002)(“We review the trial court's resolution of a marital

privilege issue for an abuse of discretion.”). Whether a

communication is privileged is a mixed question of fact and

law. McElhaney, 54 M.J. at 131 (citing United States v.

Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997)). We review a

lower court’s legal conclusions de novo, but we give a

lower court’s factual findings more deference, and will not

reverse such findings unless they are clearly erroneous.

United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995).

Courts have long held, either as a matter of statutory

or common law, that confidential communications between a

husband and wife made during a valid marriage are

privileged and cannot be used as evidence in court, absent

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United States v. MCCOLLUM, No. 02-0474/AF

waiver. See, e.g., Wolfe v. United States, 291 U.S. 7, 15

(1934)(citing early cases recognizing a marital

communications privilege); 8 John Henry Wigmore, Evidence

in Trials at Common Law § 2333 (John T. McNaughton rev.

1961)(discussing the history and development of the marital

communications privilege). In military law, the marital

communications privilege is contained in M.R.E. 504(b)(1).

The provision provides in relevant part:

A person has a privilege during and after the
marital relationship to refuse to disclose, and
to prevent another from disclosing, any
confidential communication made to the spouse of
the person while they were husband and wife and
not separated as provided by law.

The burden of establishing that a marital

communication is privileged under M.R.E. 504(b)(1) is on

the party asserting the privilege. United States v.

McCarty, 45 M.J. 334, 336 (C.A.A.F. 1996); see 1

Christopher B. Mueller & Laird C. Kirkpatrick, Federal

Evidence § 32, at 172-73 (1994)(noting that the party

bearing the burden of proof on privilege issues is the

party seeking to exclude evidence). The party asserting

the privilege must establish its applicability by a

preponderance of the evidence. See United States v.

Singleton, 260 F.3d 1295, 1301 (11th Cir. 2001)(requiring a

defendant asserting the marital privilege to prove by a

32
United States v. MCCOLLUM, No. 02-0474/AF

preponderance of the evidence that she and her husband were

not permanently separated at the time of the allegedly

protected communication); 1 Mueller & Kirkpatrick, supra, §

32, at 174 (noting that the preponderance standard applies

to preliminary questions such as the application of

privileges). The same standard applies to M.R.E.

504(b)(1). See Rule for Courts-Martial 905(c)(1).

In McElhaney, we summarized the requisite elements of

a privileged communication under M.R.E. 504(b)(1): (1)

there must be a communication; (2) the communication must

have been intended to be confidential; and (3) it must have

been made “between married persons not separated at the

time of the communication.” 54 M.J. at 131. In

Appellant’s case, the parties agree that Appellant’s

statements were communications made to his wife while they

were legally married and not separated. The issue,

therefore, is whether the two statements in question were

intended to be confidential.

M.R.E. 504(b)(2) defines a confidential communication

in the following terms:

A communication is “confidential” if made
privately by any person to the spouse of the
person and is not intended to be disclosed to
third persons other than those reasonably
necessary for transmission of the communication.

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In United States v. Peterson, 48 M.J. 81, 82 (C.A.A.F.

1998), we stated that a communication is confidential if

there is (1) “physical privacy between the individuals,”

and (2) “an intent to maintain secrecy.” Neither party in

this case disputes that the communications between

Appellant and RM were private and that no third party was

present when Appellant made them. The parties, however,

disagree about whether Appellant intended the

communications to be secret.

From an evidentiary standpoint, proving that a party

intended a communication to be confidential can be

difficult. Such exchanges are often entirely oral, and the

nature of confidential communications is such that there

are rarely third parties or other evidence to attest to the

facts. This difficulty is heightened in the marital

context, where, because of the spousal relationship, there

are rarely “express injunctions of secrecy,” and the only

evidence of intent may be the statement itself. 8 Wigmore,

supra, § 2336, at 648. Moreover, in marriage, iterative

processes of thought are shared, and not just conclusions

and actions. For these reasons, the Supreme Court long ago

held that “marital communications are presumptively

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United States v. MCCOLLUM, No. 02-0474/AF

confidential.”3 Blau v. United States, 340 U.S. 332, 333

(1951); see Pereira v. United States, 347 U.S. 1, 6 (1954);

Wolfe, 291 U.S. at 14 ; United States v. Byrd, 750 F.2d

585, 590 (7th Cir. 1984); In re Grand Jury Investigation,

603 F.2d 786, 788 (9th Cir. 1979); Caplan v. Fellheimer,

162 F.R.D. 490, 491 (E.D. Penn. 1995); 1 Charles T.

McCormick, McCormick on Evidence § 80, at 330 (5th ed.

1990); 8 Wigmore, supra, § 2336, at 648-56. Therefore,

3
Although the M.R.E.s do not expressly address a presumption of
confidentiality, it has been integral to the marital communications
privilege since the early part of the twentieth century. Moreover, it
is clear that M.R.E. 504(b) is rooted in the common law marital
communications privilege. The analysis of M.R.E. 504(b) indicates that
the present rule is based on the rule contained in paragraph 151(b)(2)
of the Manual for Courts-Martial, United States, 1969 (Revised ed.).
See Manual for Courts-Martial, United States (2002 ed.) [hereinafter
MCM], Analysis of the Military Rules of Evidence A22-40. The analysis
of the 1969 rule, and the legal and legislative analysis of its 1951
predecessor, cite common law cases and commentators to explain the
rule, indicating that the military rule is derived from common law.
See Dep't of the Army, Pamphlet 27-2, Analysis of Contents, Manual for
Courts-Martial, United States 1969 (Revised ed.) para. 151(b)(2), at
27-37 (1970)(citing Lutwak v. United States, 344 U.S. 604 (1953); Wolfe
v. United States, 291 U.S. 7 (1934); and 8 John Henry Wigmore, Evidence
in Trials at Common Law §§ 2298, 2310-11, 2317(1), 2322, 2328(1) (John
T. McNaughton rev. 1961)); Legal and Legislative Basis, Manual for
Courts-Martial, United States 1951 para. 151(b)(2), at 239 (1951
ed.)(citing 8 Wigmore, supra, §§ 2335, 2338(4)(1940 ed.) to clarify the
application of the martial communications privilege and explain several
exceptions to the privilege).
The conclusion that there is a presumption of confidentiality is
also consistent with M.R.E. 101(b), which instructs military courts,
"if not otherwise prescribed in [the] Manual . . . , and insofar as
practicable and not inconsistent with or contrary to the code or [the]
Manual," to apply “the rules of evidence generally recognized in the
trial of criminal cases in the United States district courts[.]” The
M.R.E.s do not address the application of presumptions generally, nor
does M.R.E. 504(b) preclude the application of a presumption of
confidentiality specifically. Nor is such a presumption “inconsistent
with or contrary to" the UCMJ or the MCM. As such, we look to the
rules of evidence that are generally recognized in the federal courts.
As noted in the text, the federal courts that have addressed the issue
have uniformly presumed marital communications to be confidential.
Accordingly, we apply the same rule in this case.

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once the party asserting the marital communications

privilege establishes the existence of a private

communication between spouses who are not separated, the

burden of production shifts to the opposing party to

overcome the presumption of confidentiality. See Blau, 340

U.S. at 333-34 (holding that a statement was protected by

the marital privilege where the Government failed to

overcome the presumption of confidentiality); see also In

re Grand Jury Investigation, 603 F.2d at 688 (noting that

because marital communications are presumptively

confidential, it is “necessary for the party seeking to

avoid the privilege to overcome the presumption”)(citing

Blau, 340 U.S. at 333); Caplan, 162 F.R.D. at 491

(explaining that since “all communications made during a

valid marriage are presumed to be confidential . . . the

opposing party has the obligation of overcoming this

presumption.”).

Even though marital communications are presumed to be

confidential, several factors are relevant in determining

whether that presumption has been overcome. For instance,

the nature of the circumstances may suggest that the

speaker did not intend the statement to be confidential.

Wolfe, 291 U.S. at 14 (“[W]herever a communication, because

of its nature or the circumstances under which it was made,

36
United States v. MCCOLLUM, No. 02-0474/AF

was obviously not intended to be confidential it is not a

privileged communication.”). A communication, for example,

is generally not intended to be confidential if it is made

in the presence of a third party. Id. The substance of

the communication may also be indicative of whether the

party intended a statement to be confidential. See Blau,

340 U.S. at 333 (acknowledging that a statement was likely

intended to be confidential where a couple risked being put

in jail for contempt of court for their actions). Because

distinguishing between intent and a mere wish or desire is

often difficult, the existence or nonexistence of an

expressed timeline or particular plan for disclosure may

also reveal whether a party intends to disclose

information. This is particularly true if disclosure is

said to be imminent. Finally, whether the statement is

actually shared with a third party bears on whether the

speaker intended the information to be confidential.

(2) Appellant’s Statements Regarding Ejaculation

In the present case, the Court of Criminal Appeals

upheld the military judge’s admission of Appellant’s

statement regarding ejaculation. In doing so, it

ultimately deferred to the military judge’s conclusion that

Appellant had failed to meet his burden of proving that he

intended the statement to be confidential. However, this

37
United States v. MCCOLLUM, No. 02-0474/AF

conclusion ignores the general rule that marital

communications are presumed to be confidential. Because

Appellant had established that the statement was a private

communication made to his wife while they were married, and

not separated, it was left to the Government to rebut the

presumption of confidentiality. Insofar as the military

judge and lower court placed the burden of production on

Appellant to prove confidentiality, they erred. The proper

question is whether the Government overcame the presumption

of confidentiality. Considering Appellant’s statement and

the circumstances surrounding its utterance, in light of

the factors outlined above, we think that it did not.

Appellant’s statement that he did not ejaculate is not

the kind of statement a person generally intends to share

openly. Further, Appellant likely knew that if authorities

became aware of his actions, he risked being charged

criminally. Moreover, the military judge’s determination

that Appellant intended the statement to be shared with

medical authorities is without substantiation. There is no

evidence that Appellant ever discussed sharing the

information with medical authorities. In fact, RM could

not be certain that Appellant even knew that she intended

to take MW to a clinic. Nor did the statement itself

contain any indication that Appellant intended to share the

38
United States v. MCCOLLUM, No. 02-0474/AF

information with medical personnel, but may have been

uttered to dissuade RM from taking MW to the clinic. The

military judge, therefore, clearly erred by finding that

Appellant intended to share the information with medical

personnel.

Finally, the fact that the statement was never shared

until the investigation began supports the view that

Appellant intended the statement to be confidential. There

was no evidence produced at trial that either Appellant or

RM ever discussed the incident with any third parties prior

to the investigations that led to Appellant’s trial.

Appellant’s mother testified that Appellant never told her

about his conversations with RM. RM also testified that

she never shared the information from these conversations

with her family, family services, law enforcement

personnel, or anyone on base. She also added that she

never told the personnel at the clinic about the incident.

Moreover, the Government did not introduce any medical

records relating to MW’s visit to the clinic.

Because we find no evidence that Appellant intended to

share this statement with medical personnel, we hold that

the Government failed to overcome the presumption of

confidentiality. The military judge therefore abused her

discretion by admitting the statement.

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United States v. MCCOLLUM, No. 02-0474/AF

(3) Appellant’s Post-Saudi Arabia Statements

The propriety of admitting Appellant’s post-Saudi

Arabia statements presents a more difficult question. The

lower court held that Appellant waived any privilege by

giving his wife consent to disclose his statement under

M.R.E. 510(a). We disagree.

M.R.E. 510(a) states that a person waives a privilege

where he or she “voluntarily discloses or consents to

disclosure of any significant part of the matter or

communication under circumstances that it would be

inappropriate to allow the claim of privilege.” Voluntary

disclosure applies only where the speaker elects to share a

substantial portion of a privileged communication with a

party outside of the privileged relationship. McElhaney,

54 M.J. at 131-32; see United States v. Bahe, 128 F.3d

1440, 1442 (10th Cir. 1997); 2 Mueller & Kirkpatrick,

supra, § 179, at 293. There is no evidence that Appellant

did so here.

In our view, voluntary consent to disclose is given

where one spouse either expressly or implicitly authorizes

the other to share information with a third party. Courts

have regularly held that the unauthorized disclosure of

privileged information by one spouse does not constitute

40
United States v. MCCOLLUM, No. 02-0474/AF

waiver of the privilege. In such cases, the nondisclosing

spouse can still assert the privilege and prevent the use

of the confidential information in a legal proceeding. 2

Mueller & Kirkpatrick, supra, § 207, at 438; see Proctor &

Gamble Co. v. Banker’s Trust Co., 909 F. Supp. 525, 528

(S.D. Ohio 1995), rev’d on other grounds, 78 F.3d 219 (6th

Cir. 1996); United States v. Neal, 532 F. Supp. 942, 947

(Colo. 1982), aff’d, 743 F.2d 1441 (10th Cir. 1984); State

v. Compton, 726 P.2d 837, 841 (N.M. 1986), cert. denied,

479 U.S. 890 (1986); People v. Gardner, 433 N.E.2d 1318

(Ill. App. Ct. 1982).

In Appellant’s case, RM testified that Appellant told

her that he “mentioned telling my family about what

happened and telling his, and you know, just taking

responsibility for it.” There is no evidence in these

words, or otherwise, that Appellant either expressly or

implicitly authorized his wife to share his statements with

third parties. Without more, his comments reflect a

marital discussion about telling the families about

Appellant’s conduct with MW, not necessarily a decision to

do so. If discussing the possibility of sharing privileged

information with third parties constituted authorization to

disclose, an accused would have effectively waived the

attorney-client privilege each time he discussed the

41
United States v. MCCOLLUM, No. 02-0474/AF

possibility of confessing with his attorney. The facts

here indicate that Appellant and RM merely discussed

disclosure. Therefore, Appellant did not waive the

privilege provided for in M.R.E. 504(b)(1).

As M.R.E. 510(a) does not apply, again the question

becomes whether the Government carried its burden of

overcoming the presumption of confidentiality. The

military judge concluded that Appellant’s expressed desire

to tell his mother and his wife’s family about the incident

with MW manifested his intent to disclose the statements.

It is true that Appellant’s statements could be interpreted

as expressing an intention to disclose information to the

families. However, the statements could also be viewed as

aspirational or an expression of desire, a view supported

by the fact that the statements lacked any indication that

disclosure was planned for a particular time.

Other factors also buttress the view that Appellant

had not yet determined to disclose his relationship with MW

with the families, but was addressing the possibility of

doing so. Similar to Appellant’s other statements to RM,

Appellant’s post-Saudi Arabia statements contained

information that is traditionally maintained as

confidential. Disclosure of Appellant’s relationship with

MW could have resulted in criminal or civil liability to

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United States v. MCCOLLUM, No. 02-0474/AF

himself and could have traumatized the families. In fact,

RM appears to have had this latter concern in mind when she

counseled Appellant against disclosing his past conduct to

her family. At trial she testified, “I told him I didn’t

want him telling, not my family.” Further, this comment

would seem to confirm that Appellant had not definitely

decided to disclose the information at the time of his

conversation with his wife. Furthermore, the view that

Appellant intended the statements to be confidential is

supported by the fact that neither party disclosed the

information to family members. In short, there is no

evidence he ever discussed the issue with the families or

others.

Although there is some evidence, found in Appellant’s

words, supporting the view that Appellant wanted to tell

others about his conduct with MW, we conclude that this

evidence, when contrasted by evidence to the contrary, was

insufficient to overcome the presumption of

confidentiality. The Government therefore failed to carry

its burden. We therefore hold that the military judge

abused her discretion in concluding that Appellant’s

statements were not privileged under M.R.E. 504(b)(1).

C. Applicability of M.R.E. 504(c)(2)(A).

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Because Appellant’s statements meet the requirements

of M.R.E. 504(b)(1), they are privileged unless they

otherwise fall under an exception to that rule. At issue

in this case is the exception contained in M.R.E.

504(c)(2)(A), which applies to “proceedings in which one

spouse is charged with a crime against the person or

property of the other spouse or a child of either[.]” The

Government argues that “child of either” should be read to

include a “de facto” child, or a child who is under the

care or custody of one of the spouses, regardless of the

existence of a formal legal parent-child relationship. It

therefore maintains that because MW was under the custody

and care of RM at the time of the alleged offenses, MW was

a de facto child and M.R.E. 504(c)(2)(A) should apply,

making Appellant’s statements admissible. Whether “child

of either” should be construed to include a de facto child

is a question of law that we review de novo. See United

States v. Phillips, 18 C.M.A. 230, 234, 39 C.M.R. 230, 234

(1969)(construction of regulations is a question of law);

United States v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th

Cir. 1997)(“A district court’s construction of the Federal

Rules of Evidence is a question of law subject to de novo

review.”)(citing United States v. Manning, 56 F.3d 1188,

1196 (9th Cir. 1995)).

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We begin with the language of M.R.E. 504(c)(2)(A). In

construing the language of a statute or rule, it is

generally understood that the “’words should be given their

common and approved usage.’” United Scenic Artists v. NLRB,

762 F.2d 1027, 1032 n.15 (D.C. Cir. 1985)(quoting 2A Norman

J. Singer, Sutherland Statutory Construction § 46.06, at 74

(4th ed. 1984)). Although the term “child,” by itself, has

many definitions, when accompanied by the phrase “of

either” in the context of a marital relationship, the word

has more specific meaning. The preposition “of,” as used

in this phrase, suggests derivation or belonging. See

Webster’s New World College Dictionary 1000 (4th ed. 2000).

Thus the plain words suggest that a child should be

considered “of” a spouse if that spouse is the parent

(biological, adoptive or legally recognized parent or

guardian) of the child in question. Significantly, Black’s

Law Dictionary defines “parent” in terms of legal or

biological status as

“[t]he lawful father or mother of someone. In
ordinary usage, the term denotes more than
responsibility for conception and birth. The
term commonly includes (1) either the natural
father or the natural mother of a child, (2) the
adoptive father or adoptive mother of a child,
(3) a child’s putative blood parent who has
expressly acknowledged paternity, and (4) an
individual or agency whose status as guardian has
been established by judicial decree.

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United States v. MCCOLLUM, No. 02-0474/AF

Black’s Law Dictionary 1137 (7th ed. 1999).

It is possible to read the phrase “child of either” to

suggest a custodial relationship, in addition to a legal or

biological relationship where, for example, a child is

placed under the long-term care of another without legal

ratification. A child placed under the long-term care of a

grandparent or other relative during an extended deployment

might establish a sufficient sense of “belonging” to

qualify as a de facto child of the guardian. This view of

the rule’s language, however, strikes us as strained in

light of the general usage and understanding of these terms

in legal practice. Moreover, the President could have

drafted a fuller, more expansive definition to connote a

custodial as well as legal or biological relationship.

Given the significant social and legal policy implications

of extending the privilege with respect to custodial

relationships with children, we would expect such an intent

to be represented in express language, rather than pressed

or squeezed from the present text. Therefore, we think the

better view is that “child of either,” as used in M.R.E.

504(c)(2)(A), applies to only those situations in which a

46
United States v. MCCOLLUM, No. 02-0474/AF

child is the biological child of one of the spouses, the

legally recognized child, or ward of one of the spouses.4

In reaching this conclusion, we are also cognizant

that M.R.E. 101(b) instructs military courts to look to the

federal rules and the common law for guidance on

evidentiary issues where doing so is “not otherwise

prescribed in [the] Manual . . . and insofar as practicable

and not inconsistent with or contrary to the code or [the]

Manual.” When looking to these sources, M.R.E. 101(b)

mandates that we look

(1) First, [to] the rules of evidence generally
recognized in the trial or criminal cases in
the United States district courts; and
(2) Second, when not inconsistent with
subdivision (b)(1), [to] the rules of
evidence at common law.

An expansive interpretation of the phrase “child of either”

finds little support in the federal civilian system or

common law.

With regard to M.R.E. 101(b)(1), the Federal Rules of

Evidence do not expressly provide for an exception to the

marital communications privilege. See Fed. R. Evid. 501.

4
A foster child may indeed be a legally recognized child or ward of a
spouse. Because of variations in state laws and the number of other
factors that might potentially come into play in cases involving foster
children, we reserve the question of whether this exception applies
specifically to foster children for a case in which that issue has been
appropriately raised, briefed, and argued.

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United States v. MCCOLLUM, No. 02-0474/AF

Moreover, we are aware of only one federal circuit

that has recognized an exception to the common law marital

communications privilege where a spouse is accused of

abusing a child who is not the biological or legal child of

either spouse. See Bahe, 128 F.3d at 1444-46 (creating “an

exception to the marital communications privilege for

spousal testimony relating to the abuse of a minor child

within the household”). While there is no mathematical or

temporal formula for determining how many cases make an

exception “generally recognized,” we are confident it must

be more than one. Thus at this time, the rules of evidence

applicable in the federal district courts do not generally

recognize a de facto child exception to the marital

communications privilege.

We also note that only five states have recognized an

exception to the marital communications privilege for

offenses against a child who is not the biological or

adopted child of one of the spouses. See Huddleston v.

State, 997 S.W.2d 319, 321 (Tex. Ct. App. 1999)(holding

that Tex. Crim. Proc. Code Ann. § 38.10 (Vernon Supp.

1999)) provides an exception to the marital communications

privilege where a person is charged with a crime against

any minor child, regardless of whether the child is a child

of one of the spouses); Dunn v. Superior Court, 26 Cal.

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United States v. MCCOLLUM, No. 02-0474/AF

Rptr.2d 365, 367-68 (Cal. Ct. App. 1993)(interpreting the

phrase “child of . . . either” in an exception to the

marital communications privilege to include a foster

child); State v. Michels, 414 N.W.2d 311, 315-16 (Wis. Ct.

App. 1987)(concluding that the phrase “child of either” as

used in an exception to the husband-wife privilege was

intended to include a foster child); Daniels v. State, 681

P.2d 341, 345 (Alaska Ct. App. 1984)(holding that the

language “’child of either’ is sufficiently broad to apply

to a crime committed against a foster child.”). Even among

these states, only Texas’s exception in Huddleston would

clearly extend to children in the home that do not have

some type of legal relationship with one of the spouses.

Based on the text of the rule, and in light of the

rules of evidence generally recognized in the federal

courts, we conclude that there is not a de facto child

exception to the marital communications privilege of M.R.E.

504(c)(2)(A). We also conclude that MW was not a child of

RM or Appellant for purposes of M.R.E. 504(c)(2)(A) during

her month-long stay with the couple.

MW is RM’s sister. While RM cared for MW and saw to

her needs, MW only stayed with Appellant and RM for one

month, after which time she returned to her parent’s home.

Moreover, there was no evidence that RM had any parental

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United States v. MCCOLLUM, No. 02-0474/AF

rights or duties over MW by virtue of law or decree.5 Based

on the lack of evidence to the contrary, we conclude that

MW was not the “child” of either RM or Appellant because

there was no biological and/or legal parent-child

relationship. The exception contained in M.R.E.

504(c)(2)(A) therefore does not apply to this case.

Whether a de facto child exception to the marital

communications privilege should apply to courts-martial is

a legal policy question best addressed by the political and

policy-making elements of the government.6

5
We note that the Government offered no evidence on appeal or at trial
to indicate that a legal child-parent relationship existed during MW’s
month-long stay with RM. Insofar as the Government failed to introduce
any evidence of such a relationship, it should bear the consequences of
such a failure.
6
Consideration of such an exception would require the careful weighing
of complicated and often contrasting policy concerns.
On the one hand, “de facto child” does not offer the same degree
of clarity in coverage as definitions based on legal connections. As
recognized by Judge Everett in United States v. Tipton, 23 M.J. 338,
343 (C.M.A. 1987), there are good arguments for adopting crisp rules of
privilege and exceptions that are as clear to the lay person as they
are to the lawyer in a system of justice integrally incorporating both.
Clear rules also underpin the policy purpose behind the marital
communications privilege in the first instance. As a matter of theory,
certainty in coverage encourages marital communication and, through
communication, the marital bond. The marital bond, in turn, is
generally recognized as facilitating the nurture and protection of
children within the family.
On the other hand, there are good policy justifications for
expanding the exception to the privilege to include a de facto child,
particularly in the military. Due to deployments and single
parenthood, children of military personnel are often cared for by
grandparents, siblings, aunts or uncles, or friends. We also recognize
that many children are abused in homes that are not their own.
Moreover, we are aware that there are a myriad of child-raising
scenarios in today’s society, often necessitating daycare or less
formal means of supervising children. Children in these situations
should receive no less protection from abuse than they receive in their
own homes. One could also argue that the marital communications

50
United States v. MCCOLLUM, No. 02-0474/AF

Because M.R.E. 504(c)(2)(A) does not apply in this

case, Appellant’s statements to RM were privileged and

should have been excluded from trial. Such error will

require reversal unless the error is harmless.

Harmless Error

Whether an error, constitutional or otherwise, was

harmless is a question of law that we review de novo.

United States v. Walker, 57 M.J. 174, 178 (C.A.A.F. 2002);

United States v. Grijalva, 55 M.J. 223, 228 (C.A.A.F.

2001). The Government has the burden of persuading us that

a constitutional error is harmless beyond a reasonable

doubt. United States v. Hall, 56 M.J. 432, 436 (C.A.A.F.

2002). For nonconstitutional errors, the Government must

demonstrate that the error did not have a substantial

influence on the findings. Walker, 57 M.J. at 178 (citing

Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

This Court has never addressed whether the erroneous

admission of privileged marital communications constitutes

constitutional or nonconstitutional error for purposes of

harmless error analysis. With respect to the privilege in

privilege--a privilege intended to promote marital harmony--should not
prevent “a properly outraged spouse with knowledge from testifying
against the perpetrator” of child abuse within the home, regardless of
whether the child is part of that family. United States v. Bahe, 128
F.3d 1440, 1446 (10th Cir. 1997).
In any event, it is the responsibility of the political elements
of government to balance these competing considerations in law.

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United States v. MCCOLLUM, No. 02-0474/AF

this case, constitutional concerns are not at issue.

M.R.E. 504 was formulated by the Evidence Working Group of

the Joint Service Committee on Military Justice and was

enacted by presidential order. See United States v.

Martel, 19 M.J. 917, 931 (A.C.M.R. 1985); MCM, Drafter’s

Analysis, supra, at A22-38, A22-40. It was not

constitutionally mandated, and consequently, any error in

admitting privileged spousal communications must be

nonconstitutional in nature. Therefore, the military

judge’s error in admitting Appellant’s privileged

statements will be harmless if the error did not have a

substantial influence on the findings.

In determining the prejudice resulting from the

erroneous admission of evidence, we weigh “(1) the strength

of the Government’s case, (2) the strength of the defense

case, (3) the materiality of the evidence in question, and

(4) the quality of the evidence in question.” United

States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)(citing

United States v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985)).

Applying this standard to Appellant’s case, we hold that

the military judge’s error in admitting Appellant’s

statements was harmless.

On the one hand, there is no doubt that Appellant’s

privileged statements were material. They directly related

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United States v. MCCOLLUM, No. 02-0474/AF

to Appellant’s culpability, an ultimate issue in this case.

Moreover, the statements were of good quality. While they

were not extensive, the statements were admissions of guilt

and provided sufficient detail to make their meaning clear.

On the other hand, other factors indicate that the

erroneous admission of the statements did not have a

substantial influence on the findings. See Kotteakos, 328

U.S. at 765. The Government presented strong evidence that

Appellant had sexual intercourse with MW. MW testified

that Appellant had had sex with her on multiple occasions

in different places throughout the house. She described at

least two of these occasions in graphic detail. In the

first instance, despite her mental limitations, MW was able

to identify the room in which Appellant had sex with her

and what she was wearing, explain what Appellant said to

her, and describe the sexual encounter, including that

following the encounter, Appellant “wiped the stuff off.

He had took [sic] a towel and had wiped the white stuff off

of him.” She also testified that after having sex, she

went and cleaned the “white stuff” off of herself because

she didn’t want to “get pregnant.” Regarding a second

instance, MW testified to the following facts: (1)

Appellant had sex with her in the living room; (2) RM and

her niece were asleep at the time; (3) she was wearing a

53
United States v. MCCOLLUM, No. 02-0474/AF

nightgown; (4) Appellant asked her if he could have sex

with her; (5) she took off her panties and Appellant took

off his clothes; (6) when they were naked, Appellant

inserted his penis in her; and (7) after Appellant was

done, he again “wiped the white stuff off of him.”

Moreover, MW’s testimony was uncontradicted on cross-

examination. During cross-examination, defense counsel did

not question MW about the facts she testified to on direct.

Rather, defense counsel attempted to show that MW’s

testimony was the result of her suggestibility. Defense

counsel was able to establish that MW was confused about

the existence of a second written statement, but he failed

to mount any evidence to support the theory that MW’s

testimony was untrue.

MW’s testimony was supported by RM’s testimony. RM

testified that she awoke one morning between 2:00 and 3:00

a.m. to find Appellant lying in the living room in his

underwear near MW. She stated that MW’s nightgown was

pulled up above her waist, exposing her panties. RM

further testified that when she confronted MW the next

morning about the events of the prior evening, MW became

emotional and began to cry. Subsequently, in a

confrontation with Appellant about whether he had had sex

with MW earlier that morning, and in response to

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United States v. MCCOLLUM, No. 02-0474/AF

Appellant’s denying such action, RM testified that she

asked him, “why would [MW] say that it happened[?]” RM

also testified that some time after this incident, she took

MW to a clinic to see whether she was pregnant. When

considered in light of MW’s testimony, these facts

demonstrate that the Government had a strong case against

Appellant.

The defense’s case, on the other hand, was weak. It’s

primary theory, as evidenced by its opening and closing

statements, was that all the prosecution’s witnesses’

stories were inconsistent, confusing, or fabricated. Yet,

defense counsel failed to undermine the substance of MW’s

or RM’s testimony, for example, through cross-examination.

Defense counsel also failed to raise any material

inconsistencies in their stories. Moreover, although

defense counsel insinuated that RM’s and MW’s testimony was

false or the product of suggestion, he was unable to offer

any proof to substantiate such allegations.

Although the qualitative nature of Appellant’s

statements makes resolution of this issue a close one, we

conclude that the other evidence against Appellant was

sufficiently incriminating that Appellant would have been

convicted even if his statements had been properly

excluded. We therefore hold that the military judge’s

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United States v. MCCOLLUM, No. 02-0474/AF

erroneous admission of those statements did not

substantially influence her findings. The errors were

therefore harmless.

Conclusion

For these reasons, we affirm the decision of the Air

Force Court of Criminal Appeals.

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United States v. McCollum, 02-0474/AF

CRAWFORD, Chief Judge (concurring in the result):

I agree with the majority’s resolution of this case on

the ground of harmless error. I write separately because

my analysis of whether “child of either” in the context of

Military Rule of Evidence 504(c)(2)(A) [hereinafter M.R.E.]

includes a de facto child, leads me to a different

conclusion than the majority.

While the plain or ordinary meaning is certainly the

starting point for statutory interpretation, courts should

also implement “considerations of language, purpose, and

administrative workability[.]” Geier v. American Honda

Motor Co., 529 U.S. 861, 873 (2000). Accordingly, “it is

entirely appropriate to consult all public materials,

including . . . the legislative history . . . to verify

that what seems to us an unworkable disposition . . . was

indeed unthought of, and thus to justify a departure from

the ordinary meaning of [a] word[.]” Green v. Bock Laundry

Machine Co., 490 U.S. 504, 527 (1989)(Scalia, J.,

concurring). See also Mississippi Band Choctaw Indians v.

Holyfield, 490 U.S. 30, 43 (1989)(applying congressional

intent to statutory interpretation). “These factors

provide a background of the existing customs, practices,

and rights and obligations against which to read the
United States v. McCollum, 02-0474/AF

statute.” United States v. Tardif, 57 M.J. 219, 226

(C.A.A.F. 2002)(Crawford, C.J., dissenting).

The explicit public policy concerns prompting the

military’s adoption of M.R.E. 504(c)(2)(A) suggest that the

term “child of either” includes a de facto child. To find

otherwise is simply an “unworkable disposition” that, while

justifiable under the plain meaning of the word “child,”

defeats a key purpose for which the exception was adopted.

In 1969, the Judicial Conference of the United States,

Committee on Rules of Practice and Procedure, promulgated a

draft of the Proposed Federal Rules of Evidence -- the

precursor of today’s Federal Rules of Evidence. Proposed

Fed. R. Evid. 5-05(b)(1) established an exception to the

husband-wife privilege “in proceedings in which one spouse

is charged with a crime against the person or property . .

. of a child of either[.]” 46 F.R.D. 161, 263 (1969). The

note to the proposed rule identified the “need of

limitation upon the privilege in order to avoid grave

injustice in cases of offenses against . . . a child [of

either spouse.]” Id. at 265 (emphasis added). Proposed

Fed. R. Evid. 5-05(b)(1) became, verbatim, Proposed Fed. R.

Evid. 505(c)(1) in the 1971 Revised Draft of the Proposed

Rules, which included the same explanatory note. 51 F.R.D.

315, 369, 371 (1971).

2
United States v. McCollum, 02-0474/AF

Although Congress did not include the Proposed Rule

505(c)(1) exception in the eventually codified Federal

Rules of Evidence, the military did expressly include the

exception in the form of M.R.E. 504(c)(2)(A). That the

military elected to identify this exception explicitly,

despite Congress’s failure to do so in the Federal Rules of

Evidence, is significant. The analysis of M.R.E.

504(c)(2)(A) notes its adoption from proposed Fed. R. Evid.

505(c)(1), and highlights the rule’s recognition of

“society’s overriding interest in prosecution of anti-

marital offenses and the probability that a spouse may

exercise sufficient control, psychological or otherwise, to

be able to prevent the other spouse from testifying

voluntarily.” Manual for Courts-Martial, United States

(2002 ed.), Analysis of the Military Rules of Evidence A22-

40.

What we glean from the history of M.R.E. 504(c)(2)(A)

and its analysis is an intent to effect public policy.

Clearly, an important public policy behind this exception

is “the interest in protecting children, which abounds in

the law” Dunn v. Superior Court, 26 Cal. Rptr. 2d 365, 367

(Cal. Ct. App. 1993) (interpreting the “child of either”

language in California’s exception to the marital

privilege). This interest strongly signals that “child of

3
United States v. McCollum, 02-0474/AF

either” encompasses a de facto child. To find otherwise

would yield absurd results. Clearly, the exception’s

purpose

would not be served by affording protection to
only those children of a family unit with legal
or biological relationships. Rather, [the
purpose] is to ensure that those individuals,
particularly minor children, who are present in
the home and are actively a part of the family
structure are protected, via criminal
prosecution, for crimes committed against them.

State v. Michels, 414 N.W.2d 311, 316 (Wis. Ct. App.

1987)(emphasis added).1

While the majority may be correct that this issue

ultimately is “a legal policy question best addressed by

the political and policy-making elements of the

government,” __ M.J. (50), the Court is remiss to ignore

the explicit public policy incentives behind the military’s

adoption of M.R.E. 504(c)(2)(A).

1
Several states which, like the military, have adopted the proposed
Fed. R. Evid. 505(c)(1) exception have employed this reasoning and
applied exactly this interpretation of “child of either.” See Daniels
v. State, 681 P.2d 341 (Alaska Ct. App. 1984) (holding that the phrase
is sufficiently broad to include crimes committed against foster
children, in the interest of protecting children); Dunn v. Superior
Court, 26 Cal. Rptr. 2d 365, 367 (Cal. Ct. App. 1993) (interpreting the
phrase to include foster children, in the paramount interest of
protecting children); Huddleston v. State, 997 S.W.2d 319, 321 (Tex.
Ct. App. 1999)(holding that the exception to the spousal privilege
applies when a crime is committed against any minor child even if the
defendant or spouse is not the parent of the child); State v. Michels,
414 N.W.2d 311, 315-16 (Wis. Ct. App. 1987)(applying the rule’s “object
to be accomplished” in concluding that a “foster child is properly
included”).

4