United States v. Taylor

UNITED STATES, Appellee

v.

Jason L. TAYLOR, Sergeant
U.S. Marine Corps, Appellant

No. 06-0319
Crim. App. No. 200202366

United States Court of Appeals for the Armed Forces

Argued January 8, 2007

Decided April 5, 2007

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and BAKER, JJ., joined. RYAN, J., filed a
dissenting opinion.

Counsel

For Appellant: Lieutenant Brian L. Mizer, JAGC, USN (argued).

For Appellee: Captain James W. Weirick, USMC (argued); Commander
P. C. LeBlanc, JAGC, USN, and Lieutenant Craig A. Poulson, JAGC,
USNR (on brief); Colonel R. F. Miller, USMC, and Lieutenant
Steven M. Crass, JAGC, USNR.

Military Judges: M. H. Sitler and P. H. McConnell

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Taylor, No. 06-0319/MC

Judge STUCKY delivered the opinion of the Court.

We granted review to consider whether an accused may invoke

the spousal confidential communications privilege and thereby

prevent his wife from testifying to his admission to committing

adultery. We hold that that he may not and affirm the court

below.

I.

Appellant, who was then stationed at Camp Lejeune, North

Carolina, married DN in August 1999. In November of that year,

DN returned to Idaho to finish high school. Soon after she

left, Appellant met a fifteen-year-old girl, AM. AM lived in a

trailer park where Appellant visited friends.

Appellant and AM developed a romantic and sexual

relationship. They engaged in sexual intercourse approximately

forty times, in several locations, between November 1999 and

early 2000. Throughout the affair, she knew he was married and

that his wife was in Idaho. She told him she was fifteen years

old.

In April 2000, DN returned from Idaho. After experiencing

marital difficulties, she confronted Appellant on Christmas Day

2000. He first denied, but then confessed to his affair with

AM. He told DN that he had made a mistake, but loved her and

wanted to salvage their marriage.

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At his special court-martial, Appellant filed a motion in

limine, asserting the marital communication privilege over this

conversation. The military judge denied the motion, ruling that

adultery was an offense against the spouse within the meaning of

Military Rule of Evidence (M.R.E.) 504(c)(2)(A) and, therefore,

Appellant could not prevent his wife from testifying to the

contents of the conversation.

Contrary to his pleas, the military judge convicted

Appellant of one specification of carnal knowledge, in violation

of Article 120, Uniform Code of Military Justice (UCMJ),

10 U.S.C. § 920 (2000), and one specification of adultery, in

violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000).

Appellant was acquitted of one specification of sodomy with a

child under the age of sixteen, and one specification of sodomy.

Article 125, UCMJ, 10 U.S.C. § 925 (2000). The sentence

adjudged by the court-martial, and approved by the convening

authority, consisted of a bad-conduct discharge, confinement for

four months, forfeiture of $600 pay per month for four months,

and reduction to the lowest enlisted grade. The United States

Navy-Marine Corps Court of Criminal Appeals affirmed the

findings and sentence. United States v. Taylor, 62 M.J. 636

(N-M. Ct. Crim. App. 2006).

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II.

M.R.E. 504 sets out the marital privileges applicable to

trials by courts-martial. With respect to the privilege of

confidential communications made during the marriage, it

provides as follows: “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.” M.R.E. 504(b)(1). However,

the privilege does not apply:

In proceedings in which one spouse is charged with a
crime against the person or property of the other
spouse or a child of either, or with a crime against
the person or property of a third person committed in
the course of committing a crime against the other
spouse.

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

Appellant asserts that adultery is not “a crime against the

person or property” of his wife and that therefore, the military

judge erred by permitting her to testify over his objection.

The Military Rules of Evidence do not define the term “a crime

against the person or property of the other spouse.” Appellant

implores this Court to confirm that “the proper approach to

consideration of whether an offense charged against one spouse

injures the other depends not upon the outrage to her

sensibilities or a violation of the marital bonds, but upon some

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United States v. Taylor, No. 06-0319/MC

direct connection with her person or property.” United States

v. Massey, 15 C.M.A. 274, 282, 35 C.M.R. 246, 254 (1965).

Whether adultery is “a crime against the person . . . of the

other spouse” is a question of law we review de novo. See

United States v. McCollum, 58 M.J. 323, 340 (C.A.A.F. 2003)

(deciding whether the term “child of either” under M.R.E.

504(c)(2)(A) should be construed to include a de facto child).

III.

Historically, the marital privilege involved two distinct

concepts: one related to the capacity (often referred to as the

competency or disability) of one spouse to testify against the

other, while the other concerned confidential communications

made between husband and wife during the marriage. 2 Stephen A.

Saltzburg et al., Military Rules of Evidence Manual § 504.02

(6th ed. 2006). Although we are concerned with the confidential

communications privilege in this case, the history of the two

concepts is so intertwined as to require a discussion of both.

At common law, neither husband nor wife was competent to

testify against the other. 1 Kenneth S. Broun et al., McCormick

on Evidence § 66, at 318 (6th ed. 2006); 2 John Henry Wigmore,

Evidence in Trials at Common Law, §§ 600-601 (Chadbourn rev.

1979).

This spousal disqualification sprang from two canons
of medieval jurisprudence: first, the rule that an
accused was not permitted to testify in his own behalf

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because of his interest in the proceeding; second, the
concept that husband and wife were one, and that since
the woman had no recognized separate legal existence,
the husband was that one. From those two now long-
abandoned doctrines, it followed that what was
inadmissible from the lips of the defendant-husband
was also inadmissible from his wife.

Trammel v. United States, 445 U.S. 40, 44 (1980).

The spousal disqualification rule “always recognized

certain exceptions founded on a supposed necessity, i.e., the

presumed impossibility, in specifically defined situations, of

obtaining other witnesses.” 2 Wigmore, supra, § 612 (citation

omitted). Such an exception to spousal disqualification was

made in both the common law and American military law for cases

in which the trial was for bodily injury or violence inflicted

by one spouse on the other. 1 Broun et al., supra, § 66, at

319; William Winthrop, Military Law and Precedents 335 (2d ed.

1920 reprint).

In 1951, the President promulgated a new Manual for Courts-

Martial to reflect the changes to military justice resulting

from the enactment in 1950 of the Uniform Code of Military

Justice, 10 U.S.C. §§ 800-940 (1950). Manual for Courts-

Martial, United States (1951 ed.) (1951 MCM). Article 36(a),

UCMJ, granted the President the authority to prescribe trial

procedures, “including modes of proof, . . . which shall, so far

as he considers practicable, apply the principles of law and the

rules of evidence generally recognized in the trial of criminal

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United States v. Taylor, No. 06-0319/MC

cases in the United States district courts.” 10 U.S.C. § 836(a)

(emphasis added).

In the 1951 Manual, the first governing all of the armed

services, the President included a chapter entitled “Rules of

Evidence.” 1951 MCM chap. XXVII. It was more akin to a

treatise than specific rules of evidence. He adopted the

following regarding the competency of spouses to testify:

Husband and wife are competent witnesses in favor of
each other. Although husband and wife are also
competent witnesses against each other, the general
rule is that both are entitled to a privilege
prohibiting the use of one of them as a witness (sworn
or unsworn) against the other. This privilege does
not exist, however, when the husband or wife is the
individual or one of the individuals injured by the
offense with which the other spouse is charged, as in
a prosecution for an assault upon one spouse by the
other, for bigamy, polygamy, unlawful cohabitation,
abandonment of wife or children or failure to support
them, for using or transporting the wife for “white
slave” or other immoral purposes, or for forgery by
one spouse of the signature of the other to a writing
when the writing would, if genuine, apparently operate
to the prejudice of such other.

1951 MCM chap. XXVII, para. 148.e., at 277. The drafters of the

Manual intended that, under this provision, the spouse of an

accused could be compelled to testify “if he or she [was] the

victim of the transgression with which the other spouse is

charged.” Charles L. Decker et al., Legal and Legislative

Basis, Manual for Courts-Martial, United States 235 (1951 ed.).

On the other hand, confidential communications between

husband and wife were privileged. The person entitled to the

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United States v. Taylor, No. 06-0319/MC

privilege was the spouse who made the communication. Normally,

such a communication could not be disclosed unless that spouse

consented to disclosure or otherwise waived the privilege.

However, the court could require the spouse of an accused to

disclose the communication, at the accused’s request, even if

the spouse was the one who made it. 1951 MCM chap. XXVII, para.

151.b.(2).

In United States v. Leach, 7 C.M.A. 388, 397, 22 C.M.R.

178, 187 (1956), a spousal privilege case, this Court held that

a wife was “injured,” within the meaning of paragraph 148.e., by

her husband’s act of adultery. We interpreted the term

“injured” to “embrace[] mental suffering arising from violations

of the marital relationship.” 7 C.M.A. at 397, 22 C.M.R. at

187. Although adultery was not one of the offenses listed in

paragraph 148.e., we concluded that the list was merely

illustrative, not exclusive. 7 C.M.A. at 397, 22 C.M.R. at 187.

Nine years later, we had another opportunity to determine

the scope of the exception to the marital privilege. In Massey,

the accused was charged with carnal knowledge of his own

daughter. Over the accused’s objection, his wife was permitted

to testify to the victim’s complaints about the abuse. 15

C.M.A. at 275-77, 35 C.M.R. at 247-49. After noting that the

accused had not been charged with adultery, we indicated that

“the proper approach to consideration of whether an offense

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United States v. Taylor, No. 06-0319/MC

charged against one spouse injures the other depends not upon

the outrage to her sensibilities or a violation of the marital

bonds, but upon some direct connection with her person or

property.” 15 C.M.A. at 282, 35 C.M.R. at 254. We then held

that:

the offense of carnal knowledge, even when incestuous,
is not a direct injury to a spouse, which causes her
testimony to fall without the accused’s properly
invoked privilege. In order to justify elimination of
that shield to the marital union, there must be
something more than conduct which abuses its
privileges and responsibilities; there must be some
direct, palpable invasion of, or injury to, the
interests of the witness.

15 C.M.A. at 282-83, 35 C.M.R. at 254-55.

In United States v. Rener, consistent with our holding in

Massey, we overruled Leach and held that adultery is not an

injury to the person or property of the spouse, but merely a

“‘violation of the marital bonds.’” 17 C.M.A. 65, 68, 37 C.M.R.

329, 332 (1967) (quoting Massey, 15 C.M.A. at 282, 35 C.M.R. at

254).

The President issued a new Manual in 1969. Manual for

Courts-Martial, United States (1969 rev. ed.). The 1969 Manual

retained the “treatise” approach of the previous Manual with

regard to evidentiary matters. In paragraph 148.e., “adultery”

and “mistreatment of a child of the other spouse” were added as

offenses to which the spousal privilege against testifying did

not apply. These additions were in direct response to this

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United States v. Taylor, No. 06-0319/MC

Court’s holdings in Massey and Rener. Dep’t of the Army,

Pamphlet 27-2 Analysis of Contents, Manual for Courts-Martial,

United States, 1969, Revised Edition at 27-32 (1970). The

drafters explained the need to depart from the holdings in

Massey and Rener. The effect of Massey:

is not compatible with the needs of the military
service, in which, especially overseas, large groups
of military personnel and their dependents live in
closely knit communities. In these communities and
generally in military life, child beating and child
molestation by parents cannot be tolerated and
certainly should not be facilitated by a rule of
evidence prescribed in the Manual.

Id. Rener was not followed because “the wife is injured by

[adultery and unlawful cohabitation] which are obviously

directly deleterious to the martial [sic] relationship.” Id.

During the early 1970s, the Supreme Court approved and sent

the Federal Rules of Evidence to Congress for adoption. 1

Stephen A. Saltzburg et al., Federal Rules of Evidence Manual

pt. 1, at 4 (9th ed. 2006). The proposed rules contained nine

privileges and four rules for controlling the use of those

privileges. Because significant controversy arose over these,

Congress instead opted for a single rule that mandated a common-

law approach to privileges. 2 Saltzburg et al., Military Rules

of Evidence Manual, supra, § 501.02[2]. The Federal Rules, as

amended, were signed into law on January 2, 1975. Pub. L. No.

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93-595, 88 Stat. 1926 (1975); 1 Saltzburg et al., Federal Rules

of Evidence Manual, supra, pt. 1, at 4-5.

A little more than three months later, this Court was

asked, in the case of an accused convicted of committing sexual

offenses on his own child, whether the Massey holding was still

valid in light of the President’s changes in the 1969 Manual.

We determined that Massey “was no longer viable.” United States

v. Menchaca, 23 C.M.A. 67, 68, 48 C.M.R. 538, 539 (1974). We

acknowledged that differences between the military and federal

rules of evidence are allowable, that the change to paragraph

148.e. to add “mistreatment of a child” as an injury to the

spouse was consistent with the rules of evidence for use in

federal district courts that the Supreme Court had proposed to

Congress, and that the change expressed the specific intent of

the drafters to overrule Massey. 23 C.M.A. at 69, 48 C.M.R. at

540.

In 1980, the President adapted the Federal Rules to

military practice in the Military Rules of Evidence. 1

Saltzburg et al., Military Rules of Evidence, supra, at xv.

Rather than take the common law approach to privileges approved

by Congress, the Military Rules included many of the specific

privileges originally proposed by the Supreme Court. The

President took this approach because of the military justice

system’s “dependence upon large numbers of laymen, temporary

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United States v. Taylor, No. 06-0319/MC

courts, and inherent geographical and personnel instability due

to the worldwide deployment of military personnel.

Consequently, military law requires far more stability than

civilian law.” 2 Saltzburg et al., Military Rules of Evidence,

supra, § 501.03 (Drafters’ Analysis).

M.R.E. 504 combined into one rule the husband-wife and the

confidential marital communications privileges. For the first

time, it made the exceptions to the husband-wife privilege

applicable as well to the marital communications privilege.

Thus, there is no marital confidential communications privilege

“[i]n proceedings in which one spouse is charged with a crime

against the person or property of the other.” M.R.E.

504(c)(2)(A). Although the Rule does not list specific offenses

encompassed in the term “crime against the person,” the drafters

provided some insight into the scope of the exceptions:

The Rule thus recognizes society’s overriding interest
in the prosecution of anti-marital offenses . . . .
The Rule is similar to 1969 Manual Para. 148 e but has
deleted the Manual’s limitation of the exceptions to
the privilege to matters occurring after marriage or
otherwise unknown to the spouse as being inconsistent
with the intent of the exceptions.

Manual for Courts-Martial, United States, Analysis of the

Military Rules of Evidence app. 22 at A22-40 (2005 ed.)

[hereinafter Drafters’ Analysis].

In her scholarly dissent, Judge Ryan maintains that the

language of the Rule itself, the deletion of the term “adultery”

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United States v. Taylor, No. 06-0319/MC

from the Rule as it appeared in the 1969 Manual, and the common

law and Supreme Court interpretations of the marital

communications privilege all support a conclusion that adultery

is not a “crime against the person or property” of the spouse.

We are certainly not unsympathetic to the view that in

construing the language of a rule, “it is generally understood

that the words should be given their common and approved usage.”

McCollum, 58 M.J. at 340 (citation and quotation marks omitted).

But, there is no evidence that, in adopting M.R.E.

504(c)(2)(A), the President meant to amend, let alone jettison,

those exceptions to the privilege listed in paragraph 148.e. of

the 1969 Manual. Rather, the Drafters’ Analysis is strong

evidence that he meant to apply the exceptions to both the

husband-wife testimonial privilege and the marital

communications privilege. Moreover, this reading of the Rule is

consistent with the principle that testimonial privileges “must

be strictly construed and accepted ‘only to the very limited

extent that permitting a refusal to testify or excluding

relevant evidence has a public good transcending the normally

predominant principle of utilizing all rational means for

ascertaining the truth.’” Trammel, 445 U.S. at 50-51 (quoting

Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter,

J., dissenting)). We therefore hold that, for the purposes of

M.R.E. 504(c)(2)(A), adultery is a crime against the person of

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the other spouse. The military judge was correct in denying

Appellant’s motion in limine to assert the privilege against his

wife’s testimony.

IV.

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.

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United States v. Taylor, 06-0319/MC

Ryan, Judge (dissenting):

I do not question that adultery is an anti-marital offense.

This conclusion is intuitive and a matter of common sense.

But that premise does not answer the question whether adultery

is a “crime against the person or property of the other spouse,”

the actual exception to the husband-wife privilege contained in

Military Rule of Evidence (M.R.E.) 504(c)(2)(A), which is at

issue here.

M.R.E. 504 and the exceptions thereto reflect the policy

judgments of the President regarding those communications

between a husband and wife that are privileged -- and as to

those communications that will be exempted from that privilege.

See United States v. McCollum, 58 M.J. 323, 342 (C.A.A.F. 2000)

(determining whether an exception to a privilege should apply

“is a legal policy question best addressed by the political and

policy-making elements of the government”). Our duty is to

interpret and to apply the law as written in the language of the

rule itself.

In this case, an inquiry into the scope of the M.R.E.

504(c)(2)(A) privilege exception must, therefore, focus on the

meaning of the words “crime against the person or property of

the other spouse.” A crime “against the person . . . of the

spouse,” is not defined in either the Manual for Courts-Martial,

United States (2005 ed.) (MCM) or the Military Rules of
United States v. Taylor, 06-0319/MC

Evidence. “In construing the language of a statute or rule, it

is generally understood that the words should be given their

common and approved usage.” McCollum, 58 M.J. at 340 (quotation

marks omitted).

It is not in accordance with the common or approved usage

of the language “crime[s] against the person of the other

spouse” to include within that phrase every act that might

emotionally harm, offend, or betray. Such a broad construction

that includes these acts would impermissibly render the limiting

words “person or property of the other spouse” superfluous. See

United States v. Menasche, 348 U.S. 528, 538–39 (1955) (“It is

our duty ‘to give effect, if possible, to every clause and word

of a statute’ . . . .” (quoting Montclair v. Ramsdell, 107 U.S.

147, 152 (1883))).

In my view, the common and approved usage of “crimes

against the person of the other spouse” here refers to crimes of

violence against that spouse. This definition reflects and is

consistent with the overall structure of M.R.E. 504(c)(2)(A),

which makes repeated references to “crimes against the person.”

See Gustafson v. Alloyd Co., 513 U.S. 561, 568 (1995) (“we adopt

the premise that [a] term should be construed, if possible, to

give it a consistent meaning throughout”).

More importantly, this construction is in accord with the

long-standing recognition in criminal law that crimes “against

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United States v. Taylor, 06-0319/MC

the person” refer to offenses of violence against a person.

See, e.g., 2 Wayne R. LaFave, Substantive Criminal Law §§ 14-17

(2d ed. 2003) (discussing offenses against the person); 1

William O. Russell & Charles S. Greaves, A Treatise on Crimes

and Misdemeanors 481-782 (1845) (discussing “offenses against

the persons of individuals”); see also Keeble v. United States,

412 U.S. 205, 206 (1973) (including murder, manslaughter, rape,

and assault with intent to kill among “crimes against the

person”); Relford v. Commandant, United States Disciplinary

Barracks, Ft. Leavenworth, 401 U.S. 355, 369 (1971) (equating an

offense violative of the physical security of a person, such as

the rapes and kidnapping at issue in the case, with a “crime

against the person of the individual”).

This definition of “crime[s] against the person of the

other spouse” is also consistent with the common law view of the

exception to the husband-wife privilege. See, e.g., M.R.E. 101

(reaffirming the congressional mandate in Article 36(a) Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 836(a) (2000)). In

Bassett v. United States, the Supreme Court examined whether a

statutory exception to the privilege “for a crime committed by

one against the other” was available in a case involving

polygamy. 137 U.S. 496, 503-06 (1890) (analyzing a federal

statute applicable to the Utah Territory).

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United States v. Taylor, 06-0319/MC

The Supreme Court reaffirmed the common law rule that “the

wife is not competent [as a witness against her spouse], except

in the cases of violence upon her person.” Bassett, 137 U.S. at

505 (quoting Stein v. Bowman, 38 U.S. 209, 222 (1839)). The

Supreme Court recognized a spouse’s “humiliation and outrage”

caused by the polygamy or adultery of the other spouse, and that

those offenses may be “crimes which involve disloyalty to the

marital relation.” Bassett, 137 U.S. at 506. Nonetheless, the

Court, while ceding the anti-marital nature of such offenses,

expressly rejected the notion that either polygamy or adultery

was a crime that permitted an exception to the marital

privilege.1 Id.

The Supreme Court’s conclusion that the statutory exception

to the marital privilege was not available in the case of

adultery or bigamy is compelling. More telling, for purposes of

this case, is the Supreme Court’s determination that while a

legislature can change the parameters of the “ancient” marital

privilege via statute, the language of a statute “should not be

adjudged as working a departure from the old and established

rule, unless the language imperatively demands such

construction.” Id. at 505-06 (emphasis added). The language of

1
The statutory exception to the privilege examined in Bassett
facially gives greater traction to the majority’s analysis in
this case than the language of the privilege actually before
us.

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United States v. Taylor, 06-0319/MC

M.R.E. 504(c)(2)(A) does not demand the construction employed by

the majority.

This Court should follow the decision and reasoning of the

Supreme Court in Bassett, which has not been overruled. We have

no language “imperatively demanding” exemption from the husband-

wife privilege. And we have a problematic and checkered

history in both the former MCMs and the conflicting judicial

decisions from this Court on the precise question at issue in

this case. __ M.J.__ (6-12).

Illustrative of this point is the fact that the MCM -- with

the evidentiary rule we apply in the present case -- does not

specifically list the crime of adultery as an exception to the

long-standing husband-wife privilege. But it does specifically

list other anti-marital offenses. M.R.E. 504(c)(2)(C).

Also, the 1969 MCM specifically listed adultery as such an

exception. MCM para. 148.e (1969 rev. ed.) (para. 148.e was

omitted by change 3, Sept. 1, 1980). Ordinarily, where language

exists in an earlier version of a rule and is removed from a

later edition of the rule, the later rule controls. See e.g.,

Keppel v. Tiffin Savings Bank, 197 U.S. 356, 373 (1905) (“[I]t

cannot in reason be said that the omission . . . gives rise to

the implication that it was the intention of Congress to reenact

it.”). I find the deletion of any reference to the offense of

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United States v. Taylor, 06-0319/MC

adultery in the present M.R.E. 504(c)(2)(A) exception

problematic for the position of the majority.

Nor is adultery specifically listed in the Drafters’

Analysis addressing the M.R.E. 504(c)(2)(A) exception. Manual

for Courts-Martial, United States, Analysis of the Military

Rules of Evidence app. 22 at A22-40 (2005 ed.) [hereinafter

Drafters’ Analysis]. The absence of adultery as a listed

exception in either the present MCM or the Drafters’ Analysis

cannot be ignored.

The Drafters’ Analysis does reference anti-marital

offenses:

This provision is taken from proposed Federal Rule
505(c)(1) and reflects in part the Supreme Court’s
decision in Wyatt v. United States, 362 U.S. 525
(1960). The Rule thus recognized society’s overriding
interest in prosecution of anti-marital offenses . . .
. The Rule is similar to 1969 Manual Para. 148 e . .
. .”

Drafters’ Analysis at A22-40 (emphasis added) (citation

omitted). Wyatt v. United States dealt with a specific anti-

marital offense -- violations of the Mann Act, 18 U.S.C. § 2421

(2000). Wyatt, 362 U.S at. 525. Violations of this statute and

similar offenses were reflected as exceptions to the husband-

wife privilege by the President in their own specific exception:

M.R.E. 504(c)(2)(C). These observations are a source of concern

to me independent of the important point that the Drafters’

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United States v. Taylor, 06-0319/MC

Analysis, when it does not corroborate the plain language of the

rule, is of questionable precedential weight.

Whatever the best policy may be, and however useful

admissions such as the one in this case would be to prove the

offense of adultery, the present language of the M.R.E.

504(c)(2)(A) cannot stretch so far as to include adultery within

the language of “crime against the person of the spouse.” This

determination is supported not only by the language of the rule

itself, but by both the common law and Supreme Court precedent.

There is no reason to ignore these authorities based on

conjecture or supposition as to the precise scope of the

Drafters’ Analysis, which is not itself a rule.

Given that I dissent from the majority’s ruling and hold

that the lower court erred, the question remains whether the

error was harmless. After examining the record, I cannot say

that the testimony of Appellant’s wife did not have a

substantial influence on the military judge. See Kotteakos v.

United States, 328 U.S. 750, 764-65 (1946).

This case involved the charged offense of adultery and

carnal knowledge. Appellant denied that he had a sexual

relationship with AM. AM testified that Appellant did have a

sexual relationship with her. The decisional crux was whether

Appellant or the alleged object of his infidelity was truthful,

a question that could have been resolved either way. The

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United States v. Taylor, 06-0319/MC

testimony of Appellant’s wife, T, that Appellant admitted his

adultery to her, may well have tipped the balance against

Appellant on this key issue. See Hawkins v. United States, 358

U.S. 74, 79 (1958) (concluding that “after examining the record

we cannot say that [wife’s inadmissible privileged] testimony

did not have substantial influence on the jury”).

I respectfully dissent.

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