(concurring in part):
I
As to the first granted issue, I agree with the majority — for the reasons set out in its opinion — that the military judge’s preclusion of appellant’s testimony that her husband “had been in the penitentiary for rape” was harmless. I do want to state explicitly, however, what the majority opinion implies: The ruling was erroneous.
Appellant’s principal defense was duress —specifically, that her husband so controlled and dominated her life through use of violence, force, and threats that she committed the instant offenses out of fear for her own safety. Given this framework of her defense, the fact that her husband had at one time been convicted of rape — a crime of violence against the person — was not, as the Government put it at trial, simply evidence of his “past criminal activities.” Instead, it was evidence showing why she feared for her own safety and why her fear was a reasonable one. See RCM 916(h), Manual for Courts-Martial, United States, 1984.
II
As the majority opinion reveals, appellant repeatedly objected to the prosecution’s use of her letter to her husband on the basis of her confidential-marital-communication privilege. See Mil.R.Evid. 504(b), Manual, supra. Notwithstanding, the military judge denied the objection each time: First, he permitted the prosecution to use the letter during its cross-examination of appellant herself, ruling that she had waived her privilege by the substance of her direct examination; second, he granted the prosecution’s proffer of the letter itself as substantive evidence, citing the so-called “crime-fraud” exception to the marital-communications privilege recognized in some Federal courts. See, e.g., United States v. Marashi, 913 F.2d 724, 730-31 (9th Cir. 1990).
I write separately because I am uncomfortable with the first rationale, relied upon by the majority, and because I disagree with the second, relied upon by the court below and left open by the majority. I will address them in reverse order.
A
Assuming that the Federal common law imposes the crime-fraud exception upon the privilege as to marital communications, I am unsure that this exception would apply to the facts here. In any event, this exception to a common-law privilege should not be superimposed upon the formal rule of privilege set out in the Manual.
Mil.R.Evid. 501 states the general rule as to claims of privilege in courts-martial. Subsection (a) provides four bases for claiming a privilege:
*120(a) A person may not claim a privilege with respect to any matter except as required by or provided for in:
(1) The Constitution of the United States as applied to members of the armed forces;
(2) An Act of Congress applicable to trials by courts-martial;
(3) These rules or this Manual; or
(4) The principles of common law generally recognized in the trial of criminal cases in the United States district courts pursuant to rule 501 of the Federal Rules of Evidence insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the code, these rules, or this Manual.
(Emphasis added.) The emphasized portions of this rule highlight the two reasons why appellant is correct when she contends that this rule is not a basis for invoking “Federal common law” to interpret a common-law rule of privilege when that privilege is covered by a specific Military Rule of Evidence.
First, the rule permits resort to the Constitution, a Federal statute, the Manual, or Federal common law as bases to claim a privilege. It reflects the intent of the drafters to provide “certainty and stability” in the areas covered by the specific privilege rules, see Mil.R.Evid. 502-09, and at the same time to embrace “the flexible approach taken by Congress” in Fed.R. Evid. 501 of including, as well, common-law privileges. Drafters’ Analysis of Mil.R. Evid. 501, Manual, supra at A22-35 (Change 2). It nowhere and in no way suggests that Federal common law can be used to limit a privilege that is specifically provided for in the Manual.
Second, in any event subpart (4) permits resort to Federal common law only to the extent that it is “not contrary to or inconsistent with ... these rules____” This limitation on application of Federal common law is entirely logical, in view of the drafters’ sensitivity to the need for “certainty and stability” in the areas addressed in the subsequent specific rules of privilege. Accordingly, if one of these Manual rules specifically gives a privilege without a particular limitation thereon, use of Federal common law to engraft such a limitation upon that rule is not permissible: Such an effort would be “contrary to or inconsistent with” that rule.
As the majority opinion points out, there is a specific rule in the Manual that proclaims a “[h]usband-wife privilege” protecting “[confidential communications made during marriage.” Mil.R.Evid. 504(b). The rule contains no caveat, however, that would except from the privilege a communication made in furtherance of a crime. At the same time, subsection (c) of Mil.R. Evid. 504 does contain certain exceptions both to this aspect of the husband-wife privilege and to the spousal-incapacity component; so it cannot persuasively be argued that the drafters of the rule either overlooked the need for exceptions or consciously decided not to set forth the exceptions which they intended to apply.
Accordingly, Mil.R.Evid. 504 must be viewed as containing all of the exceptions that the drafters intended should apply to the marital-communications privilege, see generally United States v. Tipton, 23 MJ 338, 343 (CMA 1987) — and these do not include the exception relied upon in this case by the military judge and the Court of Military Review.
B
I am less sure than the majority that appellant waived her assertion of this privilege by the content of her direct testimony. Mil.R.Evid. 510(b) provides for waiver by an accused who testifies “voluntarily concerning a privileged matter or communication.” (Emphasis added.) In my view, application of this language to appellant’s testimony, which even the majority acknowledges did not touch at all on the letter itself, is an unwarranted expansion of the Rule.
It is irrelevant that appellant testified about other communications that reflected her purported fear of her husband. I do *121not read the letter in contention as speaking to the issue of her fear one way or the other. Further, even if it did, what the majority condones is use of a privileged communication to impeach an accused’s testimony regarding other events in the marital relationship. There is no “impeachment” exception to the privilege in Mil.R. Evid. 504 or anywhere else in the privilege rules.
The majority avoids this objection by its conclusion that “all these conversations could properly be considered one communication for purposes of Mil.R.Evid. 510(a).” 33 MJ at 121. Where different communications truly are one ball of wax and the declarant testifies as to some but not all of the conversations, this rationale might apply. Under the facts of this case, however, it strains too much to conclude that the letter in dispute is a communication that is intertwined with the matter as to which appellant testified.
C
I do agree, however, with the majority’s disposition of this second issue because, under the circumstances here, the letter was not “confidential” and, thus, not privileged.
“A communication is ‘confidential’ [only] if made privately ... and is not intended to be disclosed to third persons other than those reasonably necessary for transmission of the communication.” Mil.R. Evid. 504(b)(2) (emphasis added). Appellant was briefed, upon entry into the military confinement facility, that her mail would be read. United States v. Smith, 30 MJ 1022, 1025 n.1 (AFCMR 1990). On the basis of this information, if not otherwise, she also logically must have known that mail going to her husband in a civilian jail would be read. Thus, she knew that probably her letter would be read on two occasions before it reached her spouse. Under these circumstances, I do not believe it can be said that appellant did not intend her letter to be disclosed to third persons.
Moreover, the security personnel in appellant’s confinement facility and in her husband’s jail were not third persons “reasonably necessary for transmission of the communication.” The key word is “transmission.”
To illustrate: If a wife sends a telegram to her husband, the telegrapher is “reasonably necessary for transmission of” that telegram. In such instance and in other similar ones, the contents of the message are revealed not for substantive purposes but only as incidental to the transmission.
By contrast, the security personnel at confinement facilities would read a letter like this one for the purpose of consciously focusing on the substance of the letter. Under such circumstances, the contents are revealed not merely as incidental to transmission but substantively.
Accordingly, I conclude that appellant waived any privilege she might have had in the confidentiality of the letter to her husband. It simply was not “confidential” under the circumstances of this case.