The military court system has the authority to compel testimony from witnesses, including family members of the accused. Subpoenas issued by a military court carry legal force, and refusal to comply can result in contempt proceedings. The question of whether a family member must testify against a service member, and whether any privilege protects them from being compelled to do so, turns on the specific relationship and the nature of the testimony being sought.
Spousal privilege under the Military Rules of Evidence offers some protection, but its scope is more limited than many spouses assume. The privilege covers confidential marital communications in some circumstances but does not provide blanket protection against testifying about observed events or conversations that were not made in confidence. Family members who receive a subpoena in connection with a court-martial proceeding should consult with their own counsel to understand exactly what they are required to provide and what, if any, grounds exist for challenging the compulsion.
Subpoena Authority in Military Courts
Military courts have subpoena authority that allows them to compel witnesses to testify and to require the production of documents and other evidence. This authority is exercised through the issuance of a subpoena signed by the trial counsel or the military judge, depending on the stage of proceedings. A subpoena issued by a military court carries legal force and can be enforced through contempt proceedings if the recipient fails to comply without legal justification.
The subpoena authority of military courts extends to civilians, including military family members, who are not themselves subject to the UCMJ. A spouse or other family member who receives a military court subpoena is legally required to appear, subject to the same contempt consequences that apply to any witness who fails to comply. The only grounds on which a civilian witness can resist a valid subpoena are legal privileges that apply to the specific testimony being sought, such as the spousal privilege for confidential communications, or constitutional protections that apply to the particular questions being asked.
Whether Spousal Privilege Applies in Military Proceedings
Military Rule of Evidence 504 establishes a spousal privilege that covers two distinct protections. The first is the confidential marital communications privilege, which protects private communications made between spouses during the marriage when the communication was made in confidence. The second is the testimonial privilege, which in some circumstances allows a spouse to refuse to testify against the other spouse in a criminal proceeding.
The testimonial privilege under MRE 504 in military courts is the adverse testimony privilege, which allows the witness spouse to refuse to testify against the accused spouse. This privilege belongs to the witness spouse and can only be waived by the witness spouse, not by the accused. A spouse who wishes to testify against the accused cannot be prevented from doing so by the accused’s assertion of privilege. And a spouse who does not wish to testify may assert the privilege unless the proceeding falls within an exception.
The Limits of Spousal Privilege Under the Military Rules of Evidence
The adverse testimonial privilege has specific exceptions that eliminate its protection in the most serious circumstances. A spouse cannot assert the testimonial privilege in a proceeding where the accused is charged with an offense against the other spouse or against a child of either. This exception effectively eliminates the privilege in domestic violence and child abuse cases, where it would be most likely to be invoked. A spouse who was the victim of the charged conduct cannot use the privilege to avoid testifying about what the accused did to them.
The confidential communications privilege also has limitations. Communications made in the presence of third parties are not protected because they were not made in confidence. Communications about ongoing or future crimes are not protected. And the privilege covers only the communication itself, not the underlying facts that were the subject of the communication. A spouse who was present when a crime was committed, or who independently observed relevant facts, can be compelled to testify about those observations even if the accused later discussed the same events with them privately.
What Happens If a Family Member Refuses to Comply With a Subpoena
A family member who refuses to comply with a valid subpoena without a legally recognized privilege faces contempt proceedings. Contempt in a military court can result in confinement and fines, and a civilian who is held in contempt of a military court may face proceedings in a federal district court depending on the specific mechanism through which the contempt is pursued.
Before refusing to comply with a subpoena, a family member should consult with their own attorney about whether any privilege applies to the testimony being sought, whether the subpoena itself is legally proper, and what the realistic consequences of refusal would be in the specific case. Refusal without legal basis is not an option that carries no consequences, and a family member who refuses without privilege grounds puts themselves in a vulnerable legal position that does not serve anyone’s interests effectively.
How Defense Attorneys Prepare Family Members for Testimony
When a family member will testify in support of the defense, preparation is essential. The attorney must explain what the witness can expect in terms of the courtroom environment, the format of direct and cross-examination, the specific topics that will be covered in direct examination, and the types of questions the government attorney may ask on cross-examination.
Preparation does not involve coaching the witness on what to say. It involves ensuring that the witness understands the questions they will be asked, has thought through their answers carefully, and is prepared for the experience of testifying in a formal military proceeding without being caught off guard by the environment or the questions. A family member who is well-prepared and composed on the stand is a more effective witness than one who is surprised by the experience and appears uncertain or defensive under cross-examination.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.