Can a military family member be subpoenaed and compelled to testify against a service member at court-martial?

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Yes.

Yes. A family member can be subpoenaed like any witness, and a civilian who willfully refuses to appear or testify after proper process can be prosecuted in federal court. A spouse has two privileges under Mil. R. Evid. 504: to refuse to testify against the accused spouse, and to keep confidential marital communications private. Both disappear in listed cases, including when the accused is charged with a crime against the spouse or a child of either. Other relatives, such as parents, siblings, and adult children, have no family privilege under that rule. A spouse who is the alleged victim cannot be required to testify at the Article 32 preliminary hearing.

The spousal privileges

Mil. R. Evid. 504 in the Manual for Courts-Martial (2024 ed.) has two parts:

  • Spousal incapacity. “A person has a privilege to refuse to testify against his or her spouse.” It ends if, at the time of the testimony, “the parties are divorced, or the marriage has been annulled” (504(a)).
  • Confidential communications. “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 married and not separated as provided by law” (504(b)(1)). 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 (504(d)(3)).

When the privileges do not apply

Under 504(c)(2), there is no privilege of either kind:

  • “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”;
  • when the marriage was a sham entered “only for the purpose of using the purported marital relationship as a sham”; or
  • in listed prostitution and transportation offenses involving the other spouse.

“A child of either” includes a biological or adopted child, a ward, or a child in the permanent or temporary physical custody of either spouse, and covers individuals under 18 (504(d)(1)). Separately, communications about illegal activity in which both spouses were “substantial participants” are not protected as confidential communications (504(c)(1)).

Witness Can refuse to testify against the accused? Source
Spouse, ordinary case Yes, while married Mil. R. Evid. 504(a)
Spouse, accused charged with crime against the spouse or a child of either No Mil. R. Evid. 504(c)(2)(A)
Former spouse after divorce No incapacity privilege; confidential communications made during the marriage remain protected Mil. R. Evid. 504(a), (b)(1)
Parent, sibling, adult child No family privilege under Rule 504 Mil. R. Evid. 504

The spouse who is the alleged victim

At the preliminary hearing, Article 32 provides: “A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing.” Under Article 6b(f), defense requests to interview a victim the government intends to call go through counsel for the government, and if the victim requests, “any interview of the victim by counsel for the accused shall take place only in the presence of the counsel for the Government, a counsel for the victim, or, if applicable, a victim advocate.” At the court-martial itself, a victim can be subpoenaed, and in a case charging a crime against the spouse, the spousal privilege does not apply. How a case proceeds after a spouse recants is covered in whether the military will still prosecute if a spouse recants.

What happens on refusal

Two different mechanisms apply:

  • Contempt. Under Article 48, a military judge may punish for contempt any person who, among other things, “willfully disobeys a lawful writ, process, order, rule, decree, or command issued with respect to the proceeding,” with punishment that “may not exceed confinement for 30 days, a fine of $1,000, or both.”
  • Federal prosecution of a civilian witness. Under Article 47, a person not subject to the UCMJ who is issued a subpoena and “is provided a means for reimbursement from the Government for fees and mileage,” and who “willfully neglects or refuses to appear” or “willfully refuses to qualify as a witness or to testify,” is “guilty of an offense against the United States,” tried “in a United States district court,” and on conviction “shall be fined or imprisoned, or both.”

A family member who receives a subpoena and wants to know whether a privilege applies can raise it with the military judge, who decides privilege questions; a victim can do so through a special victims’ counsel or victim advocate. How spectators and witnesses are handled in the courtroom is covered in whether a spouse can attend the court-martial.

Statutes and rules cited here were checked in October 2026.

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.

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References

law.cornell.edu