Military Rule of Evidence (MRE) 514 protects confidential communications between an alleged victim and a victim advocate. In an Article 120 investigation, where the central question is often what an alleged victim said and to whom, the defense frequently wants to know what passed between that victim and a victim advocate. The answer is that these communications are presumptively protected and usually cannot be obtained, but the privilege is not absolute. There is a narrow procedural path through which a military judge may review the material and, in limited circumstances, order disclosure.
What MRE 514 actually protects
MRE 514 gives an alleged victim a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication made between the victim and a victim advocate for the purpose of facilitating advice or supportive assistance. The communication must be confidential, meaning made privately and not intended to be disclosed to outsiders beyond those reasonably necessary to provide the support, such as an interpreter.
The privilege belongs to the victim. A victim advocate cannot waive it for the victim, and the government cannot waive it on the victim’s behalf. This is significant in Article 120 cases because the alleged victim is usually the government’s most important witness, yet the protected communications are the victim’s to guard.
The privilege is presumptive, not automatic in every situation
MRE 514 contains its own list of situations in which the privilege does not apply. These exceptions are specific and limited. They include circumstances such as when the victim is dead, when federal or state law requires disclosure, when the communication clearly contemplated the future commission of a crime or fraud, when the communication is evidence of spouse abuse or child abuse or neglect in a proceeding about that abuse, when admission is constitutionally required, or when the victim has voluntarily disclosed or put the privileged matter in issue. If one of those defined exceptions genuinely applies, the privilege does not bar the communication in the first place.
Outside those enumerated exceptions, the communications remain protected. A defense desire to look for inconsistencies, standing alone, is not one of the listed exceptions and does not defeat the privilege.
How a defense request is handled procedurally
When the defense seeks MRE 514 material in an Article 120 case, it cannot simply demand the records or expect the government to turn them over. The defense must make a written motion and a specific factual showing, not a general assertion that the records might contain something useful. The motion must identify why the requested communication is necessary and why an enumerated exception applies or why production is constitutionally required.
If the defense makes a sufficient threshold showing, the military judge does not open the records to the parties. Instead, the rule provides for the judge to conduct an in camera review, meaning the judge examines the material privately, outside the presence of the parties, before deciding whether anything must be disclosed. The alleged victim is entitled to notice and a reasonable opportunity to be heard before that review occurs. Only if the judge, after reviewing the material, finds that an exception applies or that disclosure is constitutionally required will any portion be released, and even then the judge can limit disclosure to what is necessary and impose protective conditions.
The constitutional exception is narrow
The most contested basis for access is the claim that disclosure is constitutionally required, usually framed in terms of the accused’s confrontation and due process rights. Courts treat this carefully. A defendant must do more than speculate that privileged counseling or advocacy communications might help. The showing must be specific and tied to a concrete need, and the judge weighs the asserted need against the strong interests the privilege protects. A bare wish to comb through the victim’s confidential statements does not meet that standard.
MRE 514 compared with MRE 513
It helps to distinguish MRE 514 from the related psychotherapist-patient privilege in MRE 513. MRE 513 protects confidential communications between a patient and a psychotherapist or an assistant to the psychotherapist made for diagnosis or treatment of a mental or emotional condition. MRE 514 protects communications with a victim advocate made for advice or supportive assistance. The two often arise together in Article 120 litigation because an alleged victim may have spoken to both a counselor and an advocate, but they are separate privileges with their own exceptions, and each must be analyzed on its own terms. A request that lumps them together is unlikely to succeed.
The bottom line
Protected communications under MRE 514 can be accessed in an Article 120 investigation only through a defined and demanding process. The communications are presumptively privileged and held by the alleged victim. Access requires a specific motion, a threshold factual showing that an enumerated exception applies or that disclosure is constitutionally required, notice to the victim, and an in camera review by the military judge, who controls and limits any disclosure that follows. General curiosity, a hope of finding impeachment material, or a desire to pressure the victim is not enough. The privilege is designed to encourage victims to seek support without fear that those conversations will surface at trial, and the procedures reflect that purpose.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
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