After a court-martial reaches findings of guilt, the case moves into the presentencing phase, where each side presents evidence about the appropriate punishment. Lawyers for both sides interview potential witnesses to prepare, asking about the accused’s character, the impact of the offense, rehabilitation potential, and similar matters. People being interviewed often expect that what they say will be kept private. The reality is more nuanced. The military does not recognize a general confidentiality privilege for witness interviews, but it enforces several specific protections that, together, guard sensitive information during this phase. Understanding which protections exist, and which do not, sets accurate expectations.
The starting point: no general “interview privilege”
There is no rule that makes a presentencing witness interview confidential simply because the witness wanted privacy. A person interviewed by counsel can generally be asked at trial about what the person knows, and a witness who testifies is subject to cross-examination. The protections the military provides come not from a blanket interview privilege but from specific privileges, procedural rules, and ethical duties that apply to particular kinds of information. Confidentiality is enforced through those targeted mechanisms rather than a single overarching rule.
Recognized evidentiary privileges that carry into presentencing
The Military Rules of Evidence (MRE) create privileges that protect certain confidential communications, and these continue to apply during sentencing. The most significant for witness interviews is MRE 513, the psychotherapist-patient privilege. It allows a patient to refuse to disclose, and to prevent others from disclosing, confidential communications made with a psychotherapist or an assistant for the purpose of diagnosis or treatment of a mental or emotional condition in a case arising under the Uniform Code of Military Justice. If a presentencing interview would require a witness to reveal such protected communications, the privilege can be invoked to keep them confidential, subject to the privilege’s recognized exceptions.
Other MRE privileges operate the same way, including the lawyer-client privilege and the husband-wife privileges. A witness interviewed about matters covered by one of these privileges can decline to disclose the privileged content, and the privilege is enforced by the military judge. These privileges, not a generic interview confidentiality, are the backbone of confidentiality protection.
Victim-related protections
Crime victims have specific protections that bear on presentencing interviews and testimony. Victims may decline certain interviews or insist that any interview by the opposing party occur only under conditions they are entitled to, and counsel must respect those rights. In addition, the rules restricting evidence of a victim’s sexual behavior or predisposition continue to limit what can be inquired into and disclosed. These provisions enforce confidentiality over sensitive personal information about victims during the presentencing phase, again through targeted rules rather than a general privilege.
Procedural tools the military judge uses
Beyond privileges, the military judge has procedural authority to protect sensitive information. The judge can issue protective orders limiting how information disclosed in preparation is used or further disseminated. The judge controls the scope of examination and can bar inquiry into matters that are privileged, irrelevant, or unduly prejudicial. When classified or otherwise protected information is involved, additional procedures govern how it may be handled and disclosed. The judge can also order witnesses sequestered so they do not hear one another’s testimony, which protects the integrity of testimony though it is aimed at reliability rather than secrecy. These tools let the judge enforce confidentiality where the law allows it while still ensuring the parties get the evidence they are entitled to.
Ethical duties of counsel
Counsel are bound by professional responsibility rules that supply another layer of protection. A lawyer’s communications with the lawyer’s own client, and the lawyer’s own work product, are protected. Counsel also owe duties of candor and fairness that constrain how interview information is used. While these duties do not make an opposing witness’s statements confidential, they govern the handling of information lawyers gather and prevent certain misuses.
What confidentiality cannot do here
It is equally important to know the limits. A witness who possesses relevant, non-privileged information about sentencing generally cannot refuse to provide it merely because the witness prefers privacy, and a witness who testifies will face cross-examination on relevant matters. The accused’s right to present a meaningful sentencing case and to confront adverse evidence limits how far confidentiality can be pushed. Confidentiality protections in this phase are real but bounded; they protect privileged communications and specifically shielded categories of information, not every sensitive or embarrassing disclosure.
Putting it together
The military enforces confidentiality in presentencing witness interviews through specific, targeted mechanisms rather than a single overarching interview privilege. Recognized evidentiary privileges such as the MRE 513 psychotherapist-patient privilege, along with the lawyer-client and spousal privileges, protect confidential communications and carry into the sentencing phase. Victim-protection rules shield sensitive personal information, and the military judge can issue protective orders, limit the scope of inquiry, manage classified material, and sequester witnesses. Counsel’s ethical duties add a further layer. What the system does not provide is a general rule making any interview confidential just because the witness wishes it; relevant, non-privileged information remains subject to disclosure and cross-examination, balanced against the accused’s right to a fair sentencing proceeding. Confidentiality, in short, is enforced precisely where a recognized privilege or rule applies, and not beyond it.
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.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.