In an opinion released yesterday in DB v. Colonel Lippert, Military Judge, and Ducksworth, Real Party in Interest, No.  201507690 (A. Ct. Crim. App. Feb. 1, 2016) (link to slip op.) (also available here), a three-judge panel of the Army CCA grants the petition of an alleged victim of sexual assault and reverses a military judge’s ruling that ordered her mental health records produced for an in camera review and then disclosed to the defense.

Writing for the panel, Judge Wolfe characterizes the problems in the case as “manifold,” slip op. at 6, and concludes that the military judge committed three errors.

First, the CCA finds that military judge improperly ordered the production of the alleged victim’s mental health records for an in camera review without first conducting a hearing under Mil. R. Evid. 513(e). Significantly, Judge Wolfe explains that the military judge ordered production of the records even “prior to the defense filing a motion for the production of the records.” Slip op. at 6. The defense later filed such a motion, but it “did not attempt to meet the procedural requirements set forth in the amended [Mil. R. Evid. 513(e)] and, in fact, explicitly disavowed them as being applicable.” Slip op. at 9.

Next, the CCA faults military judge for concluding that because the records include one unprivileged document (a journal entry that state law required be reported to authorities), “all of petitioner’s mental health records were subject to review.” Slip op. at 11. In particular:

[T]he military judge’s finding that because petitioner’s mental health records yielded one (unprivileged) inculpatory document, there was a reasonable likelihood that the remaining records would yield admissible defense information was clearly erroneous.

Slip op. at 13.

Finally, the CCA concludes that the military judge failed (in numerous ways) to apply the procedural requirements of Mil. R. Evid. 513(e), which were revised by Section 537 of the FY15 NDAA (discussed here) and Executive Order 13696 (discussed here).

The CCA refuses the petitioner’s request to declare the records inadmissible, instead merely reversing the military judge’s Mil. R. Evid. 513 ruling while permitting further proceedings to consider the records.

28 Responses to “The Army CCA grants an alleged victim’s petition and reverses a military judge’s ruling regarding mental health records”

  1. Dew_Process says:

    I just downloaded the opinion and haven’t read it yet.  But, just skimming it is instructive:
    1)  For my usual and on-going rant about interlocutory appeals in “sex” cases, while it may not always work, when such an appeal is filed by the government or as here, the SVC, and the complainant gets anonymity and can only be referred to by their “initials,” the presumptively innocent accused should be entitled to the same protections, the defense (you can’t succeed unless you try) should move to either have the pleadings be “under seal” or that the Accused be give “equal” treatment and be referred to by his/her initials as well.
    2)  One look at the amici gives you a big clue on how things are going to go for the accused.
    3)  This “appeal” is prima facie evidence of how skewed the military justice system has come (or perhaps more notably, regressed ) when per footnote 1, the Government took no part in the appeal at all.  What has happened is that the “adversary” system has apparently morphed into a 2 on 1, “tag team” approach.  While ACCA in theory could have directed the government to set forth their position, they didn’t, which in this cynics mind compounds the problem.
    4)  What is equally as telling is that that the MJ apparently ordered disclosure (with a limited protective order) of some 1,400 pages of “DB’s” mental health records — for anyone who has ever had a client “committed” because they were not competent to stand trial, even in that scenario 1,400 pages is a LOT of MH records.  But, considering that this was a “delayed reporting” case, one can only predict that within those 1,400 pages, lies a considerable amount of Brady material.
    Rant concluded.

  2. Charlie Gittins says:

    1400 pages of MH records and a prior commitment?  I’d bet a paycheck there is admissible Brady material in there too.

  3. stewie says:

    I feel for the MJ. It’s a horrible rule, the idea that DC should know what is in 1400+ pages of mental health records before the MJ can even see them and not that the mere fact that she has 1400+ pages of mental health records should compel review is ridiculous, and the type of extreme situation that shows why this rule is ridiculous.
    Having said that…IMO the failure here was both the MJ and the DC. This rule is here for awhile, possibly to stay, so time to start talking to folks DC. Talk to friends, acquaintances, work mates…if she has 1400+ pages of mental health records then I guarantee you she’s talked to plenty of people about her visits, her diagnoses (docs say I’m schizophrenic but I think I have bipolar personally), what medications she’s on, etc.  You just have to dig and find one of those things, then link it to the constitutional argument.
    It will be interesting what the court does with that. The constitutional exception isn’t an exception, but to get the MJ to even review it, it has to meet one of the exceptions, most of which are not pro-accused.  But of course you cannot not except out constitutional rights.  I would hope the court would say the constitutional exception remains because…the Constitution…and thus allow in camera review in spite of the language of the statute. 
    But that means, as the court notes here, that the accused is going to have get more specific and that means more legwork talking to people.
    The greater concern: the bat guano crazy alleged victim who says nothing to no one. I suspect there will still be evidence of crazy one can ferret out, but it makes things harder.  At any rate, I feel for the MJ, but you can’t operate old school anymore.

  4. Monday Morning QB says:

    “Do the Klemick test, judge….it’s the second time we’ve told you.”

  5. k fischer says:

    There is a privilege piercing exception called the crime fraud exception that applies to attorneys.  US v. Zolin, 491 U.S. 554.  I wonder if it applies to shrinks.  For instance, if the vic goes to counseling because mom is guano crazy, Dad is trying to divorce mom because she is guano crazy, and mom is trying to coach vic into making a false allegation, then I think the communications would concern a crime or fraud and not be privileged if this exception applies to shrinks.  It definitely applies to Special Victim Counsel, so get ready to be questioned in your official capacity about any admissions made concerning the charges.  So, if some of these communications involve an intent to commit fraud or lie under oath about sexual assault, then the privilege should be pierced.
    Regarding constitutional power, I had to laugh at Footnote 14:
    Accordingly, the President was likely at the apex of his authority inimplementing Mil. R. Evid. 513 as he acted in his constitutional role as Commanderin Chief and under a specific legislative direction. Youngstown Sheet & Tube Co. v.Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson, J., concurring) (“When the Presidentacts pursuant to an express or implied authorization of Congress, his authority is atits maximum, for it includes all that he possesses in his own right plus all thatCongress can delegate. In these circumstances, and in these only, may he be said (forwhat it may be worth), to personify the federal sovereignty. If his act is heldunconstitutional under these circumstances, it usually means that the FederalGovernment as an undivided whole lacks power.”).
    Yeah, when the President who is the head of the Federal Government acts within the power of Congress, then it is up to the Judiciary to say that the Federal Government lack the power to commit unconstitutional acts.  That isn’t a bad thing.  That’s actually how our CO-EQUAL branches of Government are supposed to work.  So, when ACCA gets this issue, they don’t exercise any prudence in addressing the issue.  They slap the MJ around and tell him to explain why this action is unconstitutional, even though he did not rule that it was.
    As far as the “cumulative” analysis:  If the privilege is supposed to assist patients in being more honest with their therapists, then how in the heck can 513 evidence be cumulative with texts to family and friends?  Because everybody, except for ACCA, knows good and freaking well that the SVP is going to get some CIVB expert to talk about how perfectly normal it is for vics to lie to family and friends about making stuff up and recanting a recantation. 
    In today’s military trial practice, you can’t get too cumulative when it comes to these cases.  You’ve got 8 or 9 panel members who are hand selected by the Senior rater/Commander of the jurisdiction who have been trained every year to disregard their biases and start by believing, no matter how absurd, the allegations of a complaining witness.  You’ve got McCaskill holding up promotions if Convening Authorities dismiss what they believe to be BS charges, and you’ve got Gillibrand threatening to take UCMJ out of Commanders hands if they dismiss what they believe to be BS charges.  I don’t think you can leave any stone unturned when you are defending an innocent Servicemember.
    As I have stated before on MRE 513, I cannot fathom how I am supposed to articulate without speculation the specific factual basis for the admissibility of records based on an exception when I haven’t seen the records.  If I am honest, then I will use the word “might” or “likely.”  But, the Court requires me to use the word “Will” produce relevant evidence, which I cannot guarantee because I haven’t seen the records.  And, I still think the Court will require a specific admission that she told her shrink that she lied about the allegations or something along those lines before they will say it is specific enough.
    Dew Process, where can I get a copy of the amici?  Is this one of those “Accused files for divorce, Wife goes to family advocacy and says she is abused, gets a protective order, coaches daughter to lie” type of cases?

  6. Zachary D Spilman says:

    I edited this post to correct the case name.

  7. k fischer says:

    Rules like 513 were enacted because one too many guano crazy ex-wives and ex-girlfriends’ mental health records caused an acquittal of the falsely accused.  I don’t think they give a rip about privileged, confidential communications.  513 is a quagmire right now.

  8. Monday Morning QB says:

    k fischer- you may be right about there being “guano-crazy” complaining witnesses, but the bias in your post and the massive leaps of connective logic you imply between someone having received mental health treatment and lacking credibility are misplaced; your conclusion doesn’t follow from your premise, and the records are almost always used to assassinate character.  I would categorically disagree that 513 is a “quagmire;” it has been tightened up and now lazy judges are going to have to apply an actual legal test before they even conduct an in camera.  That’s the way it is in the civilian world.     

  9. The Silver Fox says:

    This is the best decision I’ve read in years.  

  10. stewie says:

    Well, the civilian world ain’t always right. So citing it, as some folks seem to do a lot, as if to say, end of discussion, is not particularly persuasive.
    I agree there’s a place for 513. I don’t want all alleged victim’s mental health records willy nilly open to scrutiny. There need to be standards and rules.  But what I don’t understand is why a military judge cannot apply those standards and rules in camera once it has been established that these records exist.
    How exactly does a DC strictly comply with these rules? I know how they can loosely comply with them, I’ve laid that out above, and I think most judges are just going to require that and no more, and I think the courts will be fine with it…they just need some logical links.  But if a judge takes a strict reading, there is no way the DC will be able to know what is actually in the mental health records to get the judge to look at the mental health records to see what is in there (short of the AV giving detailed specifics to someone).  The intent was to remove mental health records of the alleged victim from the playing field completely. I think that’s undeniable.
    I would also say removing the “constitutional exception” was not merely an attempt to “tightening things up.” Imagine if we removed the “constitutional exception” from 412 (which is another rule designed to protect the privacy of an alleged victim)? There wouldn’t be much left for that evidence in favor of the accused.  In 513, 1-7 are not pro-accused exceptions. 8 was, but now “technically” it is gone.  So the intent in there clearly is to only allow evidence in when the AV wants it, not when it is constitutionally required…again, that isn’t tightening up, that’s trying to skirt around the Constitution.
    Tightening up would have in my mind involved a better layout of what a MJ must find before admitting evidence from an AVs mental health records. I’m sure that could have been done better than the old days. But the you’ve got to prove that these documents have things in them but you can’t see them to do that, and the Judge can’t see them to do that?? And the “removal” of the CE?? Come on.

  11. dyskolos says:

    CIVB?  I suspect this has something to do with victim blaming and not the Conseil Interprofessionnel du Vin de Bordeaux.

  12. Col Lippert for Congress! says:

    Man, Col Lippert is raging against the machine: “similar to his ruling in AT v. Lippert declaring all SHARP records non-confidential because the victim made one unrestricted report, here the military judge applied his analysis and ruling to all of petitioner’s mental health records”
    Error or not, a part of me loves it.

  13. k fischer says:

    Silver Fox,
    I hate it when I have to agree with you.  BUT, I found the opinion very well written, thorough, and somewhat easy for an idiot like myself to understand, even though I wholly disagree with the operation of the rule upon which it is based.
    And, it appears that the First Circuit decided that the crime fraud exception applies to pierce the psychotherapist privilege.
    The Jaffee Court did not envision the psychotherapist-patient privilege as absolute or immutable. Rather, the Court suggested the possibility of exceptions to the operation of the privilege and prophesied that the details would emerge on a case-by-case basis. See Jaffee, 518 U.S. at 18 & n. 19, 116 S.Ct. 1923. To our knowledge, no court since Jaffee has determined whether the privilege is subject to a crime-fraud exception. We hold that the crime-fraud exception applies to the psychotherapist-patient privilege.
    In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 74 (1st Cir. 1999)

    So, how does the practitioner show that the communications to a psychotherapist is evidence of a future crime or fraud?  You would have to show that the vic/patient told her shrink that she was making up lies about the accused and intended to perjure herself.  Once again, how do you know what the vic/patient stated to the shrink, unless you got the records?  I don’t know if putting your client on the stand to deny the allegations and state they are not true would be enough because you are still speculating what the alleged vic told her psychotherapist to show she is going to commit the crime of perjury.
    MMQB, have you or a client you defended ever dated a female with Borderline personality disorder or another cluster B disorder who went on a distortion campaign after a breakup which included false allegations of sexual assault of her or the kids against the accused?  I’m guessing that’s a big NO.  Because if you have, then you might see how I am not biased, my leaps of connective logic are not massive, and my conclusion does follow my premise. Hell, even Stewie said the intent of this rule is to ensure that 513 evidence is never disclosed for an in camera review.   But, if by “assassinate character” you mean impeach the credibility of the complaining witness and show how borderline personality disorders lead to false allegations, then I guess we can agree on that one. Because that’s what I want to do when a complaining witness is falsely accusing my client: assassinate the character for truthfulness of a lying witness. 
    As authority for this premise, you should listen to my cross examination of Dr. Veronique Valliere found here, where she admits that studies indicate that false allegations during a divorce occur at a higher rate for those parties who suffer a Borderline Personality Disorder.  The question and her answer begins at 52:17.  So, I don’t think the connection I have made is misplaced.  Even the Government’s star CIVB who got Major Erik Burris convicted agreed that these studies show my premise.

  14. Tami a/k/a Princess Leia says:

    How about instead of fighting against the rules, DCs actually put in the effort to make an argument that complies with the rules as they currently exist?  There is no more “when constitutionally required” exception to MRE 513, so get over it.  Continuing to rely on that argument is a loser argument.  There may in fact be lots of Brady material in there, but you’re not going to get it by arguing “constitutionally required.”  On top of that, MH records are not in the Government’s “possession” for purposes of discovery.  TCs, STOP asking for MH records “in anticipation of a request” or “to avoid a continuance.”  That is part of the problem.
    There is a crime-fraud exception to MRE 513, so if you can make a good-faith claim that those MH records show the alleged victim telling the therapist “I will lie about the accused sexually assaulting me,” and you can back that claim up with SOMETHING (maybe a text message to a family member saying the AV intended to falsify a sexual assault allegation, or the accused testifying for the limited purpose of the motion that the AV threatened to falsely accuse him of SA), then the MJ can order production of the records and scour all 1400+ pages.  How about finding out if someone “not privileged” attended therapy sessions with the AV?  Disclosing privileged matters in the presence of a third party vitiates privilege.
    Your theory is that she’s falsely alleging SA because she doesn’t like the accused?  Fine, provide a link between your theory and the contents of the records to justify piercing the privilege to see if you are correct.  Provide SOME evidence, like the AV didn’t like that the accused grounded her for failing grades, so she’s lying about the SA to get back at him for grounding her.  Testimony from AV, from mom, or even the accused for the limited purpose of the motion.  Give dates when that happened.  Show me a report card that reflects the AV did in fact fail.  This is pretty basic stuff.  Does it take more of an effort to dig to get this information?  Yes.  But you’ll need to make the effort.  You don’t have to provide a guarantee, you don’t have to “know” what’s in the records, and you don’t have to say “the records WILL show.”  Klemick specifically says defense counsel can make a good-faith “guess” at what’s in the MH records because you haven’t seen them.  Just provide some evidence to back up your “guess” to show it’s in good-faith.
    As far as cumulative evidence goes, if you have a lot of non-privileged evidence to back up your claim, then you don’t need MH records.  However, if you only have 1-2 non-privileged sources, then the MH records probably are not “cumulative.”
    I don’t feel for this MJ.  This is the third time (that we know of) he has shown he’s not capable of following the rules.  If I was the TC, I’d probably ask him to recuse himself.
    As far as the Government not responding to this appeal, the lack of response makes sense to me.  Why does the Government need to jump in the fray when the AV has her own lawyer and this is a matter between the AV and the accused?  Also, maybe the Government wants the AV’s MH records just as much as the accused, in which case, the Government’s interests align with the accused’s, so no need to add more paper to a record that is already huge.

  15. Alfonso Decimo says:

    Princess Leia is right. DC need to prepare to meet the burden under MRE 513.

  16. k fischer says:

    Have you read the opinion about what Judge Wolfe said about “speculation?”  It really doesn’t appear as easy as you describe.  And, I really disagree that you can just give a “good faith guess.”  Footnote 11 says:
    “On one point there appears to be a unanimous consensus. In sexual-assault andchild abuse cases, there is general agreement that a defendant must do more thanspeculate that, because the complainant has participated in counseling or therapyafter the alleged assault, the records in question might contain statements about theincident or incidents that are inconsistent with the complainant’s testimony at trial.”Clifford S. Fishman, Defense Access to A Prosecution Witness’s Psychotherapy orCounseling Records, 86 Or. L. Rev. 1, 37 (2007)
    How do you know what she said, unless, you have the mental health records?  Wouldn’t it be pure speculation?  Or you would need a shrink to violate HIPAA and tell you what she said. 
    If you believe that she has a borderline personality disorder, I suppose you could call up witnesses who have had chaotic interpersonal relationships that she sought treatment for, and call those people as witnesses to show that she might have borderline traits, then get a defense shrink to testify about BPD’s and the studies linking them to false allegations in marriage cases. 
    If it is a case where the alleged vic is making up an allegation for attention purposes, then Dr. Valliere discussed personality disorders with people who make up allegations for attention like the Runaway Bride.  You have to find examples of the personality disorder in the complaining witnesses life, then find witnesses to testify to that, then find the shrink to draw the correlation between PD and false allegations, call the vic to testify about what shrinks she went to, and hope the MJ orders an in camera review.
    I agree that DC need to try to make it work.  My hand wringing about is more of my inside voice contemplating how exactly to do that without speculation.  I think ACCA is saying you need more than “good faith” speculation.

  17. stewie says:

    well, I don’t think she’s fully right. The absence of the constitutional exception doesn’t mean the constitutional exception doesn’t exist because…well, it’s a constitutional exception.  Every rule in the MCM could tack on “unless constitutionally required.” Removing it did not effectuating anything other than removing redundant language (even as we all the intent was to do something more).
    So yes, you SHOULD and probably WILL get it by arguing it was constitutionally required, but where her highness is correct is that DC will have to provide more evidence to link it as opposed to simply saying TC check for mental health records and MJ look at em in camera.

  18. Tami a/k/a Princess Leia says:

    k fischer,
    In order to meet the Klemick standard for getting the MJ to do an in camera review of the MH records, you have to link your theory to the records.  It’s not enough to say, “she has borderline personality disorder, ergo give me her MH records so I can use them against her.”  You would have to articulate your theory, i.e. “we believe the AV has borderline personality disorder which negatively affects her ability to accurately recall the event; AV is denying she has BPD, ergo we request in camera review of MH records to see if she has in fact been diagnosed w/ BPD.”
    I defended a rape case based on mental incompetence, gov’t claiming she had an “autistic spectrum disorder not otherwise specified.”  Our position was that, although she might have Forrest Gump level IQ, she was more than competent to make the decision to have sex with the accused, she understood what sex was, consequences, why, how, etc.  We got all her MH records going back through childhood b/c our expert forensic psychiatrist was able to articulate an autistic disorder is diagnosed in early childhood, and he needed ALL the records to determine if such a diagnosis had ever been made and if so, whether it was legit.  We also got the MH records where she discussed birth control and getting operations, including breast reduction surgery, wanting to have sex, etc.  Turned out it was a phony diagnosis made simply to keep her in a dependent status.
    The DC’s approach to MH records should be like asking for an expert:  articulate your justification for an expert (what’s your theory and how does the expert help you advance your theory), what efforts did you make to educate yourself about this item that requires an expert, how is the expert relevant to your case, etc.

  19. Tami a/k/a Princess Leia says:

    we will review de novo the military judge’s decision using a standard similar to that of the Wisconsin Supreme Court in Green: (1) did the moving party set forth a specific factual basis demonstrating a reasonable likelihood that the requested privileged records would yield evidence admissible under an exception to Mil. R. Evid. 513; (2) is the information sought merely cumulative of other information available; and (3) did the moving party make reasonable efforts to obtain the same or substantially similar information through non-privileged sources?
    This standard is not high, because we know that the moving party will often be unable to determine the specific information contained in a psychotherapist’s records.

    Specific factual basis = articulate your theory of “admissibility” of MH records
    Reasonable likelihood = provide SOME evidence to back up your theory
    Evidence admissible under MRE 513 exception = argue something other than “constitutionally required.”  Crime-fraud exception, AV danger to self or others, duty to report.  What does “danger” to self or others mean?  Is it limited to physical threat, or does it include “danger to accused’s liberty and/or property interest” because a false allegation of SA, if believed, will result in confinement and/or punitive discharge?  Does privilege even apply?  Third-party presence vitiates privilege.  How about arguing that an adverse inference be drawn from invocation of privilege, like in the interests of justice under MRE 512?

  20. Dew_Process says:

    It seems to me that a prudent DC is going to frame his/her Discovery Request by first seeking to know if MH records exist that predate the alleged offense, because of the need to know whether or not the complainant was suffering from some mental disease or defect at the time of the alleged offense; second, for any MH records that post-date the alleged offense. Both should be examined vis-à-vis the complainant’s mental status at the time of the alleged complaint and for Brady / Giglio materials.
    TC / prosecutors cannot avoid their Brady discovery duties by simply not obtaining such records once the Defense has made such a request – something that Kyles v. Whitley, 514 U.S. 419, 437 (1995), to wit:

    the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. . . .

    Now, where the MH records are held by non-US gov’t entities, it gets a little more difficult in some cases if the records-holder says “no, not unless the patient signs a HIPAA release,” etc., But, even under HIPAA, that can be overcome by a Court Order with a Protective Order.
    The problem that this case illustrates is where, as here, the government is not opposing the defense request (perhaps because the TC is applying Brady / Kyles appropriately), but the SVC counsel is screaming “privacy!”  But, a bureaucratically created “privacy” interest cannot prevail over a Due Process / fair trial claim, which after all is simply what Brady and its progeny are all about. The article referenced by k fischer above is well worth the read regardless of which side of the aisle you’re on and is available HERE. 
    What can go wrong when the defense is denied access to such MH records [from a PCR case I’m working on where the accused was convicted of rape]:

    [Alleged rape victim to MH therapist @ 1 week after “incident”]:    “I don’t know if I even had sex, I really don’t. I didn’t feel like I’d had sex – I mean, I’ve had sex for many years and know how my vagina feels the day after and I certainly didn’t feel that way — but, I just don’t know.”

    The defense was that they were “fooling around,” she got sick and vomited, he cleaned up, she passed out and he went to sleep – no sex occurred.  ACCA’s response:  “Error if any for the non-disclosure, was harmless.”  The Accused is 3 years into a 15 year sentence.  I simply cannot accept that this particular non-disclosure was “harmless” under these circumstances in a litigated case. But, it graphically illustrates the problems fermenting in this imbroglio.

  21. k fischer says:

    Great article.  Can’t wait to read it this weekend.  Now, where can I get a copy of that Amicus brief?
    MMQB, I’m still waiting for your response about my premise of there being a higher correlation of false allegations in divorce proceedings when the false accuser has a BPD being misplaced when I provided the audio in which the Government’s experts agreed that studies have shown that while she was testifying in my last court-martial.

  22. Dew_Process says:

    @ KF – I guess, unless you can squeeze them from either GAD or DAD, you’d have to get them from the Court Clerk – I’m not aware of AF CCA posting any appellate pleadings.
    I likewise would be very interested in reading those amici briefs.  I mentioned them only because of the groups involved.

  23. Tami a/k/a Princess Leia says:

    The article Dew Process attached is an excellent read.  Some of it I disagree with, like the probable cause standard, in our system, I would say it’s more akin to “reasonable suspicion.”  Or maybe a “good-faith guess.”  Regardless of what you want to call it, DCs are required to assert and explain the theory of admissibility, and provide some evidence to back that theory up, before a judge will order production for an in camera review.  The article makes clear an AV’s mental health records will not be produced for “general impeachment” value, as there is no pretrial discovery right to privileged information.  Removal of the “when constitutionally required” exception from MRE 513 also shows MH records are no longer accessible based solely on a claim that they contain some impeachment evidence–DC’s will have to show a “reasonable likelihood” that the MH records contain evidence of either an intentional lie or complete misperception of reality, or in the case of government theory of mental incompetence, then MH records are fair game to challenge that theory.  In these situations, you don’t need to rely on “when constitutionally required.”  You have the crime-fraud exception to MRE 513.
    Dew Process, neither Brady nor Kyles requires or allows TCs to obtain an AV’s MH records in response to a discovery request.  The AV is not a “government actor,” and the AV has no obligation to disclose the existence of MH records.  I would agree that a TC must ask, but a smart SVC (or AV) will simply refuse to answer the question, as there is no obligation to disclose.  It doesn’t matter if the MH records are in possession of gov’t entity, the TC has no authority to obtain them without a court order, and there won’t be a court order until after the MRE 513 hearing, which won’t happen unless the DC convinces the MJ there is a “reasonable likelihood” of admissible evidence within those records, and there is no other available source of that evidence.
    Also, it seems as if you’re offended by an AV (or SVC) claiming privilege.  Why?  Psychotherapist-patient wasn’t lightly created.  The benefit to society of someone receiving therapy is greater than the need for disclosure.  How offended would you be if you had a client seeking therapy and the Government wanted your client’s MH records to see if there was “impeachment value” contained in them?  Wouldn’t you be screaming “privacy?”  How about the attorney-client privilege?  That also inhibits the truth-finding function of the court, yet we don’t bat an eyelash when the privilege is asserted, and we scream bloody murder when there are attempts to pierce it.  The psychotherapist-patient privilege is now on par with attorney-client privilege, for better or for worse, doesn’t matter what anyone thinks, that’s the way it is.
    k fischer, I have heard from shrinks that there is a link between BPD and false allegations.  But I don’t think that’s enough to get you access to get the MH records.  I think you would have to put an expert on the stand to testify about that AND you’ll need to provide something specific to back up a theory that that particular AV’s records contain evidence of a false allegation.
    There are a lot of really smart DCs who comment on these kinds of cases, I am confident that each DC can come up with something to make a successful argument for piercing privilege within the limits of MRE 513 as it exists.

  24. stewie says:

    Again, removal of the constitutional exception in this case is of zero effect. You cannot remove a “constitutional exception.” If it would violate the accused’s constitutional rights, then it’s an exception to ANY rule whether that rule explicitly has the words “constitutional exception” or not.  So while in general I agree that DC will have to work harder, I do not agree that removing the “constitutional exception” means anything at all, and I think ultimately the courts will bear that out.

  25. Tami a/k/a Princess Leia says:

    The “constitutionally required” exception that keeps getting brought up relates to trial rights.  The Constitution allows for limits to be set by rules of evidence.  Every rule of evidence places some limits on an accused’s right to present a defense, right to confront witnesses, etc.  If there was always a “constitutionally required” exception, then every rule of evidence we have would be facially unconstitutional.  No articles or case law support that kind of reading.  There is also no constitutional right to pretrial discovery.
    The most common defense in these cases is that the AV is making a false allegation.  I think the crime-fraud exception to MRE 513 applies sufficiently that DCs don’t need to rely on an unwritten “constitutionally required” exception.

  26. Ed says:

    Tami There is always a constitutionally required exception at trial. Its a  simple(o not so simple) balancing test. Should the records be produced at trial and have the MJ go crazy as DC reviews them at his courtroom desk at the rate of 50 pages an hour while the panel does nothing?

  27. Tami a/k/a Princess Leia says:

    The only privilege that has a “when constitutionally required” exception is MRE 514, victim advocate-victim privilege, though I wouldn’t be shocked if that went away too.  The Military Rules of Evidence are codified into law, not like the Federal Rules of Evidence, which are based in common law.  Privileges in federal civilian court are open to interpretation; privileges in military courts are not.
    Under MRE 513, the defense must file a motion at least 5 days before entering pleas, and assuming there will be an in camera review, the MJ will review the records before the DC does.  Can’t get to trial until after pleas are entered, so this situation wouldn’t happen unless the AV and/or TC put the MH records at issue.  In that case, the MJ will go crazy, but it will be directed at the Government, not the DC.
    I think the rules on privileges have already factored in constitutional concerns by creating the written exceptions, so there is no need for a “when constitutionally required” exception.  For example, DCs have the crime-fraud exception to MRE 513 to address constitutional concerns.  Why does that not suffice?  TCs can also file a motion under MRE 513.  If the TC gets them, the DC automatically gets them too.
    We have a couple of privileges that have NO crime-fraud exception–spousal privilege and clergy-penitent.  In fact, there are no exceptions to clergy-penitent privilege, no crime-fraud exception, no child abuse exception, no safety exception, nothing.  Where is the legal authority for inserting an unwritten “when constitutionally required” exception into clergy-penitent?
    DCs can also argue adverse inference to invoking the privilege “in the interests of justice” under MRE 512.  Why is that not sufficient to protect an accused’s constitutional rights?
    It’s time for DCs to get creative and stop clinging to the old way of doing business.  DCs CAN get what they need under existing rules.  I think I’ve pretty much mapped it out in my comments on this post.

  28. stewie says:

    If a rule of evidence doesn’t violate the Constitution then its fine…if it does, or an application of it does, then it isn’t. I’m surprised this is being contested.