Mil. R. Evid. 513 is the military psychotherapist-patient privilege. The scope of the rule, and its exceptions, have been a topic in recent high-profile cases including EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. 2016) (CAAFlog case page), and Randolph v. HV. and United States, No. 16-0678/CG (CAAFlog case page) (argued Tuesday, October 11, 2016).
A recent published opinion by the Air Force CCA in United States v. Chisum, 75 M.J. 943, No. S32311 (A.F. Ct. Crim. App. Nov. 29, 2016) (link to slip op.), provides additional analysis of the rule. Specifically, the CCA addresses when a military judge is required to conduct an in camera review of mental health records. Acknowledging the three-prong test stated by the NMCCA in United States v. Klemick, 65 M.J. 576, 580 (N-M. Ct. Crim. App. 2006), the Air Force CCA concludes that:
in applying this three-prong test, we recognize that the burden for in camera review is not high because the moving party will often be unable to determine the specific information contained in a psychotherapist’s records. See [Klemick]. We also note that “[w]here discovery obligations potentially impact a recognized privilege, an in camera review is generally the preferred method for resolving the competing compulsions.” Bowser, 73 M.J. at 897.
Slip op. at 6 (emphasis added).
Applying this not high burden, the CCA finds that the military judge abused his discretion by failing to conduct an in camera review of the mental health records of the two prosecution witnesses whose testimony was the primary evidence that the appellant wrongfully used cocaine. The witnesses acknowledged receiving mental health treatment for perception and memory issues, and the CCA finds that this was “a reasonable basis for the military judge to conclude that the mental health records contained further information reflecting the extent and severity” of those conditions. Slip op. at 7.
However, the military judge also “elected not to attach any of the mental health records as sealed appellate exhibits for further appellate review.” Slip op. at 3. So the CCA ordered the Government to produce them:
On 16 August 2016, this court ordered that the Government produce the sealed mental health records of AB AK and AB CR for appellate review. On 19 September 2016, the Government complied with the order and provided the requested records to this court. Both parties submitted supplemental briefs on 28 October 2016.
Slip op. at 3 n.3. The Air Force Appellate Government Division apparently did not object to the CCA’s fact-finding mission, despite the Division’s prior efforts to prohibit appellate counsel from reviewing sealed materials that were not released to the parties at trial. I discussed those efforts in this post, and noted CAAF’s rejection of the Division’s writ petitions in this post.
The CCA reviews the records in Chisum and finds that the military judge’s failure to conduct an in camera review was harmless because “the defense already had sufficient information to cross-examine these witnesses on the matters found in their mental health records.” Slip op. at 9. But the court also concludes that:
Appellant was convicted of the sole offense where AB AK and AB CR corroborated each other. Concerns about AB CR’s ability to accurately recall and perceive were offset by the corroborating testimony of AB AK, and vice versa.
Slip op. at 11. This latter conclusion about corroboration, however, seems clear even without the CCA obtaining and reviewing the records.
The appellant hasn’t (yet) petitioned CAAF for review.