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.

7 Responses to “The AFCCA obtains and reviews two sets of mental health records”

  1. JAE says:

    Did this case implicate the “new” 513 with the constitutional exception deleted?  I’m guessing no.  

  2. Zachary D Spilman says:

    JAE raises an important point. Congress ordered modification of Mil. R. Evid. 513 in Sec. 537 of the National Defense Authorization Act for Fiscal Year 2015 (discussed here), and the Rule was modified by the President in Executive Order Number 13696 (discussed here).

    Those modifications included additional burdens on the party seeking an in camera review that are consistent with the Klemick test (now found in Mil. R. Evid. 513(e)), and also deleted the enumerated exception to the Rule for evidence that is constitutionally required (previously found in Mil. R. Evid. 513(d)(8)). 

    This case was tried before those changes took effect. 

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

    I’ve argued this before, no more “when constitutionally required” exception to MRE 513 means no more arguing the records should be disclosed because it’s “constitutionally required.”  The lack of a “when constitutionally required” exception doesn’t leave defense in the cold.  If the defense counsel’s motion for MRE 513 matters gets denied, defense counsel should be arguing for an adverse inference to be drawn from the invocation of privilege, under MRE 512(a)(2), in the interests of justice.
    In this case, I don’t agree with AFCCA’s assessment that the failure to do an in camera review was harmless.  I’m not sure this is commonly known, but the combination of alcohol and cocaine can cause hallucinations and information in the mental health records about combining alcohol with illegal drugs would’ve been vital for the defense expert to make this point.  Also would be relevant if it wasn’t PTSD, but rather misconduct, that caused the problems.  Hallucinating is more than a memory problem.  It’s a “you’re completely making this up” problem.
    Also, the combination of energy drinks with alcohol causes problems similar to the combination of cocaine and alcohol.  Introducing a stimulant with the depressant effects of alcohol means the person gets drunker faster, BUT they don’t look or feel like they’re drunk, as the stimulant causes the body’s defense mechanisms to excess alcohol consumption to shut down.  How many cases have you seen where the alleged victim was drinking Red Bull/Monster/Rock Star/5-hour energy drinks with alcohol?

  4. Zachary D Spilman says:

    As previously discussed here, CAAF has already addressed what happens when a rule purports to “limit the introduction of evidence required by the Constitution.” United States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011) (addressing Mil. R. Evid. 412). See also United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011). And see this post.

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

    But this issue isn’t about a constitutional right to introduce evidence.  This issue is about the right to discover evidence, which isn’t necessarily constitutional.  For example, MRE 513 information showing a motive to lie, denial of general impeachment evidence isn’t really a constitutional issue (unless the trial counsels have access to it, then it does become a constitutional issue).  However, a sexual assault case based on a mentally incapacitated theory, then MRE 513 records are the core of the Government’s case, so you do have a discovery issue of constitutional magnitude.  I think you could argue waiver of privilege, so you don’t have to argue any exceptions.  You can also argue fraudulent diagnosis under MRE 513(d)(5).
    Rules of privileges are much different than MRE 412, which is a rule of relevance.  The rules of privileges deal with information that is relevant, but for important societal reasons, the rule-maker (in this case POTUS) decided to block access to this information by the Government, and therefore, also the defense.  “Since the rules regarding privileges, including scope and exceptions, are codified in the Military Rules of Evidence, adding an unwritten exception is error as a matter of law.”  United States v. Custis, 65 M.J. 366, 369-70 (C.A.A.F. 2007) (military judge erred in applying unwritten “fraud on the court” exception to marital communications privilege); United States v. Tipton, 23 M.J. 338, 343 (C.M.A. 1987) (“Military law requires more stability than civilian law.  This is particularly true because of the significant number of non-lawyers involved in the military justice system who need specific guidance as to what material is privileged and what material is not.”); United States v. Davis, 61 M.J. 530, 536 (Army Ct. Crim. App. 2005) (military judge erred in applying unwritten crime-fraud exception to marital communications privilege); Analysis of Mil. R. Evid. 501. App. 22, pg. 22-43.
    As Zachary pointed out, this case was decided before the removal of the “when constitutionally required” exception to MRE 513, so the “when constitutionally required” exception was still fair game.  But for current cases, it’s no longer available and you can’t ask the judge to reinsert it, as the judge doesn’t have the authority to do that under Custis.  So defense needs to argue, in this order, as applicable:  (1) privilege doesn’t apply; (2) waiver; (3) listed exception (in which case you need to meet the Klemick standard); (4) adverse inference.

  6. rob klant says:

    Military treatment facilities and providers either may (C7.11 of DoD 6025.18-R) or must (encl. (2) of DoD 6490.08 and correspondent service regulations, e.g. MILPERSMAN1910-146) notify commanders of evidence of illegal drug abuse by active-duty service members.
    I’d like to see some analysis of the impact of these rules on the interpretation and application of MRE 513, i.e in what sense are any these medical data “privileged” under MRE 513?

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

    Mental health treatment records are treated differently than medical records, which contain private, but not “privileged” information.