Scholarship Saturday: Military Rule of Evidence 513 – “What men value in this world is not rights but privileges.” – H.L. Mencken (1956)
The Military Law Review recently published an article by Army Major Angel M. Overgaard, one of the prosecutors from the Manning case. In her article, Redefining the Narrative: Why Changes to Military Rule of Evidence 513 Require Courts to Treat the Psychotherapist-Patient Privilege as Nearly Absolute, 224 Mil. L. Rev 979, 984-985 (2017), Major Overgaard explores the intersection between a patient’s privilege under MRE 513 to keep communications with mental health providers private, and an accused person’s right to receive a fair trial.
MRE 513 originally contained eight exceptions, the last of which directed the disclosure of protected communications whenever “constitutionally required.” That eighth exception was viewed by many to be too broad in application. Therefore, the President and Congress deleted the “constitutionally required” exception. The 7 remaining exemptions allow the disclosure of psychotherapist-patient communications:
(1) when the patient is dead;
(2) when the communication is evidence of child abuse or of neglect, or in a proceeding in which one spouse is charged with a crime against a child of either spouse;
(3) when federal law, state law, or service regulation imposes a duty to report information contained in a communication;
(4) when a psychotherapist or assistant to a psychotherapist believes that a patient’s mental or emotional condition makes the patient a danger to any person, including the patient;
(5) if the communication clearly contemplated the future commission of a fraud or crime or if the services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud;
(6) when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission; [and]
(7) when an accused offers statements or other evidence concerning his mental condition in defense, extenuation, or mitigation, under circumstances not covered by R.C.M. 706 or Mil. R. Evid. 302. In such situations, the military judge may, upon motion, order disclosure of any statement made by the accused to a psychotherapist as may be necessary in the interests of justice[.]
Major Overgaard posits that the deletion of the constitutionally-required exception “revealed [the President’s and Congress’] judgment that the [remaining 7 enumerated] exceptions reflect the full extent of the constitutional requirements.” Her article laments that “[i]nstead of acknowledging that MRE 513 is now nearly absolute, practitioners have attempted to create their own exceptions, rather than look to the enumerated exceptions or other non-privileged sources.” Id. at 985.
The counter-argument to Major Overgaard’s position is that MRE 513 should be read in a way that is respectful of the accused’s Sixth Amendment right to confront witnesses through effective cross-examination. CAAF explained this principle when discussing how to apply a similar privacy-based rule – MRE 412 – in United States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011):
[A rule of privilege] cannot limit the introduction of evidence required by the Constitution — although the text of the rule seems to permit such a limitation. And the [suggestion] that balancing constitutionally required evidence against the privacy interest of the victim before admitting it is necessary to further the purpose of the rule . . . is simply wrong. The purposes of [a rule of privilege] are served by the rule itself[.] If after application of M.R.E. 403 factors the military judge determines that the probative value of the proffered evidence outweighs the danger of unfair prejudice, it is admissible no matter how embarrassing it might be to the alleged victim.
All of that being said, the crux of Major Overgaard’s article is that “the psychotherapist-patient privilege is like,” and should be treated like, the “absolute clergy privilege and the nearly absolute spousal and attorney-client privileges[.]” Id. at 1021. In furtherance of that argument, the article notes that both psychotherapist-patient and clergy-penitent relationships “are based on trust and focus on wellbeing” and that “breaching the privileges would eviscerate the purpose and societal benefits resulting from the relationships.” Id. at 1023. As for the attorney-client privilege, Major Overgaard correctly notes that communications with an attorney and communications with a psychotherapist are alike in that, “[i]n both cases, clients are seeking professional assistance to deal with an issue that they cannot solve themselves.” Id. at 1025. The article does not offer a satisfying explanation for how psychotherapist-patient relationships are analogous to spousal relationships. Instead, rather than comparing those relationships, Major Overgaard notes that the privileges designed to protect those relationships are structured similarly – both have enumerated exceptions. Id. at 1024.
Unfortunately, Major Overgaard does not address the key factor which seems to distinguish the psychotherapist-patient privilege from the clergy-penitent privilege and the attorney-client privilege. Unlike the privilege protecting psychotherapist communications, protecting communications with a clergy member or a lawyer furthers enumerated Constitutional rights. Specifically, the clergy-penitent privilege furthers the free exercise of religion under the First Amendment. A helpful discussion of the evolution of the clergy-penitent privilege can be found in The Court of Appeals for the Second Circuit’s decision in Cox v. Miller, 296 F.3d 89, 102-103 (2002). In Cox, the Court outlined the facts and holdings of the seminal case on the question – People v. Phillips – where, in 1813, the New York Court of General Sessions held that the clergy-penitent privilege was “essential to the free exercise of religion.” Similarly, at least in criminal cases, the attorney-client privilege furthers the Sixth Amendment’s right to counsel. In Greater Newburyport Clamshell Alliance v. Public Service Co., 838 F.2d 13 (1988), the Court of Appeals for the First Circuit noted: “[T]he essence of the Sixth Amendment right is, indeed, privacy of communication with counsel.”
Unlike protecting lawyer-client or clergy-penitent communications, protecting communications between a patient and their psychotherapist does not further any enumerated right under the Constitution. An argument might be cognizable that psychotherapist-patient communications should enjoy protection in the “shadows cast” by the Bill of Rights. See Whalen v. Roe, 429 U.S. 589, 598 n. 23 (1977). But, a right found in the “penumbra” of the Bill of Rights is not an enumerated right. Additionally, it seems likely that if psychotherapist-patient communications fall into the penumbra of any Constitutional provision, it is the Fourth Amendment prohibition on unreasonable searches and seizures. See id., 429 U.S. at 599 n. 24. A right that can only be found within the Fourth Amendment’s penumbra is a particularly vulnerable right. After all, all that the Fourth Amendment’s text requires before a liberty interest may be invaded is that the government conduct itself in a manner that is “reasonable” and make a showing of “probable cause.”
Those apparent differences notwithstanding, Major Overgaard’s article advocates for equality between the psychotherapist-patient, clergy-penitent, and attorney-client privileges. But, her argument for equality comes with an important caveat: Unlike evidence that is withheld under those other rules of privilege, Major Overgaard asserts that evidence withheld under MRE 513 should not yield to the accused’s right to a fair trial. Indeed, at 1034, her article argues against “suppressing victim-witness testimony or abating the proceedings” when MRE 513 deprives a trial of evidence deemed essential to a fair proceeding. She explains that doing so would “do little to enhance victim rights and is counter to society’s interest in justice. Reducing sexual assault prosecutions runs counter to leadership’s goal of eliminating sexual assault.” Id.
When referencing the suppression of witness testimony or the abatement of proceedings, Major Overgaard’s article was alluding to Rule for Courts-Martial 703(f)(2), which provides, in relevant part:
[A] party is not entitled to the production of evidence which is . . . not subject to compulsory process. However if such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party.
This blog’s #10 Military Justice Case of 2014, United States v. Bowser, 73 M.J. 889 (A.F.C.C.A. 2014), aff’d 74 M.J. 326 (C.A.A.F. 2015) (CAAFlog case page), offers an example of RCM 703 provisions being applied in a case where essential evidence became unavailable due to the invocation of a privilege. In Bowser, after a litany of discovery violations related to undisclosed witness statements, the trial judge deemed it to be necessary for a fair trial to make the prosecutors turn over their witness interview notes for in camera review. The prosecution, citing the attorney work-product privilege, refused. The judge found prosecutorial misconduct and bad faith. He then imposed a drastic remedy for all of those ills: dismissal of the charges with prejudice. The prosecution appealed. The CCA, in a opinion critical of the prosecution, unanimously upheld the trial judge, including his findings of misconduct and bad faith by the prosecutor. The case was certified to CAAF, and the trial judge was again unanimously upheld.
Given the precedent of Bowser and Gaddis, Major Overgaard’s argument that MRE 513 is not subject to constitutional constraints beyond its own enumerated exceptions – none of which adequately address the accused’s Fifth and Sixth Amendment rights – is unsustainable. Her article is not a call to see the military’s psychotherapist-patient privilege treated equally; it is a call to see it elevated to a position of unparalleled primacy.
At a speech given at Boston College just a few days ago, FBI Director James Comey articulated the counterpoint to Major Overgaard’s position:
Here’s something that I don’t mean to freak you out with, but I think is true. Even our memories are not absolutely private in America. Any of us can be compelled, in appropriate circumstances, to say what we remember, what we saw. Even our communications with our spouses, with our clergy members, with our attorneys, are not absolutely private in America. In appropriate circumstances, a judge can compel any one of us to testify in court about those very private communications. And there are really, really, important constraints on law enforcement, as there should be. But, the general principle is one we’ve always accepted in this country: There is no such thing as absolute privacy in America; there is no place in America outside of judicial reach. That’s the bargain. And, we made that bargain over two centuries ago to achieve two goals: to achieve the very, very important goal of privacy. And, to achieve the very important goal of security.