With a published decision in LK v. Acosta & Sanchez (United States v. Sanchez), 76 M.J. 611 (A. Ct. Crim. App. May 24, 2017) (link to slip op.), a three-judge panel of the Army CCA grants a petition for a writ of mandamus for an alleged victim under Article 6b, reversing a military judge’s ruling that ordered the alleged victim’s mental health records produced for an in camera review.

But while beginning its decision with the observation that the Rule “gives unclear guidance to military judges,” slip op. at 1, the CCA reaches two dubious conclusions that make things worse.

Analyzing the exception to the privilege for “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,” Mil. R. Evid. 513(d)(2), the CCA interprets the first clause to apply only to inculpatory (and specifically not to exculpatory) evidence, and the second clause to apply only to the admission of evidence (and not to its production pursuant to an order from the court-martial).

They are puzzling conclusions that make a straightforward exception very confusing.

The alleged victim (identified by the initials LK) is the child of the accused’s spouse, and the charges allege various sexual offenses. A friend of the alleged victim was interviewed by criminal investigators and disclosed that the alleged victim participates in therapy. Mil. R. Evid. 513 makes the records of such therapy privileged, but there are numerous exceptions.

The defense requested the therapy records on the basis that they contain information bearing on the alleged victim’s truthfulness and the extent of her injury. Specifically, the defense argued that it needed the alleged victim’s mental health records to determine:

the extent of mental health treatment, what [LK] stated to the mental health treatment providers to obtain her diagnosis, and what diagnosis she has are all relevant to this case because they have a tendency to make the existence of facts that are of consequence, the truthfulness of [LK] and the extent of her injury, more or less probable.

Slip op. at 2 (quoting record). This is an instantly-problematic justification in the Army (and, most likely, everywhere) because last year the Army CCA noted that access to otherwise-privileged mental health records requires more than this kind of mere speculation (fishing expedition):

On one point there appears to be a unanimous consensus. In sexual-assault and child abuse cases, there is general agreement that a defendant must do more than speculate that, because the complainant has participated in counseling or therapy after the alleged assault, the records in question might contain statements about the incident or incidents that are inconsistent with the complainant’s testimony at trial.

DB v. Colonel Lippert, Military Judge, and Ducksworth, Real Party in Interest, No.  201507690, slip op. at 10 n.11 (A. Ct. Crim. App. Feb. 1, 2016) (discussed here) (quoting Clifford S. Fishman, Defense Access to A Prosecution Witness’s Psychotherapy or Counseling Records, 86 Or. L. Rev. 1, 37 (2007)).

However, the military judge in LK didn’t order an in camera review based on this weak defense justification. Rather, the military judge ordered the records produced for an in camera review because of the following exception to the privilege:

There is no privilege under this rule . . . [1] when the communication is evidence of child abuse or of neglect, or [2] in a proceeding in which one spouse is charged with a crime against a child of either spouse.

Mil. R. Evid. 513(d)(2).

Reversing the military judge’s ruling, Judge Herring, writing for the CCA, interprets the two clauses of this exception separately.

First, Judge Herring holds that the first clause of the exception – providing no privilege “when the communication is evidence of child abuse or of neglect” – applies only to inculpatory statements:

The first clause is limited to communications that are evidence of child abuse or neglect. That is, statements that are evidence that child abuse or neglect actually occurred. The privilege does not apply to statements that are silent as to whether there was child abuse or that would be evidence that no child abuse occurred.

Slip op. at 8 (emphasis added). This is a surprising conclusion, since the difference between an inculpatory statement, an exculpatory statement, and a neutral statement can be awfully fine. It also means that only the directly inculpatory portion of mental health records fits the exception, and other information (that might provide essential context) may not be disclosed.

Judge Herring’s analysis is based in part on the non-binding Appendix 22 of the Manual for Courts-Martial (Analysis of the Military Rules of Evidence), which suggests that “the exceptions to the rule have been developed to address the specialized society of the military and separate concerns that must be met to ensure military readiness and national security.” Slip op. at 8 (quoting analysis at A22-51) (marks and additional citations omitted). Assuming this anonymous and non-binding commentary is accurate, it’s very hard to accept that the Rule was written in a way that would deliberately prevent a commander from discovering that an allegation of child abuse or neglect was false, particularly considering the significant impact such an allegation can have on unit cohesion and readiness.

Nevertheless, the CCA concludes that:

The exception d[oes] not allow mental healthcare providers to reveal privileged communications that would establish the absence of abuse.

As the RPI [accused] seeks access to the mental health records for evidence that there was no child abuse, by the plain language of the rule the first clause is inapplicable.

Slip op. at 9 (emphasis in original). This seems to be both untenable and fundamentally unjust. It also begs a significant question: Who determines if the communications are inculpatory, exculpatory, or neutral? One would think this is a matter for a military judge in an in camera review, just like the review that was ordered in this case. But the CCA reverses that order and appears to prohibit such a review.

Second, Judge Herring holds that the second clause of the exception – providing no privilege in a “proceeding in which one spouse is charged with a crime against a child of either spouse” – applies only to the admission of evidence and not to an order for its production:

We interpret “in a proceeding” to mean in the proceeding in question. Military R. Evid. 1101(a) lists the proceedings applicable to the rules of evidence. That is, it is an exception to the evidentiary privilege, not an exception to the disclosure of privileged information. It is an exception that prevents the assertion of the privilege at trial regarding the admission of evidence, it is not an exception that allows the disclosure of privileged information.

In cases of child witnesses, it is the parent or guardian who generally may assert a privilege on behalf of the child. The exception in question thus operates to prevent one spouse from asserting the psychotherapist privilege to prevent the admission of statements of child abuse against themselves or their spouse.

Slip op. at 10-11 (emphases in original). This too is a surprising conclusion, since CAAF recently cautioned that “because privileges ‘run contrary to a court’s truth-seeking function,’ they are narrowly construed.” United States v. Jasper, 72 M.J. 276, 280 (C.A.A.F. 2013) (quoting United States v. Custis, 65 M.J. 366, 369 (C.A.A.F. 2007)). By interpreting in a proceeding to apply only to the admission of evidence and not to an order for production of records for an in camera review, the CCA has interpreted the exception as narrowly as possible, thereby construing the privilege as broadly as possible.

This interpretation also allows either side to call the mental health provider to testify at trial – without implicating the privilege at all – but prohibits pretrial questioning of the provider. That’s plainly nonsensical, and it undermines the purpose of the Rules “to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” Mil. R. Evid. 102.

Furthermore, Judge Herring’s conclusion that the second clause of the exception ensures “admission of statements of child abuse against [the accused],” slip op. at 11, vaguely suggests that the second clause (like the first clause) applies only to inculpatory evidence. But the opinion doesn’t actually say that, and the exception’s use of the word or to separate the two clauses demands that they be read separately.

Judge Herring’s opinion also includes this observation about the second clause:

The exception contained in the second clause only applies in a proceeding in which one spouse is charged with a crime against a child of either spouse. In the case of an unmarried accused—where there is no “spouse”—the exception would never apply. We can summon no rational reason, and the RPI also presents none, why a married accused would be granted full access to a child-witness’s mental health records, but the unmarried accused would be denied all access to the mental health records of their child.

Slip op. at 10 (emphases in original). This is hard to believe. False allegations are not uncommon when a marriage falls apart, and the second clause of the exception is easily read to address a situation where an aggrieved party in a divorce makes a false claim that the other person committed a crime against their child (that is other than child abuse or neglect). Unmarried people can also be the victim of false allegations from a partner, of course, but the formality of marriage provides a bright line for this exception that could otherwise swallow the rule.

Furthermore, as the first clause exempts all “evidence of child abuse or of neglect,” regardless of whether the accused is married or not, Judge Herring’s concern for an unmarried accused only exists as the product of the CCA’s untenable and unjust analysis of the first clause.

It would have been far simpler for the CCA to apply the plain language of the exception and affirm the military judge’s ruling that found no privilege in this situation. Such a decision would have made the rule clear and simple. But instead, while decrying “the confusion created by Mil. R. Evid. 513,” slip op. at 1, the CCA makes any confusion much worse.


20 Responses to “The Army CCA thinks Mil. R. Evid. 513 (the psychotherapist-patient privilege) is too confusing; makes it worse”

  1. Where's the Standard? says:

    I thought to win on a writ you had to show a clear and indisputable right to the requested relief.  According to the Army Court’s opinion, “as best as they can tell” this is an issue of first impression.  Is there a different standard for writs in the Army?

  2. Philip D Cave says:

    As a general rule, that’s correct, and usually only applies to the defense (the gubmint can do a 62 appeal, which gets them in court).  This is a CW writ which is specially authorized in 6b which is a different animal.
    As Zach alludes, this writ is not the best case to decide whether Mil. R. Evid. 513(d)(2) allows the defense discovery on exculpatory information or information that may lead to information showing a false allegation or absence of abuse, at least at the moment, because there’s no ability of the defense to petition CAAF under 6b.  That’s why defense counsel should be seeking discovery under this exception.  That then gets the issue before the CCA and possibly the CAAF (IMHO).  Should the accused here be convicted, then it looks like he’s preserved the issue for 66 review (IMHO).  
    Also, can the accused at trial get an adverse inference instruction?

  3. Jolly Roger says:

    The Army CCA applied the “clear and indisputable right to relief” standard in DB v. Lippert.

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

    Actually, for the most part, I think this is a well reasoned opinion.  Makes clear that defense counsel must stop asking for MH records based on “when constitutionally required” exception because it no longer exists!  The opinion isn’t clear if the defense raised the “child abuse” exception on its own, or whether the judge raised it sua sponte.  If it was sua sponte, then I would say that’s legal error, as the defense bears the burden of raising the exception.
    I said this before, it’s worth repeating:  the Constitution does not require disclosure of privileged information, and does not allow discovery of privileged information simply because it is helpful to the defense or it might provide some valuable impeachment information.  This is not a valid argument anymore.  The records have relevant information.  But the point of the rules on privileges is to exclude relevant information.  MH records maintained at the MH facility are not in the possession of the government, even when it’s a military facility.  Therefore, even though they may contain exculpatory information, MH records are not Brady material.
    To apply the “child abuse” exception because the AV is a child would lead to an absurd result, that no child victim’s MH records would be privileged because the patient is a child.  It would make sense that the “child abuse exception” is limited to admissions of child abuse to the therapist.
    There is a privilege to prevent both the disclosure and admission of privileged information.  ACCA suggests a person can waive privilege to permit disclosure but can later object to its admission.  I think that’s incorrect.  Once you waive privilege, it’s waived for good, for all purposes.
    Additionally, the rules of privilege apply at all stages of all cases or proceedings under MRE 1101(c)!  This includes during a criminal investigation.  I know there’s a good amount of debate whether privilege applies to CID investigations, but I think it does because otherwise, the records automatically lose privileged status when in the hands of CID agents, and that’s not the intent of the rule.
    What happened here is that the AV’s friend disclosed to CID she was getting therapy.  If the defense wants access to the MH records, the defense needs to get that friend on the stand to testify how the friend knows about the AV’s therapy, what the AV disclosed about therapy, and when those disclosures were.  Then argue to the judge that waiver applies.  No interviews, get the friend on the stand.  By now the friend probably realizes something got disclosed to CID that shouldn’t have been, so the friend will back pedal.
    If the theory is the AV is making a false allegation, then the defense can argue that exception too.  Provide SOME evidence that the AV is lying–a motive, admission to others (including the friend), other non-privileged records showing impossibility, something to justify the judge perusing the MH records and maybe finding something that supports the defense’s theory.
    As far as getting an adverse instruction, I think the defense can get one, if the defense jumps through all these other hoops first, and still meets up with resistance.  Invoking privilege isn’t enough to lead to adverse inference instruction.

  5. stewie says:

    Well, don’t agree at all Tami. A constitutionally-required exception ALWAYS exists…in theory. thus far, what the Service Courts are saying is, we don’t see a constitutional issue here. There’s a difference. If they did, they would…well, make an exception.
    My fundamental problem with this is that sure IF the AV says enough (whatever that means) to sustain further inquiry then an accused might be able to get a judge to look at mental health records. But if they don’t, then it doesn’t matter if they are bat guano crazy, then the accused will be stuck with the standard presumption that they are a competent witness.  And I see no fundamental fairness in that.  I see no reason why the old way of doing it didn’t properly balance the rights of the AV and the accused by simply having the Court, who is presumed to be able to make the right calls on these things, look at it first.
    There’s a whole lot less balancing here…by design.
    As to the argument that the Constitution does not ever require disclosure of privileged information?? Of course it does. Does it require it “merely because it might be helpful to the Defense? or involve impeachment?” I’d argue yes, that’s exactly what Brady is about, heck Brady goes farther than that!
    No, we’ve placed a policy argument above the constitutional right of the Accused to exculpatory information. The policy argument isn’t without merit. We want folks to tell the truth and feel free to do so in a protected environment. We want them to get help when they need it. But if an AV is say a paranoid schizophrenic, I see no reason why the Constitution does not demand that information be presented to a fact-finder looking into whether or not that AV is telling the truth.

  6. Zachary D Spilman says:

    I have a few qualms with your analysis, Tami a/k/a Princess Leia

    First, on the constitutionally-required exception that was ordered removed by Congress in the FY15 NDAA and then was removed by Executive Order 13696, Judge Herring wrote this:

    It is axiomatic that the removal of a constitutional exception from an executive order-based rule of evidence cannot alter the reach of the Constitution. 

    Slip op. at 4. And this:

    If the Constitution demands the “admission or disclosure” of otherwise privileged communications, the deletion of Mil. R. Evid. 513(d)(8) does not limit the Constitution’s reach into the rule. Put differently, the Constitution is no more or less applicable to a rule of evidence because it happens to be specifically mentioned in the Military Rules of Evidence. 

    Slip op. at 5. I think these observations are persuasive and accurate. 

    Second, on the matter of the child abuse/neglect exception, I don’t think anyone is arguing that the exception swallows the rule in the case of a child patient. There are any number of situations where a child might communicate with a psychotherapist without implicating issues of child abuse or neglect. Furthermore, this exception isn’t just intended to allow psychotherapists to report child abuse or neglect (as they are typically required to do), because a duty to report implicates a different exception (paragraph (d)(3)). The exception is also not just intended to address the needs of the military, because that too is a different exception:

    [No privilege for a disclosure] when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission;

    Mil. R. Evid. 513(d)(6) (emphasis added). The child abuse/neglect exception is, noscitur a sociis, a broad exception in cases of child abuse/neglect. Child patients have a privilege, but it’s curtailed. There are sound policy reasons for this, least of which is that children make up stories all the time. 

    Third, you wrote:

    the Constitution does not require disclosure of privileged information, and does not allow discovery of privileged information simply because it is helpful to the defense or it might provide some valuable impeachment information. This is not a valid argument anymore.  

    (emphasis added). The argument is as valid as it ever was, but I agree that it’s not valid. Communications to a psychotherapist are largely on the same footing as communications to a priest. In any event, the argument that an alleged victim’s mental condition makes them likely to fabricate, and so it’s likely they fabricated the allegation at issue, is a prohibited use of propensity. See Mil. R. Evid. 404(a). 

  7. stewie says:

    If an AV has a mental disorder and lives in a fantasy world, and can’t tell reality from fantasy or their disorder screws with their ability to accurately perceive events, or takes medication that does the same…or they have a disorder that causes them to lie (and yes those exist) then those things go to their competency as a witness in the first three, and yes to their character for truthfulness in the last.

  8. Zachary D Spilman says:

    I think the competence issue needs a deeper discussion, as the Rules undermine your argument, stewie. “Every person is competent to be a witness.” Mil. R. Evid. 601. The witness need only take the oath. Mil. R. Evid. 603. And there’s this:

    The trend in Federal civilian courts and military justice is to let “all witnesses … testify,” in order “to provide court-members with the greatest amount of arguably reliable evidence possible, with the expectation that court-members can decide the appropriate weight to be given imperfect witnesses.” S. Saltzburg, L. Schinasi, and D. Schlueter, Military Rules of Evidence Manual 492 (2d ed. 1986). Mil.R.Evid. 603 “is written to permit atheists, conscientious objectors, children and individuals with emotional difficulties to satisfy the basic criterion” of affirming their duty to tell the truth. Id. at 498 (emphasis added).

    We have never suggested that children might be incompetent to testify based on some general inability to understand an oath or affirmation to tell the truth. Certainly there is nothing in this record to cause us to reverse this course with respect to child witnesses in sexual-abuse cases. See J. Myers, Child Witness Law and Practice §§ 3.17-3.19 at 93-99 (1987).

    United States v. Morgan, 31 M.J. 43, 47 (C.M.A. 1990).

  9. Jolly Roger says:

    Zach I don’t think Stewie meant competence in that sense but in the sense that a witness’s ability to perceive is always at issue. If 404(a) blocked that you wouldn’t be able to ask an eyewitness “isn’t it true you’re blind?” It’s a condition that affects perception. Same goes for character for truthfulness, an exception to 404(a). 
    And the argument that there’s a constitutional exception is still perfectly valid. The court recognizes as much. Their point is that Brady is the only way you get there and that’s not going to happen very often. I’m with them on that until they suggest that records in the possession of a military mental health agency are never Brady. If there’s a specific request from the defense for records in a military agency that falls pretty squarely into Stellato/Williams category 3. I’m not sure how the TC is supposed to discharge his due diligence duty in that circumstance other than with an in camera review. I suppose TC are just not doing it and no one knows about it because the defense never finds out what was there.

  10. Zachary D Spilman says:

    There’s an enormous difference between a cross-examination that elicits that a witness lacks the ability to see (after the witness – presumably, though you don’t say – testified that they saw something), and a cross-examination that seeks to discredit the witness based on mental heath. Our society is starting to treat mental health like physical health; it’s no more legitimate to attack a witness for their depression as it is to attack them for their missing leg. 

    I accept that there are situations where a witness’s mental illness might go to credibility (like a witness with schizophrenia who testifies about hearing a voice make an incriminating statement that, based on other circumstantial evidence but not the witness’s prior knowledge of the accused’s voice, is alleged to have been the accused’s voice; such a voice might be just a manifestation of the mental illness). But that’s a far cry from trolling through an alleged victim’s mental health records for evidence that might amount to an inconsistent statement, or might (as the defense motion asserted) reveal a diagnosis bearing on truthfulness (assuming there is such a thing). Mil. R. Evid. 513, particularly with its recent amendment, is quite obviously designed to prevent such a fishing expedition.

    As I wrote above, communications to a psychotherapist are largely on the same footing as communications to a priest. Broadly speaking, if you wouldn’t ask the witness to identify their priest, and then try to interview the priest, then you shouldn’t do the same with psychotherapists. Every case is different, of course, but military justice practitioners need to be more thoughtful and deliberate on this issue. 

  11. Ed says:

    The difference between a priest and a therapist is that rarely does the priest become part of the prosecution or in the civil side the fighter for custody team. Therapists often feed ideas to their  patients that becomes the raison d’etre for their cause whether to lock up their lover of six months for a claimed night of smacking their butt when unauthorized or requesting their spouse of ten years only have supervised visitation. Either way generally the therapists role  is in the real world very different than the priests role

  12. stewie says:

    “is written to permit atheists, conscientious objectors, children and individuals with emotional difficulties to satisfy the basic criterion” of affirming their duty to tell the truth.”
    Zach, a person who cannot distinguish truth from reality, and/or who struggles to perceive reality correctly is in fact incapable of satisfying the basic criterion of affirming their duty to tell the truth. They are literally incapable of doing so, because truth relies on an accurate (or at least as accurate as any average human can be) perception of events/reality. If you don’t have the latter, y ou can’t do the former.
    We aren’t talking merely about “imperfect witnesses.” We aren’t even talking about children, who can generally PERCEIVE reality correctly enough but struggle to understand it’s meaning or import. We are talking about something completely different. So citing the reasoning behind why we allow children to testify isn’t dispositive to this question/issue.
    If someone has a serious issue with the above, that fact HAS to be presented to the panel, not JUST for constitutional reasons but for the whole truth-seeking process that gets thrown out whenever someone wants to trump due process considerations. Literally BOTH are implicated.

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

    Child patients have a privilege, but it’s curtailed. There are sound policy reasons for this, least of which is that children make up stories all the time. 

    Where does this come from?  Children don’t have privilege because…they’re children?  All children are liars?  All people with mental health disorders are liars?  Come on.  Cases of child abuse/sexual assault must be investigated, but that doesn’t give government carte blanche to troll through a child’s mental health records.  And interesting that all children are liars, yet people are willing to believe LK’s friend’s claim that LK was getting therapy.
    Jolly Roger, as ACCA noted, mental health records in a military facility aren’t “in the possession” of the prosecution simply due to being in a military facility.  In fact, DODI 6040.45 specifically separates certain mental health records, like psychotherapy notes, from “health” records (which aren’t privileged).  Also states what mental health information IS included in “health” records (diagnoses, counseling dates and times, medications).
    Continuing to rely on old arguments of getting around MRE 513 (truth-seeking, exculpatory evidence, due process) is what led to ACCA publishing this opinion so that it is now binding on the Army and will be binding precedent for quite some time.  CAAF can’t consider this unless TJAG certifies, which isn’t likely to happen.
    A privilege gives the privilege holder the right to deny both the government and the defense access to the privileged information.  Since the non-access is equal, Brady isn’t implicated; neither is Stellato.  There is no constitutional, statutory, or regulatory right to discovery of privileged information in the possession of a government witness, but not the government.  In fact, there is no constitutional right to discovery period, and the TC has no duty to go hunting for records not in the government’s possession.  SCOTUS, CAAF, and ACCA have all ruled on these issues.  ACCA’s opinion in Shorts (CAAF denied cert) is very informative and worth the read (and a post on CAAFlog) on these issues.
    Trials are more than just truth-seeking.  If the sole function of a trial was to “seek the truth,” then the real killer of Nicole Brown and Ron Goldman would’ve been caught long ago, OJ wouldn’t have been prosecuted, and everything the accused says to his/her defense counsel is fair game for use at trial.  In fact, we wouldn’t need any rules of evidence at all if it was just about finding the truth.
    If the AV has given the government access, then privilege is waived and what the government has, the defense gets.  People are often unaware of the consequences of waiving privilege (including that it’s permanent), but that’s not the standard.  The only issue is whether the waiver is voluntary.  Also, if the government’s theory of sexual assault is that the AV is mentally incompetent, then that necessarily means the Government has at least some of the AV’s MH records, so they lose their privileged status, and are subject to the regular rules of discovery.  If you can successfully argue waiver, you don’t have to argue the exceptions.
    Privilege IS a “policy choice,” elevating societal concerns over the prosecution’s ability to prove its case.  It’s always about the government’s choice to deliberately exclude relevant, material evidence from discovery by the Government, in order to meet a greater societal need.  That has always been the case with privileges.
    Where the AV’s perception is far from reality, a phony MH diagnosis, an admission of lying about the sexual assault, subject to suggestion, or a pathological liar, I think the “liar, liar, pants on fire” exception can be argued.  Is it?  I still say get LK’s friend on the stand and confirm the friend told CID that LK is getting therapy.  How does the friend know this?  What has LK said about her therapy sessions?  Argue waiver, the judge orders in camera review, and gives copies to both TC and DC of everything covered by waiver.  Maybe that will lead to more information that can lead to other arguments for exceptions, like LLPOF.  At least then the defense will be litigating within the boundaries of the rule.

  14. Zachary D Spilman says:

    I’m just reading the rule, Tami a/k/a Princess Leia, while imagining the policy reasoning behind it.

    There is no privilege under this rule . . . when the communication is evidence of child abuse or of neglect

    (d)(2). This exception isn’t to enable a mandatory report by a psychotherapist (that’s (d)(3)), nor is it for military exigency (that’s (d)(6)). 

    The CCA narrowed this exception to only inculpatory evidence, but that’s irrational and unworkable. Not only is the line between inculpatory and less-than-inculpatory communications incredibly fine (and reasonable minds often disagree about the true meaning of any particular communication), but one can’t differentiate between inculpatory and less-than-inculpatory communications without piercing the privilege. 

    I think it’s reasonable to read this exception to apply only to the child patient and not to the records of anyone who happens to be involved in a prosecution of child abuse or neglect. But beyond that, it’s a clear curtailment of the privilege.

  15. Matt J says:

    Unfortunately, privilege seems to be used more now to prevent the defense from obtaining exculpatory evidence than in hampering the prosecution.  How about a rule change that protects the victim’s right to privacy, but still allows a proper defense in light of a prosecution?  If the victim does not want disclosure, no prosecution.  That way the power goes to the victim as to how concerned they really are with privacy.

  16. stewie says:

    Matt, I’d tweak that to say that the AV’s records automatically go the MJ. The MJ then informs the AV what he/she intends to release, and then the AV at that time can decide whether or not authorize that or not. If they do, trial continues…if they don’t, trial is abated.

  17. Defese Wizard says:

    What I don’t get, and has never been explained in a satisfactory manner is why rules like 412 and 513 are used as a tool to block discovery. Aren’t they rules of admissibility at trial?Aren’t we confusing HIPAA/Privact Act (and the applicable DODIs) with rules of admissibility?
    There seems to be some sort of bizarre fusion occurring here. If a medical provider improperly releases records, that’s on the hospital. They may be excluded from trial, but there are plenty of things that don’t come in at trial, such as the fruit of illegal searches, etc.

  18. Some Guy says:

    Defense Wizard – 513 is a privilege rule – privilege rules all block discovery, if they did not then TC could interview the defense counsel to discover what the accused told him.
    412 should not prevent discovery.

  19. Defense Wizard says:

    Some Guy – Thanks. After re-reading what I wrote, I realized I didn’t articulate my confusion. The whole concept of “you have to know whats in the discovery so you can ask for it specifically” format of discovery is mind blowing. Judge Herring’s limited take on “in a proceeding” is also….odd.
    With regard to the TC interviewing the DC, if the DC revealed privileged information, both parties would likely find themselves disqualified from the proceeding….and one eventually disbarred.I have seen, and raised as an issue, 412 used as a shield in discovery when questioning a witness during an interview. TC and SVC jumped down my throat when I asked about the alleged victim’s marital status with a 412 objection as if we were in a court room.

  20. Some Guy says:

    Yikes – TC should not hinder discovery and does not represent the witness, should not object on a 412 basis at a witness interview – frankly should not even be present for such an interview.  The SVC does represent the witness, so they may be able to advise their client not to answer a question that they don’t want to answer – I have not been an SVC so I haven’t really drilled down on what their duties/responsibilities should be.