In J.M. v. Payton-O’Brien and Ravenscraft, 76 M.J. 782, No. 201700133 (N-M. Ct. Crim. App. Jun 28, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA grants an alleged victim’s Article 6b petition for a writ of mandamus and reverses the military judge’s ruling that ordered disclosure of portions of her mental health records to the defense.

The military judge’s ruling was based on “the now-excised, constitutional[ly-required] exception to the psychotherapist-patient privilege,” Mil. R. Evid. 513. Slip op. at 2. The CCA rejects application of this former exception, concluding that an order for production or release of privileged records must be based on an actual, enumerated exception to the rule. However, the CCA finds that the military judge may take other actions to protect an accused’s constitutional rights.

Writing for the panel, Judge Jones explains that:

a military judge may not order production or release of MIL. R. EVID. 513 privileged communications when the privilege is asserted by the holder of the privilege unless the requested information falls under one of the enumerated exceptions to the privilege listed in MIL. R. EVID. 513(d). However, when the failure to produce said information for review or release would violate the Constitution, military judges may craft such remedies as are required to guarantee a meaningful opportunity to present a complete defense.

Slip op. at 2. Such other remedies could include an order to:

(1) strike or preclude all or part of the witness’s testimony;

(2) dismiss any charge or charges, with or without prejudice;

(3) abate the proceedings permanently, or for a time certain to give the witness an opportunity to reconsider; or

(4) declare a mistrial.

Slip op. at 15 (paragraphing added).

Mil. R. Evid. 513 is the military psychotherapist-patient privilege. It generally protects from disclosure any “confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist.” Mil. R. Evid. 513. Such communications have been held to include “the psychotherapist’s conclusions (diagnoses) and resulting treatments.” H.V. v. Kitchen, 75 M.J. 717, 718 (C.G. Ct. Crim. App. Jul. 8, 2016), further appeal dismissed, 76 M.J. 27 (C.A.A.F. 2017) (CAAFlog case page).

There are numerous exceptions to the privilege. One such exception used to be where disclosure was constitutionally-required, however in the FY15 NDAA Congress ordered that exception removed and the President removed it in Executive Order 13696.

In J.M., The military judge made a few rulings that the CCA finds erroneous. She:

granted the defense motion for in camera review of the mental health records from three psychiatric visits the petitioner made to three different hospitals. After reviewing the records, the military judge sua sponte ordered, for in camera review, production of the petitioner’s outpatient therapy records from two additional mental health providers. After reviewing over 750 pages of mental health records, the military judge identified and heavily redacted 75 pages for potential release to the defense. The military judge then issued “Qualified Protective Orders for all hospital admission records as well as the various outpatient providers.”

Slip op. at 2. These orders were not based on any of the current exceptions to the privilege. Rather, in making these rulings, the military judge:

determined that the defense’s evidence did not meet one of MIL. R. EVID. 513’s seven listed exceptions. However, she concluded that due process required piercing the privilege to “guarantee [the defense] ‘a meaningful opportunity to present a complete defense.’”

Slip op. at 3 (marks in original). Judge Jones does not explain precisely what defense evidence supported the order to review the records, but the military judge found that:

Dr [S], the defense expert consultant testified that Ms. JM’s history . . . could reflect mental health issues, not associated with this case, and she indicated it would be essential to rule out any and all mental health conditions preceding the events in this case . . . .

Slip op. at 3 (quoting order) (marks in original). The military judge ultimately concluded that:

[I]t is a reasonable conclusion that the outpatient counseling records of Ms. JM would contain: information related to an event and the reactions and perceptions of Ms. JM; information concerning mental health issues that have a bearing on Ms. JM’s recollection or perceptions of the events in question; and information concerning medications, if any, having an effect on Ms. JM’s ability to perceive or recollect currently and in the past.

Slip op. at 4 (quoting order) (marks in original).

J.M. then petitioned the CCA for relief, asking the court to “declare the privilege absolute—outside of the extant exceptions—without consideration for the constitutional concerns of the [accused].” Slip op. at 8.

The CCA agrees, in part.

Judge Jones explains that “the military judge cannot add an exception to a military rule of privilege.” Slip op. at 9. Accordingly, “any application of the former MIL. R. EVID. 513(d)(8) constitutional exception by the military judge was improper.” Slip op. at 10. However,

we may not allow the privilege to prevail over the Constitution. In other words, the privilege may be absolute outside the enumerated exceptions, but it must not infringe upon the basic constitutional requirements of due process and confrontation.

Slip op. at 10. Judge Jones identifies three possible (but non-exclusive) situations where the constitutional rights of the accused may require infringement upon the privilege:

courts have allowed discovery of privileged information in the following areas: (1) recantation or other contradictory conduct by the alleged victim; (2) evidence of behavioral, mental, or emotional difficulties of the alleged victim; and (3) the alleged victim’s inability to accurately perceive, remember, and relate events.

Slip op. at 12 (citing Clifford S. Fishman, Defense Access to A Prosecution Witness’s Psychotherapy or Counseling Records, 86 OR. L. REV. 1, 4 (2007)).

Accordingly, the CCA provides the following procedural steps for review of mental health records (the procedure is written for an alleged victim but presumably would apply to any invocation of the privilege by a prosecution witness):

The procedure to determine the admissibility of the victim’s records or communications under MIL. R. EVID. 513(e)(2) begins in a closed hearing, where the military judge applies the same test used for in camera review found in MIL. R. EVID. 513(e)(3). If the moving party satisfies all the prongs, but meets no enumerated exception under MIL. R. EVID. 513(d), then the military judge determines whether the accused’s constitutional rights still demand production or disclosure of the privileged materials. If so, then the military judge gives the victim an opportunity to waive the privilege for in camera review by the military judge.

If the victim elects to waive the privilege only for in camera review, the military judge reviews the materials for possible disclosure. If the military judge continues to find that the accused’s constitutional rights demand disclosure of certain materials to the defense, she earmarks those items for review by the victim or VLC.30 If, after review, the victim or VLC elect to further waive the privilege, the materials are provided to the defense.

This procedure allows the military judge to scrupulously honor the victim’s choice of whether—and how much—to waive the privilege. The military judge never orders the production or release of materials that do not fall under an enumerated exception to the privilege. Instead, the victim retains the authority to assert the privilege at any time along the process. However, if the victim elects not to waive the privilege after the military judge has determined it is constitutionally necessary, then the military judge may consider remedial measures.

Slip op. at 13 (emphasis in original). For possible remedial measures in a situation where the military judge determines that the accused’s constitutional rights demand review or disclosure of privileged material, but the holder of the privilege will not waive it for either purpose, the CCA looks to Mil. R. Evid. 505 (the classified information privilege):

Using the remedies in MIL. R. EVID. 505(j)(4)(A) as our guide, there are several possible options when a victim elects to preserve the psychotherapist-patient privilege after a military judge deems disclosure constitutionally necessary. The military judge may: (1) strike or preclude all or part of the witness’s testimony; (2) dismiss any charge or charges, with or without prejudice; (3) abate the proceedings permanently, or for a time certain to give the witness an opportunity to reconsider; or (4) declare a mistrial.

Slip op. at 15. Judge Jones then discusses each such remedy and the circumstances that might warrant its application. Slip op. at 15-16. He concludes by explaining that they “are not crude devices to punish the petitioner for electing to preserve the privilege. Rather, they are precise judicial tools necessary to balance the petitioner’s privilege against the [accused’s] constitutional rights.” Slip op. at 16-17.

The CCA reverses the military judge’s order and remands for the military judge to “properly apply MIL. R. EVID. 513, consistent with this writ, and take remedial actions, as necessary, to ensure the [accused] receives a trial wherein his constitutional rights are fully protected.” Slip op. at 12.

13 Responses to “The NMCCA holds that the Constitution can’t require production of privileged psychotherapist records, but there are other remedies to protect an accused’s right to a fair trial”

  1. Cloudesley Shovell says:

    Some things I’m pondering:
    “The alleged misconduct occurred on divers occasions between August 2006 and March 2014, and all involved the alleged victim.”  The accused is an E-3.  How is it that the accused has been subject to the UCMJ for eleven years and he’s only an E-3?  Recent Art. 15? Perhaps more than one? Broken service?  There’s more to this story.  Seaman Ravenscraft is not sailor of the month material.
    750 pages of mental health records?  There’s a lesson here about undertaking intimate relations with someone of somewhat unsound mind.  On the other hand, perhaps the accused is the source of the instability.  Or not.  It’s something to ponder.
    It appears the “with or without prejudice” language has now migrated from briefs and court opinions into the actual text of the MRE.  Can anyone point me to anything in the actual language of the Uniform Code of Military Justice that empowers a military judge to do anything other than just plain dismiss charges?  Whence comes this alleged power or authority to categorize a dismissal of charges as “with or without prejudice”?
    I wonder what additional evidence, if any, exists other than the testimony of the complaining witness? 
    Kind regards,CS

  2. A Random JAG says:

    There is another Ravenscraft opinion that points to an E-6 with 18 years of service that was released the same that that this Ravenscraft opinon was published.  Check the NMCCA’s website.  Definitely the same sailor.  Don’t know why there were two courts-martial – there are two very different convening authorities (one out of San Diego, one out of Washington state) and it appears that the rape charges were preferred when the accused was an E-3.  Maybe he was on appellate leave when he was then accused of rape?

  3. Lieber says:

    So ACCA says that there is a constitutional exception but that the defense can basically never meet it.
    NMCCA says there is no constitutional exception to a privilege but if the privilege prevents the accused from getting a fair trial, then the judge can fashion a remedy (which usually means the holder of the privilege needs to waive the privilege in order for there to be a trial).
    For all practical purposes I’d rather be an accused with a crazy ex in the navy than an accused with a crazy ex in the army.

  4. Nick Stewart says:

    “Was it over when the Germans bombed Pearl Harbor? *&%! no!” But it might have been over when GCMs transitioned from being a fight between 2 parties (G & accused) to a 2v1 handicap cage match among 3 (G, VLC, & accused).

  5. stewie says:

    I said Article 32s destruction was the worst thing that happened to due process and the MJ system. The elevating of 513 to the top of the privilege apex is a close second.

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

    Partly right and partly wrong.  NMCCA is correct in saying the MJ was wrong to order disclosure based on the “when constitutionally required” rule, as the judge has no authority to use an exception that doesn’t exist.  However, the NMCCA deciding the AV can waive privilege for a limited purpose is wrong.  Once waived, privilege is permanently waived, period.  Also, NMCCA didn’t consider the “adverse inference” instruction.  When an AV invokes privilege, and doesn’t waive, and an enumerated exception doesn’t exist, then use the adverse inference–the AV must have something to hide in order to keep invoking privilege, so we’re going to hold the invocation of privilege against the AV.
    What was the theory of the alleged rape and sexual assault?  If it was mental incompetence, then the Government necessarily had access to MH records, which means privilege was waived, which then means defense gets access.  You don’t need to consider exceptions to evidentiary rules of privilege at all when waiver applies.

    The elevating of 513 to the top of the privilege apex is a close second.

    What does that mean?  That the rule has been respected?  Historically, judges demoted MRE 513 to the status of an ordinary rule of evidence.  As a result, defense has become entitled to obtain MH records.  This opinion doesn’t elevate MRE 513 at all, merely puts everyone in the same place everyone would be in if the rule had been respected in the first place.

  7. stewie says:

    Tami, that’s not what the court said. They clearly said there are constitutional exceptions. Zach listed three of them.
    The idea that you need the words “constitutional exception” in order to state that the Constitution requires discovery is ridiculous. In what other context is that true, and why is it somehow true here and only here?
    As to the elevation, no, they’ve gone to an extreme. The defense was never “entitled” to obtain MH records. All that was “entitled” was for the MJ to review them in camera, and IF there was something there that was relevant to a constitutional right of the accused (like one of the three listed by the court in this case) then it was admitted.
    Now, effectively there is almost no way to get this information to the MJ without waiver by the AV or the DC somehow finding out the info some other way. If an accused is going to lie on the stand, even notwithstanding the A/C privilege, the DC has obligations to prevent that from happening. But if the AV cannot tell reality from fiction, has a mental health condition which makes that difficult, or even causes her to fabricate (and yes those exist), or has even told her therapist that she is lying and making it all up…that can all be hidden now and she can still testify with not a lot the accused can do.
    Now, if we had a rule where:
    1. The MJ got the MH records
    2. The MJ could tell the AV either you allow this evidence in, or you can block it but I will limit your testimony, or not allow it at all, or hold the trial in abeyance
    And we had confidence that MJ’s would apply this rule with regularity…I’d be fine with allowing the AV to block 513 issues from ever seeing the light of day.
    We have rights and privileges that bump up against each other all of the time, and one of them has to give, or at the very least bend to the other one. We’ve elevated 513 to such a high level now that the accused’s rights are meaningless in comparison, and that’s not right.

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

    The whole thing about “when constitutionally required” is that it got interpreted so as to swallow the rule.  NMCCA’s opinion actually takes it back down that road, which is why I say it’s partly wrong.  To the extent NMCCA holds that the defense can get whatever it wants simply by arguing “necessity to present a defense,” lots of impeachment information, the NMCCA is wrong.  NMCCA is also wrong in suggesting that the AV can be ordered to waive privilege, AV needs to waive privilege, etc.  Waiver can’t be coerced.  If the AV waives privilege, then there is no need for a hearing on the issue of privilege, simply turn over the records that have been waived
    SCOTUS has already addressed 3 constitutional rules as they intersect with privileges:  defense’s right to discovery of MH records–no right if government doesn’t have access; defense’s right to present a defense–no right to present whatever defense you want; defense’s right to cross examine–no right to cross-examine any way you want, and while impeachment evidence is indeed helpful, you only get the opportunity to cross-examine, no right to effective cross examination.  You have to show more than impeachment evidence.
    Now with a recantation, I would say that’s evidence of a false allegation, which makes it fall under an exception to MRE 513 (liar), so yes the MJ orders production of the records, looks for everything regarding recantation, and provides it to the parties.  As far as having a mental condition that affects ability to perceive, either it falls under the lying exception or a mental incompetence theory of sexual assault, which requires government access to MH records to allege that theory, which then means the privilege has been waived, so defense gets access.  Constitutional crisis averted.
    This is why there is so little case law on this issue–courts go out of their way to avoid having to decide a constitutional issue, and if there is some other way to resolve the issue, the courts will go with that other way.  Also when a case led to an acquittal, there’s nothing to review.  To this extent, giving the AV a right to appeal to a CCA is beneficial because of the opportunity to provide guidance we would otherwise lack.

    We have rights and privileges that bump up against each other all of the time, and one of them has to give, or at the very least bend to the other one. We’ve elevated 513 to such a high level now that the accused’s rights are meaningless in comparison, and that’s not right.

    I disagree.  The purpose in having exceptions is for the AV’s rights to bend to the accused’s rights.  The purpose for having an adverse inference built into the rules on privileges is for the AV’s rights to bend to the accused’s rights.  The rules just make it hard to get into the records.  And that’s the way it’s supposed to be, and always was intended to be.  Defense counsel need to stop trying to continue with the former way (which was the easier and wrong way) and start working within the confines of the existing rule!  Definitely harder, but not impossible, and will get easier as you go along.

  9. stewie says:

    Hard? No, it makes it darn near impossible. Hard would be if you had to go through the court/MJ first before you could see them. Darn near impossible is when effectively the information has to leak out in some manner or a waiver has to happen otherwise you can’t meet the new hurdle to even get it in front of the MJ to begin with.
    THAT’s the problem. We can’t get to all of the exceptions and protections, and that’s the intent. The intent of these changes is to make it so that these records are never seen by anyone.

  10. Captain Obvious says:



    Lieber says:
    June 30, 2017 at 11:31 AM  

    . . . For all practical purposes I’d rather be an accused with a crazy ex in the navy than an accused with a crazy ex in the army.
    And, because of how Article 6b is written, and CAAF’s interpretation that it lacks jurisdiction to wade into such matters prior to the end of trial that results in a conviction as discussed here and here, such inconsistencies will persist for some time, yes?  Doesn’t seem very “uniform” for either accused servicemembers or alleged victims.  
    I understood to some extent the argument that granting CAAF review would have slowed/delayed trials to an unacceptable level, but perhaps only in the beginning?  As in, once CAAF was able to weigh in and decide the parameters of the new MRE 513, the appellate/trial courts could move out smartly having received clear, consistent guidance.  

  11. Captain Obvious says:

    Didn’t meant to block quote all of the above (obviously, lol).

  12. Alfonso Decimo says:

    Stewie says, “The intent of these changes is to make it so that these records are never seen by anyone.” What he means is they are not subject to in camera review by the MJ and therefore not attached to the record for SJAR and appellate review, even when the MJ finds them irrelevant. I think we all agree there are some government records that should be protected from so much dissemination. The NMCCA concludes MH records are in this category unless the MJ finds they meet an existing exception under MRE 513. That seems reasonable. Was the removal of the “constitutionally required” exception because it was too often applied such as to swallow the rule? I believe so and that seems reasonable, too.

  13. stewie says:

    Sure, it seems reasonable if your intent is that they never be revealed in court. So you say it was too often applied, i.e., extreme, but now it’s never applied and you find that “reasonable.”