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
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.