In an unpublished opinion in United States v. Morales, No. 39018 (A.F. Ct. Crim. App. Sep. 13, 2017) (link to slip op.), a three-judge panel of the Air Force CCA considers the new Military Rule of Evidence 513 – the psychotherapist-patient privilege – as modified by Executive Order 13,696 (Jun. 17, 2015). It’s the first opinion from the Air Force court to consider the new rule.
Each of the other three CCAs have published decisions considering the new rule. In H.V. v. Kitchen, 75 M.J. 717, 718 (C.G. Ct. Crim. App. 2016) (discussed here), the Coast Guard CCA held that the rule extends “to the psychotherapist’s conclusions (diagnoses) and resulting treatments.” In L.K. v. Acosta, 76 M.J. 611 (A. Ct. Crim. App. May 24, 2017) (discussed here), the Army CCA held that the exception for evidence of child abuse or of neglect applies only inculpatory (and specifically not to exculpatory) evidence, and that the exception for 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 its production pursuant to an order from the court-martial). In J.M. v. Payton-O’Brien and Ravenscraft, 76 M.J. 782 (N-M. Ct. Crim. App. Jun 28, 2017) (discussed here), the Navy-Marine Corps CCA held that the constitutional rights of the accused don’t override the privilege, but a military judge may apply other remedies to protect an accused’s rights.
Writing for the Air Force panel in Morales, Senior Judge Johnson observes that the Army and Navy-Marine Corps decisions “present very different approaches to reconciling an accused’s constitutional rights with the current Mil. R. Evid. 513.” Slip op. at 14. A third approach is seen in United States v. Chisum, 75 M.J. 943 (A.F. Ct. Crim. App. Nov. 29, 2016) (discussed here), but that was “decided under the prior version of the rule.” Slip op. at 14. And so Senior Judge Johnson writes:
In such an unsettled area of the law, it behooves us to tread lightly.
Slip op. at 14.
The opinion then discusses four issues involving Mil. R. Evid. 513.
First, the CCA addresses which version of the rule applies in this case. The charges were preferred and referred prior to the rule change, but Morales was arraigned after the rule change. The Executive Order changing the rule included a boilerplate savings clause that:
Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceedings, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the effective date of this order, and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed.
80 Fed. Reg. 35,783 (Jun. 17, 2015). Morales argued that the military judge abused his discretion in applying the new rule, but the CCA disagrees. Noting that the savings clause “permits such cases to proceed under the previous version of the rules, it does not require application of the old rules,” slip op. at 9 (emphases in original), and citing to the NMCCA’s decision in United States v. Roberts, 75 M.J. 696 (N.M. Ct. Crim. App. 2016) (discussed here), that considered the same issue in a different context, the CCA finds no error in applying the rule “in effect at the time Appellant filed his motion and at the time of his court-martial.” Slip op. at 10.
Second, the CCA addresses whether the removal of the constitutionally-required exception from the rule – formerly Mil. R. Evid. 513(d)(8) – affected Morales’ constitutional rights. Approaching this issue, Senior Judge Johnson observes:
In a sense, Appellant is tilting at legal windmills here. A rule of evidence cannot dictate the scope of the Constitution, and the absence of a “constitutionally-required” exception does not render a rule of evidence unconstitutional—the Constitution applies in any event.
Slip op. at 10. But the CCA avoids further analysis because “the military judge’s refusal to order production of the requested records or to conduct in camera review was not an abuse of discretion.” Slip op. at 11. That conclusion is the fourth issue (discussed below).
Third, the CCA addresses the possibility that the patient (the alleged victim) waived the privilege by “producing three pages of her mental health records before trial, which the Government shared with the Defense and which were introduced at trial as a Defense exhibit.” Slip op. at 11. No waiver, finds the CCA, because:
Mil. R. Evid. 513 entitled YM “to re-fuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist . . . .” Mil. R. Evid. 513(a) (emphasis added). Thus the patient may elect to invoke the privilege with respect to one such confidential communication, but not another. Mil. R. Evid. 510(a) provides a caveat that if the patient discloses or consents to disclose a significant part of one such communication, she will be considered to have waived it with respect to all of that particular communication if retaining the privilege with respect to the rest of that communication would be inappropriate under the circumstances. However, it appears from the record the Defense obtained the entirety of the particular consultation that YM elected to disclose.
Slip op. at 11-12.
Finally, the CCA addresses whether the military judge abused his discretion by failing to review the mental health records in camera. Before trial the defense “requested copies of, inter alia, all of YM’s medical and mental health records.” Slip op. at 4. It later “moved to compel production of, inter alia, YM’s mental health records.” Slip op. at 5. “YM asserted her privilege to prevent disclosure of previously-undisclosed records,” and the prosecution “opposed the motion, which assistant trial counsel characterized as ‘a fishing expedition in the extreme.'” Slip op. at 5. The military judge then denied the defense motion, finding:
no specific factual basis demonstrating a reasonable likelihood the records sought would yield evidence admissible under an exception to Mil. R. Evid. 513, nor that the requested information met such an exception.
Slip op. at 5-6. The CCA affirms this ruling, explaining that:
In this case, what is clear is that the Defense failed to present the military judge with a specific factual basis demonstrating a reasonable likelihood that the records would yield information constitutionally required to be admitted or disclosed. See Mil. R. Evid. 513(e)(3)(a). The Defense provided no detail with respect to the anticipated contents of YM’s mental health records in its 8 July 2015 motion to compel, which was amalgamated with its motion to compel production of numerous other items it sought in pretrial discovery. During the hearing on the Mil. R. Evid. 513 motion, trial defense counsel frankly conceded he had “no way of knowing” and could “merely speculate” as to the contents of the records. The military judge then denied the motion. We cannot say he abused his discretion in doing so in the total absence of any specific showing.
Slip op. at 14-15.
This holding is pretty unremarkable considering the defense acknowledged at trial that “the Defense can only speculate as to the contents of these counseling records. Simply stated we cannot know what we have not seen.” Slip op. at 15 (quoting defense motion) (marks omitted). That’s the definition of a fishing expedition. As the Army CCA observed in DB v. Lippert (an unpublished decision involving the old rule):
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. Lippert, 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)).