CAAF decided the Air Force case of United States v. Chisum, 77 M.J. 176, No.17-0199/AF (CAAFlog case page) (link to slip op.), on Friday, January 26, 2018. Reviewing the mental health records of two prosecution witnesses – even though the records were not reviewed by the trial military judge and were made available for the first time on appeal – CAAF holds that any error in failing to produce them at trial was harmless, affirming the findings, sentence, and decision of the Air Force CCA.

Chief Judge Stucky writes for a unanimous court.

Back in 2016, in United States v. Chisum, 75 M.J. 943 (A.F. Ct. Crim. App. Nov. 29, 2016) (discussed here), the Air Force CCA “ordered that the Government produce the sealed mental health records of AB AK and AB CR for appellate review.” 75 M.J. at 946 n.3. Such records are protected by Mil. R. Evid. 513, the military psychotherapist-patient privilege. The rule was significantly modified after the trial of this case (discussed here and here), but at the time of trial the rule included an exception for “when admission or disclosure of a [psychotherapist] communication is constitutionally required.” Mil. R. Evid. 513(d)(8) (2014) (deleted in 2015).

Despite this exception, the military judge rejected a request from Chisum’s defense counsel to review the mental health records of two key prosecution witnesses – Airman Basic AK and CR – for evidence related to their ability to accurately perceive and recall Chisum’s alleged illegal drug activity. Having obtained the records (for the first time), however, the Air Force CCA reviewed them and concluded that the military judge was wrong to refuse to conduct such a review. But the CCA also found the error harmless because “the additional information contained in the [mental health] records would not have changed the substance or effectiveness of [the defense] cross-examination or defense theory.” 75 M.J. at 950.

CAAF then granted review to determine:

Whether the military judge’s failure to conduct an in camera review of the mental health records of AB AK and AB CR deprived Appellant of his right to confront the sole witnesses against him in violation of the Sixth Amendment to the Constitution.

In today’s short opinion the court unanimously concludes that any error was harmless. But it does so after the taking the unusual step of duplicating the CCA’s review of evidence not presented at trial.

Chief Judge Stucky concludes:

Having reviewed the sealed materials, we agree with the conclusion of the CCA that, under these circumstances, any error by the military judge in failing to inspect and order the disclosure of the mental health records of AB AK and AB CR was harmless beyond a reasonable doubt. Appellant was able to fully cross-examine the witnesses on their credibility and motive to misrepresent Appellant’s conduct. There is no reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

Slip op. at 7. This conclusion isn’t too remarkable considering that Chisum’s appellate defense counsel “conceded that any error regarding the production of AB AK’s mental health records was harmless.” Slip op. at 5. But CAAF also finds that “the information in the sealed records would have added little to the defense counsel’s strong cross-examination of AB CR.” Slip op. at 6. Furthermore:

Appellant was charged with five offenses. It is obvious that the panel was unwilling to believe the uncorroborated testimony of AB AK, as they acquitted Appellant of every charge, except one use of cocaine, which was witnessed by both AB AK and AB CR.

Slip op. at 5.

CAAF’s conclusion is very much fact-dependent and the court functionally does the fact-finding itself (by reviewing the records and determining what they say and don’t say). That’s the sort of thing that is typically reserved for a Court of Criminal Appeals. See United States v. Piolunek, 74 M.J. 107, 110 (C.A.A.F. 2015) (discussing difference between questions of fact and questions of law). But by resolving this case in this fashion, CAAF sidesteps the difficult question of what it means for evidence to be constitutionally required under the old version of Mil. R. Evid. 513. Considering that the exception is no longer in the rule, it’s a question with a short lifespan.

Case Links:
• AFCCA opinion (75 M.J. 943)
• Blog post: AFCCA obtains & reviews 2 set of mental health records
• Appellant’s brief (sealed)
• Appellee’s (A.F. Gov’t App. Div.) answer (redacted)
• Appellant’s reply brief (sealed)
• Amicus brief (Protect Our Defenders) in support of A.F. Gov’t App. Div.
• Blog post: Argument preview
Oral argument audio
CAAF opinion
• Blog post: Opinion analysis

30 Responses to “Opinion Analysis: Reviewing mental health records not reviewed at trial, CAAF finds no prejudice in United States v. Chisum”

  1. Rodeo says:

    But, see J.M. v. Payton-O’Brien, 2017 CCA LEXIS 424 (N.M.C.C.A. 2017).  The NMCCA decision also known as “Ravenscraft” as he was the RPI.  The enumerated exception has been removed, but Judge Jones’ ruling provides that “[w]hile we decline to wolly override the psychotherapist-patient privilege, we may not allow the privilege to prevail over the Constitution.” (Id. at 10)  Or, as more clearly stated in LK v. Acosta & Sanchez, 2017 CCA LEXIS 346 (A.C.C.A. 2017), “[i]f 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.” (Id. at 7-8).
    The question of what the evidence means to be constitutionally required is still relevant and has a continuing lifespan.

  2. stewie says:

    I continue to be flabbergasted to see really smart attorneys arguing that Congress can legislate away the Constitution.

  3. Zachary D Spilman says:

    That’s a great point, Rodeo. But J.M. (discussed here) and LK (discussed here) address application of the rule without an exception for constitutionally required evidence, so the issue is the conflict between a rule of evidence and constitutional rights (and the rule typically prevails) rather than a challenge to how a rule of evidence is applied.

    From J.M. we learn that even if the privilege denies an accused a constitutional right, the privilege prevails (though there can be other remedies). From LK we learn that the privilege denies an accused access to exculpatory records in a child abuse case (but it does not protect inculpatory records). 

    Neither provides much in the way of a constitutional exception.

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

    The “when constitutionally required” exception allowed the defense to obtain records with impeachment value.  No more “when constitutionally required” means no more access to records with mere impeachment value.

  5. stewie says:

    Yes Tami we know how the courts are currently interpreting and how Congress wants it, doesn’t mean that’s right.
    ZS, no one has said the ONLY “constitutional remedy” is discovery, it can also be abeyance, or dismissal.
    The idea that a witness can have serious psychological issues dealing with credibility or even their ability to determine reality correctly but the defense cannot know that is ridiculous, and defending it is ridiculous.

  6. Nathan Freeburg says:

    what Stewie said. 

  7. DCGoneGalt says:

    Is this what stewie is getting at? –  When the government is intent on proving something that is contrary to reality they rely on those whose testimony is contrary to reality and because people are reactant to believe things contrary to reality the government will fight to protect the fact that their case and evidence is contrary to reality.

  8. DCGoneGalt says:

    Reluctant not reactant.

  9. Vulture says:

    DCGG.  Remember what I said about Eddie Willers.  People will do anything to believe contrary to reality.  Consider: Why invent artificial intelligence?  We have it codified square into the Title 10.  It’s executable is in the UCMJ.  And its batch file in 75+ binders of the Military Justice Reporter.  No more alternate reality could contrive outside the Matrix.

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

    The thing with privilege is that when the witness invoke it, it isn’t just the defense that is denied access.  The government is also denied access.  Equal denial of access is equal access.  And there is no constitutional violation because this is a private actor who is exercising a RIGHT to deny access.  I think people forget that.
    Now if the government has access to the witness mental health records, or the content was voluntarily disclosed, then privilege is waived and lack of access is a problem.  Maybe the focus needs to be on waiver.

  11. Zachary D Spilman says:

    And there is no constitutional violation because this is a private actor who is exercising a RIGHT to deny access.

    It could rise to the level of a constitutional violation if it prevents the defense from calling a necessary witness; say, the psychotherapist to testify about statements the patient made for the purpose of diagnosis or treatment, otherwise admissible under Mil. R. Evid. 803(4), that identify someone other than the accused as the true wrongdoer. But that’s an unusual hypothetical to be sure.

    The more common scenario is exactly what was presented in this case: when the defense wants to use mental health records to challenge either the competency of the witness or the reliability their testimony. CAAF’s conclusion that the records were unnecessary to make that challenge is also the more common outcome, as mere diagnosis (without other objective signs of disability) is not particularly probative of inability to observe, recall, etc.

  12. DCGoneGalt says:

    Tami:  So as long as the government creates a rule that allows it to remain ignorant it can force the other side to remain ignorant.  Got it.  

  13. stewie says:

    Tami they aren’t a private actor, they are a witness. Competency of a witness is absolutely a constitutional issue. The fact that the government willfully blinds itself to any issues does not solve the problem. Hey we didn’t know she was bat guano crazy either is not a solution. And “the government” often does know…it’s just the prosecution that doesn’t…and last time I check, we used to care about what the big G government knew even if the little g government did not.
    And if it’s a private hospital they cannot deny access with a lawful warrant, the big G government has just decided to blanket not issue one except in an extremely narrow set of circumstances where effectively the defense is able to ferret out the information through more or less the alleged victim admitting it.
    We didn’t even think about this until we started trying to find new ways to increase SA convictions.

  14. Rodeo says:

    I think that J.M. v. Payton-O’Brien makes clear that there are still remedies.  Albeit, those remedies are extreme and rare for when 513 is being used to shield what would be constitutionally required evidence attacking the witness’ credibility.  The sticking point in all of this is the burden placed on the Defense to even get to the point where a trial judge is making the determination that (1) the relevant records exist, (2) they contain the evidence Defense claims they do, (3) the lack of their disclosure rises to a deprivation of the accused’s constitutional rights, (4) an extreme remedy is necessary if the witness fails to waive the privilege.  The Defense essentially has to prove what is in documents they cannot access.  Absent a witness who happens to disclose these things to another individual who the Defense then finds and convinces to write an affidavit or testify, this information almost never gets out to a degree that Defense can effectively leverage it.  I’ve even had a case where the CW had disclosed to NCIS that she was on Xanax, Ambien, and Prozac and the best the trial judge would order was disclosure of only the prescription records.  This was post J.M. v Payton also.

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

    DCGG and Stewie,
    I know from experience that the government wants the records just as much as the defense does.  When a witness invokes a right of privilege, they are invoking it against BOTH parties to deny access by BOTH parties.  “The government is not entitled to “every man’s evidence” from “those persons protected by a constitutional, common law, or statutory privilege designed to protect competing interests.”  United States v. Nixon, 418 U.S. 683, 709 (1974) (emphasis added).  Thus, a person who is eligible to claim a privilege is exempt from the burden of giving evidence to the government, when every other ordinary citizen must do so.  Black’s Law Dictionary 1197 (6th Ed.). 
    An evidentiary privilege grants a person the “right to refuse to disclose, and to prevent others from disclosing, ‘confidential communications’” to people outside of the privileged relationship.  Mil. R. Evid. 501(b).  People can assert privileges in one of four ways:  “(1) refuse to be a witness; (2) refuse to disclose any matter; (3) refuse to produce any object or writing; and (4) prevent another from being a witness or disclosing any matter or producing any object or writing.”  Mil. R. Evid. 501(b)(1)-(4).
    And Stewie, a witness remains a private actor.  Witnesses don’t become a government “party” simply because they are government witnesses.

  16. stewie says:

    With all respect Tami, the SVP is JUST FINE with not having access to the AV’s mental health records if they know the defense will never get it either. That’s the whole point of the rule…when’s the last time you saw the prosecution do a motion requesting the AV’s mental health records? Come on.
    EVERY privilege has exceptions, even atty-client, and in the cases where the privilege holds but presentation of the evidence violates the Constitution as it does here, then the Constitution demands another remedy (abeyance, dismissal with or without prejudice).
    You can pick the privilege, or you can pick the prosecution. Or at least that’s how it should be here, but it ain’t, because we REALLY want to increase our SA conviction numbers.

  17. Dew_Process says:

    The first analytic must be to determine if the privilege is absolute or qualified.  If it is a qualified privilege, that means there are exceptions, and MRE 513 certainly has exceptions which are listed in subparagraph (d).  And just because the Commander-in-Chief decided to remove the (d)(8) [assuming Congress has the power to “order” him to do anything as CinC], “constitutionally required” language from the rule, doe not ipse dixit eliminate what the Constitution commands, e.g., the right to a fair trial, the right to confront witnesses, the right to compulsory process, etc.
    SCOTUS in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), addressed the issue of a statutory privilege, albeit in a convoluted manner. The plurality opinion rejected a “confrontation clause” remedy because – in their opinion – the Accused had unfettered ability to “confront” the victim at trial, holding that “confrontation” was only a trial right. Justice Blackmun, concurring however, disagreed that the confrontation clause was limited to the actual trial. The Court analyzed the issue under the due process/fair trial standard, which led the court to conclude that at a minimum, an in camera inspection was required.  However, the Court held open the question of whether a defendant would be constitutionally entitled to records that were protected by an absolute statutory privilege.
    Then there is the thorny issue of who “owns” the records?  If they are government records, there’s a different dynamic involved than if the alleged victim was treated by a private civilian practitioner. But, if the alleged victim is an active duty member, seen/treated by a military practitioner, the many exceptions in MRE 513(d) [even after the removal of (d)(8)], don’t provide anything near an absolute privilege.
    And of course, as has been suggested, if the Trial Counsel has had access to those records, the scope of Article 46, is triggered.

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

    With all respect, I still see it, but I see it more from agents.  In fact, I would really encourage everyone to stop focusing on what the trial counsels and/or SVPs have access to, as far as mental health records go, and start focusing on what information is being disclosed to the agents.  There are some agents out there under the misguided belief that the rules of evidence don’t apply at the investigative stage, and persist in getting access to MH records thinking it’s for the “limited purpose” of the investigation.  Maybe they’ve talked the AV into consenting to disclosure.  Or maybe the AV voluntarily discloses some information during an interview in an effort to provide “evidence in aggravation.”  Guess what–the agents are “government actors,” privilege has been waived, and once waived, it is waived permanently.  And the Government has access, which then means the defense DOES get access and it DOES become a constitutional issue.
    Just sayin’.
    Dew Process, SCOTUS also held the right to confrontation isn’t unfettered, there are boundaries.  That is why there are evidentiary rules.  And due process concerns aren’t implicated when the government doesn’t have access to the evidence.  “Ownership” of records doesn’t equate to “access.”  Even for active duty personnel, behavioral health records are treated differently than “regular” health records.

  19. Dew_Process says:

    One other tangential factor is that there is no federal counterpart to MRE 513 in the Federal Rules of Evidence, cf., Art. 36, UCMJ.

  20. Dew_Process says:

    Tami – I don’t disagree with you, especially on the Agent’s access = waiver issue.  But if you combine Ritchie with Davis v. Alaska, 415 U.S. 308 (1974), the picture remains fuzzy.

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

    Dew Process, there are no federal rules of evidence on privileges.  The federal civilian courts are free to figure them out on their own and apply common law privileges.  Military courts don’t have the same flexibility.  Our privileges are codified.

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

    Davis is also more akin to rape shield than privilege, which makes the “when constitutionally required” exception still applicable.

  23. stewie says:

    Yes, but codification does not equate to getting rid of what the Constitution requires so seeing how the federal courts apply them is instructive in that regard, and again, why is it a Con issue when the gov has them? The issues that make it so don’t change because a private actor has the records except for Brady, but Brady ain’t the only issue here.
    That’s the part I think you are missing.

  24. Alfonso Decimo says:

    The opinion includes facts that show the defense counsel had a fairly strong basis for the motion for an in camera review. The Airman was considered a con-man and made admissions to defense counsel that supported the likelihood that evidence of bias and motive to fabricate might be found in the records. This case should be distinguished from cases where the judge has an obligation under the Rule to deny such motions.

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

    It becomes a constitutional due process issue when the government has access to privileged information but the defense doesn’t.  When a witness has waived privilege to give government access, they must necessarily also allow defense access.  However, they don’t have to waive.  Government can’t make them waive privilege.  When someone invokes privilege, they invoke the privilege.
    Where we have codified privilege, we have to look at our own case law first.  The Constitution doesn’t require us to abandon the rules of evidence to get evidence.  In fact, I think the Constitution would require us to not abandon the rules of evidence.  Piercing a privilege is supposed to be hard, as there are policy issues behind those privileges for the greater good of society, including the accused.  It’s all a balancing act, but in the end you’re going to have to argue more than the accused constitutional rights are at stake and there’s a lot of great stuff I  those records we can use to impeach the witness.

  26. Dew_Process says:

    Well, speaking of waiver and privileges here’s a LINK to a recent federal court decision that by disclosing oral summaries of witness interviews in a SEC investigation to the SEC, a law firm waived its “work product” privilege. As Tami suggested above, if a therapist orally spoke with a CID/OSI/NCIS or other Law Enforcement agency about an alleged victim’s mental health, there is a good case for waiver (and probably dereliction of duty for the therapist).

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

    Chances are even better the AV orally disclosed communications to the agents during the interview.  Maybe intentionally maybe inadvertently.  Either way, waiver applies, making the MH record fair game.  I think waiver needs to be pursued more.

  28. stewie says:

    1. I don’t agree that it is only a constitutional when the gov knows. Particularly when the gov passes laws that make it almost impossible for the gov or anyone else to know.
    2. Competency of a witness remains an issue. Confrontation remains an issue. If a witness is a paranoid schizophrenic, but the gov passes laws to make it so no one can know that unless more or less the witness allows it or waives it (knowingly or not), we’ve got a problem.
    3. Having a privilege is fine. If you want to protect their mental health records, that’s cool…then they don’t testify or the case is held in abeyance. This is no different than situations where someone asserts the fifth and the court says ok gov, either you grant immunity so that the privilege no longer holds and they testify, or we hold in abeyance or go forward without their testimony.

  29. stewie says:

    Alibi, the moment that waiver through oral communications becomes a thing, then either:
    a. investigators will do everything they can to make sure it doesn’t happen
    b. the laws will be changed to exempt out statements made in the course of making an allegation
    or both.

  30. Vulture says:

    Why not have a doctor, psych, ect. come up and act as the proponent of the evidence?  It works for the President.