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, __ M.J. __, 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).