In an unpublished opinion in United States v. Morales, No. 39018 (A.F. Ct.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.