CAAFlog » Military Rule of Evidence 513

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.

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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.

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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).

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With a published decision in LK v. Acosta & Sanchez (United States v. Sanchez), 76 M.J. 611 (A. Ct. Crim. App. May 24, 2017) (link to slip op.), a three-judge panel of the Army CCA grants a petition for a writ of mandamus for an alleged victim under Article 6b, reversing a military judge’s ruling that ordered the alleged victim’s mental health records produced for an in camera review.

But while beginning its decision with the observation that the Rule “gives unclear guidance to military judges,” slip op. at 1, the CCA reaches two dubious conclusions that make things worse.

Analyzing the exception to the privilege for “evidence of child abuse or of neglect, or in a proceeding in which one spouse is charged with a crime against a child of either spouse,” Mil. R. Evid. 513(d)(2), the CCA interprets the first clause to apply only to inculpatory (and specifically not to exculpatory) evidence, and the second clause to apply only to the admission of evidence (and not to its production pursuant to an order from the court-martial).

They are puzzling conclusions that make a straightforward exception very confusing.

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Update: While I initially noted five grants of review, I only wrote about four. I eventually realized that I failed in counting to five and now update this post to include the fifth grant (in Bailey).

Some interesting cases recently joined CAAF’s docket, with a certification and five grants of review.

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The Military Law Review recently published an article by Army Major Angel M. Overgaard, one of the prosecutors from the Manning case.  In her article, Redefining the Narrative: Why Changes to Military Rule of Evidence 513 Require Courts to Treat the Psychotherapist-Patient Privilege as Nearly Absolute, 224 Mil. L. Rev 979, 984-985 (2017), Major Overgaard explores the intersection between a patient’s privilege under MRE 513 to keep communications with mental health providers private, and an accused person’s right to receive a fair trial.

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Mil. R. Evid. 513 is the military psychotherapist-patient privilege. The scope of the rule, and its exceptions, have been a topic in recent high-profile cases including EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. 2016) (CAAFlog case page), and Randolph v. HV. and United States, No. 16-0678/CG (CAAFlog case page) (argued Tuesday, October 11, 2016).

A recent published opinion by the Air Force CCA in United States v. Chisum, 75 M.J. 943, No. S32311 (A.F. Ct. Crim. App. Nov. 29, 2016) (link to slip op.), provides additional analysis of the rule. Specifically, the CCA addresses when a military judge is required to conduct an in camera review of mental health records. Acknowledging the three-prong test stated by the NMCCA in United States v. Klemick, 65 M.J. 576, 580 (N-M. Ct. Crim. App. 2006), the Air Force CCA concludes that:

in applying this three-prong test, we recognize that the burden for in camera review is not high because the moving party will often be unable to determine the specific information contained in a psychotherapist’s records. See [Klemick]. We also note that “[w]here discovery obligations potentially impact a recognized privilege, an in camera review is generally the preferred method for resolving the competing compulsions.” Bowser, 73 M.J. at 897.

Slip op. at 6 (emphasis added).

Applying this not high burden, the CCA finds that the military judge abused his discretion by failing to conduct an in camera review of the mental health records of the two prosecution witnesses whose testimony was the primary evidence that the appellant wrongfully used cocaine. The witnesses acknowledged receiving mental health treatment for perception and memory issues, and the CCA finds that this was “a reasonable basis for the military judge to conclude that the mental health records contained further information reflecting the extent and severity” of those conditions. Slip op. at 7.

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In a published order in H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, 75 M.J. 717, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (link to order), a three-judge panel of the Coast Guard Court of Criminal Appeals holds that Mil. R. Evid. 513 (the psychotherapist-patient privilege) extends “to the psychotherapist’s conclusions (diagnoses) and resulting treatments.” Order at 3.

The privilege states that:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

Mil. R. Evid. 513(a).

H.V. is a member of the Coast Guard and an alleged victim in a court-martial. The defense moved to compel production of her mental health records. Considering the motion the military judge, Commander Kitchen, determined that Mil. R. Evid. 513 does not apply to “the disclosure of dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used,” and accordingly ordered production of H.V.’s mental health records:

limited to ONLY those portions indicating a psychiatric diagnosis (as this phrase is used in the DSM-5), the date of such diagnosis, any medications prescribed, the duration prescribed medications were to be taken, type of therapies used, and the resolution of the diagnosed psychiatric condition, if applicable.

Order at 2 (quoting military judge’s ruling). H.V., however, does not want even these records disclosed, and so she sought a writ of mandamus under Article 6b from the CCA to compel the military judge to apply the privilege to these records.

In what I believe is a case of first impression, the panel of the Coast Guard CCA splits 2-1 to grant the writ and expand the privilege, with Chief Judge McClelland writing for the majority and Judge Bruce dissenting.

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In an opinion released yesterday in DB v. Colonel Lippert, Military Judge, and Ducksworth, Real Party in Interest, No.  201507690 (A. Ct. Crim. App. Feb. 1, 2016) (link to slip op.) (also available here), a three-judge panel of the Army CCA grants the petition of an alleged victim of sexual assault and reverses a military judge’s ruling that ordered her mental health records produced for an in camera review and then disclosed to the defense.

Writing for the panel, Judge Wolfe characterizes the problems in the case as “manifold,” slip op. at 6, and concludes that the military judge committed three errors.

First, the CCA finds that military judge improperly ordered the production of the alleged victim’s mental health records for an in camera review without first conducting a hearing under Mil. R. Evid. 513(e). Significantly, Judge Wolfe explains that the military judge ordered production of the records even “prior to the defense filing a motion for the production of the records.” Slip op. at 6. The defense later filed such a motion, but it “did not attempt to meet the procedural requirements set forth in the amended [Mil. R. Evid. 513(e)] and, in fact, explicitly disavowed them as being applicable.” Slip op. at 9.

Next, the CCA faults military judge for concluding that because the records include one unprivileged document (a journal entry that state law required be reported to authorities), “all of petitioner’s mental health records were subject to review.” Slip op. at 11. In particular:

[T]he military judge’s finding that because petitioner’s mental health records yielded one (unprivileged) inculpatory document, there was a reasonable likelihood that the remaining records would yield admissible defense information was clearly erroneous.

Slip op. at 13.

Finally, the CCA concludes that the military judge failed (in numerous ways) to apply the procedural requirements of Mil. R. Evid. 513(e), which were revised by Section 537 of the FY15 NDAA (discussed here) and Executive Order 13696 (discussed here).

The CCA refuses the petitioner’s request to declare the records inadmissible, instead merely reversing the military judge’s Mil. R. Evid. 513 ruling while permitting further proceedings to consider the records.

It’s been a long time coming, but the President has finally signed an Executive Order (number 13696) amending the Manual for Courts-Martial to incorporate the 2013 legislative changes to the UCMJ (series of posts discussing the changes available here). The EO is scheduled for publication in the Federal Register on Monday, but you can read an advance copy here.

Edit: The final version is available here. 80 Fed. Reg. 35,783.

The changes include a new R.C.M. 405 (see this discussion of the stopgap measures), various changes to implement the new Article 6b (statute discussed here and here), and a new R.C.M. 1001A that allows a victim to make an unsworn statement during sentencing that is not subject to cross-examination (proposed rule discussed here).

Astonishingly, the EO does not provide the still-missing Part IV materials for the current version of Article 120 (enacted in the FY12 NDAA, and effective on 28 June 2012) (discussed here). Such materials would include model specifications (like the ones available here), definitions, explanations, and other valuable commentary. These materials are – presumably – included in the residuum EO (discussed here) that – we can only hope – will one day get signed, but President Obama’s failure to implement Article 120 is deeply troubling. That failure was also a topic of discussion during the recent meeting of the Article 120 subcommittee of the Judicial Proceedings Panel (at which I testified) (meeting details available here).

A summary of the new EO is after the jump. The summary is taken verbatim from an excellent write-up by the Marine Corps Judge Advocate Division (it will eventually be posted here as part of Practice Advisory 9-15).

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The Hill reports here on the Senate’s final passage of the National Defense Authorization Act for Fiscal Year 2015. The complete text of the bill is available here.

The bill contains numerous provisions of interest to military justice practitioners (see Division A, Title V, Subtitle D). Here are the highlights:

  • Section 531 makes numerous “technical revisions and clarifications” to last year’s changes to the UCMJ, including:
    • Correcting technical language regarding a convening authority’s action on a “qualifying offense” (original text analyzed here);
    • Correcting the definition of a victim in the new Article 60(d) (original text analyzed here);
    • Adding language explicitly authorizing an accused’s waiver of an Article 32 preliminary inquiry (original text analyzed here);
    • Expanding the prohibition on defense counsel interviews of an alleged victim of a sex offense to include any “counsel for the accused” and to involve notification to any counsel for the alleged victim (original text analyzed here);
    • Adding the word “unlawful” into the new forcible sodomy/bestiality statute (Article 125) (original text analyzed here);
    • Clarification of the definition of prospective members of the armed forces for purposes of inappropriate and prohibited relationships;
    • Technical changes to the new Article 6b (original text analyzed here and here);
    • Making the new Article 32 effective on December 26, regardless of the date of the alleged offense (original text analyzed here);
    • Restoring a convening authority’s total discretion to act on the findings or sentence (except for offenses with a mandatory minimum) when a conviction involves offenses that occurred both before and after the effective date of the new Article 60(c) (original text analyzed here).
  • Section 532 enacts a new Article 49, permitting depositions only “if the party [seeking the deposition] demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of the prospective witness be taken and preserved…” This is likely a reaction to the McDowell case (last discussed here).
  • Section 535 enacts a new paragraph (e) in Article 6b that gives an alleged victim an explicit right to petition a CCA for a writ of mandamus to force compliance with M.R.E. 412 (the rape shield) and M.R.E. 513 (the psychotherapist-patient privilege). This is likely a reaction to the dissenting opinions in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page).
  • Section 536 limits the admissibility of good military character evidence, as follows:


(a) Modification Required- Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be amended to provide that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused for an offense specified in subsection (b).

(b) Covered Offenses- Subsection (a) applies to the following offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice):

(1) An offense under sections 920 through 923a of such title (articles 120 through 123a).

(2) An offense under sections 925 through 927 of such title (articles 125 through 127).

(3) An offense under sections 929 through 932 of such title (articles 129 through 132).

(4) Any other offense under such chapter (the Uniform Code of Military Justice) in which evidence of the general military character of the accused is not relevant to an element of an offense for which the accused has been charged.

(5) An attempt to commit an offense or a conspiracy to commit an offense specified in a preceding paragraph as punishable under section 880 or 881 of such title (article 80 or 81).

I’ve written about this before and I will write about it again in the coming weeks.

  • Section 537 requires modification to M.R.E. 513 to eliminate the “constitutionally required” exception to the privilege (paragraph (d)(8)) and to increase the burden on a party seeking production or admission of privileged matters.
  • Section 541 gives the “chief prosecutor” of each Armed Force the power to force secretarial review of a convening authority’s decision to not refer a charged sex-related offense to trial.