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NMCCA Holds Constitution Can't Require Production of Privileged Records BUT, there are Other Remedies!

A three-judge panel of the Navy-Marine Corp CCA (NMCCA) just granted an alleged victim’s petition for a writ of mandamus in J.M. v. Payton-O’Brien and Ravenscraft. The petition reversed the military judge’s ruling that ordered the disclosure of parts of her mental health records to the defense.

The military judge’s decision was based on the excised constitutionally required exception to the therapist-patient confidentiality privilege Military Rules of Evidence (Mil. R. Evid. 513). This rule protects a person from any disclosure of confidential communication between a patient and his or her psychotherapist, including a therapist’s diagnoses and resulting treatments. However, the CCA rejected the use of this former exception, because an order for production or release of privileged records must be based on an actual enumerated exceptions to that rule.

Mil. R. Evid. 513 does have exceptions to the privilege. One of these exceptions included the release of privileged information where disclosure was constitutionally required. However, Congress ordered in the fiscal year 2015 to eliminate that exception. President Barack Obama removed it in Executive Order 13696, “2015 Amendments to the Manual for Courts-Martial, United States.”

The defense does have other recourses, however. The CCA that the military judge could take other sanctioned actions to protect the accused’s constitutional rights. While the defense doesn’t have access to privileged patient information in the circumstances of the case, if the failure to produce this information for review or release would lead to a violation of the Constitution, a military judge can create the circumstances that guarantees a “meaningful opportunity to present a complete defense,” according to Judge Jones.

Other remedies Judge Jones refers to include striking or precluding all or part of the witness’s testimony, dismissing any charge with or without prejudice, abating the proceedings permanently or for a specified period of time to give the witness an opportunity to reconsider, or declaring a mistrial.

Part of the reason NMCCA disagreed with the military judge’s decision is that the judge made a number of orders not based on any of the current exceptions to the privilege. Instead, the judge determined that the defendant’s evidence did not meet one of the seven listed exceptions to 513, concluding instead that due process required breaking the code to guarantee that the accused had a fair opportunity to present a complete defense. The military judge also found that J.M.’s history could contain information related to the events in question in the case, including medications that could influence J.M.’s ability to remember or perceive the situation.

J.M. then petitioned the CCA for relief in ruling that the confidentiality privilege is absolutely outside of the listed exceptions in 513. Judge Jones and the other members of the CCA agreed that a military judge could not add exceptions to 513. However, while the judge cannot make that kind of exception, she can also not allow the privilege to be more important than Constitutional rights. Judge Jones then identified the three possible situations where constitutional rights may infringe upon privilege, including recantation or other contradictory conduct by the alleged victim; evidence of behavioral, mental, or emotional difficulties of the alleged victim; and the alleged victim’s inability to accurately perceive, remember, and retell the events.

The CCA also provided procedural steps for reviewing mental health records, including beginning the proceedings with a closed hearing. The military judge would apply the same test used for in camera review found in 513(e)(3). If the petitioner satisfies all the prongs but meets no enumerated exception under 513(d), the military judge determines whether the defendant’s constitutional rights require the production of the privileged information. If so, the judge gives the alleged victim the opportunity to waive the privilege for in camera review by the judge. The victim can then waive the privilege only for in camera review, and the judge will view the materials for possible disclosure. The judge will then earmark those items for consideration by the victim if the accused rights demand disclosure after reviewing the material. The victim can then consider the earmarked items and elect to waive the privilege further, after which the materials can be provided to the defense. These steps allow the military judge to honor the victim’s choice of whether or not they will waive the privilege. Rather, the victim still holds the authority to assert privilege at any time during the process.

Judge Jones then went on to outline the possible measures to take if the accused’s constitutional rights demand review or disclosure of the material under Mil. R. Evid. 505(j)(4)(A), specifying that these rules were not created to punish the petitioner for electing to preserve their privilege. They are tools to balance the petitioner’s privilege against the defendant’s constitutional rights. These tools include striking or precluding all or part of the witness’s testimony, dismissing any charge with or without prejudice, abating the proceedings permanently or for a specified period of time to give the witness an opportunity to reconsider, or declaring a mistrial.

Assuming this decision is not challenged or overturned by CAAF, this case will effect both prosecutorial decisions as well as defense decisions. Alleged victims will now have to choose how much of their personal lives do they want to reveal in pursuit of an allegation of sexual assault. Defense counsel will likely always request mental health records under this case and provide a constitutional exception argument. This is likely the first case of many that will help balance the scales of alleged victim rights vs the rights of the accused. Too often the rights of the accused appear to be suborned to the alleged victim. That is not what our justice system should or was meant to stand for.

The decision made by the CCA reversed the military judge’s order and remanded that the judge correctly apply 513 to the case, taking remedial actions as necessary to ensure the defendant receives a trial in which his rights under the Constitution are fully protected.

Joseph L. Jordan, Attorney at Law is a firm founded by skilled military defense lawyer, Joseph L. Jordan. He continually keeps updated on the latest developments in military criminal law. As an experienced military court-martial defense attorney, he can represent those stationed at home or abroad. Likewise, any military service members, both active duty and retired, can count on him for hard-hitting legal protection. Contact his firm at (888) 616-6177 or fill out the website’s online form to request additional information or give the team details about your situation. See how he can defend your reputation and your rights.

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