The United States Court of Appeals for the Armed Forces (CAAF) has ruled that it has no jurisdiction to review a petition from an alleged victim pertaining to Article 6b(e). The decision comes with EV v. United States & Martinez, in which an alleged victim, EV, tried to prevent her mental health records from being part of the discovery process.

As CAAFLOG reports, Sgt. Martinez was accused of several offenses stemming from a sexual encounter with EV. After that encounter, EV began to receive mental health treatment. During the discovery process of Martinez's trial, however, his legal team filed to review EV's mental health records. Under Mil. R. Evid 513, those records are protected by doctor-patient privilege. The military judge, however, found that omitting the records would be an infringement of the accused's constitutional rights to a fair trial.

In response, EV appealed to a Court of Criminal Appeals (NMCCA) for a writ of mandamus under Article 6b(e), which would compel the lower court to not allow the records to be revealed under the Military Rule of Evidence. However, the NMCCA denied EV's request, saying that she did not have "a clear and indisputable right to reversal of the judge’s order." EV then turned to the CAAF for relief.


In the CAAF decision, the judge's panel reviewed three claims EV's appeal laid out pertaining to her rights under the military's evidence laws:

  • She had a "clear and indisputable right" to issue a writ to NMCCA.
  • The original judge had abused his discretion by allowing excerpts of her mental health records to be submitted under Mil. R. Evid. 513(e)(3) and Mil. R. Evid. 513(d)(5).
  • The original judge violated EV's rights under Article 6b by applying exceptions to the evidence law and her right to notice or to be heard.

However, the panel also added a fourth consideration: does the CAAF have the jurisdiction to review matters pertaining to Article 6b? Ultimately, they unanimously found that the answer was no. The decision, written by Judge Stucky, says this about Article 6b:

"[Article 6b] is quite straightforward. It is a clear and unambiguous grant of limited jurisdiction to the Courts of Criminal Appeals to consider petitions by alleged victims for mandamus as set out therein. There is no mention whatsoever of this Court. Congress having legislated in this area and bestowed certain third-party rights on alleged victims, we must be guided by the choices Congress has made. Congress certainly could have provided for further judicial review in this novel situation. It did not."

CAAF's decision dissolves the stay on Martinez's case, which will now continue. While the decision does seem to limit an alleged victim's capacity to seek higher intervention to enforce rights under Article 6b, CAAFLOG also points out that it does not confront certain dilemmas these circumstances pose concerning the Sixth Amendment, or when rule-based privileges bump against the assertions of the accused in an attempt to adequately defend themselves in a court of law.

Joseph L. Jordan, Attorney at Law is a 10+ year veteran of the U.S. Army who now dedicates his firm to the defense and advocacy of the accused. He has traveled the world to defend his clients in nearly every branch of the U.S. Military and consistently ensures that his client's rights and interests are aggressively protected both in and outside the courtroom.

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