NEW ACCA DECISION – MRE 513 (LK V. ACOSTA & RPI SFC SANCHEZ)
May 30, 2017
The United States Army Court of Criminal Appeals (ACCA) has recently reviewed Military Rule of Evidence (MRE) 513 and how it relates to petitions for extraordinary relief in the nature of a writ of mandamus. The review began after it was argued that MRE 513 did not provide military judges adequate instruction when determining if mental health records should be allowed as evidence in military criminal defense cases. It found that MRE 513 is not a rule based upon discovery, but instead is a rule of privilege. That is to say, MRE 513 cannot force mental health records into a case for camera review, defense counsel study, or trial evidence.
LK V. ACOSTA & RPI SFC SANCHEZ – INITIAL DECISION
RPI SFC Sanchez was charged with several sex crimes against a child under Article 120 and others. The defense counsel attempted to view the alleged victim’s (LK) mental health records more than once during legal proceedings. It argued that it was entirely possible that LK fabricated or exaggerated the reality of the alleged sexual assault, and that a study of her mental health records might show a proclivity for such behavior. The court held that MRE 513 could not bring those records to light, as it does not apply to minors; it went further by stating that if MRE 513 did apply to minors that have accused someone of sexual assault, the very purpose of confidential psychiatry would be undone (see: Jaffee v. Redmond).
DIFFERENT RULING TRIGGERS STAY OF PROCEEDINGS
Shortly after it was first determined that MRE 513 would not be used to produce LK’s mental health records, the military judge ordered the opposite. It was stated at that time that MRE 513 makes no clear differentiation between a minor giving such statements and an adult. A follow-up motion of reconsideration was quickly met with a five-page ruling and denied. This was followed by an approved stay of proceedings in order to bring the exact purpose of MRE 513 – and whether it would apply to LK’s case – before the ACCA for review.
INTRICATE CASE DETAILS CALL FOR DISCUSSION
It has been said that MRE 513 was created to uphold the “social benefit of confidential counseling” and also permits the patient of any such counseling to deny the disclosure of statements given during sessions. Furthermore, the privilege to keep counseling sessions confidential can be enacted by the patient, the patient’s guardian, the doctor, or even the doctor’s assistant that was tasked with handling any documentation related to the counseling. Problems have arisen in military court, however, when mental health records were seen not as privileged information but instead given up as evidence influenced by a motion of discovery.
Within U.S. v. Cano, a military judge ordered that mental health records created in confidentiality between a minor and a doctor must be disclosed since the exclusion of anything that could possibly help the defense would violate the standards of a “fair trial.” The ACCA’s review of MRE 513, as spurred by LK v. Acosta & Sanchez, found that evaluation in U.S. v. Cano was erroneous. It and the military judge treated the situation as one of evidence discovery, not of a request for privileged and confidential materials.
DOES CONSTITUTIONAL GRASP REACH MRE 513?
MRE 513 provides several exceptions to its own rules, including one that says that privileged information must be disclosed if the United States Constitution demands its disclosure. However, this constitutional exception was eliminated recently, triggering much debate. The Constitution is the groundwork of our legal hierarchy, and so it makes sense to say, that if the Constitution demands disclosure of evidence, that disclosure must be granted, regardless of the specific wordings in MRE 513. In other words, no lesser legal statute can ever preclude or ignore the rulings of the Constitution.
On the other hand, as it is stated in Weatherford v. Bursey, the Constitution does not claim any generalized “right to discovery in a criminal case.” U.S. v. Shorts also reaffirmed that Brady evidence is only to be seen as such if the prosecution has constructive or actual possession of it. Since, this case, privileged mental health records are in no such forms of possession by the prosecution, it is not Brady evidence and cannot be forcibly brought into an investigation if privilege is not granted. With this stated, the ACCA has concluded that there is no constitutional requirement for mental health records to be subject to discovery methods in this case.
The reasoning cited by the court is very important; mental health records located in military or civilian healthcare facilities that have not been made par of the investigation are not “in the possession of prosecution” and therefore cannot be “Brady evidence.” The courts reasoning eludes to a specific circumstance where the constitutionally required exception can and will likely come into play in future cases. That circumstance is when the government makes the mental health records in question a part of their investigation. At that point, it appears that the court contemplates that the constitutionally required exception comes into play for those seeking to obtain disclosure of mental health records.
EXCEPTION TRIGGERED BY EVIDENCE OF CHILD ABUSE
When a child’s wellbeing, health, or life is clearly in danger, as indicated by statements given in confidential counseling sessions, MRE 513 allows an exception that can force the evidence into discovery. This is due to the preexisting expectation that the counselor should have shared this information with others, including superior military officers when necessary, to protect that child from further harm. By this exception, mental health records can be used as evidence and lose privilege protection so long as they indicate the presence of child abuse. The same sort of records cannot lose their privilege if they only serve as proof of an absence of child abuse.
It is worth noting that a secondary exception applies the first to all forms of mental health records generated by all peoples. That is to say, evidence of child abuse given during the confidential counseling of a child, the child’s parent, the spouse of the child’s parent, etc. can open that privileged information to discovery methods. It does not need to be admitted during a counseling session with the child.
CONCLUSION OF THE MRE 513 ACCA REVIEW
As concluded by the ACCA, a military judge must tread carefully when allowing or disallowing mental health records into evidence or review. There will always be grounds to uphold privilege and grounds to find that there is no privilege. Before allowing an in-camera review of such records, the judge has to determine not only if privilege exists, but also whether or not the records in question have the potential of revealing pertinent information.
Within the LK case, it was found that the military judge’s ruling to bring forth mental health records for an in-camera review did not meet the standards held in MRE 513, and was thusly set aside. The remaining portions of the petition are denied. The stay of proceedings has been lifted and the case can continue.
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