"Circuit" split

In Woods, (published), CGCCA identifies a split between ACCA and NMCCA, and sides with ACCA. See United States v. Tinsley, 81 M.J. 836 (A. Ct. Crim. App. 2021). The NMCCA case is Peyton-O'Brien. See also "Civilian federal courts, too, have reached “different conclusions about whether the psychotherapist-patient privilege must bend” to a criminal defendant’s constitutional rights. United States v. Carter, No. 2:25-CR-00089-JAW-1, 2025 U.S. Dist. Ct. LEXIS 254189 (D. Me. Dec. 9, 2025) (compiling cases).

Will CAAF grant to resolve, or wait for AFCCA?

In [considering whether the military judge erroneously concluded evidence from C.W.’s medical records was privileged and not subject to production or use at trial under Military Rule of Evidence (Mil. R. Evid.) 513,] we confront an issue that has split both military and civilian courts: whether and when the psychotherapist-patient privilege must give way to an accused’s individual rights. We ultimately side with our Army brethren to conclude that acting together, Congress and the President unambiguously removed any exception based on the evidentiary value of protected communications to an accused and that application of this more absolute privilege in a court-martial is constitutional. Accordingly, we conclude the military judge did not abuse her discretion by ruling that portions of a mental health record were privileged under Mil. R. Evid. 513 and denying production.

The court took up the following issues.

II. The military judge erroneously excluded most of the unredacted portions of C.W.’s 2017
medical records under Mil. R. Evid. 401 and 403.

III. The military judge abused her discretion in concluding that the destroyed evidence was
not apparently exculpatory and in crafting “other relief” in lieu of abatement under Rule
for Court-Martial (R.C.M.) 703.

These issues were raised under Grostefon.

IV. The trial counsel engaged in prosecutorial misconduct by making improper closing and
rebuttal arguments, which the military judge failed to adequately address in her curative
instructions. See here.

V. Unlawful command influence occurred when a “shadow judiciary” composed of other
military judges, including the chief trial judge, began to preside de facto over the court-
martial.

And Issue IV-VIII got a nod to lack of merit.

​Let's see if CAAF shows some interest in this important question.