Commentary on Mil. R. Evid. 513

A new item in the AF JAG Reporter is worthy of a read.

Captain Rocco J. Carbone, III and Captain Christina L. Heath, A Review of 2022 Court of Appeals for the Armed Forces Updates to Military Rule of Evidence 513. September 27, 2022 at 1.

A "headline" suggests that "C.A.A.F.’s opinions and actions this term helped to demarcate some of the boundaries to Mil. R. Evid. 513, yet the likelihood of litigation remains high."

Mellette has proved useful, on a trial motion to reconsider denial of access, but not useful because the response was that "records older than 10 years are not retained" (or words to that effect).

We are particularly interested in their language

Regarding the “inappropriateness to allow [the] privilege,” courts have held that the privilege should not act as both a “sword” and a “shield.” In other words, the privilege holder may not use it to disclose evidence “to establish advantageous facts and then invoke the privilege to deny the evaluation of their context, relevance, or truth—thus turning the privilege from a shield into a sword—a circumstance the waiver rule’s broader language seeks to avoid.” Regarding appropriateness, practitioners should consider the perceived intent behind the communication when it was made and for what purpose

The question implicates the common cherry-picking that goes on with reports of offenses whether it be about psych records or the, very common, cherry-picking of texts on a smartphone. It seems that cherry-picking during the course of an investigation fits within the idea of establishing "advantageous facts" with the intent to advance a prosecution.

An off the wall question is whether the Rule also applies to patient-therapist records of an accused. The Rule does not contain a general exception for records of the accused. There is a specific exception when the accused has first offered statements concerning a mental condition. See R.C.M. 513(d)(7). Why should there not be a similar rule for a witness who first offers evidence of a mental condition? Is there an 'they opened the door argument?'

We have a couple of questions that relates to a not uncommon event.

Scenario 1.

A court-martial accused and "victim" are in civilian court on a divorce and child custody matter.

Under the state rules of discovery there can be required depositions and medical and mental health records disclosure. These records, after all, may be relevant to who is the best parent to have full or joint custody of a child or whether a divorce should be granted 'for cause.' There is due process attendent to the nature and extent of the discovery. And the records may now be part of the court records for the case (e.g., in testimony).

Scenario 2. 

An alleged victim goes to civilian court for a Protective Order. The person "accused" has the due process right to a hearing. At the hearing, the "accuser" has the opportunity to make a presentation, and assume she does. See, e.g., Fairfac County, VA, Local Rules. (Caution. Every states rules may differ.)

The accused (or his divorce/child custody lawyer) provides a copy of any documents to the court-martial defense counsel. (Assume the DC was not present at a PO hearing.)

What use, if any, can be made of these records in a court-martial?