Update Monday, August 8, 2022 Appeal - Summary Disposition
No. 22-0023/AR. U.S. v. Michael L. McClure. CCA 20190623. On further consideration of the granted issue, 82 M.J. 194 (C.A.A.F. 2022), and in light of United States v. Mellette, __ M.J. __ (C.A.A.F. July 27, 2022), we conclude that even assuming some error by the military judge, Appellant was not prejudiced. Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.
Following the Supreme Court’s proviso in Trammel v. United States Trammel, 445 U.S. 40, 50 (1980) that evidentiary privileges are to be strictly construed, the CAAF holds in a 3-2 opinion in Mellette that the M.R.E. 513(a) psychotherapist-patient privilege does not extend to behavioral health diagnoses and treatments contained within medical records or some other form not consisting of communication between a patient and a psychotherapist or psychotherapist’s assistant.
CAAF’s ruling resolves a circuit split between the land and sea forces in favor of the Army appellate court’s minimalist approach. In 2006 the Coast Guard Court of Criminal Appeals took an expansive view of the M.R.E. 513 privilege. See H.V. v. Kitchen, 75 M.J. 717 (CGCCA 2016). In 2019, in an unpublished opinion the Army Court of Criminal Appeals followed the dissent in Kitchen by finding that mental health diagnoses and treatments are independent of confidential communications and significantly are often meant to be disclosed to a third party, such as a pharmacist or a physician prescribing a medication for a physical ailment (United States v. Rodriguez, 2019 CCA LEXIS 387). (Disclosure: this writer was Rodriguez’s appellate counsel.) In 2021 the Navy Court of Criminal Appeals followed the Coast Guard’s more expansive view of the M.R.E. 513 privilege in in its ruling in United States v. Mellette (81 M.J. 681). The CAAF granted certoriari, specifying three issues relating to the M.R.E. 513 privilege and here we are. (Notably, the Air Force Court of Criminal Appeals had not weighed in on the issue but anecdotally, Air Force counsel and trial judges have followed the expansive interpretation of the privilege until now.)
In Mellette, the CAAF granted review of three issues: a. Are diagnoses and treatment records subject to the M.R.E. 513 privilege? b. Should the NMCCA have reviewed the mental health records before ruling? c. Was there a waiver of the M.R.E. 513 privilege in the case? Deciding the first issue in favor of the petitioner, the second and third issues are not reached. CAAF’s holding centers on both Trammel’s prescription that evidentiary privileges “must be strictly construed.” Examining the specific language of M.R.E. 513(a), the court finds that the limiting language of “communication” and “between the patient and a psychotherapist” are meaningful choices. The court notes that in contrast the analogous Florida state statute explicitly protects both communications and records, unlike M.R.E. 513. Turning to a government argument that the M.R.E. 513 privilege is akin to the attorney/client privilege in M.R.E. 502, the court dismisses this argument by noting that first, the protection for attorney work product is a separate rule (R.C.M. 701(f)) without an equivalent rule for psychotherapist work product; and second, that the attorney-client privilege is in fact narrow and does not include the underlying facts that may be communicated with an attorney (citing to Upjohn Co, 449 U.S. 383, 395 (1981) and In re Six Grand Jury Witnesses, 979 F.2d 939, 945 (2d Cir. 1992)).
In the dissent, Judge Maggs (joined by Judge Sparks) argues that diagnoses and treatment are privileged under M.R.E. 513(a) “only to the extent that they reveal confidential communications between the patient and psychotherapist that were made for the purpose of diagnosing or treating the patient’s mental condition.” Had this been the majority opinion, the practical effect may well have been to force in camera review of medical records, deny the disclosure of specific diagnoses and allow the production of medication records (as few medications are prescribed for one and only one behavioral health condition).
Of note to trial practitioners, the CAAF finds with respect to the specific mental health records at issue in Mellette that the sought records “to include the dates visited said mental health provider, the treatment provided and recommended, and her diagnosis….were not protected from disclosure by M.R.E. 513(a)” and that these records should have been produced and potentially admitted. As well, the court also reiterates that diagnoses and evidence that relate to a witness’ credibility and reliability are material to the defense. One would expect that going forward defense discovery requests for AHLTA and similar records will request the same specific three categories requested in Mellette.
Although on its face CAAF’s decision in Mellette may appear to buck against the trend of expanding victims’ rights, it actually follows the contemporary judicial path of construing privileges narrowly in order to preserve the truth-seeking purview of the tribunal. The decision falls in line with Harpole (77 M.J. 231)(narrowing the victim-advocate privilege), Jasper (72 M.J. 276)(narrowing the clergy-parishioner privilege), and Durbin (68 M.J. 271)(narrowing the spousal privilege).
Nathan Freeburg, a guest post.
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