IN RE: B.M. (2024)

I join the Court's opinion in full. As Judge Maggs clearly explains, the principles of standing, ripeness, and mootness constrain this Court from answering the certified issues. But despite the “unusual and perhaps unprecedented” procedural posture of the instant case, the substantive issues raised therein will most assuredly arise in future courts-martial. B.M. v. United States, __ M.J. __, __ (7) (C.A.A.F. 2024). Therefore, I write separately to express my thoughts on how military judges, going forward, might address the challenges that arise when a victim's mental health records are at issue.

I. Additional Facts

The Court's opinion nicely identifies the basic facts of the case so I will not repeat them here. I will simply add a few key details that are helpful for the purposes of this discussion.

First, in the military judge's order to the mental health provider, she directed the facility to produce documents “ONLY to the extent those records reflect” diagnoses, mental health prescriptions, and mental health treatments of Major B.M. (the named victim). She further instructed:

The appropriate records custodian shall NOT provide any portion of a written mental or behavioral health record that memorializes or transcribes actual communications made between the patient and the psychotherapist or assistant to the psychotherapist. The custodian of the records shall produce only records containing no actual communications and indicating a diagnosis, medication, and/or treatment, the date of diagnosis, prescription, and/or treatment, and the date the diagnosis was resolved, if applicable.

(Footnote omitted.) The order also stated that the military judge would conduct an in camera review of the records to determine if disclosure was required.

Second, after receipt of the named victim's records, the military judge noted in an email to the named victim and the parties that the clinic included material “encompassed by” Military Rule of Evidence (M.R.E.) 513, and she asked the named victim if she continued to assert her M.R.E. 513 privilege over this material. The named victim, through counsel, stated that she was “continuing to invoke her privilege under M.R.E. 513 and [was] not waiving that right.”

Third, the military judge subsequently issued an ex parte order to the named victim regarding her mental health records. In the order the military judge stated: “Notwithstanding the court's attempt to limit its review to sections addressing diagnoses, medications, and treatment, the court read items that appear to constitute ‘actual communications’ within the meaning of United States v. Mellette,” 82 M.J. 374 (C.A.A.F. 2022).

Fourth and finally, the military judge concluded that some of the privileged records were constitutionally required to be disclosed to the defense under J.M. v. Payton-O'Brien, 76 M.J. 782, 787 (N-M. Ct. Crim. App. 2017). When the named victim continued to assert her privilege, the military judge abated the proceedings and sealed the mental health records.

II. Applicable Law

M.R.E. 513 governs the military's psychotherapist-patient privilege. “Broadly speaking, [M.R.E.] 513(a) establishes a privilege that allows a patient to refuse to disclose confidential communications between the patient and his or her psychotherapist if those communications were made for the purpose of diagnosing or treating the patient's mental or emotional condition.” United States v. Beauge, 82 M.J. 157, 159 (C.A.A.F. 2022). However, as always, the devil is in the details. To begin with, in Mellette this Court held that “diagnoses and treatments contained within medical records are not themselves uniformly privileged under M.R.E. 513.” 82 M.J. at 375.

In addition, M.R.E. 513 itself recognizes seven exceptions to the broad psychotherapist-patient privilege. See M.R.E. 513(d)(1)-(7). As explained in the Court's majority opinion, there used to be an eighth enumerated exception under M.R.E. 513 which was commonly referred to as the “constitutionally required exception.” 1 B.M, __ M.J. at __ (12 & n.4). However, in 2015, consistent with congressional legislation, the President deleted this exception. Subsequently, in Payton-O'Brien the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) sought to reconcile the revised provisions of M.R.E. 513 with the rights afforded to an accused under the Constitution. The NMCCA explained that (1) by promulgating the new version of M.R.E. 513, Congress and the President were implementing a “policy decision” to protect the psychotherapist-patient privilege “to the greatest extent possible,” 76 M.J. at 787, but (2) this privilege, however meritorious, cannot “prevail over the Constitution,” id. at 787-88. Accordingly, the NMCCA held that when M.R.E. 513 prohibits the production of privileged records, and when this prohibition implicates the constitutional rights of an accused to obtain a fair trial, “military judges may craft such remedies as are required to guarantee [an accused] a meaningful opportunity to present a complete defense.” Id. at 783. The remedies contemplated by the NMCCA notably included abating the proceedings. Id. at 791. As the NMCCA succinctly put it, these remedies were “precise judicial tools necessary to balance [a victim's] privilege against [an accused's] constitutional rights.” Id. at 792.

III. Discussion

A. Certified Issue I

In regard to the instant case, I believe the military judge was placed in an unenviable position. Although she was assiduous in ensuring the clarity and accuracy of her order to the mental health provider, the facility still “dumped in her lap” nonresponsive mental health records that were privileged. Upon conducting her in camera review of the documents and discovering privileged information, the military judge had two options. First, she could have halted her review and invoked the procedures required under M.R.E. 513(e), which deals with determining the admissibility of patient records or communications. Second, she could have halted her review and returned the records to the mental health facility as nonresponsive and ordered compliance with the terms of the order. What the military judge could not do was continue to examine the privileged records, as she did here. Such a step contravened her authority and the provisions of M.R.E 513. In light of this misunderstanding, I offer the following guidance to those military judges who are confronted with a similar conundrum in the future.

If, in the course of conducting an in camera review of the mental health records of a victim, a military judge discovers that privileged material is commingled with nonprivileged material, he or she should immediately stop reviewing those records. If up to that point, the military judge has not discovered any impeachment material in the records that he or she believes the accused is entitled to receive in furtherance of his right to a fair trial, the military judge should return the records to the mental health facility and order compliance with the order to produce responsive, nonprivileged records. If, however, the military judge has already uncovered impeachment material within the records necessary for the accused to receive a fair trial, the military judge must inform the victim of this discovery and then ask whether the victim wishes to waive the privilege regarding that material. If the victim agrees to the waiver, the military judge should then disclose that material to the parties for potential use at trial. If the victim does not agree to the waiver, the military judge should follow the procedures articulated by the NMCCA in Payton-O'Brien, 76 M.J. at 789-92.

The discussion above concerns those situations where a military judge has ordered a mental health facility to produce responsive medical records. However, I am not convinced that this approach to obtaining mental health information is optimal. Simply stated, mental health professionals typically do not have the time to go through sometimes voluminous mental health records and cull out responsive material that is not privileged, and any person to whom they may delegate this task may not possess the required expertise. Because of this unfortunate reality, it is not unusual for commingled records to be produced in response to even clear and narrowly constructed document requests. As a result, military judges who are confronted with the task of ensuring that an accused has proper access to the nonprivileged mental health records of a victim should perhaps consider alternative approaches.

One approach would be to encourage the victim, the accused, and the government to enter into a stipulation of fact that would address the victim's diagnoses, medications, and treatments. This method presumably would be the quickest and easiest way of ensuring that no privileged material is released in contravention of M.R.E. 513, while also ensuring that the accused has access to information he is entitled to receive in furtherance of his constitutional right to a fair trial. I have my doubts, however, about the extent to which an accused would be willing to rely upon the bare assertions of a victim about the scope and nature of the mental health issues involved, particularly if the accused has no independent means of ensuring the accuracy of the victim's representations. Nevertheless, it still is worth a try.

If efforts to have the victim, the accused, and the government enter into a stipulation of fact is unavailing, another option would be for the military judge to order the victim's psychotherapist to submit an affidavit to the trial court that explicitly and solely addresses the victim's diagnoses, medications, and treatments. (A related approach would be for the military judge to pose interrogatories to the psychotherapist that are narrowly tailored to elicit information only about the victim's diagnoses, medications, and treatments.) This is not a foolproof method, particularly in those instances where the psychotherapist is not affiliated with a government mental health facility. However, it may be making the best of a bad bargain. 2

Just to tie up loose ends, I would like to make two additional points. First, military judges should not hesitate to place the responsibility on the victim, the accused, and the government to take the initiative in finalizing a stipulation of fact or, in the alternative, drafting the order or the interrogatories that are designed to obtain the necessary information from the psychotherapist. And second, military judges should not hesitate to require the victim, the accused, and the government to raise—and to resolve—issues regarding mental health records early in the court-martial process to ensure that the trial is not unnecessarily delayed. I am hopeful that if this guidance is followed, the chances of encountering a similarly perplexing case where a military judge concludes that it is necessary to abate the proceedings will be significantly reduced.

B. Certified Issue II

I now would like to turn my attention to the second certified issue. Although I want to underscore from the outset the obvious point that my views are not binding on this Court, I believe it may be helpful to note the following: I conclude that (a) the NMCCA's decision in Payton-O'Brien properly held that M.R.E. 513 is still subject to the Constitution, and (b) in seeking to protect the accused's constitutional rights, the NMCCA did not improperly create court-made procedures and remedies. I briefly set forth my reasoning below.

First, the Payton-O'Brien case did not reinsert the “constitutionally required” exception that Congress and the President expressly removed. This is apparent in the language of the opinion: “[A]ny application of the former Mil. R. Evid. 513(d)(8) constitutional exception ․ would force us to ignore the plain language of the rule, the obvious intent of both Congress and the President, and binding precedent. We cannot.” Payton-O'Brien, 76 M.J. at 787. However, the NMCCA in Payton-O'Brien did properly recognize an iron-clad fact: the Military Rules of Evidence cannot supplant or supersede the Constitution of the United States. Id. at 787-88. Accordingly, M.R.E. 513 cannot limit the introduction of evidence that is required to protect the constitutional rights of an accused during trial, such as under the Due Process Clause. See United States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997) (discussing the military's scheme of hierarchical rights with the Constitution as the highest source and noting that lower sources on the hierarchy may not conflict with a higher source); see also Herbert v. Lando, 441 U.S. 153, 175 (1979) (“[e]videntiary privileges ․ must give way in proper circumstances”).

As a result of this fact, in each case a military judge must make an individualized determination of whether the constitutional rights of the accused outweigh the interests of the victim that are intended to be protected under M.R.E. 513. See Holmes v. South Carolina, 547 U.S. 319, 324-25 (2006) (A rule of evidence abridges the constitutional right to present a defense when the rule “ ‘infring[es] upon a weighty interest of the accused’ and [is] ‘arbitrary’ or ‘disproportionate to the purposes [the rule is] designed to serve.’ ” (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998))). I recognize that the Supreme Court in Jaffee v. Redmond “reject[ed] the balancing component of the [psychotherapist] privilege” by noting that “[m]aking the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.” 518 U.S. 1, 17 (1996). However, that pronouncement by the Supreme Court came in a civil case with respect to balancing privacy interests against an evidentiary need. In the context of the military justice system, this Court and the lower courts are concerned with the constitutional rights of an accused in a criminal case. See Romano, 46 M.J. at 274. The Supreme Court has not decided this issue. See Swidler & Berlin v. United States, 524 U.S. 399, 408 n.3 (1998) (declining to answer whether piercing the attorney-client privilege is appropriate in “exceptional circumstances implicating a criminal defendant's constitutional rights”). Moreover—and this is an important point that I want to emphasize—if the NMCCA's Payton-O'Brien approach is followed, then a victim's privileged material will never be disclosed without the consent of the patient/privilege holder. Therefore, I believe Payton-O'Brien provided the appropriate framework concerning M.R.E. 513 and an accused's constitutional rights.

And second, it is true that the lower court in Payton-O'Brien set forth procedures and remedies that a military judge may employ when handling this type of issue, despite the fact that M.R.E. 513 is silent on this point. However, it is an unremarkable proposition that courts must sometimes develop mechanisms to protect an accused's constitutional rights at trial if no mechanism is provided in applicable statutes or rules. 3 Otherwise, the accused's constitutional rights would be hollow.

Despite my views on these issues, I agree with the Court's majority opinion that we cannot provide the relief that the named victim seeks due to standing, ripeness, and mootness grounds. I therefore join the Court's opinion in full.

FOOTNOTES

1.   The exception read as follows: “There is no privilege under this rule ․ when admission or disclosure of a communication is constitutionally required.” M.R.E. 513(d)(8) (2000 ed.). This Court has yet to “decide the precise significance of the removal of this express exception.” Beauge, 82 M.J. at 167 n.10.

2.   Presumably, a psychotherapist working in a government-operated treatment facility will comply with a military judge's order to provide an affidavit or response to interrogatories as discussed above. However, I recognize that enforcement mechanisms in the civilian sphere can be tricky. In those situations where a civilian psychotherapist practicing in the private sector balks at responding to an order of this nature issued by a military judge, the named victim would have an interest in encouraging compliance by the psychotherapist to avoid the potential specter of abatement.

3.   This Court has created procedures and remedies when a statute or rule does not. See, e.g., United States v. Moreno, 63 M.J. 129, 142-43 (C.A.A.F. 2006) (establishing prospective rules setting forth timelines for post-trial processing and identifying the remedies “depend[ing] on the circumstances of the case”); Toohey v. United States, 60 M.J. 100, 101-02 (C.A.A.F. 2004) (recognizing that servicemembers have a due process right to speedy appellate review and adopting factors to evaluate whether appellate delay violates an appellant's due process rights).

Chief Judge OHLSON, concurring.