76 M.J. 611
A.C.C.A.2017Background
- The accused (real party in interest, RPI) is charged with multiple child sexual offenses under the UCMJ; defense sought the alleged child-victim LK’s mental-health records (14 June 2014–20 Apr 2015).
- Defense argued Mil. R. Evid. 513(d)(2) (child-abuse exception) removed the psychotherapist-patient privilege because LK is the child of the accused’s spouse and records are relevant to truthfulness, diagnosis, and injury.
- The military judge ordered in camera review and production of LK’s records; special victims’ counsel sought reconsideration and filed a petition for extraordinary relief (writ of mandamus).
- The Army Court stayed proceedings, then considered whether Mil. R. Evid. 513 is a privilege rule (not discovery), the scope of its exceptions, and whether any constitutional right compelled disclosure.
- The court found the records were not in prosecution possession (so not Brady material) and that the constitutional disclosure exception does not obviate Mil. R. Evid. 513 absent a trial-right compulsion.
- The court set aside the military judge’s in camera-review order, allowed reconsideration of the motion ab initio, and vacated the stay of proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Constitution require disclosure of privileged psychotherapist records (constitutional exception)? | RPI implied constitutional confrontation or disclosure rights might require release. | Government: no constitutional right to pretrial discovery; confrontation is a trial right and does not mandate pretrial disclosure. | Court: No; deletion of a rule clause does not change constitutional law; disclosure not constitutionally required here. |
| Are LK’s mental-health records Brady material because prosecution had notice? | RPI argued records were necessary for impeachment/exculpation and should be disclosed. | Government: records were not in prosecution’s possession or part of the investigation, so not Brady. | Court: Not Brady; records were not in prosecution’s possession, so no constitutional Brady duty to disclose. |
| Does Mil. R. Evid. 513(d)(2) child-abuse exception permit disclosure of any spouse/child mental-health records when an accused is charged with a crime against a child of either spouse? | RPI: Read broadly—no privilege for any person’s mental-health records when accused charged with crime against spouse’s child. | Government: Exception applies narrowly; not to every person’s records nor to disclosure absent showing the communication is evidence of abuse or to admission at trial. | Court: Exception construed narrowly; two independent clauses: (1) communications that are evidence of child abuse or neglect; (2) applies as an exception to privilege at trial in proceedings where one spouse is charged with a crime against a child of either spouse. It does not authorize blanket disclosure of a child-victim’s records. |
| Did the military judge properly order in camera review/production under Mil. R. Evid. 513? | RPI: Motion justified in camera review to test whether records contain admissible/exculpatory material. | Special victims’ counsel/Government: Rule is privilege-focused; motion must meet specific filing and specificity requirements before in camera review. | Court: Set aside in camera-review order. Emphasized Mil. R. Evid. 513 is a privilege rule (not discovery); motions must specifically describe evidence and purpose; judge may reconsider motion ab initio under correct legal framework. |
Key Cases Cited
- Jaffee v. Redmond, 518 U.S. 1 (1996) (recognizes social benefit basis for psychotherapist–patient privilege)
- Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (Confrontation Clause is a trial right; no broad pretrial discovery right)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor’s duty to disclose favorable evidence in its possession)
- Davis v. Alaska, 415 U.S. 308 (1974) (trial right to cross-examine a witness on facts bearing credibility)
- Kyles v. Whitley, 514 U.S. 419 (1995) (prosecutor must learn of favorable evidence known to others acting on government’s behalf)
- United States v. Lewis, 65 M.J. 85 (C.A.A.F. 2007) (rules of evidence should be construed by plain language; avoid absurd results)
- United States v. Clark, 62 M.J. 196 (C.A.A.F. 2005) (discusses adoption of psychotherapist–patient privilege in military law)
- United States v. Stellate, 74 M.J. 473 (C.A.A.F. 2015) (Brady standard and related principles)