UNITED STATES, Appellee, v. Hector RODRIGUEZ, Specialist, U.S. Army, Appellant.
No. 99-0224. Crim.App. No. 9700189.
U.S. Court of Appeals for the Armed Forces.
Argued March 2, 2000. Decided Sept. 25, 2000.
54 M.J. 156
Gierke, J., filed dissenting opinion in which Cox, Senior Judge, joined.
For Appellant: T. Michael Guiffré (argued); Michael J. Nardotti, Jr. and Captain Donald P. Chisholm (on brief); Colonel John T. Phelps II, Colonel Adele H. Odegard, and Captain Kirsten V. Campbell-Brunson.
For Appellee: Captain Kelly D. Haywood (argued); Colonel Russell S. Estey, Lieutenant Colonel Eugene R. Milhizer, and Major Patricia A. Ham (on brief).
Chief Judge CRAWFORD announced the judgment of the Court and delivered an opinion in which Judge EFFRON joined.
Contrary to his pleas, appellant was found not guilty by a military judge sitting alone of malingering but guilty of wounding himself without intent to avoid hazardous service, in violation of
WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS THE TESTIMONY OF DR. JOSE ALFANO BASED ON THE ERRONEOUS FINDING THAT THE PSYCHOTHERAPIST PRIVILEGE WAS NOT APPLICABLE AT COURTS-MARTIAL.
We hold that the military judge did not err in admitting the statement of Dr. Alfano.
CRAWFORD, C.J., announced the judgment of the Court and delivered an opinion, in which EFFRON, J., joined. SULLIVAN, J., filed an opinion concurring in part and in the result. GIERKE, J., filed a dissenting opinion, in which COX, S.J., joined.
FACTS
On May 2, 1996, appellant rigged an automatic weapon to shoot himself in the stomach. He was successful. There was extensive evidence that appellant shot himself, including his admissions to his platoon leader and his platoon sergeant. He was transferred from Bosnia to Landstuhl Regional Medical Center in Germany for treatment. In addition to the physical treatment, he was treated by Dr. Alfano, a
“At trial, appellant‘s defense was that he abandoned his attempt to shoot himself but that the weapon accidentally fired while he was retrieving it. Appellant‘s defense counsel challenged the admissibility of appellant‘s statements to Dr. Alfano claiming they were protected by the federal psychotherapist-patient privilege recognized in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). See 49 MJ at 529.
The military judge denied appellant‘s motion to suppress this evidence because under
DISCUSSION
The issue in this case is whether the psychotherapist-patient privilege recognized by the Supreme Court in Jaffee as being part of federal common law is applicable to trials by courts-martial. This issue requires consideration of the relationship between the
The Proposed Federal Rules of Evidence were submitted to the Supreme Court in October 1971. The Rules as originally approved by the Supreme Court on November 20, 1972, set forth in Article V nine nonconstitutional privilege rules applicable to federal trials, including a proposed psychotherapist-patient privilege. After these proposed Rules were sent to Congress, the Subcommittee on Criminal Justice of the Committee on the Judiciary of the House of Representatives held open hearings on the Proposed Rules. As a result of these hearings and numerous conferences, Congress did not accept the proposed privilege rules because a consensus could not be achieved as to a number of privileges. S.Rep. No. 1277, 93d Cong.2d Sess. (1974), reprinted in 1974 U.S.Code Congressional & Administrative News 7051, 7052, 7053, 7058; see also Title 28 USCA Federal Rules of Evidence (Rules 701 to End) 614, 615, 620. Instead, Congress adopted
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Suрreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the рrivilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
The Rules, as revised by Congress, were approved by President Ford on January 2, 1975. Pub.L. No. 93-595, 88 Stat. 1926.
In contrast to the Federal Rules of Evidence, Congress has delegated to the President the authority to issue rules of evidence for courts-martial. See
The President, in the Military Rules of Evidence, did not follow the approach taken by the Federal Rules of Evidence. In-
Unlike the Article III court system, which is conducted almost entirely by attorneys functioning in conjunction with permanent courts in fixed locations, the military criminal legal system is characterized by its dependence upon large numbers of laymen, temporary courts, and inherent geographical and personnel instability due to the worldwide deployment of military personnel. Consequently, military law requires far more stability than civilian law. This is particularly true because of the significant number of non-lawyers involved in the military criminal legal system. Commanders, convening authorities, non-lawyer investigating officers, summary court-martial officers, or law enforcement personnel need specific guidance as to what material is privileged and what is not.
Drafter‘s Analysis of
In United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), the Supreme Court recognized that the President may promulgate rules of evidence for the military, which
do not abridge an accused‘s right to present a defense so long as they are not “arbitrary” or “disproportionate to the purposes they are designed to serve.” Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.
523 U.S. at 308, 118 S.Ct. 1261 (citations omitted); see also id. at 323 & n. 4, 118 S.Ct. 1261.
The purpose of the Military Rules was to provide predictability, clarity, and certainty through specific rules rather than a case-by-case adjudication of what the rules of evidence would be. The addition of
(a) A person may not claim a privilege with respect to any matter except as required by or provided for in:
(1) The Constitution of the United States as applied to members of the armed forces;
(2) An Act of Congress applicable to trials by courts-martial;
(3) These rules or this Manual; or
(4) The principles of common law generally recognized in the trial of criminal cases in the United States district courts pursuant to rule 501 of the Federal Rules of Evidence insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the code, these rules, or this Manual.
* * *
(d) Notwithstanding any other provision of these rules, information not otherwise privileged does not become privileged on the basis that it was acquired by a medical officer or civilian physician in a professional capacity.
Although the originally enumerated privileges contained within
At the outset, it is necessary to review the state of the law when the President issued
The Court in Jaffee examined
After analyzing application of the psychotherapist-patient privilege in the state and federal courts, the Supreme Court held that statements made by a police officer to a licensed clinical social worker after a traumatic incident in which the officer shot and killed a man were inadmissible in a federal civil action brought by the family of the deceased.
Thus, Jaffee resolved the split in the federal сourts. In reaching its decision, the majority reiterated that an “uncertain privilege” was “little better than no privilege at all.” Id. at 18, 116 S.Ct. 1923. The Court also recognized that the privilege was absolute, rejecting the balancing test applied by the Court of Appeals in the Jaffee case. Id. at 17, 116 S.Ct. 1923. The Court concluded:
Although it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for еxample, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.
Id. at 18 n. 19, 116 S.Ct. 1923.
Prior to Jaffee, this Court did not recognize a psychotherapist privilege. United States v. Mansfield, 38 MJ 415 (1993); United States v. Toledo, 25 MJ 270 (1987). After Jaffee was decided, this Court stated in dicta in United States v. English, 47 MJ 215, 216-17 (1997):
Although the Manual for Courts-Martial does not recognize a general doctor-patient or psychotherapist-patient privilege, there is a limited privilege under
Mil.R.Evid. 302 ... covering statements made during anexamination into the mental condition of the accused under RCM 706.
(Footnote omitted.)
All of the service courts that have addressed this issue post-Jaffee (including this case) have recognized that the President has occupied the field and that
The President‘s use of the term, “physician,” in
A psychotherapist-patient privilege would be contrary to and inconsistent with
The President adopted
Rule 513. Psychotherapist-patient privilege
(a) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient‘s mental or emotional cоndition.
This Rule demonstrates the President‘s continued commitment to occupy the field by: (1) not relying on
Rather than a case-by-case examination of the scope of the Rule as in the federal civilian sector, the President has set forth in detail the psychotherаpist privilege for the military. This includes defining the holders of the privilege, the nature of the privilege, and the nature of privileged information.
Appellant argues that beсause the President has now established a psychotherapist privilege without changing the language of
There is no reason that the cases falling in category (2) have the benefit of an unrestricted privilege. The approach we have taken recognizes that prior to Jaffee there was no privilege. Post-Jaffee and prior to adoption of
Therefore, we hold that the statements to Dr. Alfano, a medical doctor, were not privileged.
The decision of the United States Army Court of Criminal Appeals is affirmed.
SULLIVAN, Judge (concurring in part and in the result):
The question before us is whether appellant‘s June 1996 statements to Doctor Alfano (a civilian psychiatrist in government employment) were privileged and thus inadmissible at his court-martial in January of 1997. These statements were made by appellant while he was hospitalized at Landstuhl Regional Medicаl Center in Germany for a self-inflicted gunshot wound to his stomach which had earlier caused his transfer back from Bosnia where he was deployed. Doctor Alfano‘s purpose in treating appellant was to develop a disposition plan, i.e., to determine whether he should be returned to duty or returned to the United States for further treatment. (R. 75) The doctor‘s primary focus was to determine appellant‘s level of “suicidality.” (id.) The doctor testified that appellant said he was “not suicidal” but was “distressed” over his wife‘s “affair with another soldier” and wanted to return to Germany to get his family back together. (R. 75-76)
The lead opinion affirms the judge‘s denial of defense counsel‘s motion to suppress Doctor Alfano‘s testimony because it was privileged under Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). It does so on the basis that
The dissenters, implicitly renouncing our case law, have concluded that
I am not persuaded by the dissenters that our prior case law (holding that
(4) when a psychotherapist or assistant to a psychotherapist believes that a patient‘s mental or emotional condition makes the patient a danger to any person, including the patient[.]
In my view, appellant‘s case (a suicide review) fits in this category * and thus I conclude that no privilege existed even under the dissenters’ approach to this case. Accordingly, I vote to affirm.
GIERKE, Judge, with whom COX, Senior Judge, joins (dissenting):
The Supreme Court, the President, all 50 States, and the District of Columbia all agree that communications between a psychiatrist and a patient are privileged.
In my view, the majority‘s decision is contrary to the common law as well as
psychiatrist and a patient. See Jaffee v. Redmond, supra. Obviously, recognition of the privilege has been determined by the President to be “practicable,” because he expressly made it applicable to courts-martial by promulgating
The majority concludes that because Dr. Alfano is also a physician,
The Supreme Court recognized in Jaffee that there is a fundamental difference between treatment by a physician and a psyсhiatrist. The Supreme Court explained how the two differ:
Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears....
518 U.S. at 10, 116 S.Ct. 1923. When the President promulgated
In the instant case, the review by Dr. Alfano was to determine whether to return appellant to Bosnia or to send him back to the United States for treatment.
In my view, there is no justification in law or policy for denying appellant the protection of the common-law privilege reсognized by the Supreme Court in Jaffee. I would hold that under