Lead Opinion
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 Article 134, Uniform Code of Military Justice, 10 USC § 934. The convening authority approved the sentence of a dishonorable discharge, 354 days’ confinement, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence.
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.
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 trеated 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 [,]”
The military judge denied appellant’s motion to suppress this evidence because under Mil.R.Evid. 501, Manual for Courts-Martial, United States (1998 ed.), and Article 36, UCMJ, 10 USC § 836, the federal psychotherapist-patient privilege “is not applicable” to the military.
DISCUSSION
The issue in this ease 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 Federal Rules of Evidence and the Military Rules of Evidence.
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 noneonstitutionаl 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 Fed.R.Evid. 501:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme 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 privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
The Rules, as revised by Congress, werе 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 Art. 36. Under this authority, the President promulgated the Military Rules of Evidence in 1980, which were based upon the Federal Rules of Evidence, subject to exceptions based upon practicability and conformance with the Uniform Code of Military Justice. See Drafter’s Analysis of Mil.R.Evid. 501, Manual, supra (1998 ed.) at A22-37.
The President, in the Military Rules of Evidеnce, 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 cоnjunction 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 authоrities, 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 Mil.R.Evid. 501, Manual, supra (1998 ed.) at A22-37. The privileges set forth by the President “provide the certainty and stability necessary for military justice.” Id.
In United States v. Scheffer,
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.
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 Mil.R.Evid. 501 is constitutional and an appropriate exercise of the President’s authority under Article 36. We hold that Mil.R.Evid. 501 “is a rational and proportional means of advancing the legitimate interests of the military.” See
Mil.R.Evid. 501 provides in part:
(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 dоes 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 Mil.R.Evid. 502-509 establish the stability necessary for military justice, the President, in promulgating Mil. R.Evid. 501, provided a modest degree of flexibility in the application of federal common-law privileges to courts-martial. Drafter’s Analysis of Mil.R.Evid. 501, Manual, supra (1998 ed.) at A22-37. Mil.R.Evid. 501(a)(4) adopts the privileges recognized at common law pursuant to Fed.R.Evid. 501, insofar as “practicable and not contrary to or inconsistent with” the Code, the Military Rules of Evidence, or the Manual for Courts-Martial. Appellant asserts that it is
At the outset, it is necessary to review the state of the law when the President issued Mil.R.Evid. 501. Prior to Jaffee, “all 50 states and the District of Columbia” recognized “some form of psychotherapist privilege.”
The Court in Jaffee examined Fed.R.Evid. 501 which “authorizes federal courts to define new privileges by interpreting ‘common law principles ... in the light of reason and experience.’ ”
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 courts. In reaching its decision, the majority reiterаted that an “uncertain privilege” was “little better than no privilege at all.” Id. at 18,
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 example, if a serious threat of harm to the pаtient or to others can be averted only by means of a disclosure by the therapist.
Id. at 18 n. 19,
Prior to Jaffee, this Court did not recognize a psychotherapist privilege. United States v. Mansfield,
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 an*160 examination 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 Presidеnt has occupied the field and that Mil.R.Evid. 501(d) precludes application of doctor-patient or psychotherapist-patient privilege to the military. United States v. Paaluhi,
The President’s use of the term, “physician,” in Mil.R.Evid. 501(d) includes psychiatrists and medical officers which include a broad range of military personnel who were not physicians, including those who are psychotherapists. The psychotherapist privilege is not a privilege required by the Constitution of the United States. See Mil.R.Evid. 501(a)(1). Nor is it a privilege required by statute. See Mil.R.Evid. 501(a)(2).
A psychotherapist-patient privilege would be contrary to and inconsistent with Mil. R.Evid. 501(d). As we have said, the term “physician” includes a psychiatrist.
The President adopted Mil.R.Evid. 513 on October 6, 1999. Executive Order No. 13140, § 2a, 64 Fed.Reg. 55116 (1999), effective for “communications made after 1 November 1999.” 64 Fed.Reg. 55120. This Rule provides in pertinent part:
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 pаtient’s mental or emotional condition.
This Rule demonstrates the President’s continued commitment to occupy the field by: (1) not relying on Mil.R.Evid. 501(a)(4); and (2) adopting a Rule that does not literally incorporate Jaffee. Instead, Mil.R.Evid. 513 applies a more limited approach to the statements of Dr. Alfano, a civilian psychiatrist/physieian working for the military.
Rather than a case-by-case examination of the scope of the Rule as in the federal civilian sector, the Prеsident has set forth in detail the psychotherapist privilege for the military. This includes defining the holders of the privilege, the nature of the privilege, and the nature of privileged information. Mil.R.Evid. 513(b). Additionally, the Rule sets forth various exceptions, e.g., spousal-child-abuse exception, Mil.R.Evid. 513(d)(2); danger exception, Mil.R.Evid. 513(d)(4); crime-fraud exception, Mil.R.Evid. 513(d)(5); and military-mission exception, Mil.R.Evid. 513(d)(6). The Rule also sets forth the procedures to be applied in identifying what might be privileged, what is subject to in camera inspеction, together with various notice provisions and what constitutes waiver. Mil.R.Evid. 513(e).
Appellant argues that because the President has now established a psychotherapist privilege without changing the language of Mil.R.Evid. 501(d), the term “physicians” used in that section must not have included “psychotherapists.” On the contrary, the President established Mil.R.Evid. 513 as a separate rule from Mil.R.Evid. 501(d), creating a limited psychotherapist privilege, “based on the social benefit of confidentiаl counseling recognized by Jaffee.” 64 Fed. Reg. 55122 (Drafters’ Analysis of Mil.R.Evid. 513). The approach taken by the dissent
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 Mil.R.Evid. 513, there was still no psychotherapist-patient privilege in the military because it was contrary to Mil.R.Evid. 501(d). When the President promulgated Mil.R.Evid. 513, he did not simply adopt Jaffee; rather, he created a limited psychotherapist privilege for the military. In the absence of a constitutional or statutory requirement to the contrary, the decision as to whether, when, and to what degree Jaffee should apply in the military rests with the President, not this Court.
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.
Notes
. The Military Rules of Evidence are contained in Part III of the Manual for Courts-Martial, United States (1995 ed.)(the edition applicable at appellant’s court-martial). The then-enumerated privileges that parallel the 1969 Proposed Federal Rules of Evidence,
. See, e.g., United States v. Burtrum,
. See, e.g., In re Doe,
. In cоntrast, Article 31, UCMJ, 10 USC § 831, does recognize the right to remain silent and the right not to be compelled to incriminate oneself.
. Dr. Alfano was a physician. The dissent’s position is inconsistent, in that it recognizes that a psychiatrist is a physician, but then later asserts that Dr. Alfano was not working as a physician while working as a psychiatrist.
Concurrence Opinion
(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 Medical 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 furthеr 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,
The dissenters, implicitly renouncing ornease law, have concluded that Mil.R.Evid. 501(d) does not preclude a psychotherapist-patient privilege. See generally United States v. Demmings,
I am not persuaded by the dissenters that our prior case law (holding that Mil.R.Evid. 501(d) includes psychiatrists) should be overturned. See United States v. Scalarone,
(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
The suicide review would equally he covered by Mil.R.Evid. 513(d)(6). It provides an exception which arises
(6) when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission!.] 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.
Dissenting Opinion
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. Mil.R.Evid. 513; Jaffee v. Redmond,
In my view, the majority’s decision is contrary to the common law as well as Article 36, UCMJ, 10 USC § 836, and Mil.R.Evid. 501(a)(4), which enjoin courts-martial to follow “principles of common law generally recognized in the trial of criminal cases in United States district courts pursuant to rule 501 of the Federal Rules of Evidence,” to the extent practicable. Those “principles of common law” recognize the privilege between a psychiatrist and a patient. See Jaffe v. Redmond, supra. Obviоusly, recognition of the privilege has been determined by the President to be “practicable,” because he expressly made it applicable to courts-martial by promulgating Mil.R.Evid. 513.
The majority concludes that because Dr. Alfano is also a physician, Mil.R.Evid. 501(d) is dispositive. The majority overlooks the fact that appellant’s disclosures to Dr. Alfano were in his capacity as a psychiatrist, not as a physician. A “psychiatrist” is defined as “[a] physician especially'learned in psychiatry.” 5 J.E. Schmidt, Attorneys’ Dictionary of Medicine 514 (1999). The fact that Dr. Alfano is a physician does not remove the privilege, any more than it would remove the privilege from a communication with a lawyer or a clergyman who also happened to be a physician. The critical issue is the capacity in which the communication was received, not the curriculum vitae of the recipient.
The Supreme Court recognized in Jaffee that there is a fundamental difference between treatment by a physician and a psychiatrist. 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 disclosurе of facts, emotions, memories, and fears....
In my view, there is no justification in law or policy for denying appellant the protection of the common-law privilege recognized by the Supreme Court in Jaffee. I would hold that under Mil.R.Evid. 501(a)(4), appellant was entitled to invoke that common-law privilege. The majority denies him that right. Accordingly, I dissent.