U.S. v. Clark, 62 M.J. 195

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Generally

1. generally, in the absence of a privilege, any relevant statement by an accused could be admitted into evidence by the government as a statement of a party opponent

Core Criminal Law Subjects: Evidence: Privileges › Mental examination

1. any statement made by the accused during the sanity review process or any derivative evidence obtained through use of such a statement is confidential and may not be admitted into evidence; however, there is no privilege when the accused first introduces into evidence any qualifying statements or derivative evidence
2. in federal civilian courts, if a defendant presents an insanity defense with expert witnesses to confirm his infirmity, the prosecution may compel the defendant to submit to a psychiatric evaluation by the government; the medical expert who examined the accused may testify only to his conclusions and their basis and cannot reveal the contents of any statements the accused made during the examination because the defendant is still protected by the doctor-patient privilege; court-martial practice has a similar process to protect statements to a sanity board but different rules pertain; MRE 302 (mental examination privilege) guarantees a servicemember a right to confidentiality comparable to a civilian under Fed. R. Crim. P. 12.2(c)(4); the military accused often must rely on military doctors for evaluation and treatment; but there is generally no doctor-patient privilege in the military; as a result, the prosecution could retrieve any records of medical diagnosis or treatment; MRE 302 was implemented to provide a form of testimonial immunity intended to protect an accused from the use of anything he might say during a mental examination ordered under RCM 706 (the sanity board process); MRE 302 does not distinguish between a psychiatric evaluation ordered by the government and an evaluation requested by the defense
3. the creation of MRE 302 was purely to protect the privilege against self-incrimination of an accused undergoing a mental examination; accordingly, MRE 302 includes a provision that generally prohibits use of any derivative evidence of an accused’s statements to the sanity board to determine guilt or innocence or during the sentencing phase of a court-martial; however, there is no privilege under this rule when the accused first introduces into evidence such statements or derivative evidence
4. MRE 302 was specifically drafted to allow the defense to control whether an accused’s statements to a sanity board would be released to the prosecutors and presented at the court-martial; if the defense does not allege insanity at court-martial, or does so only through lay testimony, the sanity board report will not be provided to the prosecution; but if the defense offers expert testimony concerning the mental condition of the accused, the military judge shall compel the defense to release to the prosecution the full contents, other than any statements made by the accused, of the sanity board report; if the accused presents a defense, however, which includes specific incriminating statements made by the accused to the sanity board, the military judge may order disclosure to the trial counsel of such statement as may be necessary in the interest of justice
5. in this case, although the defense chose to present an insanity defense, the defense did not waive the MRE 302 right of confidentiality applicable to the accused’s statements to the sanity board by presenting the testimony of a psychiatric expert who admitted that she had reviewed the sanity board’s report before testifying in support of the accused’s insanity defense, where the expert’s opinion relied only on her own treatment of the accused and where the expert’s testimony did not otherwise mention or allude to the report or any of the accused’s incriminating statements in that report; the defense counsel’s direct examination of the expert was not derivative evidence
6. where the accused’s defense counsel did not trigger MRE 302’s exception permitting disclosure by first introducing derivative evidence, the military judge erred by releasing the accused’s privileged sanity board statements to the government and allowing the government to admit the accused’s statements into evidence

Core Criminal Law Subjects: Evidence: Privileges › Psychotherapist-patient privileges

1. MRE 513 provides for a psychotherapist-patient privilege for the military justice system; the rule allows a patient the privilege to refuse to disclose, or allow another to disclose, a confidential communication between the patient and a psychotherapist; but this rule is not a physician-patient privilege; rather, it is based on the social benefit of confidential counseling, and similar to the clergy-penitent privilege; MRE 513 intends to safeguard statements made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition; an exception to MRE 513, however, eliminates the privilege when an accused offers statements or other evidence concerning his mental condition in defense, extenuation, or mitigation
2. where the accused presents an insanity defense, he cannot claim a psychotherapist-patient privilege under MRE 513

Trial Stages: Appeals: Harmless / Prejudicial Error

1. to evaluate the prejudice from a military judge’s erroneous evidentiary ruling on the merits, an appellate court considers (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question
2. in this case, a military judge’s error in releasing and admitting into evidence an accused’s privileged statements to a sanity board had a substantial influence on the findings, requiring reversal, where the accused was prejudiced by the government’s later use of those statements to rebut his claims of diminished mental responsibility and where the government’s case relied heavily on the improper use of those statements by the sole member of the sanity board; the accused’s insanity defense may have succeeded if the military judge had not released the privileged statements to the government and allowed the prosecution to use them to the accused’s detriment

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s error in releasing and admitting into evidence an accused’s privileged statements to a sanity board is not a constitutional error; because the accused requested the sanity board, he may not claim a Fifth Amendment violation because the government did not compel his appearance at the board
2. for nonconstitutional errors, the government must demonstrate that the error did not have a substantial influence on the findings; an appellate court’s consideration cannot be merely whether there was enough to support the result, aside from the military judge’s error; it must also examine whether the error itself had substantial influence

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. it is a general rule of statutory construction that if the statute is clear and unambiguous, a court may not look beyond it but must give effect to its plain meaning