U.S. v. Jenkins, 63 M.J. 426

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

1. MRE 513(a) sets forth the general rule of the psychotherapist-patient 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 condition; MRE 513(b)(4) defines a confidential communication as one not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional services to the patient or those reasonably necessary for such transmission of the communication
2. MRE 513(d) establishes eight specific exceptions to the general psychotherapist-patient privilege; MRE 513(d)(4) states there is no privilege when a psychotherapist believes that a patient’s mental or emotional condition makes the patient a danger to any person, including the patient; MRE(d)(6) further provides there is no privilege when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission
3. the exceptions to the psychotherapist-patient privilege in MRE 513 were drafted to limit the privilege in order to balance the public policy goal of encouraging an individual to seek assistance from a psychotherapist with the specialized society of the military and separate concerns that must be met to ensure military readiness and national security
4. whether the exceptions to the psychotherapist-patient privilege apply is necessarily a fact-specific determination for a military judge to consider with an accurate awareness of the facts underlying the dispute
5. the MRE 513(d)(4) and 513(d)(6) exceptions to the psychotherapist-patient privilege applicable when the psychotherapist believes that a patient’s mental or emotional condition makes the patient a danger to any person or when necessary to ensure the safety and security of military personnel or the accomplishment of a military mission provide adequate and fair notice, informed by case law, as to their potential applicability
6. in this case, the military judge did not abuse his discretion when he determined that appellant’s mental state posed a risk to the safety of others or himself or to the accomplishment of a military mission and that appellant’s statements were not protected by the privilege and were admissible on sentencing, where a clinical psychologist with seventeen years of experience wrote in his evaluation that appellant’s mental health posed a danger to others, and appellant’s actions and his statements to the psychologist during treatment substantiated those findings, especially where when appellant made threats to kill persons while brandishing a fourteen-inch knife

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

1. an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion