U.S. v. Harding, 63 M.J. 65

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

1. the general rule under MRE 513 with respect to the psychotherapist-patient privilege is that 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
2. the psychotherapist-patient privilege rule under MRE 513 contains several exceptions, including a provision stating that there is no privilege when admission or disclosure of a communication is constitutionally required; when there is a dispute concerning the privilege, the rule provides a procedure for obtaining an interlocutory ruling by the military judge; before ordering production or admission of disputed evidence, the military judge must conduct a hearing and shall examine the evidence or a proffer thereof in camera, if such communication is necessary to rule on the motion; the military judge is authorized to issue protective orders and seal pertinent records

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. under Article 62, UCMJ, the government may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specification
2. a government appeal of a military judge’s order to abate the proceedings with respect to a rape charge in a pending court-martial until a warrant of attachment is enforced was not authorized under Article 62, UCMJ, because the military judge’s order did not terminate the proceedings; in fact, the rulings of the military judge in the case demonstrate that he is prepared to move forward with the trial if and when the warrant is executed