U.S. v. Beauge, 82 M.J. 157

First Principles: Constitutional Matters: Confrontation

1. the right to cross-examine a witness for impeachment purposes has constitutional underpinnings because of the right to confront witnesses under the Sixth Amendment and the due process right to present a complete defense

First Principles: Constitutional Matters: Due Process

1. the right to cross-examine a witness for impeachment purposes has constitutional underpinnings because of the right to confront witnesses under the Sixth Amendment and the due process right to present a complete defense

First Principles: Constitutional Matters: Right to Present a Defense

1. the right to cross-examine a witness for impeachment purposes has constitutional underpinnings because of the right to confront witnesses under the Sixth Amendment and the due process right to present a complete defense

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion, an appellant must show that there is a reasonable probability that such a motion would have been meritorious, and a reasonable probability is one sufficient to undermine confidence in the outcome
2. in this case, trial defense counsel was not ineffective in failing to raise an evidence-of-child-abuse exception to the MRE 513 psychotherapist-patient privilege in addition to the duty-to-report exception that counsel did raise with respect to an accused charged with the sexual abuse of a child where the two exceptions were effectively coterminous because applicable Florida law required the reporting of any knowledge or suspicion that a child was the victim of sexual abuse
3. in this case, trial defense counsel was not ineffective for failing to raise a constitutional objection based on the right to confront witnesses under the Sixth Amendment or the due process right to present a complete defense in seeking to obtain communications between a psychotherapist and the child victim that were protected by the psychotherapist-patient privilege in MRE 513 where neither claim would have been supported by existing case law

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge properly denied in camera review of a victim’s psychiatric records under MRE 513(e) where appellant failed to make a preliminary showing, by a preponderance of the evidence, of a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the psychotherapist-patient privilege set forth in MRE 513

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

1. in this case, because the communications between the victim and her psychotherapist were confidential and were made for the purpose of diagnosing or treating a mental or emotional condition, the communications were privileged under MRE 513 unless they fell within an enumerated exception
2. broadly speaking, MRE 513(a) establishes a privilege that allows a patient to refuse to disclose confidential communications between the patient and his or her psychotherapist if those communications were made for the purpose of diagnosing or treating the patient’s mental or emotional condition
3. MRE 513(d)(3) creates a duty-to-report exception to the MRE 513(a) psychotherapist-patient privilege when a service regulation or state or federal law imposes a duty on the psychotherapist to report certain information derived from those communications, such as when the patient alleges child sexual abuse
4. the duty-to-report exception of MRE 513(d)(3) makes discoverable the information that was required to be reported to state authorities, but that exception, standing alone, does not make discoverable the underlying confidential communications between the patient and the psychotherapist
5. MRE 513(d)(2) creates an evidence-of-child-abuse exception to the MRE 513(a) psychotherapist-patient privilege when the communication is evidence of child abuse or of neglect, or in a proceeding in which one spouse is charged with a crime against a child of either spouse
6. MRE 513(e) provides the procedure that must be followed when a party seeks to discover information pursuant to any of the enumerated exceptions; first, the moving party must file a written motion seeking an interlocutory ruling by the military judge; then, before ordering the production or admission of evidence of a patient’s records or communication, the military judge must conduct a closed hearing to discuss the merits of the issue; if in camera review of the records or communications sought is necessary to rule on the production or admissibility of protected records or communications, the military judge may conduct such a review; however, prior to conducting an in camera review, the military judge must find by a preponderance of the evidence that the moving party showed: (1) a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the privilege; (2) that the requested information meets one of the enumerated exceptions under subsection (d) of the rule; (3) that the information sought is not merely cumulative of other information available; and (4) that the party made reasonable efforts to obtain the same or substantially similar information through non-privileged sources; if, after the completion of this hearing and review process, the military judge decides that the party seeking to compel production has met this burden, the military judge may order production or disclosure of the requested records or communications; any such production or disclosure, however, must be narrowly tailored to only the specific records or communications, or portions of such records or communications, that meet the requirements for one of the enumerated exceptions to the privilege
7. the duty-to-report exception contained in MRE 513(d)(3) is facially ambiguous when viewed in isolation; although MRE 513(d)(3) describes the circumstances in which the privilege is vitiated, it does not expressly state the scope and effect of that vitiation; that is, the exception specifies when it applies, but it does not specify in what manner and to what extent it applies; accordingly, an appellate court must interpret it in light of the broader context of the rule; in doing so, the court must keep in mind that the provisions of MRE 513 were crafted to balance the interest of a victim in having private communications protected, the interest of an accused in having potentially exculpatory material disclosed, and the interest of the military in facilitating access to information that bears on the well-being of its servicemembers and the integrity of its operations
8. the psychotherapist-patient privilege provided by MRE 513 applies not only to confidential patient-psychotherapist communications but also to legally required reports to state authorities
9. the language of the duty-to-report exception of MRE 513(d)(3) should be read to mean that the privilege is vitiated only in regard to the specific information that was contained in the communication to state authorities and was required by law or regulation to be reported; and to be clear, the exception would not allow the discovery of information beyond what is required to be reported; for example, if a psychotherapist reports to state authorities irrelevant confidential communications by a patient in the course of reporting the required information, the privilege would not be vitiated as to the irrelevant information because the irrelevant information was not subject to a reporting duty

Core Criminal Law Subjects: Witnesses: Impeachment of

1. the right to cross-examine a witness for impeachment purposes has constitutional underpinnings because of the right to confront witnesses under the Sixth Amendment and the due process right to present a complete defense

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

1. in deciding the correct interpretation of MRE 513, an appellate courts engages in a de novo review of the issue because it is a question of law, and in conducting this de novo review, the court employs principles of statutory construction
2. one fundamental principle of statutory construction is that the plain language of a rule will control unless it leads to an absurd result
3. in determining whether statutory language is plain, an appellate court must look to the language itself, the specific context in which that language is used, and the broader context of the rule as a whole; where only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law, that meaning will prevail
4. the duty-to-report exception contained in MRE 513(d)(3) is facially ambiguous when viewed in isolation; although MRE 513(d)(3) describes the circumstances in which the privilege is vitiated, it does not expressly state the scope and effect of that vitiation; that is, the exception specifies when it applies, but it does not specify in what manner and to what extent it applies; accordingly, an appellate court must interpret it in light of the broader context of the rule; in doing so, the court must keep in mind that the provisions of MRE 513 were crafted to balance the interest of a victim in having private communications protected, the interest of an accused in having potentially exculpatory material disclosed, and the interest of the military in facilitating access to information that bears on the well-being of its servicemembers and the integrity of its operations
5. an appellate court reviews a military judge’s decision to deny a motion for in camera review of a victim’s psychiatric records under MRE 513(e) for an abuse of discretion
6. claims of ineffective assistance are reviewed by an appellate court de novo

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

1. one fundamental principle of statutory construction is that the plain language of a rule will control unless it leads to an absurd result
2. in determining whether statutory language is plain, an appellate court must look to the language itself, the specific context in which that language is used, and the broader context of the rule as a whole; where only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law, that meaning will prevail