U.S. v. Mellette, 82 M.J. 374

Core Criminal Law Subjects: Evidence: Generally

1. as the promulgator of the Military Rules of Evidence, the President has both the authority and the responsibility to balance an accused’s right to access information that may be relevant to his defense with a witness’s right to privacy

Core Criminal Law Subjects: Evidence: Privileges › Generally

1. evidentiary privileges must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth
2. as the promulgator of the Military Rules of Evidence, the President has both the authority and the responsibility to balance a defendant’s right to access information that may be relevant to his defense with a witness’s right to privacy

Core Criminal Law Subjects: Evidence: Privileges › Attorney-client

1. the attorney work-product privilege is separate and distinct from the attorney-client privilege; the attorney-client privilege is the protection that applicable law provides for confidential attorney-client communications, while the work-product protection is the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial
2. although the military’s attorney-client privilege (MRE 502) protects confidential communications made for the purpose of facilitating the rendition of professional legal services, an entirely separate provision, RCM 701(f), protects attorney-work product; that provision expressly shields from disclosure or production notes, memoranda, or similar working papers prepared by counsel and counsel’s assistants and representatives
3. under MRE 502, the attorney-client privilege prevents the disclosure of what an attorney advised a client to do, but it does not prevent the disclosure of what the client actually did or did not do in response to that advice

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

1. the psychotherapist-patient privilege under MRE 513 protects not only confidential communications, but diagnoses and treatment plans contained within medical records
2. by its terms, MRE 513 protects confidential communications between a patient and a psychotherapist made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition
3. however, the plain language of MRE 513 does not protect medical records that contain diagnoses and treatment; the phrase “communication made between the patient and a psychotherapist” does not naturally include other evidence, such as routine medical records, that do not memorialize actual communications between the patient and the psychotherapist
4. under MRE 513, documents that are not themselves communications may be partially privileged to the extent that those records memorialize or otherwise reflect the substance of privileged communications
5. to the extent testimonial or documentary evidence reveals what MRE.513 expressly protects, that is, confidential communications, that evidence is partially protected
6. although MRE 513 prevents a witness from being required to disclose the substance of the communications between a patient and a psychotherapist, it does not extend to all evidence that might reveal a patient’s diagnoses and treatments
7. in this case involving the alleged sexual abuse of a child, the psychotherapist-patient privilege under MRE 513 did not protect from disclosure the alleged victim’s mental health care records insofar as they included the dates visited to a mental health provider, the treatment provided and recommended, and her diagnosis where they may have involved key areas of concern that pertain to the very essence of witness credibility and reliability, that is potential defects in capacity to understand, interpret, and relate events
8. the President has the authority, within the limits of the Confrontation Clause, to define the scope of the patient-psychotherapist privilege as broadly as he sees fit

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

1. an appellate court reviews questions regarding the scope of the patient-psychotherapist privilege established by the Military Rules of Evidence de novo
2. when construing the Military Rules of Evidence, an appellate court applies the standard principles of statutory construction; when the language of a rule is susceptible to only one interpretation, it enforces the rule according to its terms; but when a rule’s language is ambiguous, it interprets that language within the broader context of the rule