H.V.Z. v. U.S. and Fewell, 85 M.J. 8

Military Justice Personnel: Military Judge: Generally

1. in this case, the military judge did not commit clear and indisputable error when he determined that the victim's health and mental health records were in the possession, custody, or control of military authorities for the purposes of RCM 701(a)(2) allowing the defense to inspect any documents in the possession, custody, or control of military authorities; the medical treatment facility that held the records was located on a military base that served active duty military members, retirees, and their families, was commanded by a military officer, and its mission included military readiness; considering the deference afforded to the military judge in the procedural posture of this case, the plain meaning of military authorities can be construed to include this medical treatment facility
2. in this case, under MRE 513(e), the military judge was required to provide the victim with the opportunity to be heard on the production of her mental health records, and his conclusion that the victim lacked standing to oppose the production of her medical and mental health records amounted to clear and indisputable error

Military Justice Personnel: Victim: Generally

1. Article 6b, UCMJ, guarantees certain rights to victims of UCMJ offenses and establishes procedures for the vindication of those rights; when a victim believes that a military judge's ruling violates her Article 6b rights; Article 6b(e)(1), UCMJ, authorizes the victim to immediately petition the relevant CCA for a writ of mandamus ordering the trial court to comply with Article 6b, UCMJ; Article 6b, UCMJ, does not specify a victim petitioner's burden of proof when seeking a writ of mandamus from the CCA, but to prevail on a writ of mandamus, a petitioner generally must show that: (1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances
2. in Article 6b(e), UCMJ, Congress granted victims of UCMJ offenses the opportunity to petition the CCA for a writ of mandamus, but it did not dictate a burden of proof that those victims must establish to obtain a writ; in the absence of a legislative directive establishing otherwise, there is no basis for an appellate court to deviate from the ordinary burden imposed on writ petitioners, which it may be presumed that Congress understood and intended to have apply
3. a victim is required to establish a clear and indisputable right to a writ of mandamus
4. in this case, the military judge did not commit clear and indisputable error when he determined that the victim's health and mental health records were in the possession, custody, or control of military authorities for the purposes of RCM 701(a)(2)(A) allowing the defense to inspect any documents in the possession, custody, or control of military authorities; the medical treatment facility that held the records was located on a military base that served active duty military members, retirees, and their families, was commanded by a military officer, and its mission included military readiness; considering the deference afforded to the military judge in the procedural posture of this case, the plain meaning of military authorities can be construed to include this medical treatment facility
5. in this case, under MRE 513(e), the military judge was required to provide the victim with the opportunity to be heard on the production of her mental health records, and his conclusion that the victim lacked standing to oppose the production of her medical and mental health records amounted to clear and indisputable error

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

1. (MRE 513(e) establishes mandatory minimum procedures to protect the privacy rights of patients with respect to the production or admission of their mental health records; as relevant to this case, MRE 513(e)) required (1) that the party seeking the ruling from the military judge file a written motion at least five days prior to entry of pleas specifically describing the evidence to be produced and stating the purpose for which it is sought, (2) that the moving party serve the motion on the opposing party and the military judge and to notify the patient or her representative that the motion has been filed, and (3) that the patient had the opportunity to be heard on the motion)
2. M.R.E. 513(e)(2) specifically requires that prior to ordering the production of a patient's mental health records, the military judge conduct a closed hearing and the patient be afforded a reasonable opportunity to attend the hearing and be heard; the rule further requires that the victim's right to be heard includes the right to be heard through counsel, including special victims' counsel
3. just because a mental health record is not privileged under MRE 513(a), does not mean that it is excluded from the procedural protections provided by MRE 513(e); even if the patient's medical records are not privileged under MRE 513(a), the production or admission of those records is still subject to the procedural requirements of M.R.E. 513(e)
4. in this case, under MRE 513(e), the military judge was required to provide the victim with the opportunity to be heard on the production of her mental health records, and his conclusion that the victim lacked standing to oppose the production of her medical and mental health records amounted to clear and indisputable error

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Presumptions

1. when interpreting legislation, an appellate court has long presumed two things: that Congress knows the law, and that Congress selected the language that it intended to apply

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. when interpreting legislation, an appellate court has long presumed two things: that Congress knows the law, and that Congress selected the language that it intended to apply

Trial Stages: Pretrial: Discovery

1. RCM 701(a)(2)(A) allows the defense to inspect any books, papers, documents, data or copies of portions of these items, if the item is in the possession, custody, or control of military authorities, and meets certain other requirements; similarly, RCM 701(a)(2)(B) gives the defense access to the results or reports of physical or mental examinations which are within the possession, custody, or control of military authorities and meet certain other requirements
2. trial counsel cannot avoid RCM 701(a)(2)(A) by leaving evidence with a nonmilitary agency and continuing to use it at their own discretion during trial preparations; evidence might still be within the control or constructive custody of military authorities even if it is not strictly within their possession or actual custody; it matters not whether the item is within the possession, custody, or control of the prosecution team; the issue is whether it is in the possession, custody, or control of military authorities
3. in this case, the military judge did not commit clear and indisputable error when he determined that the victim's health and mental health records were in the possession, custody, or control of military authorities for the purposes of RCM 701(a)(2) allowing the defense to inspect any documents in the possession, custody, or control of military authorities; the medical treatment facility that held the records was located on a military base that served active duty military members, retirees, and their families, was commanded by a military officer, and its mission included military readiness; considering the deference afforded to the military judge in the procedural posture of this case, the plain meaning of military authorities can be construed to include this medical treatment facility
4. in this case, under MRE 513(e), the military judge was required to provide the victim with the opportunity to be heard on the production of her mental health records, and his conclusion that the victim lacked standing to oppose the production of her medical and mental health records amounted to clear and indisputable error

Trial Stages: Writs and Interlocutory Appeals: Generally

1. Article 6b, UCMJ, guarantees certain rights to victims of UCMJ offenses and establishes procedures for the vindication of those rights; when a victim believes that a military judge's ruling violates her Article 6b rights; Article 6b(e)(1), UCMJ, authorizes the victim to immediately petition the relevant CCA for a writ of mandamus ordering the trial court to comply with Article 6b, UCMJ; Article 6b, UCMJ, does not specify a victim petitioner's burden of proof when seeking a writ of mandamus from the CCA, but to prevail on a writ of mandamus, a petitioner generally must show that: (1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances
2. in Article 6b(e), UCMJ, Congress granted victims of UCMJ offenses the opportunity to petition the CCA for a writ of mandamus, but it did not dictate a burden of proof that those victims must establish to obtain a writ; in the absence of a legislative directive establishing otherwise, there is no basis for an appellate court to deviate from the ordinary burden imposed on writ petitioners, which it may be presumed that Congress understood and intended to have apply
3. a victim is required to establish a clear and indisputable right to a writ of mandamus
4. to justify reversal of a discretionary decision by mandamus, the judicial decision must amount to more than even gross error; it must amount to a judicial usurpation of power, or be characteristic of an erroneous practice which is likely to recur
5. in this case, the military judge did not commit clear and indisputable error when he determined that the victim's health and mental health records were in the possession, custody, or control of military authorities for the purposes of RCM 701(a)(2) allowing the defense to inspect any documents in the possession, custody, or control of military authorities; the medical treatment facility that held the records was located on a military base that served active duty military members, retirees, and their families, was commanded by a military officer, and its mission included military readiness; considering the deference afforded to the military judge in the procedural posture of this case, the plain meaning of military authorities can be construed to include this medical treatment facility
6. in this case, under MRE 513(e), the military judge was required to provide the victim with the opportunity to be heard on the production of her mental health records, and his conclusion that the victim lacked standing to oppose the production of her medical and mental health records amounted to clear and indisputable error

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

1. a petitioner's burden when seeking a writ under Article 6b(e), UCMJ, is a question of law that an appellate court review de novo
2. an appellate court reviews questions of statutory interpretation de novo
3. when interpreting legislation, an appellate court has long presumed two things: that Congress knows the law, and that Congress selected the language that it intended to apply
4. in Article 6b(e), UCMJ, Congress granted victims of UCMJ offenses the opportunity to petition the CCA for a writ of mandamus, but it did not dictate a burden of proof that those victims must establish to obtain a writ; in the absence of a legislative directive establishing otherwise, there is no basis for an appellate court to deviate from the ordinary burden imposed on writ petitioners, which it may be presumed that Congress understood and intended to have apply; accordingly, to prevail on a writ of mandamus, a petitioner generally must show that: (1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances
5. a victim is required to establish a clear and indisputable right to a writ of mandamus
6. the interpretation of provisions of the RCM are questions of law that an appellate court reviews de novo
7. to justify reversal of a discretionary decision by mandamus, the judicial decision must amount to more than even gross error; it must amount to a judicial usurpation of power, or be characteristic of an erroneous practice which is likely to recur
8. whether a victim has standing to litigate a motion to compel her medical and mental health records is a question of law that an appellate court reviews de novo

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

1. an appellate court reviews questions of statutory interpretation de novo
2. when interpreting legislation, an appellate court has long presumed two things: that Congress knows the law, and that Congress selected the language that it intended to apply
3. the interpretation of provisions of the RCM are questions of law that an appellate court reviews de novo