Access to Privileged Psychiatric Information for Defendants in the Armed Forces

Military Law Attorney Advising Service Members Throughout the U.S. and the World If you are serving in the armed forces, facing a sexual assault allegation or another type of criminal charge can be a stressful experience. This area of the law can be complicated, and you may need knowledgeable legal representation. Military lawyer Philip D. Cave has over 30 years of experience helping service members facing court-martial or other adverse actions at bases in the U.S. and throughout the world. Attorney Cave understands the nuances that may play a vital role in your case, including complicated Military Rules of Evidence like MRE 513.

The Court of Appeals for the Armed Forces has released its opinion in United States v. Beauge. The court continues denying access to mental health records except in extreme cases.

MRE 513 protects communications between a psychotherapist and patient. Under the Rule, these communications are considered privileged information that cannot be disclosed in a military court of law, except under certain circumstances. Issues involving MRE 513 most commonly arise when a defendant has been accused of committing a sexual offense. If the alleged victim has received mental health treatment, the defendant may request information from the alleged victim’s psychotherapist to be admitted into court. The defendant may want to use the alleged victim’s treatment records to discredit the victim’s testimony, either through inconsistencies regarding the alleged incident or facts showing the victim’s bias, motive to lie, or lack of competency as a witness.

MRE 513 states that psychotherapy records and notes should generally not be used as evidence because of the sensitive nature of mental health treatment and the inherent need for privacy. However, this privilege must sometimes give way to defendants’ constitutional guarantee of cross-examination of witnesses and due process of law. Since MRE 513’s creation in 1999, there has been little appellate court guidance on how exactly to balance MRE 513 with a defendant’s constitutional rights at trial.

Because of this lack of guidance, Major Michael Zimmerman, Judge Advocate of the United States Marine Corps has created an approach he believes is appropriate for determining whether information protected by MRE 513 should be admitted into a court of military law. First, the court must identify the interests of all the parties involved. The court must consider society’s interest in encouraging mental health treatment and a patient’s interest in confidentiality. The court must also consider the government’s interest in prosecuting a crime, as well as a defendant’s interest in fully exercising his or her constitutional rights at trial. Considering these competing interests should be the foundational step in determining whether the MRE 513 privilege should be upheld.

Second, judges must look to state and federal cases to consider how courts have addressed the balancing of other privileges. Specifically, judges should examine MRE 412 (known as the Rape Shield Law, which protects the personal history and information of a victim alleging a sexual offense). A review of these cases reveals that when defendants are requesting that privileged information be admitted into court, they must request specific evidence and show how the evidence will specifically benefit their case. Defendants may not request comprehensive disclosure of documents based on only a general hunch that the information may help their case.

Also, a judge must ensure that the information that defendants seek is also relevant and material to their defense. If a defendant seeks privileged information for a claim that does not disprove a major element of the crime alleged, for instance, that information may not be relevant or material and may remain protected by MRE 513. Additionally, borrowing from a practice common in MRE 412 analysis, a judge must determine whether the information sought would be more probative than prejudicial, if revealed. Privileged information cannot be used simply to disparage the victim. The information sought must be substantive enough to help the fact finder in determining the guilt or innocence of a defendant. Judges should also determine whether there is a necessity for disclosing the privileged information. There is a necessity when the information sought cannot be obtained through another, less invasive source. If the information can be obtained another way, there is no need to reveal the privileged information.

The third consideration regarding MRE 513 is correctly following established procedure. There must be a hearing, and the requesting party, usually the defendant, must show that there is a reasonable likelihood that the requested records will contain information different from and not available through other evidence and that not accessing the evidence would violate the defendant’s constitutional rights at trial. If the defendant can meet this “reasonable likelihood” standard, a judge should review the confidential documents in chambers and only allow the communications that specifically establish the evidence that the defendant seeks.

In a recent case, Mr. Cave was able to persuade the military judge that a review of mental health records was necessary. The alleged victim was claiming memory loss for the events of the crime due to alcohol. The victim was being treated for a mental health issue. Mr. Cave was able to establish a direct link between memory loss and the mental health issue. The judge was persuaded that the mental health issue and memory went to a core issue of credibility for the sole witness to the alleged offense. Mr. Cave persuaded the military judge that such evidence was "still constitutionally required."

Military law can be complex, since it is different from the laws that govern civilian interactions. If you are a U.S. service member charged with a sexual assault or a related offense, a military defense attorney who knows the relevant law may be an invaluable aid. Military lawyer Philip D. Cave has helped service members both on American soil and abroad. He has represented individuals stationed at bases such as Norfolk in Virginia, Fort Bragg in North Carolina, and Fort Hood in Texas. Attorney Cave also represents military personnel in countries such as Italy, Germany, Spain, England, Korea, and Japan. To schedule a free initial consultation, call 800-401-1583 or fill out our contact form on this website.