Generally:

2021 (October Term)

United States v. Mellette, 82 M.J. 374 (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). 

(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). 

2017 (October Term)

United States v. Harpole, 77 M.J. 231 (the military’s victim advocate-victim privilege (MRE 514) provides that a victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the alleged victim and a victim advocate, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or supportive assistance to the alleged victim; thus, a communication must be confidential to be privileged; a communication is confidential if made in the course of the victim advocate—victim relationship and not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of advice or assistance to the alleged victim or those reasonably necessary for such transmission of the communication). 

(communications made in the presence of third parties, or revealed to third parties, are not generally privileged; however, a privilege still exists if there is a relationship by blood or marriage as well as a commonality of interest between the accused and the third party).

(in this case, the military judge properly concluded that the MRE 514 victim advocate-victim privilege did not apply to appellant’s communication with the victim advocate, where appellant failed to meet his burden of establishing that his statements to the victim advocate were confidential; first, a third party was present during this communication and the record indicates that the third party did not have any special relationship with appellant; rather, the third party was simply appellant’s friend and attended the victim advocate interview for moral support; the mere provision of moral support is not enough to maintain the confidentiality of a statement; second, the record does not support the contention that the third party’s presence at the meeting was in furtherance of the rendition of advice or assistance, that is, for the purpose of facilitating the victim advocate in providing advice or assistance to the victim).

2012 (September Term)

United States v. Jasper, 72 M.J. 276 (where a privilege holder, in the absence of factors like coercion or trickery, affirmatively consents to the disclosure of the privileged communication to a third party, the privilege is waived, regardless of whether the privilege holder was aware that: (1) the communication was privileged, or (2) consenting to the disclosure of the communication waived the privilege).

(under MRE 510(a), a privilege is waived if the person voluntarily discloses or consents to disclosure of any significant part of the matter or communication under such circumstances that it would be inappropriate to allow the claim of privilege).

(the alleged sexual abuse victim and her mother waived the clergy privilege of MRE 503, a privilege that protected the alleged victim’s statement to her pastor that she had made up her sexual abuse allegations against appellant to get attention, where both she and her mother affirmatively granted that pastor permission to disclose their communications to trial counsel, and he did disclose them; waiver under MRE 510(a) does not require that the privilege holder have knowledge that the waived statements would otherwise be privileged, or of how the waived statements will be used; no language appears in MRE 510(a) that requires a knowing and intelligent waiver).   

(testimonial exclusionary rules and privileges contravene the fundamental principle that the public has a right to every man’s evidence; because privileges run contrary to a court’s truth-seeking function, they are narrowly construed; while determining waiver of a privilege is an evaluation that demands a fastidious sifting of the facts and a careful weighing of the circumstances, waiver has never turned on anything more than the requirement set forth in MRE 510(a) that the privilege holder voluntarily discloses or consents to disclosure of any significant part of the matter or communication). 

(waiver of a privilege has been found on nothing more than the privilege holder’s failure to take adequate precautions to maintain confidentiality, and for a privilege to be valid, the privilege holder need not intend to waive the privilege; instead, whether a waiver is valid turns on whether the disclosure was voluntary; MRE 510(a) does not require that a waiver of privilege be made knowingly or intelligently). 

2011 (September Term)

United States v. Morrissette, 70 M.J. 431 (the Fifth Amendment’s privilege against self-incrimination provides that no person shall be compelled in any criminal case to be a witness against himself; however, the privilege against self-incrimination is neither absolute nor inviolate; a grant of testimonial immunity is the minimum grant of immunity adequate to overcome the privilege against self-incrimination provided by the Fifth Amendment to the Constitution and Article 31, UCMJ; neither the testimony of the witness nor any evidence obtained from that testimony may be used against the witness at any subsequent trial). 

(the government may compel a witness to testify under a grant of use or derivative-use immunity contrary to the witness’s Fifth Amendment privilege against self-incrimination; immunity from the use of the compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege). 

(because the purpose of the Fifth Amendment privilege against self-incrimination is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to criminal acts, testimonial immunity only applies to compelled testimony and not all statements made by an accused; further, for a communication to be considered testimonial, it must, explicitly or implicitly, relate a factual assertion or disclose information). 

2008 (September Term)

United States v. Matthews, 68 M.J. 29 (MRE 509 is included in the “Privileges” section of the Military Rules of Evidence, is entitled “Deliberations of courts and juries,” and provides that except as provided in MRE 606, the deliberations of courts and grand and petit juries are privileged to the extent that such matters are privileged in trial of criminal cases in the United States district courts, but the results of the deliberations are not privileged). 

(MRE 606(b) expressly protects the deliberations of court members). 

(given the plain meaning of the word “courts,” it is reasonable to conclude that MRE 509, creating a privilege for “deliberations of courts and grand and petit juries,” applies to military judges). 

(consistent with MRE 101, and the text of MRE 509 itself, and in light of the prevailing federal common law rule that the deliberative process of judges is protected from disclosure, MRE  509, creating a privilege for “deliberations of courts and grand and petit juries,” protects the deliberative process of military judges from disclosure). 

(it is well-settled law that testimony revealing the deliberative thought processes of judges is inadmissible).

(the portions of a trial military judge’s post-trial DuBay factfinding hearing testimony in which he explained his deliberative process and reasoning at a court-martial were unreviewable evidence that could not be considered by a Court of Criminal Appeals). 

(the federal common law protection of the deliberative processes of judges is incorporated into military law through MRE 509, and encompasses military judges sitting alone; although the term “privilege” in this context is ambiguous, it is interpreted in a manner consistent with federal common law, and thus also in a manner consistent with both MRE 509 and MRE 101). 

United States v. Wuterich, 67 M.J. 32 (under MRE 501(a)(4), a privilege may be claimed under the principles of common law generally recognized in the trial of criminal cases in the United States district courts pursuant to Rule 501 of the Federal Rules of Evidence insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the UCMJ, the MREs, or the MCM). 

(even if a qualified newsgathering privilege applied to cases in the military justice system, such a privilege would not preclude an in camera review by the military judge pursuant to RCM 703(f)(4)(C) under the circumstances where the description of the material at issue -- video outtakes from a specific interview in which appellant discussed the events occurring on the date of and in the place of the charged offenses -- is sufficient to meet a threshold showing of necessity for an in camera review; the military judge could not make an evaluation of necessity under the specific circumstances of this case without reviewing the outtakes for content and context).

United States v. Custis, 65 M.J. 366 (privileges should be construed narrowly, as they run contrary to a court’s truth-seeking function). 

(whereas privileges evolve in other federal courts based on case law determinations, in the military system, the privileges and their exceptions are expressly delineated). 

(MRE 510(a) provides that a person waives a privilege if the person discloses any significant part of the matter; voluntary disclosure applies only where the speaker elects to share a substantial portion of a privileged communication with a party outside of the privileged relationship; the overall substance of the conversation must be conveyed to the third party for there to be a waiver of the privilege).

2007

United States v. Taylor, 64 M.J. 416 (testimonial 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 the truth)

2005

United States v. McNutt, 62 M.J. 16 (MRE 606(b), the military evidence rule protecting deliberations of court members from post-trial disclosure, only applies to court members, and thus does not apply to protect the post-trial statements of a military judge who voluntarily disclosed that he considered improper information in determining an accused’s sentence; this holding in no way implies that the mental deliberations of military judges are not protected or that the decision-making processes of military judges are more open to scrutiny than the decision-making processes of members; the court holds only that MRE 606(b) is not the vehicle to protect those mental processes of military judges; to the extent that United States v. Rice, 25 MJ 35 (CMA 1987) and United States v. Gonzalez, 42 MJ 373 (CAAF 1995), conflict with this holding, they are overruled).

Attorney-client:

2021 (October Term)

United States v. Mellette, 82 M.J. 374 (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). 

(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). 

(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). 

2004  

United States v. Marcum, 60 MJ 198 (evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if disclosure was compelled erroneously or was made without an opportunity for the holder of the privilege to claim the privilege; evidence of such a communication should not be received unless it appears that the privilege has been waived by the person or government entitled to the benefit of it or that the evidence comes from a person or source not bound by the privilege; a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is otherwise permitted).

(if an accused is absent without leave, his right to make an unsworn statement is forfeited unless prior to his absence he authorized his counsel to make a specific statement on his behalf; although defense counsel may refer to evidence presented at trial during his sentencing argument, he may not offer an unsworn statement containing material subject to the attorney-client privilege without waiver of the privilege by his client). 

(even though appellant waived his right to be present during sentencing by being voluntarily absent, he did not waive his attorney-client privilege; appellant’s affidavit demonstrates that defense counsel never asked appellant for permission to use the written summary; thus, by submitting appellant’s written summary as an unsworn statement, defense counsel revealed material subject to the attorney-client privilege without receiving an appropriate waiver of this privilege from appellant). 

(civilian defense counsel violated MRE 502 (Lawyer-client privilege) when he submitted a lengthy, unsworn, pretrial statement as a sentencing exhibit without appellant’s consent; this statement was prepared by appellant for his defense counsel to use in preparation for trial, and it depicted in graphic detail appellant’s sexual encounters with members of his Air Force unit; although appellant’s trial testimony recounted much of the same information, this Court concludes that appellant did not waive his right to confidentiality through his trial testimony where the tone and substance of the privileged communication in the unsworn statement was more explicit than his testimony; this Court also concludes that appellant was prejudiced during sentencing when the trial counsel repeatedly used the statement against him in his sentencing argument and defense counsel did not refer to it at all).  

2002

United States v. Pinson, 56 MJ 489 (servicemembers have a right to counsel, including the right to a lawyer appointed free of charge, at the pretrial stage, trial stage, post-trial stage, and the appellate stage, and a concomitant right to confidential communications between the attorney and client).

(any exception to the right to confidential communications between the attorney and client must ensure that there is no chilling effect on defendants freely speaking with their military lawyers).

(interference with the attorney-client privilege does not per se require the drastic remedy of reversal).

(interference with the attorney-client privilege may warrant reversal where the invasion impacted on the attorney’s performance or resulted in the disclosure of privileged information at the time of trial; factors to consider include: (1) whether an informant testified at the accused’s trial as to the conversation between the accused and his attorney; (2) whether the prosecution’s evidence originated in these conversations; (3) whether the overheard conversations was used in any other way to the substantial detriment of the accused; or (4) whether the prosecution learned from the informant the details of the conversations about trial preparations).

(The remedy for an unjustified invasion into the attorney-client relationship in the criminal proceeding is limited to denying the prosecution the fruits of its transgression).

(where agents seized alleged attorney-client privileged documents during a lawful search of appellant’s quarters, appellant failed to carry his burden to show intentional or outrageous government misconduct, such as having no basis for a search, or that he was prejudiced by the disclosure of information).

(reversal is not required for alleged unjustified invasion into the attorney-client relationship where: (1) there was a legitimate search of appellant’s quarters; (2) there was no direct interference with the attorney-client relationship; (3) no direct evidence was used at trial; (4) even though two privileged documents were used to analyze appellant’s handwriting, an individual has no expectation of privacy in his handwriting; and (5) the government’s case was based on independent evidence).

1999

United States v. McClain, 50 MJ 483 (when there is a claim of ineffective representation, a defense counsel can respond to a defendant’s assertions; Mil. R. Evid. 503(d)(3)).

Classified information:

2004

United States v. Schmidt, 60 MJ 1 (MRE 505 is a rule of evidence which enables the Government to assert a privilege against disclosure of classified information; the rule also authorizes limited disclosure under subsection (g)(2) and restrictions on disclosure through the use of protective orders under subsection (g)(1); the rule applies both when the defense seeks to obtain information from the Government and when the defense intends to disclose classified information in connection with a court-martial).

(MRE 505(h)(1) applies only when the defense seeks classified information from the Government or when the defense has determined that it reasonably expects to disclose classified information in the course of a proceeding; the rule does not come into play when the defense is making a preliminary evaluation of the evidence it already possesses to determine what evidence, if any, it may seek to disclose as part of the defense; the rule requires notice to trial counsel and contemplates litigation before the military judge -- an exercise that requires sophisticated legal judgments, evaluation of defense tactics, appropriate procedural devices, and skilled legal advocacy; the rule does not require an accused, without benefit of his own counsel, to engage in adversarial litigation with opposing counsel as a precondition to discussing with defense counsel potentially relevant information which the accused already has personal knowledge of based on his prior authorized access as part of his military duties).

Communications to clergy:

2012 (September Term)

United States v. Jasper, 72 M.J. 276 (MRE 503(a) provides that a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman if such communication is made either as a formal act of religion or as a matter of conscience; the clergy privilege may be claimed by the person, the person’s guardian, or the clergyman on behalf of the person). 

(the alleged sexual abuse victim and her mother waived the clergy privilege of MRE 503, a privilege that protected the alleged victim’s statement to her pastor that she had made up her sexual abuse allegations against appellant to get attention, where both she and her mother affirmatively granted that pastor permission to disclose their communications to trial counsel, and he did disclose them; waiver under MRE 510(a) does not require that the privilege holder have knowledge that the waived statements would otherwise be privileged, or of how the waived statements will be used; no language appears in MRE 510(a) that requires a knowing and intelligent waiver).    

2006

(the clergy privilege reflects respect for the traditional confidential nature of relations between clergy and servicemembers).

(MRE 503(a) expressly recognizes a clergy privilege and provides that a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman’s assistant, if such communication is made either as a formal act of religion or as a matter of conscience; MRE 503(c) broadly extends the privilege to allow either the communicant or the clergy member to claim the privilege).

(MRE 503 has three components pertinent to whether an accused has established the criteria necessary to claim the privilege:  (1) the communication must be made either as a formal act of religion or as a matter of conscience; (2) it must be made to a clergyman in his capacity as a spiritual advisor or to his assistant in his official capacity; and (3) the communication must be intended to be confidential). 

(appellant’s communication with his minister was a matter of conscience, thus satisfying the threshold for claiming the clergy privilege, where the minister used the authority of his religion to induce appellant to confess). 

(appellant’s communication with his minister was made to a clergyman in his capacity as a spiritual advisor, thus satisfying the second requirement of the clergy privilege, where appellant attended the minister’s church for two years, recognized him as his pastor, and talked to him at the church in his capacity as a clergyman; in addition, the minister began the counseling session during which appellant confessed with prayer, the session occurred at the church, and the session had a religious atmosphere).

(appellant’s communication with his minister was intended to be confidential, thus satisfying the third prong for claiming the clergy privilege, where appellant testified that he intended that the conversation remain confidential and that he did not want his wife to know what he revealed to his minister). 

(the presence of appellant’s wife during part of appellant’s counseling session with his minister did not preclude his invocation of the clergy privilege where the minister told appellant that it was important for his wife to be present for his redemption; as is the case with the attorney-client privilege, the presence of third parties, which is essential to and in furtherance of the communication, does not vitiate the clergy-communicant privilege).

(the clergy privilege is preserved where there is a relationship by blood or marriage as well as a commonality of interest between the accused and the third party present during the privileged communications; both these factors were present in this case as the third party present was appellant’s wife who had played the pivotal role of sending appellant to see his minister in the first instance).

(in this case, the record establishes the three-prong evidentiary foundation for the clergy privilege; appellant communicated his guilt to his minister, appellant’s communication was made as a matter of conscience, and appellant intended their communication to remain confidential; because MRE 503 grants appellant a right to keep this privileged conversation confidential, the military judge abused his discretion by ruling that appellant’s statements to his pastor were not privileged and would be otherwise admissible evidence). 

(when a chaplain questions a penitent in a confidential and clerical capacity, the results may not be used in a court-martial because they are privileged; therefore, the Article 31(b) and Tempia warnings are not required; conversely, if a military officer who is also a chaplain acts on the premise that the penitent’s disclosures are not privileged, then warnings are required).

(chaplain revealed appellant’s confidences, in violation of the privilege protected by Mil.R.Evid. 503 and Army Regulations, when he told military police that appellant was at the MP station to make a statement regarding his improper relationship with his stepdaughter).

Husband-wife privilege:

2009 (September Term)

United States v. Durbin, 68 M.J. 271 (a person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law; the rule allows the privilege to be claimed by the spouse who made the communication or the other spouse on his or her behalf; however, where the privilege is claimed by one spouse on behalf of the other, the spouse upon whose behalf the privilege is claimed may waive the privilege).

(while the marital privilege rule in MRE 504 on its face allows either spouse to claim the privilege on behalf of the other, it also allows the spouse upon whose behalf the privilege was claimed to waive the privilege; the rule requires “evidence” of a waiver; in this case, the voluntary testimony of the wife as to her statements made during the marital communication constituted a waiver of the privilege claimed on her behalf by her husband).

(while the federal marital privilege protects both sides of a marital communication, that privilege is based on federal common law while the marital privilege in the military justice system is created by MRE 504; because the President has chosen to adopt a more restrictive marital privilege for the military, the federal court cases interpreting federal common law are not relevant to an analysis of the waiver issue). 

(when appellant’s wife testified at his court-martial about statements she made during a marital communication with him concerning suspected child pornography she found on his laptop computer, she waived the marital communications privilege as to those statements, after appellant claimed the privilege on her behalf, where her testimony did not repeat or reveal any of appellant’s protected statements).

United States v. Custis, 65 M.J. 366 (a military judge may not admit marital communications otherwise privileged under MRE 504(b) by reference to a common law exception generally recognized in the United States federal courts but not listed within the exceptions specifically enumerated under MRE 504(c)).

(the military judge abused his discretion when he erroneously relied on MRE 501(a)(4) for the authority to import a common law exception into the marital communication privilege codified in MRE 504(b); although the military judge’s decision to deny appellant’s motion to suppress otherwise privileged marital communications because the communications were made in furtherance of a crime had support in the common law “joint crime participant” or “crime/fraud” exception to the common law marital communication privilege, the authority to add exceptions to the codified privileges within the military justice system lies not with CAAF or the courts of criminal appeal, but with the policymaking branches of government).

(MRE 504 and the exceptions thereto reflect the policy judgments of the President regarding those communications between a husband and wife that are privileged and as to those communications that will be exempted from that privilege; MRE 504(b) provides a general privilege for confidential communications made during marriage:  a person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law; if an accused’s communications meet the requirements of MRE 504(b)(1), they are privileged unless they otherwise fall under an exception to that rule; specific exceptions to the marital privileges established in MRE 504(a) and (b) are delineated in MRE 504(c)).

(the President has authority to create a “crime/fraud” exception under MRE 504(c), as he has done in the attorney-client and psychotherapist-patient privileges; under the military justice system, it is for the policymaking branches of government to weigh the utility of the marital communications privilege against the truth-seeking function of the court-martial and, if appropriate, make adjustments to the express exceptions). 

(MRE 501(a)(4) does not provide authority to either the court of criminal appeals or CAAF to create an exception to the codified marital privilege by reference to the common law exception generally accepted in the United States federal courts; MRE 501(a)(4) provides authority for a person to claim a privilege as required by or provided for in the principles of common law generally recognized in the trial of criminal cases in the federal court pursuant to FRE 501 insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the code, the MREs, or the MCM; the plain language of MRE 501 addresses only a claim of privilege; it does not reference exceptions; nothing in the language of MRE 501 itself warrants reference to a common law exception to limit the privilege that is specifically established in MRE 504(b)(1); additionally, the plain language of subpart (4) states that principles of common law may be relied on only when not contrary to or inconsistent with these rules; as MRE 504(b) gives a husband-wife privilege without a “joint crime participant” or “crime/fraud” limitation, resorting to the common law to establish such an exception is both contrary to, and inconsistent with, the broader privilege provided by the President). 

(appellant’s comment to his coworker that his wife had his back did not waive the marital communications privilege that attached to other privileged communications with his wife, where the comment did not relay either the actual privileged conversation between appellant and his wife or the substance of the privileged communications between appellant and his wife, and the person to whom the comment was directed had no knowledge of the underlying conversation that might have given the comment in question special meaning). 

 
2007
 

United States v. Taylor, 64 M.J. 416 (MRE 504 sets out the marital privileges applicable to trials by courts-martial; with respect to the privilege of confidential communications made during the marriage, it provides that a person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law; however, the privilege does not apply in proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other spouse). 

(for the purposes of MRE 504, adultery is a crime against the person of the other spouse).   

(an accused may not invoke the spousal confidential communications privilege and thereby prevent his wife from testifying to his admission to committing adultery).

2005

United States v. Scheurer, 62 M.J. 100 (in the military, spousal incapacity allows the witness spouse, not the accused, to decide whether to testify).

(a spouse who invokes the spousal incapacity rule in refusing to testify against her husband was unavailable to testify for the purposes of the Confrontation Clause; United States v. Hughes, 28 M.J. 391 (C.M.A. 1989) is overruled to the extent that it holds a spouse who invoked spousal incapacity remains available for confrontation purposes).

2003

United States v. McCollum, 58 MJ 323 (courts have long held, either as a matter of statutory or common law, that confidential communications between a husband and wife made during a valid marriage are privileged and cannot be used as evidence in court, absent waiver; in military law, the marital communications privilege is contained in M.R.E. 504(b)(1)); that provision provides in relevant part that a person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law).

(the requisite elements of a privileged communication under M.R.E. 504(b)(1) are: (1) there must be a communication; (2) the communication must have been intended to be confidential; and (3) it must have been made between married persons not separated at the time of the communication).

(a communication is confidential if there is (1) physical privacy between the individuals, and (2) an intent to maintain secrecy).

(M.R.E. 510(a) states that a person waives a privilege where he or she voluntarily discloses or consents to disclosure of any significant part of the matter or communication under circumstances that it would be inappropriate to allow the claim of privilege; voluntary disclosure applies only where the speaker elects to share a substantial portion of a privileged communication with a party outside of the privileged relationship).

(voluntary consent to disclose privileged marital communications is given where one spouse either expressly or implicitly authorizes the other to share information with a third party; courts have regularly held that the unauthorized disclosure of privileged information by one spouse does not constitute waiver of the marital privilege; in such cases, the nondisclosing spouse can still assert the privilege and prevent the use of the confidential information in a legal proceeding).

(at issue in this case is the exception to the marital privilege rule contained in M.R.E. 504(c)(2)(A), which applies to proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either; the question is whether at "child of either" should be read to include a "de facto" child, or a child who is under the care or custody of one of the spouses, regardless of the existence of a formal legal parent-child relationship; we think the better view is that "child of either," as used in M.R.E. 504(c)(2)(A), applies to only those situations in which a child is the biological child of one of the spouses, the legally recognized child, or ward of one of the spouses).

(based on the text of the rule, and in light of the rules of evidence generally recognized in the federal courts, we conclude that there is not a de facto child exception to the marital communications privilege of M.R.E. 504(c)(2)(A)).

United States v. McElhaney, 54 MJ 120 (the spousal privilege encompassing confidential communications made during the marriage may be waived if the holder of the privilege voluntarily discloses or consents to disclosure of any significant portion of the matter or communication under such circumstances that it would be inappropriate to allow the claim of privilege; and, if that communication is made in the presence of third parties, or revealed to third parties, the communication is not privileged).

United States v. McElhaney, 54 MJ 120 (appellant’s disclosures, in context, waived the marital communications privilege where his written references communicated more than the mere fact that a conversation occurred with his wife; those communications showed appellant’s intent to have a third party understand the overall substance of the conversation by relying upon knowledge that appellant and the third party shared; thus, appellant’s disclosures in communications to third parties revealed a significant part of the communication to his wife).

Mental examination: 

2005

United States v. Clark, 62 M.J. 195 (any statement made by the accused during the sanity review process or any derivative evidence obtained through use of such a statement is confidential and may not be admitted into evidence; however, there is no privilege when the accused first introduces into evidence any qualifying statements or derivative evidence).

(in federal civilian courts, if a defendant presents an insanity defense with expert witnesses to confirm his infirmity, the prosecution may compel the defendant to submit to a psychiatric evaluation by the government; the medical expert who examined the accused may testify only to his conclusions and their basis and cannot reveal the contents of any statements the accused made during the examination because the defendant is still protected by the doctor-patient privilege; court-martial practice has a similar process to protect statements to a sanity board but different rules pertain; MRE 302 (mental examination privilege) guarantees a servicemember a right to confidentiality comparable to a civilian under Fed. R. Crim. P. 12.2(c)(4); the military accused often must rely on military doctors for evaluation and treatment; but there is generally no doctor-patient privilege in the military; as a result, the prosecution could retrieve any records of medical diagnosis or treatment; MRE 302 was implemented to provide a form of testimonial immunity intended to protect an accused from the use of anything he might say during a mental examination ordered under RCM 706 (the sanity board process); MRE 302 does not distinguish between a psychiatric evaluation ordered by the government and an evaluation requested by the defense). 

(the creation of MRE 302 was purely to protect the privilege against self-incrimination of an accused undergoing a mental examination; accordingly, MRE 302 includes a provision that generally prohibits use of any derivative evidence of an accused’s statements to the sanity board to determine guilt or innocence or during the sentencing phase of a court-martial; however, there is no privilege under this rule when the accused first introduces into evidence such statements or derivative evidence). 

(MRE 302 was specifically drafted to allow the defense to control whether an accused’s statements to a sanity board would be released to the prosecutors and presented at the court-martial; if the defense does not allege insanity at court-martial, or does so only through lay testimony, the sanity board report will not be provided to the prosecution; but if the defense offers expert testimony concerning the mental condition of the accused, the military judge shall compel the defense to release to the prosecution the full contents, other than any statements made by the accused, of the sanity board report; if the accused presents a defense, however, which includes specific incriminating statements made by the accused to the sanity board, the military judge may order disclosure to the trial counsel of such statement as may be necessary in the interest of justice).

(in this case, although the defense chose to present an insanity defense, the defense did not waive the MRE 302 right of confidentiality applicable to the accused’s statements to the sanity board by presenting the testimony of a psychiatric expert who admitted that she had reviewed the sanity board’s report before testifying in support of the accused’s insanity defense, where the expert’s opinion relied only on her own treatment of the accused and where the expert’s testimony did not otherwise mention or allude to the report or any of the accused’s incriminating statements in that report; the defense counsel’s direct examination of the expert was not derivative evidence).

(where the accused’s defense counsel did not trigger MRE 302’s exception permitting disclosure by first introducing derivative evidence, the military judge erred by releasing the accused’s privileged sanity board statements to the government and allowing the government to admit the accused’s statements into evidence).

Psychotherapist-patient privileges:

2021 (October Term)

United States v. Mellette, 82 M.J. 374 (the psychotherapist-patient privilege under MRE 513 protects not only confidential communications, but diagnoses and treatment plans contained within medical records). 

(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).    

(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).

(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). 

(to the extent testimonial or documentary evidence reveals what MRE.513 expressly protects, that is, confidential communications, that evidence is partially protected). 

(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). 

(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). 

(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).

United States v. Beauge, 82 M.J. 157 (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).

(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).

(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). 

(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). 

(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).    

(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). 

(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). 

(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). 

(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). 

2020 (October Term)

United States v. Jacinto, 81 M.J. 350 (MRE 513 [the military’s psychotherapist-patient privilege] allows a military judge to examine the evidence of records or communications of a patient other than the accused, or a proffer thereof, in camera, if such examination is necessary to rule on the production or admissibility of such protected records or communications). 

2006

United States v. Jenkins, 63 M.J. 426 (MRE 513(a) sets forth the general rule of the psychotherapist-patient privilege: 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; MRE 513(b)(4) defines a confidential communication as one not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional services to the patient or those reasonably necessary for such transmission of the communication).

(MRE 513(d) establishes eight specific exceptions to the general psychotherapist-patient privilege; MRE 513(d)(4) states there is no privilege when a psychotherapist believes that a patient’s mental or emotional condition makes the patient a danger to any person, including the patient; MRE(d)(6) further provides there is no privilege when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission).

(the exceptions to the psychotherapist-patient privilege in MRE 513 were drafted to limit the privilege in order to balance the public policy goal of encouraging an individual to seek assistance from a psychotherapist with the specialized society of the military and separate concerns that must be met to ensure military readiness and national security). 

(whether the exceptions to the psychotherapist-patient privilege apply is necessarily a fact-specific determination for a military judge to consider with an accurate awareness of the facts underlying the dispute). 

(the MRE 513(d)(4) and 513(d)(6) exceptions to the psychotherapist-patient privilege applicable when the psychotherapist believes that a patient’s mental or emotional condition makes the patient a danger to any person or when necessary to ensure the safety and security of military personnel or the accomplishment of a military mission provide adequate and fair notice, informed by case law, as to their potential applicability).

(in this case, the military judge did not abuse his discretion when he determined that appellant’s mental state posed a risk to the safety of others or himself or to the accomplishment of a military mission and that appellant’s statements were not protected by the privilege and were admissible on sentencing, where a clinical psychologist with seventeen years of experience wrote in his evaluation that appellant’s mental health posed a danger to others, and appellant’s actions and his statements to the psychologist during treatment substantiated those findings, especially where when appellant made threats to kill persons while brandishing a fourteen-inch knife).  

United States v. Harding, 63 M.J. 65 (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). 

(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).

United States v. Clark, 62 M.J. 195 (MRE 513 provides for a psychotherapist-patient privilege for the military justice system; the rule allows a patient the privilege to refuse to disclose, or allow another to disclose, a confidential communication between the patient and a psychotherapist; but this rule is not a physician-patient privilege; rather, it is based on the social benefit of confidential counseling, and similar to the clergy-penitent privilege; MRE 513 intends to safeguard statements made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition; an exception to MRE 513, however, eliminates the privilege when an accused offers statements or other evidence concerning his mental condition in defense, extenuation, or mitigation). 

(where the accused presents an insanity defense, he cannot claim a psychotherapist-patient privilege under MRE 513).

2000

United States v. Rodriguez, No. 99-0224 (Judgment of the Court) (prior to the adoption of Mil. R. Evid. 513 which applies to communications made after 1 November 1999, there was no psychotherapist-patient privilege recognized in trials by courts-martial; Jaffee v. Redmond, 518 U.S. 1 (1996), did not require application of a federally-recognized psychotherapist-patient privilege to the military justice system).

United States v. Paaluhi, No. 99-0844 (as a matter of military law, communications made by a member of the military to a psychotherapist on or before November 1, 1999, were not privileged on the basis of the psychotherapist-patient privilege recognized by the Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996)).

1999

United States v. Thompson, 51 MJ 431(defense counsel’s advice concerning impact of seeking psychological treatment was substantially correct in that military law did not then recognize a psychotherapist-patient privilege and disclosures made during treatment could possibly be used against accused).