2008 (September Term)
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).
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)).
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).
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).
2008 (Transition)
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).
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).
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:
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).
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).