October 14, 2021

United States v. Mellette, 81 M.J. 681 (N-M. Ct. Crim. App. 2021)

Defendant, a former servicemember, was convicted of child sexual abuse in violation of Article 120b, Uniform Code of Military Justice (UCMJ). Defendant appealed, arguing, inter alia, that the military judge erred in denying his pretrial motion for in camera review and production of the then minor-victim’s mental health diagnoses, treatment and prescribed medications. The appellate court observed that although Rule for Courts-Martial (RCM) 703 provides that parties are entitled to relevant and necessary evidence, Military Rule of Evidence (MRE) 501 can except such evidence from production or disclosure by a proper claim of privilege. Here, the psychotherapist-patient privilege, pursuant to MRE 513, was at issue. Although the appellate court held in the instant case that there was evidence of a voluntary waiver and support for an in camera review of select records, the court also held that diagnoses, treatment and prescribed medications are protected by the psychotherapist-patient privilege. With regard to diagnoses and treatment, the court explained that “[w]here a privilege is codified in the evidentiary rules, ordinary principles of statutory construction control”; and “[u]nder a plain reading of [the] language [in MRE 513], the privilege protects communications ‘between’ the patient and the psychotherapist—meaning” that “the protection covers not only the patient’s description of [their] symptoms, but also the psychotherapist’s rendering of a diagnosis and treatment plan, based on those symptoms, back to the patient.” With regard to prescribed medications, the court provided that “[r]evealing what psychiatric medication a patient has been prescribed to treat a diagnosed condition would in many circumstances suggest, if not reveal, the diagnosis itself[,]” and “that ‘[t]he privilege would essentially be gutted if a psychotherapist could be ordered to testify about a person’s diagnosis or treatment, over [their] objection, so long as the psychotherapist refrained from expressly describing or referring to the content of any confidential communications.’” Notably, the court further provided that although privileges are to be construed narrowly, “an overly narrow interpretation . . . would . . . undermine the purpose of [this] privilege” and would be inconsistent with the policy of Congress and the President that “the psychotherapist-patient privilege should be protected to the greatest extent possible.” For these and other reasons, the appellate court ordered select language stricken from the specification, affirmed the finding as to the remaining language, and reassessed the sentence, resulting in a dishonorable discharge and confinement.