          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201700133
                          _________________________

                                   J.M.
                                 Petitioner

                                      v.

                  BETHANY L. PAYTON-O’BRIEN
                     CAPT, JAGC, U.S. Navy
                        Military Judge
                         Respondent

                                     And

                      ADAM J. RAVENSCRAFT
                      Seaman (E-3), U.S. Navy
                       Real Party In Interest

                          _________________________

    Review of Petition for Extraordinary Relief in the Nature of a
                          Writ of Mandamus

    Military Judge: Captain Bethany L. Payton-O’Brien, JAGC, USN.
Convening Authority: Commander, Navy Region Southwest, San Diego, CA.
      For Petitioner: Lieutenant Andrew T. Jennings, JAGC, USN.
                        ___________________________

                                28 June 2017
                         ___________________________

     Before M ARKS , R UGH , and J ONES , Appellate Military Judges
                         _________________________

               PUBLISHED OPINION OF THE COURT
                    __________________________
   JONES, Judge:
   J.M. petitions this court for extraordinary relief in the nature of a writ of
mandamus. She seeks relief from a lower court ruling ordering the
production and disclosure of her privileged mental health records based on
                           J.M. v. Payton-O’Brien 201700133


the now-excised, constitutional exception to the psychotherapist-patient
privilege, MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 513, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2016 ed.). On 21 April 2017, we granted a
stay, and now find the petitioner has met her burden to demonstrate that
extraordinary relief is warranted. The writ is granted.
    We hold that a military judge may not order production or release of MIL.
R. EVID. 513 privileged communications when the privilege is asserted by the
holder of the privilege unless the requested information falls under one of the
enumerated exceptions to the privilege listed in MIL. R. EVID. 513(d).
However, when the failure to produce said information for review or release
would violate the Constitution, military judges may craft such remedies as
are required to guarantee a meaningful opportunity to present a complete
defense.
                                   I. BACKGROUND
    On 10 November 2016, Interior Communications Electrician Seaman
Adam Ravenscraft, U.S. Navy, the Real Party in Interest (RPI), was
arraigned at a general court-martial on three specifications of rape, one
specification of sexual assault, and four specifications of assault, in violation
of Articles 120 and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 920 and 928. The alleged misconduct occurred on divers occasions between
August 2006 and March 2014, and all involved the alleged victim.
   On 27 December 2016, the RPI moved to compel production of all mental
health records of the petitioner or, in the alternative, for in camera review of
the records.1 The government and the petitioner’s victim’s legal counsel
(VLC) opposed the motion. The parties litigated the motion in a closed-
session of court on 16 February 2017.
    On 9 March 2017, the military judge granted the defense motion for in
camera review of the mental health records from three psychiatric visits the
petitioner made to three different hospitals. After reviewing the records, the
military judge sua sponte ordered, for in camera review, production of the
petitioner’s outpatient therapy records from two additional mental health
providers. After reviewing over 750 pages of mental health records, the
military judge identified and heavily redacted 75 pages for potential release
to the defense. The military judge then issued “Qualified Protective Orders
for all hospital admission records as well as the various outpatient
providers.”2


   1  The motion was made pursuant to Brady v. Maryland, 373 U.S. 83 (1963),
Article 46, UCMJ, and MIL. R. EVID. 513. But see note 25, infra.
   2   Appellate Exhibit (AE) LXXII at 2 (citations omitted).


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                            J.M. v. Payton-O’Brien 201700133


    The military judge then informed the VLC that she would release the 75
pages to the defense the following week, on 24 April 2017. She also provided
the VLC the opportunity to review the records—in their entirety—prior to the
planned release, and advised the VLC he could file an ex parte brief with the
court to preserve any objections to the release. In response, on 21 April 2017,
the VLC filed this petition, alleging the military judge erred in ordering
production of the records without finding they qualified for release under one
of the seven enumerated exceptions to the privilege listed in MIL. R. EVID.
513(d). On 24 May 2017, this court received the transcript of the proceedings.
A. The military judge’s 9 March 2017 ruling
     On 9 March 2017, the military judge granted the defense motion for in
camera review of mental health records from three psychiatric visits. The
military judge found, inter alia, the following facts:
            1. . . . Ms. JM is suffering from a number of psychological
         conditions . . . .
             ....
            11. Dr [S], the defense expert consultant testified that Ms.
         JM’s history . . . could reflect mental health issues, not
         associated with this case, and she indicated it would be
         essential to rule out any and all mental health conditions
         preceding the events in this case . . . .3
    The military judge applied our three-part test from United States v.
Klemick, 65 M.J. 576, 580 (N-M. Ct. Crim. App. 2006),4 rather than using the
four-part test now required under MIL. R. EVID. 513. She also determined
that the defense’s evidence did not meet one of MIL. R. EVID. 513’s seven
listed exceptions. However, she concluded that due process required piercing




   3   AE XLIV at 2, 3-4.
   4   The Klemick test requires that the following are answered:
         “(1) [D]id the moving party set forth a specific factual basis
         demonstrating a reasonable likelihood that the requested privileged
         records would yield evidence admissible under an exception to MIL. R.
         EVID. 513; (2) [I]s the information sought merely cumulative of other
         information available; and (3) [D]id the moving party make
         reasonable efforts to obtain the same or substantially similar
         information through non-privileged sources?”
   Klemick 65 M.J. at 580.


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                           J.M. v. Payton-O’Brien 201700133


the privilege to “guarantee [the defense] ‘a meaningful opportunity to present
a complete defense.’”5 The military judge further concluded:
             Following the logic of the Klemick court, it is a reasonable
         conclusion that the inpatient records of Ms. JM would contain:
         information related to an event and the reactions and
         perceptions of Ms. JM; information concerning mental health
         issues that have a bearing on Ms. JM’s recollection of the
         events in question; information concerning medications, if any,
         having an effect on Ms. JM’s ability to perceive or recollect
         currently and in the past; and information . . . [that may
         reveal] her sensitivity to physical assault.6
B. The military judge’s 22 March 2017 ruling
    On 22 March 2017, after reviewing the ordered records in camera, the
military judge, sua sponte, ordered production of the petitioner’s outpatient
therapy records from two other mental health providers for in camera review.
Citing the same law, and using the same reasoning as her previous ruling,
the military judge concluded that:
         [I]t is a reasonable conclusion that the outpatient counseling
         records of Ms. JM would contain: information related to an
         event and the reactions and perceptions of Ms. JM; information
         concerning mental health issues that have a bearing on Ms.
         JM’s recollection or perceptions of the events in question; and
         information concerning medications, if any, having an effect on
         Ms. JM’s ability to perceive or recollect currently and in the
         past.7
C. The military judge’s 21 April 2017 ruling
    On 21 April 2017, the military judge released a more comprehensive
ruling which incorporated her two previous rulings and made additional
findings of fact. Those findings included, inter alia: (1) that “Ms. JM’s
psychological counseling has been ongoing . . . , during and after the charged
offenses”; (2) that “Ms. JM was taking [medications that may have some
bearing on the case]”; and (3) Ms. JM’s in-court testimony belied how many
times she had been admitted for psychiatric care.8



   5   Id. at 6 (quoting Holmes v. South Carolina, 547 U.S. 319, 324 (2006)).
   6   Id.
   7   AE XLIX at 4.
   8   AE LXXII, Findings of Fact 3 and 8.


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                          J.M. v. Payton-O’Brien 201700133


    The military judge found that “Ms. J.M. does have a mental condition that
is relevant or has or is prescribed medication that might have some bearing
on this case. She has also made statements that could have a bearing on her
credibility.”9 She further found that the defense did not “have any other non-
privileged access to Ms. J.M.’s bias, motive to fabricate, inconsistent
statements, or credibility as a witness, that can be used to impeach her at
trial.”10 The military judge also compared MIL. R. EVID. 513’s rule of privilege
with MIL. R. EVID. 412’s rule of relevance: “The exception at issue in this case
is the constitutionally required exception formerly found in [MIL. R. EVID.]
513(d)(8). Though there is no case law establishing the ‘constitutionally
required’ standard in [MIL. R. EVID.] 513, the same exception appears in
[MIL. R. EVID.] 412(b)(1)(C).”11 She then continued to apply the rationale of
the MIL. R. EVID. 412 relevance rule by citing the test for constitutionality
mentioned in United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011).12
   Finally, the military judge concluded, by a preponderance of the evidence,
that:
             1. The Defense showed a specific factual basis
         demonstrating a reasonable likelihood that the records would
         yield evidence admissible under an exception to the privilege;
            2. The requested information meets the former enumerated
         exceptions [sic] under subsection [MIL. R. EVID.] 513(d)(8);
             3. The information sought is not merely cumulative of other
         information available; and
             4. The Defense has made reasonable efforts to obtain the
         same or substantially similar information through non-
         privileged sources;
             5. Mrs. [sic] J.M.’s mental health records are relevant,
         necessary and material. Their disclosure is vital to the
         accused’s defense, and thus constitutionally required under
         either [RULE FOR COURTS-MARTIAL (R.C.M.)] 701 or [MIL. R.
         EVID.] 513;


   9   Id. at 10.
   10   Id.
   11   Id. at 9.
   12 Id. The military judge stated, “Under that rule, the evidence is constitutionally
required if the defense can articulate how the evidence sought (1) is relevant, (2) is
material, and (3) has probative value that outweighs the danger of unfair prejudice.”
Id.


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                          J.M. v. Payton-O’Brien 201700133


            6. The accused’s constitutional right to a fair trial will be
         impeded if not disclosed to the defense.13
                            II. STANDARD OF REVIEW
    Pursuant to Article 6b, UCMJ, this court is empowered to issue such
writs of mandamus as are necessary to enforce certain statutory and
procedural rights of victims, including MIL. R. EVID. 513.14 A writ of
mandamus is “a drastic instrument which should be invoked only in truly
extraordinary situations.” United States v. Labella, 15 M.J. 228, 229 (C.M.A.
1983) (citations omitted). The writ has traditionally been used “to confine an
inferior court to a lawful exercise of its prescribed jurisdiction or to compel it
to exercise its authority when it is its duty to do so.” Roche v. Evaporated
Milk Association, 319 U.S. 21, 26 (1943) (citations omitted). Only exceptional
circumstances amounting to a “clear abuse of discretion or usurpation of
judicial power” justify the invocation of the writ. Bankers Life Casualty Co. v.
Holland, 346 U.S. 379, 383 (1953) (citation and internal quotation marks
omitted).
    To prevail, a petitioner seeking an extraordinary writ must show that:
“(1) there is no other adequate means to attain relief; (2) the right to issuance
of the writ is clear and indisputable; and (3) the issuance of the writ is
appropriate under the circumstances.” Hasan v. Gross, 71 M.J. 416, 418
(C.A.A.F. 2012) (citing Cheney v. United States Dist. Court for D.C., 542 U.S.
367, 380-81 (2004)).
                                  III. DISCUSSION
   MIL. R. EVID. 513 protects privileged communications between a
psychotherapist and his or her patient:
         (a) General Rule. 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 Uniform Code of Military Justice, if such
         communication was made for the purpose of facilitating
         diagnosis or treatment of the patient’s mental or emotional
         condition.
MIL. R. EVID. 513(a).



   13   Id. at 11.
   14 In this opinion, we adopt the use of the term “victim” to describe those alleging
they are victims of crimes.


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                           J.M. v. Payton-O’Brien 201700133


   Prior to the 2015 National Defense Authorization Act (NDAA), there were
eight exceptions to the privilege:
            (1) when the patient is dead;
             (2) 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;
            (3) when federal law, state law, or service regulation
         imposes a duty to report information contained in a
         communication;
            (4) when a psychotherapist or assistant to a
         psychotherapist believes that a patient’s mental or emotional
         condition makes the patient a danger to any person, including
         the patient;
            (5) if the communication clearly contemplated the future
         commission of a fraud or crime or if the services of the
         psychotherapist are sought or obtained to enable or aid anyone
         to commit or plan to commit what the patient knew or
         reasonably should have known to be a crime or fraud;
            (6) when necessary to ensure the safety and security of
         military      personnel,    military   dependents,  military
         property, classified information, or the accomplishment of a
         military mission;
            (7) when an accused offers statements or other evidence
         concerning his mental condition in defense, extenuation, or
         mitigation, under circumstances not covered by R.C.M. 706 or
         MIL. R. EVID. 302. . . . ; or
            (8) when admission or disclosure of a communication is
         constitutionally required.
MIL. R. EVID. 513(d), SUPP. TO MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.) (emphasis added).
    However, the 2015 NDAA substantially broadened the protections of the
privilege by eliminating the “constitutionally required” exception,15 a change
that was subsequently adopted by the President.16


    15 See 2015 NDAA, Pub. L. No. 113-291, § 537, 128 Stat. 3292, 3369 (“Not later
than 180 days after the date of the enactment of this Act, Rule 513 of the Military
Rules of Evidence shall be modified as follows . . . . (2) To strike the current exception
to the privilege contained in subparagraph (d)(8) of Rule 513.”).


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                          J.M. v. Payton-O’Brien 201700133


   As a result, under the revised rule applicable to this case, the military
judge must find by a preponderance of the evidence that the moving party
has met each of the following prongs prior to ordering in camera review:
        (A) a specific factual basis demonstrating a reasonable
        likelihood that the records or communications would yield
        evidence admissible under an exception to the privilege;
        (B) that the requested information meets one of the enumerated
        exceptions under subsection (d) of this rule;
        (C) that the information sought is not merely cumulative of
        other information available; and
        (D) that the party made reasonable efforts to obtain the same
        or substantially similar information through non-privileged
        sources.
MIL. R. EVID. 513(e)(3)(A)-(D), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2016 ed.) (emphasis added).
A. Inviolability of the privilege
    The petitioner encourages us to declare the privilege absolute—outside of
the extant exceptions—without consideration for the constitutional concerns
of the RPI. This position has been embraced by a minority of jurisdictions,17
and we accept that position, in part. While noting the Supreme Court’s
general guidance that privileges should be interpreted narrowly whenever
possible,18 we find the specific direction from Congress and the President on
this privilege to be clear-cut.




   16 See Exec. Order No. 13696, 80 Fed. Reg. 35,783, 35,819 (17 Jun 2015) (“Mil R.
Evid. 513(d)(8) is deleted.”).
   17  See Jennifer L. Hebert, Mental Health Records in Sexual Assault Cases:
Striking a Balance to Ensure a Fair Trial for Victims and Defendants, 83 TEX. L.
REV. 1453, 1466 (2005) (noting that five states have a counselor-patient privilege
which does not permit any release for court proceedings); see also Major Cormac M.
Smith, Applying the New Military Rule of Evidence 513: How Adopting Wisconsin’s
Interpretation of the Psychotherapist Privilege Protects Victims and Improves Military
Justice, 2015 ARMY LAW. 6, 12 (2015) (citing Federal Courts’ disparate treatment of
the psychotherapist-patient privilege in criminal trials).
   18 See Trammel v. United States, 445 U.S. 40, 50 (1980) (stating that privileges
should be strictly construed because they contravene the principle that the public has
a right to every person’s evidence.)


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                           J.M. v. Payton-O’Brien 201700133


    After observing military judges routinely breach the privilege in sexual
assault cases,19 Congress and the President attempted to substantially
strengthen the privilege by removing the constitutional exception from the
rule and adding the separate requirement that any piercing of the privilege
meet one of the remaining seven enumerated exceptions for in camera
review. We agree with our sister court that “the President was likely at the
apex of his authority in implementing MIL. R. EVID. 513 [to remove the
constitutional exception] as he acted in his constitutional role as Commander
in Chief and under a specific legislative direction.” DB v. Lippert, No.
20150769, 2016 CCA LEXIS 63, at *26 n.14, unpublished op. (A. Ct. Crim.
App. 1 Feb 2016) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 635-37, (1952) (Jackson, J., concurring) (“When the President acts
pursuant to an express or implied authorization of Congress, his authority is
at its maximum, for it includes all that he possesses in his own right plus all
that Congress can delegate.”). The policy decision of Congress and the
President is clear: the psychotherapist-patient privilege should be protected
to the greatest extent possible.
    It is also clear from the military judge’s rulings that she understood the
change in the law, because she concluded that “[t]he requested information
meets the former enumerated exceptions [sic] under subsection [MIL. R.
EVID.] 513(d)(8).”20 Yet she also stated in her final ruling: “The Defense
showed a specific factual basis demonstrating a reasonable likelihood that
the records would yield evidence admissible under an exception to the
privilege[.]”21 These contradictory statements obfuscate the privilege-due
process conflict at stake and create a legal fiction.
   For this proposition, the petitioner correctly relies on United States v.
Custis, 65 M.J. 366 (C.A.A.F. 2007), holding that the military judge cannot
add an exception to a military rule of privilege. In Custis, the Court of
Appeals for the Armed Forces (CAAF) decided whether military courts had
the authority to apply a common law exception to the marital privilege, when
that exception was not contained within MIL. R. EVID. 504 (Marital
Privilege). Although every federal circuit to address the issue had found a
common law crime/fraud exception, the CAAF refused to expand MIL. R.


   19 “This attempt to strengthen the privilege was taken to reverse what Congress
perceived as a rising tide of privileged records being routinely reviewed in military
courts.” Major Michael Zimmerman, Rudderless: 15 Years and Still Little Direction
on the Boundaries of Military Rule of Evidence 513 [hereinafter Rudderless] 223 MIL.
L. REV. 312, 335 (2015) (citations omitted).
   20   AE LXXII, Conclusion of Law 2 (emphasis added).
   21   Id., Conclusion of Law 1 (emphasis added).


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                         J.M. v. Payton-O’Brien 201700133


EVID. 504: “the authority to add exceptions to the codified privileges within
the military justice system lies not with this Court or the Courts of Criminal
Appeal, but with the policymaking branches of government.” Id. at 369.
Therefore, any application of the former MIL. R. EVID. 513(d)(8) constitutional
exception by the military judge was improper. Adopting the military judge’s
rationale would force us to ignore the plain language of the rule, the obvious
intent of both Congress and the President, and binding precedent. We cannot.
B. A meaningful opportunity to present a complete defense
    While we decline to wholly override the psychotherapist-patient privilege,
we may not allow the privilege to prevail over the Constitution. In other
words, the privilege may be absolute outside the enumerated exceptions, but
it must not infringe upon the basic constitutional requirements of due process
and confrontation.22 As our sister court recently stated:
             If the Constitution demands the “admission or disclosure” of
         otherwise privileged communications, the deletion of MIL. R.
         EVID. 513(d)(8) does not limit the Constitution’s reach into the
         rule. Put differently, the Constitution is no more or less
         applicable to a rule of evidence because it happens to be
         specifically mentioned in the Military Rules of Evidence.
LK v. Acosta & Sanchez, __ M.J. __ No. 20170008, 2017 CCA LEXIS 346, *7-8
(A. Ct. Crim. App. 24 May 2017) (citation omitted).
    Some commentators have correctly argued that removal of the
constitutional exception is inconsequential insofar as its removal purports to
extinguish due process and confrontation rights.23 This position simply
embraces what is self-evident to all: constitutional rights prevail over
statutory and evidentiary rules.24 “Constitutional rights generally apply to
members of the armed forces unless by their express terms, or the express


   22 U.S. CONST. amend. VI and U.S. CONST. amend. XIV. Any communication or
record Congress and the President decide should be privileged must be weighed
against the original public meaning of the constitutional guarantees of due process
and confrontation.
   23  See Zimmerman, Rudderless, 223 MIL. L. REV. at 314, n. 10 (citing STEPHEN A.
SALTZBURG ET. AL., 1 MILITARY RULES OF EVIDENCE MANUAL § 412.02 (7th ed.,
Matthew Bender & Co. 2011) and CHRISTOPHER B. MUELLER & LAIRD C.
KIRKPATRICK, FEDERAL EVIDENCE § 4:81, at 306 (3d ed. 2007) for the proposition that
removing the constitutional exception from MIL. R. EVID. 412 was superfluous and
unnecessary as the rule was always subordinate to the Constitution, therefore, the
same rationale applies to MIL. R. EVID. 513, even though the latter is a rule of
privilege vice a rule of relevance. But see note 25, infra.
   24   Id.


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                          J.M. v. Payton-O’Brien 201700133


language of the Constitution, they are inapplicable.” United States v.
Marcum, 60 M.J. 198, 200 (C.A.A.F. 2004). Indeed, the CAAF has ruled that
evidentiary rules must cede to the constitutional needs of an accused. United
States v. Gaddis, 70 M.J. 248, 253 (C.A.A.F. 2011) (holding that evidentiary
rule prohibiting evidence of a victim’s sexual behavior or predisposition
cannot limit the introduction of evidence that is required to be admitted by
the Constitution).25
   We recognize that there is scant Supreme Court case law defining the
boundaries between privileges and constitutional rights of the accused.26
Although we know that constitutional rights prevail over statutory and
evidentiary rules, we tread carefully in seeking to define what qualifies as
constitutionally necessary for the defense.
    In Davis v. Alaska, 415 U.S. 308 (1974), the Supreme Court held that the
state’s policy interest in protecting the confidentiality of juvenile records
violated the Confrontation Clause because it prohibited the defense from
effectively cross-examining a key witness on bias. In Holmes v. South
Carolina, 547 U.S. 319 (2006), a defendant tried for murder and related
crimes sought to present evidence of a third-party’s guilt, but was prohibited
by a state evidentiary rule which prohibited such evidence if the
government’s forensic evidence was strong. The Supreme Court held that:




    25 We caution military practitioners not to conflate the constitutionally required
standard envisioned in MIL. R. EVID. 412 with MIL. R. EVID. 513. The former permits
the admission of evidence where its exclusion would violate the constitutional rights
of the accused. In contrast, when determining whether in camera review or
disclosure of privileged materials is constitutionally required under MIL. R. EVID.
513, the military judge should determine whether infringement of the privilege is
required to guarantee “a meaningful opportunity to present a complete defense.”
Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (citation and internal quotation
marks omitted). Also, practitioners should avoid citing to rules for discovery—R.C.M.
701 or Article 46, UCMJ—as grounds to pierce the psychotherapist-patient privilege.
R.C.M. 701(f) warns that “[n]othing in this rule shall be construed to require the
disclosure of information protected from disclosure by the Military Rules of
Evidence.” Additionally, R.C.M. 703(f)(2) declares that “a party is not entitled to the
production of evidence . . . not subject to compulsory process.” “It is axiomatic that if
a privileged communication is disclosed whenever it would be subject to the rules
governing discovery then there [would be] no privilege at all.” Lippert, 2016 CCA
LEXIS 63 at *32.
    26 In fact, one commentator has pointed out that the Supreme Court has barely
“scratched the surface” in addressing the conflict between privileges and due process
rights. Clifford S. Fishman, Defense Access to A Prosecution Witness’s Psychotherapy
or Counseling Records, [hereinafter Access) 86 OR. L. REV. 1, 4 (2007).


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                          J.M. v. Payton-O’Brien 201700133


            [S]tate and federal rulemakers have broad latitude under
        the Constitution to establish rules excluding evidence from
        criminal trials. . . . This latitude, however, has limits. Whether
        rooted directly in the Due Process Clause of the Fourteenth
        Amendment or in the Compulsory Process or Confrontation
        Clauses of the Sixth Amendment, the Constitution guarantees
        criminal defendants a meaningful opportunity to present a
        complete defense. . . . This right is abridged by evidence rules
        that infring[e] upon a weighty interest of the accused and are
        arbitrary or disproportionate to the purposes they are designed
        to serve.
Id. at 324 (alterations in original) (internal citations and quotation marks
omitted).
    Therefore, noble goals and notable policy concerns cannot trump the RPI’s
right to “a meaningful opportunity to present a complete defense.” Id.27 Citing
Holmes in a previous review of a petition for a writ of mandamus, we stated
“when determining whether in camera review or disclosure of privileged
materials is constitutionally required under MIL. R. EVID. 513, the military
judge should determine whether infringement of the privilege is required to
guarantee ‘a meaningful opportunity to present a complete defense.’” EV v.
Robinson and Martinez, No. 201600057, slip ord. at 1 n.2 (N-M. Ct. Crim.
App. 25 Feb 2016) (quoting Holmes, 547 U.S. at 324 (emphasis in original)).
Despite erring in her application of MIL. R. EVID. 513, the military judge in
this case properly included this same language in her ruling.
    It is impossible to define all of the situations in which the privilege’s
purpose would infringe upon an accused’s weighty interests, like due process
and confrontation. However, courts have allowed discovery of privileged
information in the following areas: (1) recantation or other contradictory
conduct by the alleged victim; (2) evidence of behavioral, mental, or emotional
difficulties of the alleged victim; and (3) the alleged victim’s inability to
accurately perceive, remember, and relate events.28


   27 See United States v. Dimberio, 56 M.J. 20, 24 (C.A.A.F. 2001) (“It is undeniable
that a defendant has a constitutional right to present a defense.”)
   28  See, Access, 86 OR. L. REV. at 41-45. The second and third areas, in particular,
illustrate why this privilege may be more susceptible to waiver than other privileges.
These areas go to the very essence of witness credibility and reliability—potential
defects in capacity to understand, interpret, and relate events. Additionally, these
areas intersect with the medical community’s ability to interpret that credibility.
Juxtapose this with the priest-penitent privilege, for example, which is primarily
concerned with spiritual assistance, and does not implicate those same concerns of
witness competency or credibility.


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                          J.M. v. Payton-O’Brien 201700133


    This non-exhaustive list illustrates situations in which the privacy rights
of the victim may yield to the constitutional rights of the accused. In these
scenarios, serious concerns may be raised regarding witness credibility—
which is of paramount importance—and may very well be case-dispositive.29
C. Judicial remedies when the privilege is not waived
   The procedure to determine the admissibility of the victim’s records or
communications under MIL. R. EVID. 513(e)(2) begins in a closed hearing,
where the military judge applies the same test used for in camera review
found in MIL. R. EVID. 513(e)(3). If the moving party satisfies all the prongs,
but meets no enumerated exception under MIL. R. EVID. 513(d), then the
military judge determines whether the accused’s constitutional rights still
demand production or disclosure of the privileged materials. If so, then the
military judge gives the victim an opportunity to waive the privilege for in
camera review by the military judge.
    If the victim elects to waive the privilege only for in camera review, the
military judge reviews the materials for possible disclosure. If the military
judge continues to find that the accused’s constitutional rights demand
disclosure of certain materials to the defense, she earmarks those items for
review by the victim or VLC.30 If, after review, the victim or VLC elect to
further waive the privilege, the materials are provided to the defense.
    This procedure allows the military judge to scrupulously honor the
victim’s choice of whether—and how much—to waive the privilege. The
military judge never orders the production or release of materials that do not
fall under an enumerated exception to the privilege. Instead, the victim
retains the authority to assert the privilege at any time along the process.
However, if the victim elects not to waive the privilege after the military
judge has determined it is constitutionally necessary, then the military judge
may consider remedial measures.
   Judicial remedies are essential to the military judge’s duty to ensure a
constitutionally fair trial for an accused. The CAAF has stated that “‘a judge


   29  This is particularly true for cases of sexual assault, where most often, only the
accuser and the accused are present and there is little or no corroborating physical
evidence. Judging the credibility of the accuser is crucial in these situations, as
reliability may well determine guilt or innocence. The crucible of cross-examination is
a powerful tool for an accused to test an accuser’s account. But in appropriate cases,
waiver of the psychotherapist-privilege may be necessary to satisfy the accused’s
rights to due process and confrontation.
   30  Any release of information would then be “narrowly tailored” to only the
specific records or communications (or portions thereof) that were shown to be
necessary by the moving party. See MIL. R. EVID. 513(e)(4).


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                         J.M. v. Payton-O’Brien 201700133


is ultimately responsible for the control of his or her court and the trial
proceedings,’ and ‘[p]roper case management during a trial, necessary for the
protection of an accused’s due process rights and the effective administration
of justice, is encompassed within that responsibility.’” United States v.
Bowser, 74 M.J. 326 (C.A.A.F. 2015) (summary disposition) (alteration in
original) (quoting United States v. Vargas, 74 M.J. 1, 8 (C.A.A.F. 2014)).
    In speaking of the conflict between the removal of the constitutional
exception under MIL. R. EVID. 513 and the constitutional right of an accused
to a fair trial, one learned treatise offers a possible solution:
            To the degree that access to otherwise privileged materials
        is constitutionally necessary for a fair trial for the accused,
        clear confrontation and due process issues are raised. . . .
        Congress enacted the removal of the constitutional exception
        and protection of victims was certainly a legitimate reason for
        doing so. [But] [i]t is possible to both effectuate the
        Congressional intent and to protect the accused’s constitutional
        rights. If the accused constitutionally needs access to and use
        of privileged materials not releasable under any of the
        remaining exceptions, the military judge must abate
        (terminate) the proceedings, NOT order disclosure of the
        privileged material.
FRANCIS A. GILLIGAN AND FREDRIC I. LEDERER, COURT MARTIAL PROCEDURE
§ 20-32.10 (4th ed. Matthew Bender & Co. 2015) (emphasis in original).
    This proposed solution is a good starting point for our analysis, although
its lone remedy of abatement is too restrictive, and it fails to account for a
possible waiver of the privilege by its holder. The military judge needs more
precise remedial measures than merely abatement to fashion an appropriate
remedy when she concludes privileged records or communications are
necessary and the victim elects not to waive the privilege.
    We look to MIL. R. EVID. 505 (Classified information) for guidance on
appropriate judicial remedies when a party refuses to allow disclosure of
privileged information after a military judge deems the information
necessary for trial.31 This rule provides that:
            (A) If the military judge determines that alternatives to full
        disclosure may not be used and the prosecution continues to
        object to disclosure of the information, the military judge must



   31  This exact language is also used in MIL. R. EVID. 506(j)(4)(A), which concerns
the disclosure of government information that is not classified.


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                        J.M. v. Payton-O’Brien 201700133


       issue any order that the interests of justice require, including
       but not limited to, an order:
             (i) striking or precluding all or part of the testimony of a
       witness;
              (ii) declaring a mistrial;
              (iii) finding against the government on any issue as to
       which the evidence is relevant and material to the defense;
              (iv) dismissing the charges, with or without prejudice; or
              (v) dismissing the charges or specifications or both to
       which the information relates.
MIL. R. EVID. 505(j)(4)(A).
    Balancing the victim’s and accused’s rights under MIL. R. EVID. 513 also
requires a variety of precise remedies, because the constitutional facets of
each case will be so diverse. For example, simply abating the proceedings
would not be appropriate for a case in which an accused faces multiple
charges, and the victim’s testimony does not relate to all of the charges. Or
the issues presented may call for allowing the victim to testify regarding
some charges but not others. We are also mindful that the judicial remedies
under MIL. R. EVID. 505 were intended to incentivize the government to
cooperate in providing classified information. However, the compelling
rationale for using remedies in MIL. R. EVID. 505 cases is the same for using
them in MIL. R. EVID. 513 cases—protecting the accused’s constitutional
rights.
   Using the remedies in MIL. R. EVID. 505(j)(4)(A) as our guide, there are
several possible options when a victim elects to preserve the psychotherapist-
patient privilege after a military judge deems disclosure constitutionally
necessary. The military judge may: (1) strike or preclude all or part of the
witness’s testimony; (2) dismiss any charge or charges, with or without
prejudice; (3) abate the proceedings permanently, or for a time certain to give
the witness an opportunity to reconsider; or (4) declare a mistrial.
    In the vast majority of cases, the decision to preserve the privilege will be
made by a victim prior to the trial commencing. However, striking a witness’s
testimony might be appropriate, for example, in the unusual situation when
the issue of privileged information arises in the middle of the trial, after the
witness has already testified to all or some matters. Precluding part of the
testimony might be appropriate in situations where the witness testifies as to
more than one charge, and the military judge determines that the privileged
information is only constitutionally required for one or more other charges.



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                          J.M. v. Payton-O’Brien 201700133


    Dismissing charges, with or without prejudice, may be more appropriate
than precluding testimony of the victim in certain cases. For example, simply
prohibiting the testimony of the victim may be wholly insufficient when the
military judge has found that the lack of privileged information will infringe
upon a weighty interest of the accused and is essential for the accused to
receive a meaningful opportunity to present a complete defense. In these
situations, dismissing the charges may be the appropriate action. Dismissing
the charges with prejudice has been upheld by the CAAF—even under the
rubric of discovery—when a party has refused to turn over information for in
camera review.32
    Alternatively, the military judge may decide to abate the proceedings
permanently, or for a time certain, to give the victim an opportunity to
reconsider the election not to waive the privilege. This option emphasizes
that the victim always holds the key to the privilege and that the victim’s
rights will be protected by the military justice system to the greatest extent
possible, even if that results in an abatement of the entire court-martial.
   Granting a mistrial is a possible, but uncommon remedy. R.C.M. 915(a)
outlines the standard to be used when evaluating whether to grant a
mistrial:
             The military judge, may, as a matter of discretion, declare a
         mistrial when such action is manifestly necessary in the
         interest of justice because of circumstances arising during the
         proceedings which cast substantial doubt upon the fairness of
         the proceedings. A mistrial may be declared as to some or all
         charges, and as to the entire proceedings or as to only the
         proceedings after findings.
R.C.M. 915(a). Furthermore, the non-binding Discussion cautions that “[t]he
power to grant a mistrial should be used with great caution, under urgent
circumstances, and for plain and obvious reasons.”
    To be clear, the foregoing remedies are not crude devices to punish the
petitioner for electing to preserve the privilege. Rather, they are precise


    32 In United States v. Bowser, 73 M.J. 889 (A.F. Ct. Crim. App. 2014), the military
judge ordered the trial counsel to produce witness interview notes for an in camera
inspection because the military judge suspected the government was not providing
adequate discovery. The trial counsel balked, and the military judge dismissed all
charges, with prejudice. The CAAF affirmed, endorsing the military judge’s remedy.
United States v. Bowser, 74 M.J. 326, 326 (C.A.A.F. 2015) (summary disposition)
(“Because a judge has broad discretion and a range of choices in crafting a remedy to
cure discovery violations and ensure a fair trial, this Court will not reverse so long as
his or her decision remains within that range.”)


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                        J.M. v. Payton-O’Brien 201700133


judicial tools necessary to balance the petitioner’s privilege against the RPI’s
constitutional rights.
                               IV. CONCLUSION
   The petitioner having demonstrated that she has no other adequate
means to attain relief, the right to issuance of the writ is clear and
indisputable, and the issuance of the writ is appropriate.
    The writ of mandamus is the only adequate means of relief for the
petitioner. If she waits for the normal course of potential appellate review,
the privilege will be further vitiated, and additional harm will result when
the military judge releases the privileged records to the defense.
    The right to issuance of the writ is clear and indisputable. Despite the
plain language of MIL. R. EVID. 513(e)(3)(B)—forbidding in camera review of
psychotherapist-patient records sans meeting an enumerated exception to the
privilege—the military judge ordered the petitioner’s psychotherapist records
be produced and released.
    Under the circumstances of this case, we find that issuance of a writ of
mandamus is appropriate. First, the military judge’s ruling is based on an
erroneous view of the law—that there remains a judicial ability to apply a
constitutional exception to MIL. R. EVID. 513 which no longer exists—that is
very likely to recur by this military judge, as well as by other military judges.
See Labella, 15 M.J. at 229. Second, it results from the military judge
declining to protect the petitioner’s psychotherapist-patient privilege, in
direct contravention to the combined efforts of Congress and the President.
These facts present extraordinary circumstances warranting relief.
   Accordingly, the Petition for a Writ of Mandamus is granted. The military
judge’s ruling under MIL. R. EVID. 513 is set aside, and the petitioner’s
mental health records revert to their privileged status. The stay on the
proceedings is lifted. The military judge may properly apply MIL. R. EVID.
513, consistent with this writ, and take remedial actions, as necessary, to
ensure the RPI receives a trial wherein his constitutional rights are fully
protected.
   Senior Judge MARKS and Judge RUGH concur.
                                        For the Court




                                        R.H. TROIDL
                                        Clerk of Court




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