

   
   
   
   U.S. v. Rodriguez



United States, Appellee
v.
Hector RODRIGUEZ, Specialist
U.S. Army, Appellant
 
No. 99-0224
Crim. App. No. 9700189
 
United States Court of Appeals for the Armed
Forces
Argued March 2, 2000
Decided September 25, 2000
CRAWFORD, C.J., announced the judgment of
the Court and delivered an opinion, in which EFFRON, J., joined. SULLIVAN,
J., filed an opinion concurring in part and in the result. GIERKE, J.,
filed a dissenting opinion, in which COX, S.J., joined.
Counsel
For Appellant: T. Michael Guiffré
(argued);
Michael J. Nardotti, Jr. and Captain
Donald P. Chisholm
(on brief); Colonel John T. Phelps II,
Colonel Adele H. Odegard, and Captain Kirsten V. Campbell-Brunson.
For Appellee: Captain Kelly D. Haywood
(argued);
Colonel Russell S. Estey, Lieutenant
Colonel Eugene R.
Milhizer, and Major Patricia A.
Ham (on brief).
Military Judge: Peter E. Brownback



THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Chief Judge CRAWFORD announced the judgment
of the Court and delivered an opinion in which Judge EFFRON joined.
Contrary to his pleas, appellant was found
not guilty by a military judge sitting alone of malingering but guilty
of wounding himself without intent to avoid hazardous service, in violation
of Article 134, Uniform Code of Military Justice, 10 USC § 934.
The convening authority approved the sentence of a dishonorable discharge,
354 days confinement, total forfeitures, and reduction to the lowest enlisted
grade. The Court of Criminal Appeals affirmed the findings and sentence.
49 MJ 528 (1998). We granted review of the following issue:



WHETHER THE MILITARY JUDGE ERRED WHEN HE
DENIED THE DEFENSE MOTION TO SUPPRESS THE
TESTIMONY OF DR. JOSE ALFANO BASED ON THE
ERRONEOUS FINDING THAT THE PSYCHOTHERAPIST
PRIVILEGE WAS NOT APPLICABLE AT COURTS-
MARTIAL.



We hold that the military judge did not err in
admitting the statement of Dr. Alfano.

FACTS
On May 2, 1996, appellant rigged an automatic
weapon to shoot himself in the stomach. He was successful. There was extensive
evidence that appellant shot himself, including his admissions to his platoon
leader and his platoon sergeant. He was transferred from Bosnia to Landstuhl
Regional Medical Center in Germany for treatment. In addition to the physical
treatment, he was treated by Dr. Alfano, a civilian psychiatrist. Dr. Alfano
diagnosed appellant as having a dependent personality disorder. Appellant
told Dr. Alfano "that he was not suicidal" but had intentionally discharged
the weapon in an attempt to be reunited with his estranged wife in Baumholder,
Germany.
"At trial, appellants defense was that ...
he abandoned his attempt to shoot himself but that the weapon accidentally
fired while he was retrieving it. Appellants defense counsel challenged
the admissibility of appellants statements to Dr. Alfano claiming they
were protected by the federal psychotherapist-patient privilege recognized
in Jaffee v. Redmond[,]" 518 U.S. 1, 116 S. Ct. 1923 (1996).
See 49 MJ at 529.
The military judge denied appellant's motion
to suppress this evidence because under Mil.R.Evid. 501, Manual for Courts-Martial,
United States (1998 ed.), and Article 36, UCMJ, 10 USC § 836,
the federal psychotherapist-patient privilege "is not applicable" to the
military.

DISCUSSION
The issue in this case is whether the psychotherapist-patient
privilege recognized by the Supreme Court in Jaffee as being part
of federal common law is applicable to trials by courts-martial. This issue
requires consideration of the relationship between the Federal Rules of
Evidence and the Military Rules of Evidence.1
The Proposed Federal Rules of Evidence were
submitted to the Supreme Court in October 1971. The Rules as originally
approved by the Supreme Court on November 20, 1972, set forth in
Article V nine nonconstitutional privilege rules applicable to federal
trials, including a proposed psychotherapist-patient privilege. After these
proposed Rules were sent to Congress, the Subcommittee on Criminal Justice
of the Committee on the Judiciary of the House of Representatives held
open hearings on the Proposed Rules. As a result of these hearings and
numerous conferences, Congress did not accept the proposed privilege rules
because a consensus could not be achieved as to a number of privileges.
S. Rep. No. 1277, 93d Cong. 2d Sess. (1974), reprinted in 1974 U.S.
Code Congressional & Administrative News 7051, 7052, 7053, 7058; see
also Title 28 USCA Federal Rules of Evidence (Rules 701 to End)
614, 615, 620. Instead, Congress adopted Fed.R.Evid. 501:



Except as otherwise required by the Constitution
of the United States or provided by Act of Congress or in rules prescribed
by the Supreme Court pursuant to statutory authority, the privilege of
a witness, person, government, State, or political subdivision thereof
shall be
governed by the principles of the common
law as they may be interpreted by the courts
of the United States in the light of reason
and experience. However, in civil actions
and proceedings, with respect to an element
of a claim or defense as to which State law
supplies the rule of decision, the privilege
of a witness, person, government, State, or
political subdivision thereof shall be
determined in accordance with State law.



The Rules, as revised by Congress, were approved
by President Ford on January 2, 1975. Pub. L. No. 93-595, 88 Stat. 1926.
In contrast to the Federal Rules of Evidence,
Congress has delegated to the President the authority to issue rules of
evidence for courts-martial. See Art. 36. Under this authority,
the President promulgated the Military Rules of Evidence in 1980, which
were based upon the Federal Rules of Evidence, subject to exceptions based
upon practicability and conformance with the Uniform Code of Military Justice.
See Drafters Analysis of Mil.R.Evid. 501, Manual, supra
(1998 ed.) at A22-37.
The President, in the Military Rules of Evidence,
did not follow the approach taken by the Federal Rules of Evidence. Instead
of a general rule allowing the courts to develop privileges through a common-law
approach, see Fed.R.Evid. 501, the rules promulgated by the President
used a combination of specific rules and a limited authority to incorporate
common-law privileges. As noted in the Drafters Analysis:



Unlike the Article III court system, which
is conducted almost entirely by attorneys functioning in conjunction with
permanent courts in fixed locations, the military criminal legal system
is characterized by its dependence upon large numbers of laymen, temporary
courts, and inherent geographical and personnel instability due to the
worldwide deployment of military personnel. Consequently, military law
requires far more stability than civilian law. This is particularly true
because of the significant number of non-lawyers involved in the military
criminal legal system. Commanders, convening authorities, non-lawyer investigating
officers, summary court-martial officers, or law enforcement personnel
need specific guidance as to what material is privileged and what is not.



Drafters Analysis of Mil.R.Evid. 501, Manual,
supra (1998 ed.) at A22-37. The privileges set forth by the President
"provide the certainty and stability necessary for military justice." Id.
In United States v. Scheffer, 523 U.S.
303, 118 S. Ct. 1261 (1998), the Supreme Court recognized that the
President may promulgate rules of evidence for the military, which



do not abridge an accuseds right
to present a defense so long as they are not "arbitrary" or "disproportionate
to the purposes they are designed to serve." Moreover, we have found the
exclusion of evidence to be unconstitutionally arbitrary or disproportionate
only where it has infringed upon a weighty interest of the accused.



523 U.S. at 308 (citations omitted); see
also id. at 323 & n.4.
The purpose of the Military Rules was to provide
predictability, clarity, and certainty through specific rules rather
than a case-by-case adjudication of what the rules of evidence would be.
The addition of Mil.R.Evid. 501 is constitutional and an appropriate exercise
of the Presidents authority under Article 36. We hold that Mil.R.Evid.
501 "is a rational and proportional means of advancing the legitimate interests
of the military." See 523 U.S. at 312.
Mil.R.Evid. 501 provides in part:



(a) A person may not claim a privilege with
respect to any matter except as required by or provided for in:
    (1) The Constitution of
the United States as applied to members of the armed forces;
    (2) An Act of Congress
applicable to trials by courts-martial;
    (3) These rules or this
Manual; or
    (4) 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 code, these rules, or this
Manual.



* * *



(d) Notwithstanding any other provision of
these rules, information not otherwise privileged does not become privileged
on the basis that it was acquired by a medical officer or civilian physician
in a professional capacity.



Although the originally enumerated privileges
contained within Mil.R.Evid. 502-509 establish the stability necessary
for military justice, the President, in promulgating Mil.R.Evid. 501, provided
a modest degree of flexibility in the application of federal common-law
privileges to courts-martial. Drafters Analysis of Mil.R.Evid. 501, Manual,
supra (1998 ed.) at A22-37. Mil.R.Evid. 501(a)(4) adopts the privileges
recognized at common law pursuant to Fed.R.Evid. 501, insofar as "practicable
and not contrary to or inconsistent with" the Code, the Military Rules
of Evidence, or the Manual for Courts-Martial. Appellant asserts that it
is through this subsection of Mil.R.Evid. 501 that the psychotherapist-patient
privilege, recognized by the Supreme Court in Jaffee, became applicable
to courts-martial. The Government argues that the psychotherapist privilege
recognized in Jaffee cannot be adopted through Mil.R.Evid. 501(a)(4)
because it is inconsistent with Mil.R.Evid. 501(d), which prevents application
of a doctor-patient privilege to the military.
At the outset, it is necessary to review the
state of the law when the President issued Mil.R.Evid. 501. Prior
to Jaffee, "all 50 states and the District of Columbia" recognized
"some form of psychotherapist privilege." 518 U.S. at 12. At the
time of the adoption of the Military Rules of Evidence in 1980, the federal
courts were divided on the existence of the privilege. Some refused to
find the privilege under Fed.R.Evid. 501,2
while others recognized the existence of the privilege.3
The Court in Jaffee examined Fed. R.
Evid. 501 which "authorizes federal courts to define new privileges by
interpreting common law principles . . . in the light of reason and experience."
518 U.S. at 8. It observed that Rule 501 "did not freeze the law
governing the privileges of witnesses in federal trials[.]" While recognizing
that
a trial is a search for the truth, the Court
acknowledged that public policy may require certain exemptions and exceptions
to admissibility of evidence. Id. at 9. Public policy protects certain
communications to encourage individuals to seek assistance, e.g.,
the attorney-client privilege. Society should also encourage an individual
to seek assistance from a psychotherapist, but such assistance would not
be encouraged if there were not "an atmosphere of confidence and trust
in which the patient is willing to make a frank and complete disclosure
of facts, emotions, memories, and fears." The importance of this privilege
was recognized by the Judicial Conference Advisory Committee. Id.
at 10. The Court noted that if the privilege was not recognized,
"confidential conversations between psychotherapists and their patients
would surely be chilled[.]" Id. at 11-12. The Court concluded that
on the basis of "reason and experience," a psychotherapist privilege "promotes
sufficiently important interests to outweigh the need for probative evidence."
Id. at 9-10.
After analyzing application of the psychotherapist-patient
privilege in the state and federal courts, the Supreme Court held that
statements made by a police officer to a licensed clinical social worker
after a traumatic incident in which the officer shot and killed a man were
inadmissible in a federal civil action brought by the family of the deceased.
Thus, Jaffee resolved the split in the
federal courts. In reaching its decision, the majority reiterated that
an "uncertain privilege" was "little better than no privilege at all."
Id. at 18. The Court also recognized that the privilege was absolute,
rejecting the balancing test applied by the Court of Appeals in the Jaffee
case. Id. at 17. The Court concluded:



Although it would be premature to speculate
about most future developments in the federal psychotherapist privilege,
we do not doubt that there are situations in which the privilege must give
way, for example, if a serious threat of harm to the patient or to others
can be averted only by means of a disclosure by the therapist.



Id. at 18 n.19.
Prior to Jaffee, this Court did not
recognize a psychotherapist privilege. United States v. Mansfield,
38 MJ 415 (1993); United States v. Toledo, 25 MJ 270 (1987). After
Jaffee was decided, this Court stated in dicta in United States
v. English, 47 MJ 215, 216-17 (1997):

       Although
the Manual for Courts-Martial

does not recognize a general doctor-patient
or psychotherapist-patient privilege, there
is a limited privilege under Mil.R.Evid. 302
... covering statements made during an examination
into the mental condition of the accused under RCM 706.



(Footnote omitted.)
All of the service courts that have addressed
this issue post-Jaffee (including this case) have recognized that
the President has occupied the field and that Mil.R.Evid. 501(d) precludes
application of doctor-patient or psychotherapist-patient privilege to the
military. United States v. Paaluhi, 50 MJ 782, 786 (NM Ct.Crim.App.
1999); United States v. Rodriguez, 49 MJ 528 (Army Ct.Crim.App.
1998); United States v. Stevens, 1999 WL 453948, 1999 CCA LEXIS
198 (AF Ct.Crim.App. 1999).
The Presidents use of the term, "physician,"
in Mil.R.Evid. 501(d) includes psychiatrists and medical officers which
include a broad range of military personnel who were not physicians, including
those who are psychotherapists. The psychotherapist privilege is not a
privilege required by the Constitution of the United States. See
Mil.R.Evid. 501(a)(1). Nor is it a privilege required by statute. See
Mil.R.Evid. 501(a)(2).4
Nor is it a privilege required by the Military Rules of Evidence or the
Manual for Courts-Martial existing at the time of appellants trial. Cf.
Mil.R.Evid. 301-303, 502-509 (specific privileges required by the Rules
and the Manual).
A psychotherapist-patient privilege would be
contrary to and inconsistent with Mil.R.Evid. 501(d). As we have said,
the term "physician" includes a psychiatrist.5
The President adopted Mil.R.Evid. 513
on October 6, 1999. Executive Order No. 13140, §2a, 64 Fed. Reg. 55116
(1999), effective for "communications made after 1 November 1999." 64 Fed.
Reg. 55120. This Rule provides in pertinent part:

Rule 513. Psychotherapist-patient
privilege
(a) General rule of 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.

This Rule demonstrates the Presidents
continued commitment to occupy the field by: (1) not relying on Mil.R.Evid.
501(a)(4); and (2) adopting a Rule that does not literally incorporate
Jaffee. Instead, Mil.R.Evid. 513 applies a more limited approach
to the statements of Dr. Alfano, a civilian psychiatrist/physician working
for the military.
Rather than a case-by-case examination of the
scope of the Rule as in the federal civilian sector, the President has
set forth in detail the psychotherapist privilege for the military. This
includes defining the holders of the privilege, the nature of the privilege,
and the nature of privileged information. Mil.R.Evid. 513(b). Additionally,
the Rule sets forth various exceptions, e.g., spousal-child-abuse
exception, Mil.R.Evid. 513(d)(2); danger exception, Mil.R.Evid. 513(d)(4);
crime-fraud exception, Mil.R.Evid. 513(d)(5); and military-mission exception,
Mil.R.Evid. 513(d)(6). The Rule also sets forth the procedures to be applied
in identifying what might be privileged, what is subject to in camera
inspection, together with various notice provisions and what constitutes
waiver. Mil.R.Evid. 513(e).
Appellant argues that because the President
has now established a psychotherapist privilege without changing the language
of Mil.R.Evid. 501(d), the term "physicians" used in that section must
not have included "psychotherapists." On the contrary, the President established
Mil.R.Evid. 513 as a separate rule from Mil.R.Evid. 501(d), creating a
limited psychotherapist privilege, "based on the social benefit of confidential
counseling recognized by Jaffee." 64 Fed. Reg. 55122 (Drafters
Analysis of Mil.R.Evid. 513). The approach taken by the dissent
would lead to the following anomaly: (1) pre-Jaffee cases: no privilege;
(2) immediate post-Jaffee/pre-Mil.R.Evid. 513 cases should have
the benefit of full civilian Jaffee privilege; and (3) post-Mil.R.Evid.
513 cases: limited military privilege.
There is no reason that the cases falling in
category (2) have the benefit of an unrestricted privilege. The approach
we have taken recognizes that prior to Jaffee there was no privilege.
Post-Jaffee and prior to adoption of Mil.R.Evid. 513, there was
still no psychotherapist-patient privilege in the military because it was
contrary to Mil.R.Evid. 501(d). When the President promulgated Mil.R.Evid.
513, he did not simply adopt Jaffee; rather, he created a limited
psychotherapist privilege for the military. In the absence of a constitutional
or statutory requirement to the contrary, the decision as to whether, when,
and to what degree Jaffee should apply in the military rests with
the President, not this Court.
Therefore, we hold that the statements to Dr.
Alfano, a medical doctor, were not privileged.
The decision of the United States Army
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 The Military
Rules of Evidence are contained in Part III of the Manual for Courts-Martial,
United States (1995 ed.)(the edition applicable at appellants court-martial).
The then-enumerated privileges that parallel the 1969 Proposed Federal
Rules of Evidence, 46 F.R.D. 161 (1969), included: lawyer-client (Mil.R.Evid.
502); communication to clergy (Mil.R.Evid. 503); husband-wife (Mil.R.Evid.
504); and political vote (Mil.R.Evid 508).
2
See, e.g., United States v. Burtrum, 17 F.3d 1299,
1302 (10th Cir. 1994).
3
See, e.g., In re Doe, 964 F.2d 1325, 1328 (2d Cir.
1992).
4
In contrast, Article 31, UCMJ, 10 USC § 831, does recognize
the right to remain silent and the right not to be compelled to incriminate
oneself.
5
Dr. Alfano was a physician. The dissents position is inconsistent, in
that it recognizes that a psychiatrist is a physician, but then later asserts
that Dr. Alfano was not working as a physician while working as a psychiatrist.


SULLIVAN, Judge (concurring in part and in
the result):
The question before us is whether appellants
June 1996 statements to Doctor Alfano (a civilian psychiatrist in government
employment) were privileged and thus inadmissible at his court-martial
in January of 1997. These statements were made by appellant while he was
hospitalized at Landstuhl Regional Medical Center in Germany for a self-inflicted
gunshot wound to his stomach which had earlier caused his transfer back
from Bosnia where he was deployed. Doctor Alfanos purpose in treating
appellant was to develop a disposition plan, i.e., to determine
whether he should be returned to duty or returned to the United States
for further treatment. (R. 75) The doctors primary focus was to determine
appellants level of "suicidality." (id.) The doctor testified that
appellant said he was "not suicidal" but was "distressed" over his wifes
"affair with another soldier" and wanted to return to Germany to get his
family back together. (R. 75-76)
The lead opinion affirms the judges denial
of defense counsels motion to suppress Doctor Alfanos testimony because
it was privileged under Jaffee v. Redmond, 518 U.S. 1 (1996). It
does so on the basis that Mil. R. Evid. 501(d) at the time of appellants
statements and trial affirmatively precluded a privilege for statements
made to a physician, including a psychiatrist like Doctor Alfano. Our case
law applying Mil. R. Evid. 501(d) clearly supports the decisions of the
lead opinion, the Court of Criminal Appeals, and the military judge on
this legal question. See United States v. Mansfield, 38 MJ
415, 418 (1993); United States v. Tharpe, 38 MJ 8, 15 n.5 (1993);
United States v. Toledo, 25 MJ 270, 275 (1987) (pre-Jaffee
cases); see also United States v. Flack, 47 MJ 415,
417 (1998); United States v. English, 47 MJ 215, 216-17 (1997) (post-Jaffee
cases).
The dissenters, implicitly renouncing our case
law, have concluded that Mil. R. Evid. 501(d) does not preclude a psychotherapist-patient
privilege. See generally United States v. Demmings,
46 MJ 877 (Army Ct. Crim. App. 1997). Moreover, relying on Mil. R. Evid.
501(a)(4) and Jaffee v. Redmond, supra, they conclude that
a psychiatrist-patient privilege was "generally recognized in the trial
of criminal cases in the United States" at the time of appellants court-martial.
___ MJ at (1). In addition, the dissenters rely on Mil. R. Evid.
513, promulgated by the President in October 1999, well after appellants
trial, in concluding that application of this privilege at appellants
court-martial was "[o]bviously . . . practicable" (___ MJ at (1-2))
as required by Mil. R. Evid. 501(a)(4).
I am not persuaded by the dissenters that our
prior case law (holding that Mil. R. Evid. 501(d) includes psychiatrists)
should be overturned. See United States v. Scalarone, No.
00-5001, ___ MJ ___ (Sept. 11, 2000) (discussing and applying the doctrine
of stare decisis). Even if I were, I am not persuaded that
application of such a privilege in appellants case is "practicable" as
additionally required by Mil. R. Evid. 501(a)(4). The President, in subsequently
promulgating Mil. R. Evid. 513, which recognized a military psychotherapist-patient
privilege, did so on a limited basis reflecting the exigencies of military
service. He specifically provided exceptions where there is no privilege
under this rule. One exception to application of this privilege arises



(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[.]



In my view, appellants case (a suicide review)
fits in this category *
and thus I conclude that no privilege existed even under the dissenters
approach to this case. Accordingly, I vote to affirm.
FOOTNOTE:
* The suicide review would equally
be covered by Mil. R. Evid. 513(d)(6). It provides an exception which arises



(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[.]



In the instant case, the review by Dr. Alfano
was to determine whether to return appellant to Bosnia or to send him back
to the United States for treatment.


GIERKE, Judge, with whom COX, Senior Judge,
joins (dissenting):
The Supreme Court, the President, all 50 States,
and the District of Columbia all agree that communications between a psychiatrist
and a patient are privileged. Mil. R. Evid. 513; Jaffee v. Redmond,
518 U.S. 1, 12 and n. 11 (1996). Nevertheless, because Specialist Rodriguez
had the misfortune of consulting with Dr. Alfano before November 1, 1999,
the effective date of Mil. R. Evid. 513, the majority denies him the benefit
of the privilege. The majority hangs its hat on Mil. R. Evid. 501(d) and
holds that the President has "occupied the field" by making communications
with "a medical officer or civilian physician" unprivileged. I strongly
disagree.
In my view, the majoritys decision is contrary
to the common law as well as Article 36, UCMJ, 10 USC § 836, and Mil.
R. Evid. 501(a)(4), which enjoin courts-martial to follow "principles of
common law generally recognized in the trial of criminal cases in United
States district courts pursuant to rule 501 of the Federal Rules of Evidence,"
to the extent practicable. Those "principles of common law" recognize the
privilege between a psychiatrist and a patient. See Jaffe v.
Redmond, supra. Obviously, recognition of the privilege has
been determined by the President to be "practicable," because he expressly
made it applicable to courts-martial by promulgating Mil. R. Evid. 513.
The majority concludes that because Dr. Alfano
is also a physician, Mil. R. Evid. 501(d) is dispositive. The majority
overlooks the fact that appellants disclosures to Dr. Alfano were in his
capacity as a psychiatrist, not as a physician. A "psychiatrist" is defined
as "[a] physician especially learned in psychiatry." 5 J. E. Schmidt, Attorneys
Dictionary of Medicine 514 (1999). The fact that Dr. Alfano is a physician
does not remove the privilege, any more than it would remove the privilege
from a communication with a lawyer or a clergyman who also happened to
be a physician. The critical issue is the capacity in which the communication
was received, not the curriculum vitae of the recipient.
The Supreme Court recognized in Jaffee
that there is a fundamental difference between treatment by a physician
and a psychiatrist. The Supreme Court explained how the two differ:



Treatment by a physician for physical ailments
can often proceed successfully on the basis of a physical examination,
objective information supplied by the patient, and the results of diagnostic
tests. Effective psychotherapy, by contrast, depends upon an atmosphere
of confidence and trust in which the patient is willing to make a frank
and complete disclosure of facts, emotions, memories, and fears . . . .



518 U.S. at 10. When the President promulgated
Mil. R. Evid. 513, he did not find it necessary to modify or further define
the terms "medical officer" or "civilian physician" in Mil. R. Evid. 501(d),
strongly suggesting that he did not find the language of Mil. R. Evid.
513 inconsistent with Mil. R. Evid. 501(d).
In my view, appellants communications to Dr.
Alfano do not fall under the "medical officer" or "physician" exceptions
in Mil. R. Evid. 501(d). In the Army, the term "medical officer" applies
only to commissioned and warrant officers of the Army Medical Department.
See generally Army Regulation 40-1, Composition, Mission, and Functions
of the Army Medical Department (1 July 1983). Because Dr. Alfano is a civilian,
he is not a "medical officer." With regard to the "physician" exception,
Dr. Alfano was not working as a "physician," but as a "psychiatrist." Thus,
Mil. R. Evid. 501(d) is inapplicable to this case.
In my view, there is no justification in law
or policy for denying appellant the protection of the common-law privilege
recognized by the Supreme Court in Jaffee. I would hold that under
Mil. R. Evid. 501(a)(4), appellant was entitled to invoke that common-law
privilege. The majority denies him that right. Accordingly, I dissent.


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