United States v. Mellette ( 2022 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Wendell E. MELLETTE Jr.,
Electrician’s Mate (Nuclear) First Class Petty Officer
United States Navy, Appellant
No. 21-0312
Crim. App. No. 201900305
Argued February 8, 2022—Decided July 27, 2022
Military Judge: Warren A. Record
For Appellant: Lieutenant Commander Michael W. Wester,
JAGC, USN (argued).
For Appellee: Lieutenant Commander Jeffrey S. Marden,
JAGC, USN (argued); Lieutenant Colonel Christopher G.
Blosser, USMC, Major Clayton L. Wiggins, USMC, Lieuten-
ant John L. Flynn IV, JAGC, USN, and Brian K. Keller, Esq.
(on brief).
Amicus Curiae on behalf of Patient/Victim SS: Peter Coote,
Esq. (on brief).
Amici Curiae on behalf of the United States Navy, the
United States Marine Corps, and the United States Coast
Guard Victims’ Legal Counsel and Special Victims’ Counsel
Programs: Major Nathan H. Cox, USMC, Lieutenant Com-
mander Adam J. Sitte, JAGC, USN, and Paul T. Markland,
Esq. (on brief).
Judge HARDY delivered the opinion of the Court, in
which Chief Judge OHLSON and Senior Judge RYAN
joined. Judge MAGGS filed a dissenting opinion in which
Judge SPARKS joined.
_______________
Judge HARDY delivered the opinion of the Court.
The Government charged Appellant with sexually abusing
and assaulting SS, a fifteen-year-old girl with a history of
mental health issues. In preparation for his court-martial,
Appellant sought access to SS’s mental health diagnoses and
treatments on the basis that the records could prove relevant
to SS’s credibility as a witness. The Government declined to
United States v. Mellette, No. 21-0312/NA
Opinion of the Court
provide the requested records, asserting that the psychother-
apist-patient privilege provided by Military Rule of Evidence
(M.R.E.) 513 protected the records in toto from disclosure. Ap-
pellant filed a motion to compel production and in camera re-
view of SS’s mental health records, arguing primarily that the
psychotherapist-patient privilege does not sweep so broadly
as to protect a patient’s diagnoses and treatment plan.
The military judge denied the motion, and the United
States Navy-Marine Corps Court of Criminal Appeals
(NMCCA) affirmed, holding that the psychotherapist-patient
privilege protects not only confidential communications, but
diagnoses and treatment plans contained within medical rec-
ords. United States v. Mellette, 81 M.J. 681, 691–93 (N-M. Ct.
Crim. App. 2021). We granted review to determine the scope
of the patient-psychotherapist privilege under M.R.E. 513.
United States v. Mellette, 82 M.J. 13 (C.A.A.F. 2021) (order
granting review).
Based on the plain language of M.R.E. 513, and mindful
of the Supreme Court’s admonition that privileges must be
strictly construed, we conclude that diagnoses and treat-
ments contained within medical records are not themselves
uniformly privileged under M.R.E. 513. The decision of the
NMCCA is set aside, and we return the case to the Judge Ad-
vocate General of the Navy for further proceedings consistent
with this opinion.
I. Background
While serving in the Navy, Appellant engaged in a sexual
relationship with SS, the fifteen-year-old sister of Appellant’s
then-wife. After Appellant’s wife discovered the relationship,
the couple divorced, with Appellant’s now ex-wife receiving
custody of their young daughter. During a later dispute over
Appellant’s visitation rights, Appellant’s ex-wife reported his
prior sexual relationship with SS to Appellant’s commanding
officer, leading to an investigation by the Naval Criminal In-
vestigative Service (NCIS).
After the NCIS investigation, which included an interview
with SS in which she revealed that she had spent time in a
mental health facility, the Government charged Appellant
with one specification of sexual abuse of a child and one spec-
ification of sexual assault of a child, both under Article 120b,
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Opinion of the Court
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b
(2012). A critical element of each charge was that the alleged
misconduct occurred prior to SS’s sixteenth birthday in July
2014. See Article 120b(h)(4), UCMJ (defining a child as “any
person who has not attained the age of 16 years”).
In parallel to the criminal investigation and proceedings,
Appellant and his ex-wife continued their legal dispute over
custody of their daughter. As part of those civil proceedings,
SS sat for a deposition in which she discussed her prior sexual
relationship with Appellant. During the deposition, SS dis-
closed that in August 2013, she voluntarily spent a week in a
mental health facility after her high school administrators
discovered she had engaged in self-harm. SS revealed at least
part of the mental health diagnoses she received at the facil-
ity, her treatment plan during her stay, and the follow-up
treatment plan she received when she was discharged.
Prior to his court-martial, Appellant sought discovery of
any evidence that SS “sought or received mental health treat-
ment” and copies of “S.S.’s medical records related to mental
health and prescriptions” from the period when SS was in the
mental health facility through the start of Appellant’s court-
martial. The Government denied the request, partially on the
basis that the requested information was protected by the
psychotherapist-patient privilege provided in M.R.E. 513. In
response, Appellant moved to compel production and in cam-
era review of SS’s mental health records. Appellant asserted
that the requested information was “relevant to issues of sug-
gestion, memory, and truthfulness” with respect to SS.
The military judge denied Appellant’s motion to compel,
holding that the documents sought by Appellant were pro-
tected by the psychotherapist-patient privilege under
M.R.E. 513. The military judge further concluded that Appel-
lant had not provided any evidentiary or legal basis to order
production of the documents and perform in camera review.
At Appellant’s court-martial, SS testified that she had en-
gaged in self-mutilation and spent time in a mental health
treatment facility for depression and anxiety in August 2013.
SS stated that she started spending more time with Appellant
in the months following her discharge from the mental health
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Opinion of the Court
facility. SS described how Appellant starting sexually abus-
ing her during those encounters, but she struggled to provide
precise dates for when the abuse occurred. Although Appel-
lant departed for deployment in February 2014, SS testified
that the sexual abuse escalated when Appellant returned in
April 2014.
Given the need for the Government to prove beyond a rea-
sonable doubt that Appellant’s alleged misconduct occurred
before SS’s sixteenth birthday in July 2014, Appellant’s de-
fense counsel focused on SS’s inability to provide specific
dates for the incidents of abuse and assault during SS’s
cross-examination. SS repeatedly answered that she didn’t
know or was not sure when the events she described during
her direct testimony occurred, a fact that Appellant’s counsel
highlighted during his closing arguments.
The members, sitting as a general court-martial, convicted
Appellant of one specification of sexual abuse of a child but
acquitted him of sexual assault of a child, both offenses under
Article 120b, UCMJ. The members sentenced Appellant to
confinement for five years and a dishonorable discharge. The
convening authority approved the sentence.
Before the NMCCA, both Appellant and the Government
argued that the military judge erred in holding that medical
records that revealed SS’s diagnoses and treatments were
privileged under M.R.E 513. Mellette, 81 M.J. at 691. The
NMCCA disagreed, holding both that the plain language of
M.R.E. 513 protected such records and that it would be ab-
surd to conclude otherwise. Id. at 692. The NMCCA further
held SS had waived the privilege by discussing her mental
health diagnoses and treatment, including her prescribed
medications, with her family, with NCIS, and during her civil
deposition. Id. at 693.1
Having found error, the NMCCA then held that Appel-
lant’s lack of access to the requested information about SS’s
1 Even if SS had not waived the privilege, the NMCCA held in
the alternative that the military judge abused his discretion in con-
cluding that Appellant had not shown, at the very least, that in
camera review of the pertinent mental health records was constitu-
tionally required to protect Appellant’s due process and confronta-
tion rights. Mellette, 81 M.J. at 694.
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mental health diagnoses and treatments only prejudiced Ap-
pellant with respect to the post-deployment allegations,
which were supported solely by SS’s testimony. Id. at 695–96.
Because strong corroborating evidence existed for the prede-
ployment allegations, the NMCCA held that the error was
harmless beyond a reasonable doubt with respect to those
findings. Id. Accordingly, the NMCCA struck the words “on
divers occasions” from Appellant’s conviction for sexual abuse
of a child and reduced Appellant’s sentence to three years of
confinement and a dishonorable discharge. Id. at 701.
This Court granted review of the following three issues:
I. M.R.E. 513 extends the psychotherapist-patient
privilege to a “confidential communication” between
patient and psychotherapist or assistant. Did the
lower court err by concluding diagnoses and treat-
ment are also subject to the privilege, invoking the
absurdity doctrine?
II. Did the NMCCA depart from Supreme Court and
CAAF precedent by not reviewing the evidence at is-
sue—diagnoses and treatment, including prescrip-
tions—in concluding: (1) the mental health evidence
was both prejudicial and non-prejudicial; and
(2) failure to produce it was harmless beyond a rea-
sonable doubt where the unknown evidence could
have negated the evidence the NMCCA claimed to
be “overwhelming” evidence?
III. Whether the Court of Criminal Appeals erred by
holding that [SS] waived the psychotherapist-pa-
tient privilege.
Mellette, 82 M.J. at 13–14.
II. Discussion
We granted review of three questions in this case, but our
answer to the first question—whether the patient-psycho-
therapist privilege established by M.R.E. 513 protects a pa-
tient’s diagnoses and treatments from disclosure—moots the
remaining two. Because we conclude that such records are not
privileged under M.R.E. 513, we do not reach the second or
third questions presented.
A. Standard of Review
This Court reviews questions regarding the scope of the
patient-psychotherapist privilege established by the Military
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Rules of Evidence de novo. United States v. Beauge, 82 M.J.
157, 162 (C.A.A.F. 2022). When construing those rules, we ap-
ply the standard principles of statutory construction. United
States v. Kohlbek, 78 M.J. 326, 330 (C.A.A.F. 2019). When the
language of a rule is susceptible to only one interpretation, we
enforce the rule according to its terms. Id. (citing Hartford
Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S.
1, 6 (2000)). But when a rule’s language is ambiguous, we in-
terpret that language within the broader context of the rule.
Beauge, 82 M.J. at 162.
When interpreting M.R.E. 513, we must also account for
the Supreme Court’s guidance that “[t]estimonial exclusion-
ary rules and privileges contravene the fundamental princi-
ple that the public has a right to every man’s evidence,” Tram-
mel v. United States, 445 U.S. 40, 50 (1980) (alteration in
original removed) (internal quotation marks omitted) (cita-
tion omitted), and our own view that “privileges ‘run contrary
to a court’s truth-seeking function,’ ” United States v. Jasper,
72 M.J. 276, 280 (C.A.A.F. 2013) (quoting United States v.
Custis, 65 M.J. 366, 369 (C.A.A.F. 2007)). The Supreme Court
has further advised that evidentiary privileges “must be
strictly construed and accepted only to the very limited extent
that permitting a refusal to testify or excluding relevant evi-
dence has a public good transcending the normally predomi-
nant principle of utilizing all rational means for ascertaining
truth.” Trammel, 445 U.S. at 50 (internal quotation marks
omitted) (citation omitted); see also Jasper, 72 M.J. at 280
(recognizing that privileges must be “narrowly construed”).
B. Military Rule of Evidence 513
We begin our analysis, as we must, with the text of the
rule. M.R.E. 513(a) states:
A patient has a privilege to refuse to disclose and to
prevent any other person from disclosing a confiden-
tial communication made between the patient and a
psychotherapist or an assistant to the psychothera-
pist, in a case arising under the [UCMJ], if such com-
munication was made for the purpose of facilitating
diagnosis or treatment of the patient’s mental or
emotional condition.
By its terms, the rule protects “confidential communica-
tion[s]” between a patient and a psychotherapist “made for
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Opinion of the Court
the purpose of facilitating diagnosis or treatment of the pa-
tient’s mental or emotional condition.”2
Although the first question presented asks whether “diag-
noses and treatment are also subject to the privilege,” that is
not precisely the correct query. We have no doubt, and neither
party disputes, that communications between a patient and a
psychotherapist involving diagnoses and treatments are priv-
ileged and that a medical record could transcribe a communi-
cation in such a way to make it privileged. The critical ques-
tion in this case is whether other evidence that does not
qualify as a communication between a patient and a psycho-
therapist—such as a patient’s routine medical records—are
also protected by the rule. Essentially, the question before us
is whether “communication[s]” in rule M.R.E. 513(a) should
be interpreted narrowly to exclude medical records and other
similar evidence that does not constitute a confidential com-
munication or interpreted broadly to include all evidence that
in some way reflects, or is derived from, confidential commu-
nications.
The Government argues that the plain language of
M.R.E. 513(a) protects medical records that contain diagno-
ses and treatment, but we disagree. The phrase “communica-
tion made between the patient and a psychotherapist” does
not naturally include other evidence, such as routine medical
records, that do not memorialize actual communications be-
tween the patient and the psychotherapist. We must begin
with the assumption that the President’s specific choice of the
word “communication” in M.R.E. 513(a)—rather than
broader nouns such as “documents,” “information,” or “evi-
dence”—and the President’s inclusion of the limiting phrase
“made between the patient and a psychotherapist” have
meaning. Otherwise, nothing would distinguish the language
of M.R.E 513(a) from a hypothetical, alternative rule that
2 More accurately, the rule protects such communications be-
tween a patient and “a psychotherapist or an assistant to the psy-
chotherapist.” M.R.E. 513(a) (emphasis added). To be clear, all ref-
erences to communications with a psychotherapist in this opinion
include communications to an assistant to the psychotherapist.
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Opinion of the Court
simply protected “documents made for the purpose of facili-
tating diagnosis or treatment of the patient’s mental or emo-
tional condition.”
The President has the authority, within the limits of the
Confrontation Clause, to define the scope of the patient-psy-
chotherapist privilege as broadly as he sees fit. If the Presi-
dent intended M.R.E. 513(a) to broadly protect all patient
medical records, the President could have used express lan-
guage that unambiguously reflected that intent. Indeed,
other jurisdictions have done exactly that. In Florida, for ex-
ample, the legislature expressly protected mental health pa-
tients’ records and diagnoses:
A patient has a privilege to refuse to disclose, and to
prevent any other person from disclosing, confiden-
tial communications or records made for the purpose
of diagnosis or treatment of the patient's mental or
emotional condition, including alcoholism and other
drug addiction, between the patient and the psycho-
therapist, or persons who are participating in the di-
agnosis or treatment under the direction of the psy-
chotherapist. This privilege includes any diagnosis
made, and advice given, by the psychotherapist in the
course of that relationship.
Fla. Stat. Ann. § 90.503(2) (West 2018) (emphasis added).3
But here, the President chose a different path, including only
confidential communications made between the patient and a
psychotherapist with no mention of any other types of
evidence.
The Government argues that, despite the specific lan-
guage of M.R.E. 513(a), broader consideration of the entire
rule makes clear that M.R.E. 513 protects all evidence that
discloses a patient’s diagnoses and treatment, regardless
whether that evidence qualifies as a communication made be-
tween the patient and the psychotherapist. In support of this
3 See also, e.g., Wyo. Stat. Ann. § 33-38-113(a) (1999)
(preventing the disclosure of “confidential information, including
information contained in administrative records”); 740 Ill. Comp.
Stat. Ann. 110/10(a) (West 2017) (preventing the disclosure of a
patient’s “record or communications”), Ark. R. Evid. 503(b)
(preventing the disclosure of a patient’s “medical records or
confidential communications”).
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argument, the Government points to two provisions,
M.R.E. 513(e)(2) and M.R.E. 513(b)(5). Again, we disagree.
Neither provision overcomes the plain language of
M.R.E. 513(a), especially given that we are required to nar-
rowly construe the language of the rule. Trammel, 445 U.S.
at 50; Jasper, 72 M.J. at 280.
M.R.E. 513(e) establishes a procedure to determine the
admissibility of patient records or communications. Because
the rule authorizes a military judge to examine the proffered
evidence in camera “if such examination is necessary to rule
on the production or admissibility of protected records or
communications,” M.R.E. 513(e)(3) (emphasis added), the
Government argues that the patient-psychotherapist
privilege must extend to all patient records. We disagree.
Military Rule of Evidence 513(e)(3)—the only provision in
M.R.E. 513(e) that uses the word “protected”—does nothing
more than acknowledge the well-established rule that
documents that are not themselves communications may be
partially privileged to the extent that those records
memorialize or otherwise reflect the substance of privileged
communications. See, e.g., Colton v. United States, 306 F.2d
633, 639 (2d Cir. 1962) (“Documentary evidence of
confidential communications is necessarily privileged as
much as testimonial evidence.”). It does not mean that every
document or record related to the diagnosis or treatment of a
patient’s mental health is privileged.
Similarly, M.R.E. 513(e)(2) requires a military judge to
conduct a hearing before ordering the production or admis-
sion of “evidence of a patient’s records or communication,” de-
fined as “testimony of a psychotherapist, or assistant to the
same, or patient records that pertain to communications by a
patient to a psychotherapist, or assistant to the same, for the
purposes of diagnosis or treatment of the patient’s mental or
emotional condition.” M.R.E. 513(b)(5) (emphasis added). The
Government argues that because all patient records “pertain
to communications” between the patient and the psychother-
apist, they must all be included within the scope of
M.R.E. 513(a). Again, we disagree. We interpret these provi-
sions as simply recognizing that to the extent testimonial or
documentary evidence reveals what M.R.E. 513(a) expressly
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Opinion of the Court
protects—confidential communications—they are also par-
tially protected; not, as the Government argues, that the en-
tirety of every patient record is necessarily included within
the patient-psychotherapist privilege.
The Government also argues that we should interpret
M.R.E. 513(a) as protecting all patient records related to the
diagnosis or treatment of a patient’s mental health because
the textually similar lawyer-client privilege established by
M.R.E. 502 protects attorney records. This argument is fa-
tally flawed because it disregards the fact that the attorney
work-product privilege is separate and distinct from the at-
torney-client privilege. United States v. Nobles, 422 U.S. 225,
238 n.11 (1975). As defined by the Federal Rules of Evidence,
attorney-client privilege is “the protection that applicable law
provides for confidential attorney-client communications,”
while the work-product protection is “the protection that ap-
plicable law provides for tangible material (or its intangible
equivalent) prepared in anticipation of litigation or for trial.”
Fed. R. Evid. 502(g)(1)–(2).
This distinction between communications and tangible
materials (i.e., records and other nontestimonial evidence), is
also reflected in the Manual for Courts-Martial, United
States. Although the military’s attorney-client privilege pro-
tects “confidential communications made for the purpose of
facilitating the rendition of professional legal services,”
M.R.E. 502(a) (emphasis added), an entirely separate provi-
sion—Rule for Courts-Martial (R.C.M.) 701(f)—protects at-
torney-work product. That provision expressly shields from
disclosure or production “notes, memoranda, or similar work-
ing papers prepared by counsel and counsel’s assistants and
representatives.” Id. Thus, the existence of an entirely sepa-
rate provision from M.R.E. 502 protecting attorney-work
product—and the lack of any parallel provision establishing a
psychotherapist work-product privilege—undermines the
Government’s argument that M.R.E. 513(a) protects patient
records.
Finally, the Government argues that a psychotherapist’s
diagnoses and treatment of a patient should be protected by
M.R.E. 513(a) in the same way that an attorney’s legal advice
is protected by the attorney-client privilege. This argument
fails because it conflates the content of communications with
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underlying facts. See 1 Paul R. Rice, Attorney-Client Privilege
in the United States § 5:1 (2014) (“An important but com-
monly misunderstood limitation of the privilege is that it does
not protect the information contained within communications
to the attorney.”); Upjohn Co. v. United States, 449 U.S. 383,
395 (1981) (“The privilege only protects disclosure of commu-
nications; it does not protect disclosure of the underlying facts
by those who communicated with the attorney . . . .”).
As explained by the United States Court of Appeals for the
Second Circuit in a case where the government prosecutors
sought answers from witnesses to a series of factual questions
related to work performed by the corporate defendant’s em-
ployees at the direction of their attorneys in preparation for
litigation:
Although an attorney-client communication is
privileged and may not be divulged, the underlying
information or substance of the communication is
not, as appellants incorrectly believe, so privileged.
Further, the remaining 19 questions seek
underlying factual information to which the
prosecutor is clearly entitled. The factual
information is not protected by the attorney-client
privilege just because the information was
developed in anticipation of litigation.
In re Six Grand Jury Witnesses, 979 F.2d 939, 945 (2d Cir.
1992) (citation omitted). Even though the answers to the pros-
ecutor’s questions might reveal the substance of the legal ad-
vice provided by the defendant’s attorneys, the government
was still entitled to ask the recipients of the legal advice spe-
cific factual questions, such as:
 What analysis did you perform?
 What records did you review?
 What conclusions did your draw?
 What information did you give anyone other
than an attorney?
 When did you give them this information?
Id. at 946 (Appendix A). This case demonstrates the funda-
mental principle that the attorney-client privilege prevents
the disclosure of what an attorney advised a client to do, but
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it does not prevent the disclosure of what the client actually
did or did not do in response to that advice.
Accordingly, the Government is incorrect in its assertion
that M.R.E. 513(a) must extend “not just to confidential com-
munications . . . , but also to the underlying diagnoses and
treatments.” Brief for Appellee at 22, United States v. Mel-
lette, No. 21-0312 (C.A.A.F. Dec. 20, 2021). A patient’s diag-
nosis and the treatment that a patient received to care for
those conditions are “underlying facts,” Upjohn Co., 449 U.S.
at 395, not confidential communications. Although
M.R.E. 513(a) prevents a witness from being required to dis-
close the substance of the communications between a patient
and a psychotherapist, it does not extend to all evidence that
might reveal a patient’s diagnoses and treatments. The
NMCCA erred in holding otherwise.
It is worth emphasizing that this conclusion is not based
on our views on the proper scope of the patient-psychothera-
pist privilege or a belief that the benefits of protecting a pa-
tient’s diagnoses and treatment from disclosure fail to “trans-
cend[] the normally predominant principle of utilizing all
rational means for ascertaining truth.” Trammel, 445 U.S. at
50 (internal quotation marks omitted) (citation omitted). In-
stead, our analysis rests solely on the specific text of
M.R.E. 513(a) and the Supreme Court’s mandate—and our
own precedent—that states that evidentiary privileges “must
be strictly construed.” Trammel, 445 U.S. at 50; see Jasper,
72 M.J. at 280. As the promulgator of the Military Rules of
Evidence, the President has both the authority and the re-
sponsibility to balance a defendant’s right to access infor-
mation that may be relevant to his defense with a witness’s
right to privacy. Unless the President’s decision with respect
to that balance contravenes a constitutional or statutory lim-
itation, we must respect that choice.
C. Remaining Issues
Because we hold that the NMCAA erred when it concluded
that M.R.E. 513(a) protects all evidence of a mental health
patient’s diagnoses and treatments from disclosure, we need
not decide whether SS waived the privilege with respect to
those topics or whether the NMCCA erred by performing its
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prejudice analysis without examining the undisclosed
evidence.
D. Remedy
Before trial, Appellant filed a motion to compel production
and in camera review of “S.S.’s mental health records: to in-
clude the dates visited said mental health provider, the treat-
ment provided and recommended, and her diagnosis.” These
documents were not protected from disclosure by
M.R.E. 513(a), and as noted by the NMCCA, they involved
key areas of concern that “go to the very essence of witness
credibility and reliability—potential defects in capacity to un-
derstand, interpret, and relate events.” Mellette, 81 M.J. at
694 (internal quotation marks omitted) (citation omitted). To
the extent that these documents existed—and were otherwise
admissible under the Military Rules of Evidence and the
Rules for Courts-Martial—they should have been produced or
admitted subject to the procedural requirements of
M.R.E. 513(e).
The military judge’s error may have denied Appellant
from reviewing relevant and material evidence before his
court-martial. Without any way of knowing whether any such
evidence existed, or if so, how important that evidence might
have been to Appellant’s defense, we decline to decide
whether Appellant was prejudiced by this error. Instead, we
remand to the NMCCA to order a DuBay hearing for the pur-
pose of obtaining any records that were responsive to Appel-
lant’s original motion to compel and determining whether
those records should have been provided to Appellant prior to
his court-martial.4 Once all the responsive, relevant, and ad-
missible evidence has been identified, the lower court shall
determine whether the military judge’s original denial of Ap-
pellant’s motion to compel materially prejudiced Appellant’s
defense pursuant to its authority under Article 66, UCMJ, 10
U.S.C. § 866 (2012). Following these proceedings, Article 67,
UCMJ, 10 U.S.C. § 867 (2012), shall apply.
4 United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
This may require the DuBay military judge to conduct an in camera
review, issue appropriate protective orders, and place portions of
the record under seal as necessary. See R.C.M. 701(g); R.C.M. 1113.
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III. Conclusion
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is reversed. The record is returned
to the Judge Advocate General of the Navy for remand to the
lower court for further proceedings consistent with this
opinion.
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Judge MAGGS, with whom Judge SPARKS joins,
dissenting.
The first assigned issue, and the only question that the
Court decides in this appeal, is whether the United States
Navy-Marine Corps Court of Criminal Appeals (NMCCA)
erred in concluding that the psychotherapist-patient privilege
established by Military Rule of Evidence (M.R.E.) 513 covers
diagnoses and treatments. This issue is difficult and
important. Indeed, it has divided the Courts of Criminal
Appeals. Compare H.V. v. Kitchen, 75 M.J. 717, 719 (C.G. Ct.
Crim. App. 2016) (holding that the privilege covers diagnoses
and treatments), and United States v. Mellette, 81 M.J. 681,
692 (N-M. Ct. Crim. App. 2021) (same), with United States v.
Rodriguez, No. ARMY 20180138, 2019 CCA LEXIS 387, at
*7–8, 2019 WL 4858233, at *4 (A. Ct. Crim. App. Oct. 1, 2019)
(unpublished) (holding that the privilege does not cover
diagnoses and treatments).
In its thoughtful opinion, the Court determines, with some
qualifications, that the privilege does not extend to diagnoses
and treatments and holds that the NMCCA erred in deciding
otherwise. My analysis is different, leading me to conclude
that the privilege covers diagnoses and treatments to the
extent that they reveal what a patient told a psychotherapist
or a psychotherapist told a patient for the purpose of
facilitating the diagnosis and treatment of the patient’s
mental condition. I therefore do not believe that the military
judge or the NMCCA erred in their resolution of this issue.
The Court’s conclusion with respect to the first assigned
issue makes it unnecessary for the Court to reach the other
assigned issues in this case. Because I disagree with the
Court’s resolution of the first assigned issue, I must go further
and also address the other assigned issues. For the reasons
that I present below, although I disagree with some aspects
of the NMCCA’s opinion in this case, I would affirm that
court’s judgment. Mellette, 81 M.J. at 701.
I. Background
Prior to the trial in this case, Appellant moved for
production of the victim’s mental health records, requesting
information about any “treatment provided and
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
recommended, and her diagnosis.”1 Appellant sought these
records for their potential value in cross-examining the victim
when she testified against him with respect to the sole
specification at issue in this appeal.2 Appellant asserted that
this evidence would be “relevant to issues of suggestion,
memory, and truthfulness.”
The military judge, however, denied Appellant’s motion,
ruling that the psychotherapist-patient privilege in M.R.E.
513(a) shielded the records from discovery. Relying on the
opinion of the United States Coast Guard Court of Criminal
Appeals (CGCCA) in H.V. v. Kitchen, 75 M.J. at 719, the
military judge further ruled that even if the records were not
privileged, they were not discoverable under R.C.M. 703
because Appellant had failed to show that they were “relevant
and necessary.” The military judge reasoned that Appellant
had no basis for believing that any nonprivileged records of
the kind he sought existed or that such records would not be
merely cumulative of information that he already had.
Indeed, the military judge further ruled that there was no
evidence that the victim might be suffering from a condition
relevant to issues of “suggestion, memory, and truthfulness.”
The military judge accordingly concluded that “the defense
[was] engaged in a ‘fishing expedition.’ ”
The NMCCA partially agreed and partially disagreed with
the military judge’s ruling. Mellette, 81 M.J. at 688, 691–93.
The NMCCA’s analysis consisted of four steps relevant to this
appeal.3 First, the NMCCA held that the psychotherapist-
patient privilege in M.R.E. 513(a) covers “diagnoses and
1 Appellant also sought records concerning the dates that the
victim visited her mental health provider, but the production of
records concerning these dates is not at issue in this appeal.
2 The sole specification at issue in this appeal alleged that
Appellant, in violation of Article 120b, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920b (2012), “did at or near Trenton,
Florida, on divers occasions, between on or about August 2013 to on
or about 12 July 2014, commit lewd acts upon [the victim], a child
who had not attained the age of 16 years.”
3 The NMCCA addressed a possible alternative to the second
and third steps but discussion of this alternative is not relevant to
this appeal.
2
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
treatment, including prescribed medications.” Id. at 691–92.
Second, the NMCCA held that the victim waived this
privilege under M.R.E. 510(a) by making voluntary
disclosures of some of her diagnoses and treatments. Id. at
693. Third, the NMCCA held that the military judge abused
his discretion in concluding that the requested medical
records were not “relevant and necessary” under R.C.M. 703
given that other diagnoses “could impact her credibility” and
medications could have a “potential for adverse effect on
memory.” Id. Fourth, the NMCCA held that the military
judge’s error caused material prejudice to the Appellant by
limiting how effectively he could challenge the victim’s
allegations. Id. at 695–96. The NMCCA redressed the error
by excepting from the specification at issue the words “on
divers occasions,” but it otherwise affirmed the finding of
guilt. Id. at 696. In so doing, the NMCCA reasoned that other
evidence corroborated the victim’s testimony with respect to
at least one occurrence of the charged offense. Id.
In this appeal, Appellant challenges the first and fourth
steps of the NMCCA’s reasoning. With respect to the first
step, Appellant contends that the NMCCA erred in
concluding that the psychotherapist-patient privilege in
M.R.E. 513(a) extends to diagnoses and treatments. With
respect to the fourth step, Appellant argues that the NMCCA
erred in conducting its prejudice analysis because the
NMCCA did not conduct an in camera review of the victim’s
mental health records to determine their content. Appellant
asks this Court to set aside the NMCCA’s decision and
remand for a DuBay hearing with respect to the issue of
prejudice. See United States v. DuBay, 17 C.M.A. 147, 149, 37
C.M.R. 411, 413 (1967).
The Government, in contrast, generally supports the
NMCCA’s analysis. But the Government asserts that if we
choose to revisit the second step of the NMCCA’s analysis, we
should hold that the NMCCA erred in concluding that the
victim completely waived her psychotherapist-patient
privilege. In any event, the Government argues that this
Court should affirm the adjudged and approved findings and
sentence.
In my view, the NMCCA chose the correct four-step
framework for deciding this case and its decision should be
3
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
affirmed. I also generally agree with the NMCCA’s reasoning
in these steps. But that said, I would qualify the NMCCA’s
conclusions as follows:
With respect to the NMCCA’s first conclusion, I agree
that the psychotherapist-privilege in M.R.E. 513(a) covers
diagnoses and treatments but only to the extent that they
reveal confidential communications between the patient and
psychotherapist that were made for the purpose of diagnosing
or treating the patient’s mental condition.
With respect to the NMCCA’s second conclusion, I agree
that the victim in this case waived her psychotherapist-
patient privilege but only with respect to the communications
containing the information that she revealed.
With respect to the NMCCA’s third conclusion, I agree
that the military judge erred in denying production of the
victim’s medical records but only to the extent that he denied
production of the narrow class of records that contained
communications about diagnoses and treatments with respect
to which the victim previously had waived her privilege.
With respect to the NMCCA’s fourth conclusion, the
qualifications above cause my prejudice analysis to differ
somewhat from the analysis of the NMCCA. Unlike the
NMCCA, I conclude that any error did not prejudice
Appellant. Having reached that determination, I conclude
that regardless of whether the NMCCA’s remedial measure
(i.e., excepting the words “on divers occasions” from the
specification at issue) was required for addressing an error
with respect to M.R.E. 513(a), no further remedy is necessary.
II. Standards of Review
Several different standards of review apply to this case.
This Court must uphold the military judge’s findings of fact
unless they are clearly erroneous. United States v. Mosby, 56
M.J. 309, 310 (C.A.A.F. 2002). Issues about the meaning of
evidentiary rules such as M.R.E. 510(a) and M.R.E. 513(a) are
questions of law that this Court must decide de novo. United
States v. Matthews, 68 M.J. 29, 35–36 (C.A.A.F. 2009). This
Court reviews a military judge’s denial of production of
evidence under M.R.E. 703(e)(1) for abuse of discretion.
United States v. Mosley, 42 M.J. 300, 303 (C.A.A.F. 1995).
4
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
Finally, “[w]e review prejudice determinations under a de
novo standard of review.” United States v. Ward, 74 M.J. 225,
227 (C.A.A.F. 2015) (citing United States v. Diaz, 45 M.J. 494,
496 (C.A.A.F. 1997)).
III. Discussion
Following the framework of the NMCCA’s opinion, I
address the following issues: (A) the application of the
psychotherapist-patient privilege in M.R.E. 513(a) to
diagnoses and treatments; (B) the victim’s possible waiver of
the psychotherapist-patient privilege under M.R.E. 510(a);
(C) Appellant’s right to production of records under R.C.M.
703; and (D) the prejudice to Appellant under Article 59(a),
UCMJ, 10 U.S.C. § 859(a).
A. Application of the Psychotherapist-Patient Privilege in
M.R.E. 513(a) to Diagnoses and Treatments
M.R.E. 513(a) creates an evidentiary privilege that
protects from disclosure certain communications between a
patient and a psychotherapist.4 The rule states in relevant
part:
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 . . . if such
communication was made for the purpose of
facilitating diagnosis or treatment of the patient’s
mental or emotional condition.
M.R.E. 513(a).
This Court interprets the M.R.E., including those rules
establishing privileges, according to their plain meaning.
Matthews, 68 M.J. at 38. Although the Supreme Court strictly
construes federal common law privileges to limit their
application, Trammel v. United States, 445 U.S. 40, 50 (1980),
this practice has no clear application to the interpretation of
codified privileges. 25 Charles Alan Wright & Kenneth W.
Graham, Jr., Federal Practice and Procedure: Evidence
4 M.R.E. 513(b)(2) defines the term “[p]sychotherapist” in part
to include “a psychiatrist, clinical psychologist, clinical social
worker, or other mental health professional who is licensed . . . to
perform professional services.”
5
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
§ 5586, at 715 (1989) (explaining that Trammel does not affect
the meaning of privileges codified in statutes). Consistent
with this view, this Court has not construed privileges in the
M.R.E. to be more limited than what their text provides. See
United States v. Custis, 65 M.J. 366, 369 (C.A.A.F. 2007)
(declining to create an exception to M.R.E. 504 by departing
from the rule’s text notwithstanding what the Supreme Court
said in Trammel).
In this case, the parties’ dispute over the meaning of
M.R.E. 513(a) is simply summarized. Appellant argues
that the psychotherapist-patient privilege covers
“communication[s] . . . made for the purpose of facilitating
diagnosis or treatment” but does not extend to the diagnosis
and treatment themselves. Relying on the opinion of the
United States Army Court of Criminal Appeals in Rodriquez,
2019 CCA LEXIS 387, at *7–8, 2019 WL 4858233, at *4,
Appellant contends that the plain meaning of M.R.E. 513’s
text supports this conclusion. The Government responds that
diagnoses and treatments are privileged. Quoting the
CGCCA’s opinion in H.V. v. Kitchen, 75 M.J. at 719, the
Government argues that “ ‘diagnoses and the nature of
treatment necessarily reflect, at least in part, the patient’s
confidential communications to the psychotherapist’ because
‘[m]ost diagnoses of mental disorders rely extensively on what
the patient has communicated to the psychotherapist.’ ”
(Alteration in original.) The Government further contends
that diagnoses and treatment are part of the confidential
communications that a psychotherapist makes to facilitate
treatment.
In my view, the text of M.R.E. 513 supports the view of the
Government and the H.V. v. Kitchen opinion. M.R.E. 513(a)
grants a patient a privilege to prevent anyone from
“disclosing” a confidential communication between the
patient and a psychotherapist that was made for the purpose
of facilitating diagnosis or treatment of the patient’s mental
condition. Key to interpreting this provision is a careful
consideration of how someone might “disclose” a covered
communication. In general, the verb “to disclose” means “to
reveal in words (something that is secret or not generally
known).” Merriam–Webster Unabridged Dictionary https://
unabridged.merriam-webster.com/unabridged/disclose (last
6
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
visited July 26, 2022). The central question here is whether
M.R.E. 513(a) addresses only complete and verbatim
disclosures of covered communications or instead addresses
any disclosures of such communications.
M.R.E. 513(a) certainly empowers a patient to prevent a
complete and verbatim disclosure of a covered
communication. For example, the patient could prevent the
psychotherapist from releasing either the original copy or a
photocopy of a confidential written communication between
the psychotherapist and the patient that was made for the
purpose of facilitating the diagnosis or treatment of the
patient’s condition. Similarly, if the covered communication
was made orally, the patient could prevent the
psychotherapist from releasing a video or audio recording or
a transcription of the communication. Such acts would be
disclosures within the meaning of M.R.E. 513(a) because they
would reveal the covered communications.
But M.R.E. 513(a) does not qualify the term “disclosing”
in such a way that the privilege only allows a patient to
prevent someone from disclosing a complete and verbatim
record of a covered communication. A partial or nonverbatim
disclosure is still a disclosure so long as it reveals some of
what would otherwise be secret. Accordingly, a patient may
use the privilege in M.R.E. 513(a) to prevent the
psychotherapist from disclosing notes of what was discussed
during covered communication, even if those notes are not
necessarily a complete and verbatim transcript of what was
said. See United States v. Beauge, 82 M.J. 157, 159–60
(C.A.A.F. 2022) (holding that the military judge did not abuse
his discretion in denying the appellant’s motion for in camera
review of the victim’s psychiatric records including “the
psychotherapist’s notes”). Similarly, the privilege allows a
patient to prevent a psychotherapist from testifying about
what he or she remembered was said in a covered
communication, even if the psychotherapist could not
necessarily recollect the exact words that were uttered. See
United States v. Jenkins, 63 M.J. 426, 428 (C.A.A.F. 2006)
(assuming that a psychotherapist’s testimony was covered by
M.R.E. 513(a) but determining that it fell within the
exceptions in M.R.E. 513(d)(4) and (6)).
7
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
Much like a nonverbatim summary or recollection, a
diagnosis or treatment also may provide some evidence of
what a patient confidentially told the psychotherapist or what
the psychotherapist confidentially told the patient for the
purpose of treating the patient’s mental condition. As a U.S.
district court explained in Stark v. Hartt Transportation
Systems, Inc., “[a] person’s mental health diagnoses and the
nature of his or her treatment inherently reveal something of
the private, sensitive concerns that led him or her to seek
treatment and necessarily reflect, at least in part, his or her
confidential communications to the psychotherapist.” 937 F.
Supp. 2d 88, 91 (D. Me. 2013); see also H.V. v. Kitchen, 75 M.J.
at 719 (citing and following Stark). Or as another U.S. district
court explained in United States v. White, “[a] party armed
with knowledge of a patient’s diagnosis will be able to make
an educated guess about the substance of the communications
that gave rise to the diagnosis.” Criminal Action No. 2:12-cr-
00221, 2013 U.S. Dist. LEXIS 49426, at *23, 2013 WL
1404877, at *7 (S.D.W.Va. Apr. 5, 2013), rev’d sub nom.
Kinder v. White, 609 F. App’x 126, 131 (4th Cir. 2015)
(agreeing with the trial court that the records of a diagnosis
were privileged but overruling its determination that an
exception to the privilege applied). In other words, disclosing
a diagnosis or a treatment may reveal what the patient said
to the psychotherapist or what the psychotherapist said to the
patient for the purpose of facilitating treatment of the
patient’s mental condition.
Accordingly, I would hold that a record of a patient’s
diagnosis is privileged to the extent that its disclosure would
reveal what the patient confidentially told the
psychotherapist or what the psychotherapist confidentially
told the patient for the purpose of diagnosing or treating the
patient’s mental condition. For example, a record containing
a diagnosis of anxiety or depression would be privileged to the
extent that disclosure of the diagnosis reveals, even if only
indirectly, that the patient told the psychotherapist that the
patient was anxious or depressed for the purpose of obtaining
treatment. Likewise, I would hold that a treatment is
privileged to the extent that its disclosure would reveal what
the psychotherapist confidentially told the patient or what
the patient confidentially told the psychotherapist for the
8
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
purpose of diagnosing or treating the patient’s mental
condition. For example, a record showing that the
psychotherapist prescribed a regimen of counseling or
medication would be privileged to the extent that disclosing
the treatment regimen provides some evidence about what
the psychotherapist confidentially told the patient for the
purpose of treating the patient’s mental condition.5
Similar questions about what constitutes a disclosure
have arisen with respect to other privileges. A leading treatise
notes that “[a]n important question about the power of the
client to prevent disclosure of attorney-client
confidences . . . is whether the privilege bars circumstantial
as well as direct evidence of attorney-client communications.”
24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal
Practice and Procedure: Evidence § 5489, at 424 (1986). Some
courts have reasoned, correctly in my view, that a “lawyer’s
papers should be privileged if they would be circumstantial
evidence of the client’s communication” under the attorney-
client privilege. Id. § 5491, at 459; see also 24 Charles Alan
Wright, Kenneth W. Graham, Jr. & Ann Murphy at 318 n.89
(1986 & Supp. 2022) (citing cases). Likewise, although the
government deliberations privilege generally does not cover
portions of documents that contain only facts, the privilege
will cover factual “material [that] is so inextricably
intertwined with the deliberative sections of documents that
its disclosure would inevitably reveal the government’s
deliberations.” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir.
1997).
In this case, as explained above, Appellant moved for
production of the victim’s mental health records, requesting
information about any “treatment provided and
5 Communications from a psychotherapist to a patient about a
diagnosis or treatment might be beneficial or even required. After
observing that “psychiatrists often have to break difficult news to
patients,” the author of one peer-reviewed study discusses both the
“negative and positive effects of disclosing the diagnosis to
patients.” Michelle Cleary et al., Delivering Difficult News in
Psychiatric Settings, 17 Harv. Rev. Psychiatry 315, 319 (2009).
Such disclosures, the author asserts, may facilitate treatment by
providing patients the benefits of “increased insight into their
symptoms, ability to access treatment, and plans for the future.” Id.9
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
recommended, and her diagnosis.” To the extent that any
such records containing a diagnosis and treatment would
reveal what the victim confidentially told her psychotherapist
or the psychotherapist confidentially told the victim for the
purpose of facilitating her diagnosis and treatment, they are
privileged. Such records are not discoverable.
But what about possible records containing diagnoses and
treatments that somehow disclose nothing about the
confidential communications between the victim and her
psychotherapist? The answer is twofold. First, if any such
records somehow existed, they would not be privileged under
M.R.E. 513. Second, as the military judge recognized, they
still would not necessarily be discoverable. Under R.C.M.
703(e)(1), the accused “is entitled to the production of
evidence which is relevant and necessary.” To obtain an order
of production under this rule, the accused must show more
than a mere prospect or possibility that a production order
will yield relevant and necessary evidence. “[T]he defense, as
the moving party, . . . [is] required as a threshold matter to
show that the requested material exist[s].” United States v.
Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004).
In this case, the military judge found that “the defense has
offered some evidence that the records might include an
additional diagnosis.” But the military judge concluded that
the defense “has offered no factual basis upon which to
conclude the records would yield evidence admissible under
M.R.E. 513.” I agree with the military judge’s assessment.
Appellant has not provided any reason for this Court to
believe that the victim’s mental health records contain any
information about diagnoses and treatments that do not
reveal what the victim confidentially told her psychotherapist
or what the psychotherapist confidentially told the victim for
the purpose of facilitating her diagnosis or treatment. And
even if the records somehow might exist, I agree with the
military judge’s assessment that such records would not be
“reasonably segregable from records of communications
between [the victim] and her mental health providers.”
Appellant in this case has not suggested any method by which
a military judge could decide whether a diagnosis or
treatment provides evidence of their confidential
10
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
communications.6 For these reasons, Appellant has not
shown that he is entitled to the records or even an in camera
review of the records.
B. Waiver of the Privilege Under M.R.E. 510(a)
Under M.R.E. 510(a), a party may waive the protection of
the psychotherapist-patient privilege. This provision states in
relevant part:
A person upon whom these rules confer a privilege
against disclosure of a confidential matter or
communication waives the privilege if the person or
the person’s predecessor while holder of the privilege
voluntarily discloses or consents to disclosure of any
significant part of the matter or communication
under such circumstances that it would be
inappropriate to allow the claim of privilege.
M.R.E. 510(a). Appellant argues that the victim waived
whatever privilege she may have had by voluntarily revealing
numerous details about her mental health in a deposition, in
an interview with agents of the Naval Criminal Investigative
Service, and in an interview with trial counsel. The
Government responds that when the victim disclosed some of
her diagnoses and treatments, she waived her privilege only
for “that particular communication” between her and her
psychotherapist that “included the diagnoses and treatments
that she disclosed.”
I agree with the Government because its argument
accords with the text of both M.R.E. 510(a) and M.R.E. 513(a).
Although M.R.E. 510(a) states a general waiver rule
applicable to any disclosure of a privileged “matter or
communication,” M.R.E. 513(a) provides a privilege only for
“communication[s],” not for “matters.” Thus, the test for
waiver of the psychotherapist-patient privilege in M.R.E.
513(a) is not whether the patient talked about her mental
health in general, but is instead whether she disclosed a
“significant part” of a particular privileged “communication.”
6 Perhaps in other cases, the record might contain evidence that
would allow a military judge to make such a decision. For example,
a psychotherapist might testify that he or she made a diagnosis
without relying on confidential communications with the patient for
the purpose of treating the patient’s mental condition.
11
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
See Custis, 65 M.J. at 371 (holding that under M.R.E. 510(a),
the appellant did not waive the spousal privilege because a
“comment to his coworker did not relay either the actual
conversation between Appellant and his wife or the substance
of the privileged communications between Appellant and his
wife”).
The NMCCA appears to have missed this distinction when
it concluded that the victim waived her psychotherapist-
patient privilege when she “openly discussed her mental
health matters with multiple people on multiple occasions.”
Mellette, 81 M.J. at 693 (emphasis added). The NMCCA
instead should have determined whether particular
disclosures by the victim waived her privilege with respect to
particular communications. In my view, because the NMCCA
did not follow this approach, it overstated the victim’s waiver
of her privilege in this case.
Under M.R.E. 510(a), when the victim disclosed evidence
of her diagnosis and treatment for two mental health
conditions (hereinafter the “two disclosed conditions”), she
waived the privilege over her psychotherapist’s
communications to her about the diagnoses and treatments
with respect to these two disclosed conditions. The victim,
however, did not waive her privilege over other
communications—including other communications that
might have led to additional diagnoses and treatments. As
discussed immediately below, this important distinction
affects the analysis of the necessity of producing records
containing communications for which the privilege was
waived.
C. Production of Records Under R.C.M. 703(e)(1)
Under R.C.M. 703(e)(1), a “party is entitled to the
production of evidence which is relevant and necessary.”
Under R.C.M. 703(f), an accused seeking production of an
item of evidence must “include a description of [the] item
sufficient to show its relevance and necessity.” The military
judge, in my view, did not abuse his discretion in concluding
that Appellant could not meet these requirements in seeking
records of diagnoses and treatments for possible conditions
other than the two that the victim had disclosed. Although
Appellant “offered some evidence that the [psychotherapist’s]
12
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
records might include an additional diagnosis,” the military
judge concluded that the defense “has offered no factual basis
upon which to conclude the records would yield evidence
admissible under M.R.E. 513.” See Rodriguez, 60 M.J. at 246(holding that, where the appellant “did not carry his burden
as the moving party to demonstrate that the [evidence] he
requested existed,” he could not show it was relevant or
necessary). To the extent the NMCCA ruled otherwise, I
disagree.
But in my view, the military judge did abuse his discretion
in denying production of records containing diagnoses and
treatments for the two disclosed conditions. These records
were not privileged because the victim waived her privilege
with respect to them. And even if such records would be
mostly cumulative, I agree with the NMCCA that they were
still subject to production under R.C.M. 703, to “confirm [the
victim’s] stated diagnoses” and “prescribed medications, not
all of which she could remember the names of.” Mellette, 81
M.J. at 693.
D. Prejudice Under Article 59(a), UCMJ
In the foregoing discussion, I have concluded that the
military judge abused his discretion in not ordering the
production of records concerning the victim’s diagnoses and
treatments with respect to two disclosed conditions. The final
question is whether this abuse of discretion materially
prejudiced Appellant under Article 59(a), UCMJ. I conclude
that it did not.
When assessing prejudice for nonconstitutional errors,
this Court weighs “(1) the strength of the Government’s case,
(2) the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
question.” United States v. Kohlbek, 78 M.J. 326, 334
(C.A.A.F. 2019) (internal quotation marks omitted) (citations
omitted). Here, although the first two factors do not strongly
favor either party, I do not believe the materiality and quality
of the evidence are such that the error could have
substantially impacted the findings. As explained above,
Appellant already knew from the victim’s own statements
that she had been diagnosed with the two disclosed conditions
and had received treatments for them. Her mental health
13
United States v. Mellette, No. 21-0312/NA
Judge MAGGS, dissenting
records might have provided confirmation of what the victim
disclosed. But the record of trial provides no suggestion that
having such mental health records would have benefitted
Appellant at trial.
After the victim testified, trial defense counsel cross-
examined and then recross-examined her. During these cross-
examinations, trial defense counsel never asked the victim
about her two disclosed conditions. Unless trial defense
counsel erred (which Appellant has not alleged), then the
most reasonable inference is that trial defense counsel
believed that the two disclosed conditions were not “relevant
to issues of suggestion, memory, and truthfulness.” And if
they are not so relevant, then I cannot see how additional or
confirmatory communications about those two disclosed
conditions would have made a difference.
The NMCCA believed that there was prejudice but that
the appropriate remedy for addressing the prejudice was to
except from the specification at issue the words “on divers
occasions.”7 Because I would not have awarded any remedy
for the failure to produce the medical records, I easily
conclude that Appellant is not entitled to any additional
remedy.
IV. Conclusion
For the foregoing reasons, I would affirm the decision of
the United States Navy-Marine Corps Court of Criminal
Appeals.
7 The NMCCA also based its decision to except this language
because some of the evidence purporting to support it was improper
opinion testimony. Mellette, 81 M.J. at 698.
14