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Alleged Victim’s Mental Health Records

The Army Court of Criminal Appeals (ACCA), recently reversed a military judge’s ruling that ordered the production of an alleged victim’s mental health records for an in camera review.  DB v. Colonel Lippert, Military Judge, and Ducksworth, Real Party in Interest, No.  201507690 (A. Ct. Crim. App. Feb. 1, 2016) (link to slip opinion).

As is typical in any sexual assault case, the military defense counsel requested the production of the alleged victim’s mental health records for an in-camera review.  The unusual circumstance in this case is that the trial counsel had already requested production of the records in an effort to avoid any delay in the trial.  The Special Victim Counsel (SVC), once they became aware of the issue, opposed the disclosure of the mental health records and requested that the military judge delay disclosure until a writ could be filed with ACCA.

The military judge denied the SVC’s request and subsequently conducted an in camera review of the mental health records.  After completing his review, the military judge alerted the parties that he would be ordering “numerous” pages disclosed to the military defense counsel.  The SVC requested the military judge reconsider his production ruling.  The military reconsidered but reaffirmed his prior ruling.

At that point the SVC filed a writ with ACCA and requested a stay in the proceedings.  ACCA granted the stay and ultimately set aside the military judge’s ruling under Military Rule of Evidence (MRE) 513.  ACCA determined that the military judge committed three errors:

First, military judge improperly ordered the production of the alleged victim’s mental health records for an in camera review without first conducting a hearing under MRE 513(e).

Second, the military judge wrongly concluded that that because the mental health records include one unprivileged document (a journal entry that state law required be reported to authorities), “all of petitioner’s mental health records were subject to review.”  Slip op. at 11.

Finally, the military judge failed (in numerous ways) to apply the procedural requirements of MRE 513(e), which were revised by Section 537 of the FY15 NDAA and Executive Order 13696.

After reversing the military judge’s MRE 513 ruling, the Court lifted the stay and directed that the admissibility of the mental health records could be considered again once the military judge properly conducted a hearing under MRE 513.