Court-Martial Trial Practice Blog
In In re LB, the Air Force Court of Criminal Appeals addressed an important discovery issue in a pending court-martial: when may a military judge allow the defense to seek limited information about a complaining witness’s medical or mental health treatment? The court denied the victim’s request for emergency relief and allowed the military judge’s discovery order to remain in place. For any military defense counsel or military defense lawyer handling sexual assault litigation, the opinion offers a useful look at how military courts are working through the boundaries of mental health privilege and defense discovery.
The case arose from the court-martial of Technical Sergeant Irvin Bryant, Jr., who faced charges under the Uniform Code of Military Justice (UCMJ), including offenses under Articles 120 and 128b. The petitioner, identified as LB, was the named victim in each specification. LB asked the Air Force appellate court to block the military judge’s order before the case moved further toward trial.
The central issue involved what the defense could learn about LB’s mental health history. Earlier in the case, the defense sought access to certain mental health records. The military judge refused to order production of privileged communications between LB and mental health providers. Later, however, the judge ruled that the defense could seek limited non-privileged information, often called Mellette material. Under United States v. Mellette, diagnoses, treatments, and similar information in medical records do not automatically receive the same privilege protection as confidential communications with a psychotherapist. That distinction can matter a great deal to a military defense lawyer preparing to challenge credibility, evaluate prior statements, or build a theory of defense.
To protect privileged material, the military judge did not order the medical facilities to produce LB’s actual records. Instead, she directed two Air Force medical groups and two military treatment facilities to answer narrow written questions, known as interrogatories. The questions asked whether certain records existed and, if so, requested limited information about diagnoses, medications, treatment, and providers. The judge specifically barred the facilities from sending copies of the actual medical or mental health records. In other words, she tried to give the defense relevant non-privileged information without exposing confidential communications. Military defense counsel often face exactly this kind of problem: how to seek relevant evidence without crossing into privileged territory.
LB argued that the military judge clearly erred in three ways.
First, LB argued that the requested information was not relevant. The appellate court rejected that argument. The court explained that the question at the discovery stage is not whether the information will definitely be admitted at trial. The question is whether the information could help the defense prepare its case. Here, the military judge relied on evidence suggesting LB may have received mental health services on base, which appeared inconsistent with earlier testimony. Because that information could matter to witness credibility and case preparation, the appellate court held that LB failed to show a clear and indisputable error. That point is significant for any military defense counsel litigating discovery in a contested court-martial.
Second, LB argued that even non-privileged mental health information could not be disclosed unless one of the formal exceptions in Military Rule of Evidence 513 applied. Rule 513 protects confidential communications between a patient and a psychotherapist. LB argued for a broad reading that would require an exception to the privilege even for non-privileged material. The appellate court did not accept that position. The judges acknowledged tension in recent case law, but they concluded that the military judge had not clearly and indisputably violated Rule 513 by allowing discovery of non-privileged information. For a military defense lawyer, that part of the opinion matters because it confirms that courts may still treat diagnoses, treatment, and similar information differently from protected communications.
Third, LB argued that the judge’s interrogatories were really an improper written deposition. The appellate court disagreed. It explained that military judges have broad authority to control the time, place, and manner of discovery under the Rules for Courts-Martial. In this case, the judge used targeted questions to gather limited relevant information while reducing the risk of improper disclosure. The court also noted that a concurring opinion from a higher military court had suggested that interrogatories could be used in this way. Although that concurrence did not bind the court, it supported the conclusion that the judge’s approach was not clearly unlawful. This part of the opinion will interest military defense counsel because it recognizes practical ways to obtain relevant non-privileged information in difficult privilege disputes.
In the end, the Air Force court denied LB’s petition for a writ of mandamus. That result is important because mandamus is an extraordinary remedy. A petitioner must show not just possible error, but a clear and indisputable right to relief. The court found that LB did not meet that demanding standard.
This decision does not give the defense unlimited access to a victim’s mental health history. It does show that, in the right case, a military judge may allow narrow discovery of non-privileged information when that information is relevant to defense preparation. For a military defense lawyer, the opinion highlights the continuing tension between protecting victim privacy and protecting the accused’s right to present a defense.
The military defense lawyers of Cave & Freeburg have substantial experience litigating these issues. That experience includes challenges involving Military Rule of Evidence 513, access to potentially relevant mental health information, witness credibility issues, and the limits of lawful discovery in serious courts-martial. When a case turns on privileged versus non-privileged material, a skilled military defense counsel must know how to preserve the record, frame the discovery request, and challenge unlawful restrictions while respecting legitimate privacy protections. Those are issues the military defense lawyers at Cave & Freeburg understand well from practice.