How broad is the evidentiary privilege in MRE 513

Very broad.

Or, that’s how I interpret a 2-1 Order in H.V v. Kitchen and Randolph (RPI), MISC D. No. 001-06 (C.G. Ct. Crim. App. 8 July 2016).

At trial, the defense sought mental health records of the complaining witness.  After litigation on the issue, the military judge ruled

that M.R.E. 513 did “not prevent the disclosure of dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used.” Accordingly, she ordered the Government to produce for the defense the mental health records of Petitioner for a stated period of time[.]

A decision I personally agree with.

The CGCCA found this to be an issue of first impression within the military.  The court found one federal published opinion and one state and one federal unpublished opinions.

Stark v. Hartt Transportation Systems, Inc., 937 F.Supp.2d 88, 92 (D. Me. 2013), a civil case–a particularly important distinction from a criminal trial where a right to defend is an important constitutional principle.

One wonders if the CGCCA considered:

‘blanket assertions of privilege are extremely disfavored,'” because “persons claiming a privilege ‘must establish the elements of privilege as to each record sought . . . so that the court can rule with specificity.'” In re Grand Jury Matters, 751 F.2d 13, 17 n.4 (1st Cir. 1984), quoting In re Grand Jury Witness (Salas), 695 F2d 359, 362 (9th Cir. 1982) and Matter of Walsh, 623 F.2d 489, 493 (7th Cir.), cert. denied, 449 U.S. 994, 66 L. Ed. 2d 291, 101 S. Ct. 531 (1980).

In re Grand Jury Subpoenas Duces Tecum, 638 F. Supp. 794, 799 (D. Me. 1986)

Sylvestri v. Smith, No. 14-13137, 2016 WL 778358 (D. Mass. Feb. 26, 2016)(unpub.), a state criminal case which holds the contrary to Stark.

United States v. White, No. 2:12-cr-00221, 2013 WL 1404877 (S.D.W.V. April 5, 2013)(unpub.), a federal criminal case that “aligns with the Stark case.”

After analysis, the CGCCA concluded that the military judge erred, over a vigorous dissent.d

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