Schleuter, Salztburg, Schinasi, and Imwinkelried, in Military Evidentiary Foundations, view the privilege analysis in the following manner; in certain proceedings, the holder has a privilege unless it is waived or there is an applicable exception. This summary animates six considerations:
The proceedings to which the privileges apply: pursuant to MRE 1101, the Rules respecting privileges apply at all stages in virtually all proceedings conducted pursuant to the UCMJ, i.e., Article 32 hearings, Article 72 vacation proceedings, as well as search and seizure authorizations, and proceedings involving pretrial confinement.
The holder of the privilege: The original holder is the intended beneficiary (e.g., the client, the penitent), although in certain cases, the holder’s agent will have authority to assert the privilege.
The nature of the privilege: Encompasses three rights – to testify and refuse to disclose the privileged information; to prevent third parties from making disclosure; and the right to prevent counsel or the judge from commenting on the invocation of the privilege.
What is privileged?: the confidential communication between properly related parties made incident to their relation.
“Communication” is broadly defined.
“Confidential” implies physical privacy and an intent on the part of the holder to maintain secrecy.
Waiver of the privilege: Voluntary disclosure of the privileged matter, in-court or out-of-court, will waive the privilege.
Exceptions to the privilege: For example, communications used to facilitate a crime or fraud would not support a claim of privilege.
To claim a privilege, the elements of the foundation, in general, are:
The privilege applies to this proceeding;
The claimant is asserting the right type of privilege;
The claimant is a proper holder of the privilege;
The information to be suppressed is privileged because it was a communication, it was confidential, it occurred between properly related parties, and it was incident to the relation.
Rule 501 is the basic rule of privilege, recognizing privileges required by or provided for by the Constitution, acts of Congress, the Military Rules of Evidence, the MCM, and the privileges ‘generally recognized in the trial of criminal cases in the United States district courts pursuant to FRE 501 to the extent that application of those principles to courts-martial is practicable. United States v. Miller, 32 M.J. 843 (N.M.C.M.R. 1991) (although it was unaware of any case applying 501(a)(4) to a privilege arising entirely from state law, here, accused did not even have standing to claim a statutory privilege for statements made by daughter to state social services officials).
The President signed MRE 513 on 7 October 1999. MRE 513 offers a limited privilege for communications to psychotherapists and counselors. There are some limitations to the privilege:
Only applies to actions arising under the UCMJ.
Not a broader doctor patient privilege.
No Privilege Before 513.
United States v. Rodriguez, 54 M.J. 156 (2000). The CAAF affirmed the Army Court’s ruling that Jaffee v. Redmond did not create a psychotherapist-patient privilege in the military.
United States v. Paaluhi, 54 M.J. 181 (2000). Consistent with Rodriguez, the court ruled that Jaffe v. Redmond did not create a psychotherapist-patient privilege in the military. The CAAF reversed the conviction, however, holding it was ineffective assistance for the defense counsel to tell the accused to talk to a Navy psychologist without first getting the psychologist appointed to the defense team.
Quasi psychotherapist-patient privilege also exists under limited circumstances:
Where psychiatrist or psychotherapist is detailed to assist the defense team, communications protected as part of attorney-client confidentiality. United States v. Tharpe, 38 M.J. 8, 15 n.5 (C.M.A. 1993)
Communications made by an accused as part of a sanity inquiry under MRE 302. United States v. Toledo, 26 M.J. 104 (C.M.A.), cert. denied, 488 M.J. 889 (1988). Note that confidentiality privilege for statements made during mental responsibility exams may not automatically apply retroactively to exams which the military judge deems as adequate substitute for court-ordered R.C.M. 706 examinations. United States v. English, 44 M.J. 612 (N.M.Ct.Crim.App. 1996), rev’d on other grounds, 47 M.J. 215 (1997).