**"Shrinking" the Right to Everyman's Evidence:**

***Jaffee* in the Military**[^1]

[Major Dru Brenner-Beck, USA\*]{.smallcaps}

# I. INTRODUCTION

On 13 June 1996, the Supreme Court recognized a psychotherapist-patient
privilege under Federal Rule of Evidence 501 (FRE 501)[^2] in *Jaffee v.
Redmond*[^3] Utilizing its Congressionally granted power to define new
privileges by interpreting "the principles of the common law . . . in
the light of reason and experience,"[^4] the Supreme Court, in a
seven-two decision, recognized a federal privilege for confidential
communications made to licensed psychotherapists in the course of
diagnosis or treatment.[^5]

The effect of this ruling on military practice, however, remains
uncertain. Under Military Rule of Evidence 501 (MRE 501) the "principles
of common law generally recognized in the trial of criminal cases in the
United States district courts pursuant to Rule 501 of the Federal Rules
of Evidence" are incorporated into the Military Rules "insofar as the
application of such principles in trials by courts-martial is
practicable and not contrary to or inconsistent with the code, these
rules, or this Manual."[^6] There are four main positions on the
applicability of the *Jaffee* decision to military practice, differing
primarily on the interpretation of FRE 501, MRE 501(a)(4), and MRE
501(d). These are: (1) Jaffee does not apply since it is a civil case,
and the plain wording of MRE 501 requires as a predicate the general
recognition of the privilege in the trial of "**criminal cases**" in
federal district courts; (2) *Jaffee* does not apply since MRE
501(d)[^7] bars application of the privilege; (3) *Jaffee* applies to
non-military personnel only; and (4) *Jaffee* applies in military
courts-martial.

This article first examines *Jaffee v. Redmond*, and the history of the
psychotherapist-patient privilege under federal law. It then explores
whether the psychotherapist-patient privilege, recognized in *Jaffee*,
applies in military courts-martial; whether it should apply as a policy
matter; and what the proper scope of the privilege should be in the
military environment. Finally, it concludes that *Jaffee* applies
automatically in military courts-martial by operation of MRE 501(a)(4);
but that the military should amend the Military Rules of Evidence to
limit the psychotherapist-patient privilege to civilian personnel
only.[^8]

**[II.]{.smallcaps} *JAFFEE V. REDMOND*: THE CASE**

On June 27, 1991, Mary Lu Redmond, a police officer on patrol duty in an
Illinois apartment complex, responded to a reported fight in progress.
She was informed that there had been a stabbing. After her arrival at
the complex she shot and killed Ricky Allen, Sr. Allen's estate later
sued under 42 U.S.C. § 1983 claiming a deprivation of Allen's
constitutional rights, and under state law for wrongful death. In
testimony at trial, Officer Redmond stated that after arriving, she saw
Allen chasing another man with a knife, preparing to stab him. Redmond
stated she shot and killed Allen only after yelling for him to drop the
knife, which he did not do. Four of Allen's brothers and sisters
testified that Allen was unarmed at the time of the shooting. Soon after
the shooting, Officer Redmond sought counseling with Karen Beyer, a
licensed clinical social worker employed by the Village of Hoffman
Estates, Redmond's employer. This counseling continued for approximately
six months. During trial, plaintiffs sought to compel discovery of the
contents of these counseling sessions. Both Redmond and Beyer claimed
this information was privileged under state and federal law,[^9] and
sought to protect the confidentiality of the communications between them
throughout the discovery process and trial.[^10]

The trial court ordered Beyer to testify and produce her notes from the
counseling sessions with Redmond. The judge explained that the claimed
privilege as recognized in other circuits did not include communications
made to a licensed clinical social worker.[^11] Although Beyer did give
limited testimony "concerning Redmond's 'factual description of the
events leading up to the shooting,'" she refused to turn over her
counseling notes.[^12] At the close of the trial, the court instructed
the jury that it "was entitled to assume that the contents of the notes
would be unfavorable to Mary Lu Redmond and the Village of Hoffman
Estates."[^13] The jury found for the plaintiffs and awarded \$45,000
for the federal constitutional claims and \$500,000 for the state
wrongful death claim. Officer Redmond and the Village of Hoffman Estates
appealed.[^14]

The United States Court of Appeals for the Seventh Circuit agreed with
the Second and Sixth Circuits and recognized a psychotherapist-patient
privilege under FRE 501.[^15] In recognizing the privilege, the Court
balanced the evidentiary need for the disclosure of the contents of the
patient's counseling records against the patient's privacy
interests.[^16] Conducting this balancing, the Court found that the
"balance of the competing interests tips sharply in favor of the
privilege if we hope to encourage law enforcement officers who are
frequently forced to experience traumatic events by the very nature of
their work to seek qualified professional help."[^17] The Court added
this was particularly true in cases with numerous eyewitnesses that
render the counseling information cumulative at best.[^18] The Seventh
Circuit reversed the judgment and the plaintiffs appealed. The Supreme
Court granted *certiorari* because of the importance of the question and
the split among the courts of appeals.[^19]

On review, the Supreme Court recognized the existence of a
psychotherapist-patient privilege, but expressly rejected the balancing
test applied by the Seventh Circuit.[^20] Instead, the Court both
recognized an absolute privilege and extended the privilege to cover
confidential communications made to licensed clinical social workers in
the course of psychotherapy.[^21] The Supreme Court, however, left the
determination of the contours of the privilege to future cases.[^22] The
expansive nature of the Supreme Court's decision can be seen in the
following:

> We reject the balancing component of the privilege implemented by that
> court \[the Seventh Circuit\] and a small number of States. Making the
> promise of confidentiality contingent upon a trial judge's later
> evaluation of the relative importance of the patient's interest in
> privacy and the evidentiary need for disclosure would eviscerate the
> effectiveness of the privilege . . . \[I\]f the purpose of the
> privilege is to be served, the participants in the confidential
> conversation "must be able to predict with some degree of certainty
> whether particular discussions will be protected. An uncertain
> privilege, or one which purports to be certain but results in widely
> varying applications by the courts, is little better than no privilege
> at all."[^23]

**[III.]{.smallcaps} PRIVILEGE RULES UNDER THE FRE & THE**

**PSYCHOTHERAPIST-PATIENT PRIVILEGE**

**A. Privilege rules under the FRE**

To understand *Jaffee's* result one must understand both the general
development of the privilege rules under the Federal Rules of
Evidence,[^24] and the specific background of the
psychotherapist-patient privilege. In 1973, the Supreme Court forwarded
to Congress the proposed Rules of Evidence drafted by its Advisory
Committee. [^25] These proposed rules contained thirteen detailed rules
on privilege.[^26] Congress held hearings on the proposed rules, and
controversy over the privilege rules section ensued.[^27] This
controversy was due in part because privilege rules "have the most
effect on everyday behavior outside the courtroom and promote extrinsic
social values."[^28]

Congress substantially revised the section on the proposed rules dealing
with privilege, deleting the provisions for specified privilege rules
and substituting one general rule.[^29] The final rule enacted by
Congress left the continued development of privilege rules to the
courts:[^30]

> Except as otherwise required by the Constitution of the United States
> or provided by Act of Congress or in rules prescribed by the Supreme
> Court pursuant to statutory authority, the privilege of a witness,
> person, government, state, or political subdivision thereof **shall be
> governed by the principles of common law as they may be interpreted by
> the courts of the United States in the light of reason and
> experience**. However, in civil actions and proceedings, with respect
> to an element of a claim or defense as to which State law supplies the
> rule of decision, the privilege of a witness, person, government,
> state or political subdivision thereof shall be determined in
> accordance with state law.[^31]

Federal courts had previously split on whether the federal courts, under
FRE 501, could recognize any privilege which did not exist at common law
prior to the adoption of the federal rules. The strict view holds that
FRE 501 limits recognition of any privilege to those recognized at
common law prior to 1975.[^32] A middle view found FRE 501 "erects 'a
strong presumption' against the creation of novel privileges."[^33] A
more expansive interpretation holds that FRE 501 left the federal courts
in the same position they were prior to the adoption of the rules.
Indeed, the text, context, and legislative history of FRE 501 support
the view that the adoption of the rules did not change the ability of
the federal courts to adopt new privileges.[^34] Textually, Congress
chose the words, "principles of common law" rather than the more limited
term "common law rules," implying a more dynamic methodology for the
courts to use in developing privilege rules.[^35] Additionally, the
context of the Congressional debate over the privilege rules implies a
judgment that the proposed specific rules were not generous enough, and
Congressional concern that passage would freeze the federal rules of
privilege too narrowly.[^36] Further, Congress stated that:

> \[I\]n approving this general rule as to privileges, the action of
> Congress should not be understood as disapproving any recognition of a
> psychiatrist-patient, or husband-wife, or any other of the enumerated
> privileges contained in the Supreme Court rules. Rather, our action
> should be understood as reflecting the view that the recognition of a
> privilege based on a confidential relationship and other privileges
> should be determined on a case-by-case basis.[^37]

Since the psychotherapist-patient privilege had not been generally
recognized at common law prior to the enactment of the federal rules,
the resolution of this conflict over the effect of FRE 501 was critical
to whether a psychotherapist-patient privilege could be recognized in
federal law. An understanding of the development of the
psychotherapist-patient privilege is illustrative of many of the issues
that will face military policy makers in deciding the scope of the
privilege, if any, to be recognized in military tribunals.

**[B]{.smallcaps}. History of the Psychotherapist-Patient Privilege**

"\[P\]rivilege is a corruption of the Latin phrase '*privata lex'*,
meaning a private law applicable to a small group of persons as their
special prerogative."[^38] It was originally based on a judicially
recognized point of honor among lawyers and other gentlemen not to
reveal confidential communications.[^39] Lawyers retained this ability
at common law, while other professionals, most notably physicians, lost
the ability to refuse to testify based on the confidential nature of
their interaction with their client.[^40] A testimonial privilege gives
a person a right to refuse to disclose information to a court, while the
broader concept of confidentiality is defined as a professional's
ethical obligation not to disclose a client's confidences.[^41]

The psychotherapist-patient privilege is historically tied to the more
general physician-patient privilege.[^42] American common law courts
refused to recognize a general doctor-patient privilege.[^43] In
response to intense lobbying by the American Medical Association, state
legislatures rapidly moved into this void, creating statutory privileges
protecting the doctor-patient relationship.[^44] New York granted a
statutory doctor-patient testimonial privilege in 1928, thirty-nine
states and the District of Columbia soon followed.[^45] Over time, the
physician-patient privilege became riddled with exceptions.[^46]
Although no state did away with the privilege altogether, most limited
their recognition of a doctor-patient privilege to certain narrow
circumstances. Additionally, the federal courts never recognized a
general doctor-patient privilege.[^47]

A separate psychotherapist-patient privilege, originally arising out of
the physician-patient relationship, was slow to develop, perhaps due to
the fact that psychiatry did not develop until well into the twentieth
century. States began to create separate statutory
psychotherapist-patient privileges in the 1950s.[^48] There was also
some movement by the courts, in addition to legislative action in this
area, to recognize a separate and distinct privilege protecting the
psychotherapist-patient relationship under the common law or state or
federal constitutional requirements.[^49]

[1**. **]{.smallcaps}*Privilege Analysis*

Privilege rules, which deprive a court of otherwise competent evidence,
are analyzed under utilitarian, privacy, and functionalist
rationales.[^50] The utilitarian rationale weighs the benefits to
society against the costs to the judicial process from the recognition
of the privilege. The privacy rationale argues that certain
relationships should be protected because they protect other human
values such as privacy, dignity, intimacy, anonymity, and
individuality.[^51] Finally the functionalist rational maintains that
"privilege law, if it is to be consistent, must accord similar
protections to relationships that are functionally alike."[^52] In other
words, functions, rather than professions, are protected.[^53] The
existence of a psychotherapist-patient privilege is supported by all
three rationales. The Supreme Court focused primarily on the utilitarian
analysis in *Jaffee*, adroitly avoided the privacy issue, and recognized
the functionalist rationale by its extension of the privilege to
clinical social workers.

**a. *Utilitarian Rationale***---Dean Wigmore, the most notable
proponent of the utilitarian analysis, used four criteria to determine
when a privilege should be recognized. These criteria have been
generally recognized as the test for an evidentiary privilege:

> \(1\) The communication must originate in a confidence that they will
> not be disclosed.
>
> \(2\) This element of confidentiality must be essential to the full
> and satisfactory maintenance of the relation between the parties.
>
> \(3\) The relation must be one that in the opinion of the community
> ought to be sedulously fostered.
>
> \(4\) The injury that would inure to the relation by the disclosure
> must be greater than the benefit thereby gained for the correct
> disposal of litigation.[^54]

"Psychotherapy is the treatment of mental or emotional disorders by
verbal or other symbolic communication between patient and therapist . .
. based on the theory that a patient's problems result from conflicts
repressed in the unconscious which must be probed in order to treat the
patient."[^55] Successful therapy depends on the protection of a
relationship of trust and confidence between patient and therapist and
the encouragement of free disclosure---Wigmore's first criterion. "The
very essence of psychotherapy is confidential personal revelations about
matters which the patient is and should be normally reluctant to
discuss."[^56] The Advisory Committee, when forwarding Proposed FRE
504[^57] to Congress, recognized the importance of confidentiality to
the therapeutic process. It stated that "confidentiality is the *sine
qua non* for successful psychiatric treatment."[^58] Their proposed rule
recognized that "true and complete communication by the patient of all
his ideas and associations,"[^59] depends completely on the patient's
faith that his confidences will not be revealed.[^60]

There is conflicting empirical data on whether the protection of an
evidentiary privilege is necessary to encourage the disclosure so
essential to successful therapy which would satisfy Wigmore's second
criterion. Several studies have suggested that the existence, or lack,
of a judicial privilege is not a factor considered by most patients when
deciding whether to seek therapy.[^61] Other studies and articles,
however, contradict that conclusion.[^62] Recent studies have shown that
approximately fifteen percent of covered patients "pay for psychotherapy
out of their own pockets rather than risk disclosure of treatment by
filing insurance claims."[^63] The social stigma associated with seeing
a therapist remains a potent inhibiting force in some patients' decision
to not seek, or delay seeking, therapy.[^64] Concerns that intimate
disclosures could become public can further chill the open disclosure
necessary for psychotherapy to work.[^65]

> The psychiatric patient confides more utterly than anyone else in the
> world. He exposes to the therapist not only what his words directly
> express; he lays bare his entire self, his dreams, his fantasies, his
> sins, and his shame. Most patients who undergo psychotherapy know that
> this is what will be expected of them, and that they cannot get help
> except on that condition . . . . It would be too much to expect them
> to do if they knew that all they say---and all that the psychiatrist
> learns from what they say---may be revealed to the whole world from a
> witness stand.[^66]

A study completed in 1990 concludes that two factors are relevant in
determining the effect of the existence of a privilege on the decision
to seek therapy or make full disclosure within therapy.[^67] These are:
the extent to which the law is understood by a patient; and the extent
to which the law is relevant and consequential to a patient. The study
concludes that privacy may matter only to some types of patients and
under some types of circumstances.[^68] This common sense conclusion
becomes more relevant when we discuss the effect of the privilege on a
sub-community like the military. One study shows that sixty percent of
Air Force officers would not seek therapy because of the perceived
negative effect on their career.[^69] The Navy and Air Force have
increased their programs to destigmatize mental health care following
Admiral Boorda's suicide in May 1996.[^70] It is likely that the
extensive press coverage of the Supreme Court decision in *Jaffee* will
remove some of the relative ignorance on the extent of any privilege
which existed when the prior studies above were conducted. Firmer
conclusions on the effect of the privilege on willingness to disclose
may result.[^71] Nevertheless, the stigma attached to mental health
problems still poses an important barrier to people's willingness to get
help that is only worsened if the contents of these disclosures are made
public.[^72] Those patients who pay for mental health care themselves
rather than submit insurance claims do so out of the fear of stigma at
work, or future inability to find employment.[^73]

Wigmore's third criteria is satisfied if one accepts that the
psychotherapist-patient relationship ought to be fostered by society.
The use of mental health services is expanding. "\[A\] 1977 study showed
that 33 percent of Americans had used psychotherapy at some time in
their lives" and by 1995, "a national survey . . . indicated that nearly
half of the respondents had had personal experience with a mental health
professional." [^74] In 1990, it was reported that over 28 percent of US
adults (52 million) suffered from mental disorders or substance-use
disorders, "ranging from mild depression to far less common antisocial
personality disorders that may be associated with violence."[^75] Of
those 52 million Americans, only 28.5% get help.[^76] There are
"approximately 30,642 psychiatrists, 56,000 psychologists, and 81,000
psychiatric social workers practicing mental health counseling
today."[^77] "Some level of mental health is necessary to be able to
form beliefs and value systems and engage in rational thought."[^78] The
promotion of emotional and mental health can be expected to ultimately
reduce antisocial activity and acts. These are the societal goals that
the protection of the confidentiality of therapy is designed to
accomplish.[^79]

Finally, since the right to a privilege imposes a cost on the public,
Wigmore's test requires that it may be justified only by a "public good
transcending the normally predominant principle of utilizing all
rational means for ascertaining the truth."[^80] A recognition of a
psychotherapist-patient privilege will result in a loss of otherwise
potentially relevant evidence. However, not all the information produced
in psychotherapy is "reliable" evidence, and may actually be misleading
to the court.[^81] In addition, fear of judicially compelled disclosure
may result in information not being produced in the first place. When
weighed against the social gains discussed above, the fourth Wigmore
criterion also argues for the recognition of the privilege.[^82]

**b. *Privacy Rationale***---The proponents of the
psychotherapist-patient privilege argue that the disclosures made in
psychotherapy fall within the constitutional right of privacy. These
disclosures are likely to "include the most personal thought, feelings,
and aspects of one's life."[^83] The right to privacy has been
recognized in the context of decisions involving marriage, sexuality,
and abortion.[^84] The decision to engage in mental health treatment,
involving intimate details of a person's life, involves similar privacy
concerns, and should merit similar protection.[^85] "The privilege does
not exist merely because of a *per se* 'right of privacy'; rather, the
privilege is necessary because privacy is the prerequisite to effective
treatment of the patient.\"[^86] Some courts have agreed and used this
rationale to protect psychotherapy disclosures.[^87]

**c. *Functionalist Rationale***---Proponents of the
psychotherapist-patient privilege argue that the law has recognized
confidential communications between professionals and their
clients.[^88] Since psychotherapists fill similar functions, they argue
these also should be protected by a privilege. These proponents also
argue that the privilege should extend beyond psychiatrists and
psychologists to encompass all therapists who are acting in a counseling
capacity. The Supreme Court agreed in *Jaffee*, extending the privilege
to cover clinical social workers as well.

2\. *Psychotherapist-Patient Privilege History*

**a. *Common Law History***---No psychotherapist-patient privilege was
recognized at common law prior to World War II. In 1976, the Supreme
Court of Alaska recognized a common law psychotherapist-patient
privilege in a criminal case.[^89] There the court focused on the four
Wigmore criteria and limited the privilege in two ways: the
communication had to have been made to a psychiatrist or licensed
psychologist, and must have been made in the course of psychotherapeutic
treatment or of examinations or diagnostic interviews which might
reasonably lead to psychotherapeutic treatment.[^90] Several other
states similarly recognized the privilege.[^91] This development was
halted when state legislatures began creating statutory privileges.[^92]

**b. *Statutory History***---From the mid-1950s to the present, all
fifty states have enacted some form of statutory psychotherapist-patient
privilege. These statutory protections vary on exactly what
relationships are protected, some limiting the privilege to
psychiatrists, others extending the privilege to clinical psychologists,
and clinical social workers. States also vary on which exceptions to the
privilege apply, with some states equating the privilege to that
covering attorney-clients and others severely limiting the privilege to
civil cases only.[^93]

As discussed above the psychotherapist-patient privilege was one of the
specific proposed privileges forwarded to Congress by the Supreme Court
as part of the Proposed Federal Rules of Evidence. Rule 504 limited the
coverage of the privilege to specific professionals and to specific
disclosures.[^94] Although Congress deleted this Proposed Rule, many
courts have examined it to determine whether to recognize a common law
privilege on the basis of "reason and experience."[^95]

**c. *Federal Cases***---The federal cases prior to *Jaffee* fell into
three general categories. Several courts dismissed the existence of the
psychotherapist-patient privilege based on the lack of a doctor-patient
privilege at common law,[^96] some refused to recognize the existence of
the privilege under FRE 501,[^97] and others recognized the existence of
the privilege.[^98] Courts in the first category refused to create
privileges that were not part of the common law prior to the enactment
of FRE 501, reading the words "shall be governed by the principles of
common law . . ." narrowly. Courts in the remaining two categories
analyzed Proposed Rule 504 and the legislative history of FRE 501 to
determine that they had the authority to recognize new privileges under
FRE 501. In deciding whether to recognize the privilege "in the light of
reason and experience," these courts examined the existence and extent
of state recognition of this privilege, the privacy interests of the
patient, societal interests in encouraging mental health treatment, and
respected commentator's opinions.[^99] Several courts recognized a
qualified privilege requiring a case-by-case balancing.[^100] The
recognition of a privilege in a specific case depended on whether the
evidentiary need was outweighed by the interests designed to be
protected by the privilege.[^101] The split in the analytical approach
under FRE 501 in recognizing new privileges, and in the recognition of
the privilege itself, led the Supreme Court to grant *certiorari* in
*Jaffee v. Redmond.*[^102]

**d. *Synthesis in* Jaffee**---The split in the courts of appeal
resulted in the granting of *certiorari* by the Supreme Court.[^103] The
Court definitively resolved the question of whether federal courts had
the authority under FRE 501 to recognize new privileges that had not
existed at common law prior to the enactment of the Federal Rules of
Evidence---they did. The Supreme Court, however, went further than the
courts of appeal that had previously recognized a privilege. It
recognized an absolute privilege, stating that the case-by-case
balancing those courts had recognized would result in just the type of
uncertainty that led to the social ills of citizens avoiding or delaying
treatment or inhibiting disclosure within psychotherapy. The Court
examined conflicting empirical data on the importance of the privilege
to psychotherapy, and resolved the debate in a seven to two decision in
favor of the privilege. The Court also went beyond previous court
decisions, and the Seventh Circuit decision in *Jaffee*, by taking the
functionalist approach and recognizing that the privilege also applied
to clinical social workers engaged in psychotherapy. The Court
recognized that social workers provide most of the mental health
services to the poor and middle class.[^104] Although not addressing the
equal protection and privacy arguments that had been made by Redmond,
*amici,* and prior legal review articles,[^105] the Court did recognize
the fact that the mental health system has changed since the Advisory
Committee proposed Rule 504 to Congress.[^106] The Court drew the line
on the privilege in *Jaffee* at licensed psychotherapists, but declined
to specify the exact contours of the privilege. The Court left the
determination of the scope of the privilege, its exceptions and waiver
provisions, to future case-by-case definition.

The dissent disputed the necessity of the privilege to the encouragement
of the putative social good to be gained.[^107] It focused on the vast
differences in the states' recognition of the privilege, highlighting
differences in applicability and exceptions.[^108] The dissent
considered the actual text of Proposed Rule 504 a more suitable starting
point for evaluating the privilege. At its base, the dissent balances
the interests to be protected by the privilege against the costs to the
truth finding process differently than the majority. The dissent was
particularly disturbed by the extension of the protection of the
privilege to social workers, fearing the slippery slope where all
counselors would be covered by a privilege with the resulting high cost
to the judicial process.

3\. *Post-*Jaffee *Developments*

Since *Jaffee*, the federal district courts have begun to define the
scope of the privilege, and to use *Jaffee* as the authority to
recognize other confidential communications privileges.[^109] In *United
States v. Lowe*,[^110] the court extended the privilege recognized in
*Jaffee* to include confidential communications made to rape crisis
counselors who were not psychiatrists, psychologists, or social workers
in the context of a motion to compel discovery of these rape counseling
records. In *United States v. Schwensow*,[^111] the court reexamined a
suppression motion in a criminal case on a claim of privilege under
*Jaffee*. It recognized the applicability of the privilege but found it
not to have been met in that case. The court, more interestingly
described a methodology to determine the scope of the privilege by first
looking to state law analogies[^112] for the development of a common law
of privileges when the federal rule is unsettled. The next step was to
examine whether the claim for the privilege meets the justifications for
the psychotherapist-patient privilege given in *Jaffee*, to include both
the private and public interests. Finally, the court said to examine the
nature of the relationship between the claimed psychotherapist and the
patient.

In *In re* *Grand Jury Proceedings*,[^113] the court used *Jaffee* to
recognize a limited parent-child privilege in a criminal case. Finally,
in *United States v. Haworth*,[^114] a federal district court applied
*Jaffee* to protect psychotherapy records of a key witness from
compelled disclosure in a criminal trial. The court found that the
defendant's Sixth Amendment confrontation rights were satisfied by
allowing cross examination of the witness on the subject of his
psychotherapy, but not allowing access to the records.[^115] What is
critical about these limited cases is the recognition of the
applicability of the psychotherapist-privilege, and its extensions, to
criminal cases, its interplay with the Sixth Amendment's Confrontation
clause, and the resolution of the issue of the ability of federal courts
to recognize new privileges under FRE 501.

**[IV.]{.smallcaps} Does *Jaffee* Apply in Military
Courts-Martial[?]{.smallcaps}**

The *Jaffee* decision led to discussions of whether the new
psychotherapist-patient privilege would apply in the military. Debate
ensued both within the military justice establishment, in Congress, and
in the media.[^116] Shortly after the *Jaffee* decision, the military's
treatment of mental health records became the subject of intense public
scrutiny,[^117] centering on an Elmendorf Air Base case covered in the
Wall Street Journal.[^118]

This front-page report incited considerable Congressional interest,
resulting in letters from Representative Patricia Schroeder to the
Secretary of the Air Force and the Secretary of Defense.[^119] These
letters questioned the military's protection of medical records and
urged amendment of the Military Rules of Evidence to create a
psychotherapist-patient privilege for non-military personnel. This furor
coincided with the ongoing effort in the Department of Defense to assess
*Jaffee's* impact on military practice. The Joint Committee on Military
Justice (JSC) met and concluded that *Jaffee* had no effect on military
practice.[^120] Simultaneously, the American Psychiatric Association
(APA) began a dialogue with the Department of Defense on *Jaffee's*
applicability, contacting both the Office of the Under-Secretary of
Defense for Health Affairs and the DOD General Counsel.[^121]
Interestingly, the APA conceded the military's compelling need to know
the mental status of its personnel.[^122]

Within DOD, Mr. Stephen C. Joseph, the Under-Secretary of Defense for
Health Affairs, weighed in on the issue and urged amendment of the
Military Rules of Evidence to create a privilege for non-active duty
patients. DOD's official response to all queries was that the issue was
under consideration by the JSC and that *Jaffee's* applicability would
be determined on a case-by-case basis by the military courts.[^123]

Congressional interest continued. Representative Schroeder issued a
press release on the issue and wrote a editorial that appeared in the
*Army Times*.[^124] She was joined by seven other Congressional
Representatives in urging the Department of Defense to amend the
Military Rules of Evidence to recognize a privilege for non-active duty
personnel.[^125] In response to Congressional threats to legislate on
this issue, DOD has prepared draft legislation directing the President
to issue a Military Rule of Evidence implementing the privilege.[^126]
On May 6, 1997, the Department of Defense published a notice of proposed
amendments to the UCMJ.[^127] These proposed amendments included a
proposed psychotherapist-patient privilege. The Department of Defense
received substantial input on the proposed rule, but further divisions
arose among the Services about the proper extent and exceptions to the
privilege. The proposed rule is currently under substantial revision.

However, pending changes in the Military Rules of Evidence, military
trial courts will be forced to address whether *Jaffee* applies in
military courts-martial. As discussed above, there are four main
positions on the applicability of the *Jaffee* decision on military
practice, differing primarily on the interpretation of FRE 501, MRE
501(a)(4), and MRE 501(d). These are: (1) *Jaffee* does not apply since
it is a civil case, and the plain wording of MRE 501 requires as a
predicate the general recognition of the privilege in the trial of
"criminal cases" in Federal district courts; (2) *Jaffee* does not apply
since MRE 501(d)[^128] bars application of the privilege; (3) *Jaffee*
applies to non-military personnel only because MRE 501(d) bars
recognition of the privilege for military personnel only; and (4)
*Jaffee* applies in military courts-martial. The interaction of MRE
501(a)(4) and MRE 501(d), which controls the military's recognition of
the "new" federal psychotherapist-patient privilege, remains as the
central issue in the debate over *Jaffee's* applicability. The
resolution of this issue will have implications for the military justice
system, administrative separation and disciplinary procedures, and the
protection of mental health records and information.[^129]

1\. *Underlying Environment.*

***a.**. **Pre-Jaffee Status of the Privilege under the Military Rules
of Evidence***---Prior to *Jaffee* the issue of a
psychotherapist-patient privilege in military courts-martial seemed
fairly clear cut since no privilege existed in federal law. The two
cases which addressed the issue did so in a cursory manner,[^130]
concluding with little to no analysis, that "\[t\]here is no
physician-patient privilege or psychotherapist-patient privilege in
federal law, including military law."[^131] The Supreme Court's decision
in *Jaffee* reopened this closed door.

**b***. **Status of the Military Rules of Evidence***---The Military
Rules of Evidence are part of the Manual for Courts-Martial (the Manual
or MCM),[^132] and are promulgated by the President in accordance with
the authority granted him in article 36 of the Uniform Code of Military
Justice (UCMJ).[^133] The Rules of Evidence and the Manual are binding
while the drafters discussion, included in appendix 22 of the Manual, is
not.[^134] The drafters analysis, however, can be analogized to a
legislative history, and can be used to interpret terms within the
rules. MRE 102 also gives general rules of construction for the Military
Rules of Evidence.[^135] Whenever possible the UCMJ and the Manual for
Courts-Martial should be construed to avoid any potential
conflict.[^136]

In defining the scope of the Military Rules of Evidence, the drafters in
MRE 101 authorized the use, as secondary sources, of "the rules of
evidence generally recognized in the trial of criminal cases in the
United States district courts, . . . if not otherwise prescribed in this
Manual or these rules, and insofar as practicable and not inconsistent
with or contrary to the code or this Manual."[^137] Thus even the
drafters envisioned a close connection between federal and military
practice.[^138] The drafters' analysis of MRE 101 recognizes that a
significant policy consideration in adopting the Federal Rules of
Evidence was to ensure, where possible, common evidentiary law.[^139]
Thus decisions by Article III courts in interpreting rules common to
both the federal and military systems "should be considered very
persuasive, . . . \[but\] not binding."[^140] The drafters' analysis
also states that "to the extent that a Military Rule of Evidence
reflects an express modification of a Federal Rules of Evidence or a
federal evidentiary procedure, the President has determined that the
unmodified Federal Rule or procedure is, within the meaning of Article
36(a), either not 'practicable' or is 'contrary to or inconsistent with'
the Uniform Code of Military Justice."[^141] However, this guidance is
of limited assistance in analyzing MRE 501 since it both modifies and
expressly adopts the approach taken by the Federal Rules.

The drafters of the privilege rules under the Military Rules of Evidence
were aware of the debate that occurred over the passage of the privilege
section of the Federal Rules.[^142] Rather than adopt a system similar
to that adopted by Congress which left the development of the rules of
privilege to the courts, the drafters felt that more specific guidance
was necessary for military courts-martial.[^143] The drafters combined
the flexible approach taken by the Federal Rules with the specific
privileges listed in the 1968 Manual.[^144] Thus, the general rule on
privileges, MRE 501, which incorporates the "principles of common law"
generally recognized by federal courts, was combined with the specific
privileges listed in MRE 502 through MRE 509.[^145]

*[2.]{.smallcaps} The Dispositive Issue: MRE 501(a)(4) & 501(d)*

MRE 501(a) limits the claim of privilege to those privileges required by
or provided for in the Constitution, an Act of Congress applicable to
trial by courts-martial, the Military Rules of Evidence or the Manual,
or:

> The **principles of common law** generally recognized in the trial of
> **criminal** cases in the United States district courts pursuant to
> rule 501 of the Federal Rules of Evidence **insofar as the application
> of such principles in trials by courts-martial is practicable and not
> contrary to or inconsistent with the code, these rules, or this
> Manual**.[^146]

MRE 501(a)(4) directly incorporates the term "principles of common law"
as it exists in FRE 501. There are two major limitations on this
incorporation. First is the requirement that the "principle of common
law" must be generally recognized in criminal cases in United States
District Courts. Second, the application of these principles must be
practicable, and "not contrary to or inconsistent with the code, these
rules, or this Manual."[^147] The four positions interpreting *Jaffee v.
Redmond* revolve around these two limitations.

*3. Interpretations:*

**a. *First Interpretation***---The first interpretation of the *Jaffee*
decision, based on MRE 501(a)(4), is that it does not apply to military
courts-martial since *Jaffee* was a civil case. MRE 501(a)(4) requires
general recognition in **criminal** cases. The Supreme Court
deliberately left the definition of the scope of the privilege to
development on a case-by-case basis,[^148] and did not explicitly
recognize its applicability to criminal trials. Nevertheless, a narrow
definition of the scope of the privilege, limiting it to non-criminal
cases is unlikely.[^149] Although the issue of a psychotherapist-patient
privilege was decided in a civil context, the Supreme Court expansively
adopted an absolute privilege. The Court explicitly rejected the Seventh
Circuit's recognition of a qualified privilege which required a
balancing of the evidentiary need against the social benefits gained by
the application of the privilege.[^150] The wording of the Court's
decision implies an expectation that it would apply in the criminal
context:

> We reject the balancing component of the privilege implemented by that
> court \[the Seventh Circuit\] and a small number of States. Making the
> promise of confidentiality contingent upon a trial judge's later
> evaluation of the relative importance of the patient's interest in
> privacy and the evidentiary need for disclosure would eviscerate the
> effectiveness of the privilege . . . . If the purpose of the privilege
> is to be served, the participants in the confidential conversation
> 'must be able to predict with some degree of certainty whether
> particular discussions will be protected. An uncertain privilege, or
> one which purports to be certain but results in widely varying
> applications by the courts, is little better than no privilege at all
> . . . .[^151]

This broad wording rejected the qualified privilege advocated by Officer
Redmond and adopted by the Seventh Circuit in the case below as not
sufficiently protective.[^152] In addition, the Court's failure to
include a criminal case exception, after its in-depth analysis of all
fifty States' statutory privileges, some of which explicitly exempt
criminal proceedings, certainly indicates a disinclination to do so.
Further, in the months since *Jaffee* was decided, three federal
district court decisions have applied *Jaffee* in a criminal
context,[^153] with one of the courts recognizing that the privilege
would apply even against a Confrontation Clause challenge.[^154] The
Supreme Court's high profile seven-two decision recognizing the
psychotherapist-patient privilege "under the principles of common law .
. . in light of reason and experience,"[^155] when combined with
subsequent federal district court actions, strongly argues against this
narrow first interpretation of *Jaffee's* effect on military practice.

**b. *Practicality & Automatic Incorporation?***---The proviso in MRE
501(a)(4) that the application of the principles of common law be
practicable, also does not seem to effectively limit the application of
the psychotherapist-patient privilege in the military system. No
guidance has been given on what is considered "practicable," but no
evidence exists that the military mental health or legal system is not
capable of practically applying such a privilege.[^156] Military mental
health practice is substantially similar to civilian practice.[^157]
Administrative changes would be required in military regulations
governing mental health care records,[^158] but none of these would rise
to the level of impracticability.[^159] Some analysts feel that *Jaffee*
does not apply to military courts-martial automatically, requiring
instead some "enabling legislation"[^160] by the President or Congress
through the rules or code amendment process.[^161] The text of MRE 501,
however, argues strongly against this view. That rule was drafted to
allow both a specific set of privilege rules for use by military
courts-martial while simultaneously allowing some flexibility by
automatically incorporating the changes generally recognized in federal
district court criminal cases.[^162]

**c**. ***Second & Third Interpretations***---The second and third
interpretations of the applicability of *Jaffee* to military practice
depend on the effect of MRE 501(d) which states: "\[n\]otwithstanding
any other provision of these rules, information not otherwise privileged
does not become privileged on the basis that it was acquired by a
medical officer or civilian physician in a professional capacity."[^163]
The crucial issue is the interpretation of this provision and of MRE
501(a)(4) which prohibits the incorporation of any privilege rule
recognized under FRE 501 "insofar as the application of such principles
in trials by court-martial is practicable and not contrary to or
inconsistent with the code, these rules, or this Manual."[^164] In
simpler terms, is a psychotherapist-patient privilege contrary to or
inconsistent with MRE 501(d)? If so, *Jaffee* does not apply. If not,
MRE 501(a)(4) automatically incorporates the privilege. If the privilege
is only partially inconsistent with MRE 501(d), then the privilege
applies **insofar** as it is consistent.

The second interpretation answers this question simply. Yes, MRE 501(d)
completely bars the incorporation of the psychotherapist-patient
privilege recognized in *Jaffee*, because this privilege is a subset of
the broader physician-patient privilege. When interpreted by reference
to the policy expressed in the drafters' analysis, MRE 501(d) prevents
"the application of a doctor-patient privilege."[^165] In the Rule, the
drafters used the wording, "on the basis it was acquired by a medical
officer or civilian physician in a professional capacity" to bar any
medical privilege since "\[s\]uch a privilege was considered to be
totally incompatible with the clear interest of the armed forces in
ensuring the health and fitness for duty of personnel."[^166] The
interpretation of the term "medical officer" is necessary to define the
effect of MRE 501(d). A broad interpretation that includes any military
health care provider supports the policy expressed in the drafters'
analysis.[^167] However, such a broad interpretation is troublesome
since (1) the same rule bars only information acquired by civilian
physicians creating an illogical split between mental health care given
in the military and civilian systems; and (2) since the term "medical
officer" traditionally includes only physicians in the military.[^168]

The drafters' analysis goes on to emphasize the "strong anti-medical
privilege position,"[^169] of the military privilege rules by stating
that the military will look to the law of the forum in evaluating
privilege claims.[^170] The drafters' analysis directly contemplates
compelling testimony from civilian physicians providing care to military
patients despite state privilege protections.[^171] Unfortunately, the
differentiation between military "medical officers" and "civilian
physicians" in MRE 501(d) weakens the argument that "medical officer" be
interpreted broadly since such an interpretation causes an absurd
result: (1) barring the privilege as applied to any military health care
provider but not any civilian health care provider; and (2) barring the
application of the privilege recognized in *Jaffee* for civilian
psychiatrists, but not for psychologists or clinical social workers. The
deliberate inclusion and discussion of compelling testimony from
civilian physicians despite state privilege law implies an intent that
all such evidence be treated equally in military courts-martial.

The second view is supported by the fact that the drafters were aware of
Proposed Rule 504[^172] when they formulated the specific privileges
included in MRE 502 through MRE 509. They did not include a specific
privilege rule covering the psychotherapist-patient relationship.
Instead, the drafters specifically included MRE 501(d) to bar or
preclude any privilege that would interfere with the military's duty to
ensure the health, both physical and mental, of their personnel.[^173]
This interpretation ignores the text of MRE 501(d) and focuses on the
expressed intent behind the rule to bar **any** psychotherapist-patient
privilege, as applied to both military personnel and civilians.

The third interpretation sees MRE 501(d) as barring only a
psychotherapist-patient privilege as applied to military personnel. The
third interpretation also requires MRE 501(d)'s interpretation using the
drafters' analysis comment on the armed forces' interest in ensuring the
health and fitness for duty of personnel. The critical difference here,
however, is that no such need or interest exists for non-military
personnel.

Since many Military Rules of Evidence are identical to their equivalent
Federal Rules of Evidence, interpretation of a Military Rule of Evidence
that differs from the Federal Rule must include an evaluation of the
deliberate difference.[^174] Section V, the privilege section of the
Military Rules, attempts to both delineate specific rules yet
simultaneously allow dynamic change by directly incorporating changes
occurring under FRE 501. MRE 501(d) attempted to ensure that military
courts-martial would never accept a privilege recognized under FRE 501
which interfered with the military's responsibility to ensure the health
and fitness for duty of its personnel. Accepting the third
interpretation both recognizes the difference in MRE 501(d),[^175] and
the overall policy of incorporating changes in the federal rules of
privilege under the principles of common law.[^176] Additionally, the
environment in which military courts-martial operate has changed since
the Military Rules of Evidence were drafted.[^177]

Neither the text, purpose, nor interpretation of MRE 501(d), in light of
that purpose, bars the application of a psychotherapist-patient
privilege for civilians. MRE 501(a)(4) incorporates the principles of
common law **"insofar as the application is not contrary to or
inconsistent with** the code, these rules, or the MCM." Privileges
recognized under FRE 501 apply in military courts-martial "insofar" as
their application does not conflict with the code, rules, or MCM. Thus a
partial incorporation of the privilege into military courts-martial can
be supported by MRE 501(a)(4)'s use of the term "insofar." The text of
MRE 501(d), even expansively interpreted using the drafters' analysis,
does not bar the application of the privilege for civilians.[^178] The
application of the *Jaffee* psychotherapist-patient privilege for
civilians is not contrary to or inconsistent with the code, the rules,
specifically MRE 501(d), or the MCM. Therefore, the third interpretation
sees *Jaffee* as supporting the recognition of the privilege to the
extent it protects non-military patients' confidential communications to
a psychotherapist.

**d. *The Fourth Interpretation***---Finally, the fourth interpretation
sees MRE 501(d) as having no effect on the incorporation of the
psychotherapist-patient privilege recognized in *Jaffee*. The text of
MRE 501(d), barring the application of any privilege "on the basis that
it was acquired by a medical officer or civilian physician in a
professional capacity" is clear. Only evidence privileged on the MRE
501(d) specified basis is barred. The privilege recognized in *Jaffee*
is not based on the fact that the information was acquired by a
physician. It is a separate and distinct privilege from the
doctor-patient privilege, and is not subsumed in that privilege. The
fact that some psychotherapists are also physicians is coincidental.
Thus MRE 501(d) does not dispose of the issue.[^179] The Supreme Court
emphasized the distinctions between the two privileges in *Jaffee* by
focusing on psychotherapy's dependence of confidentiality-its "*sine qua
non.*" The Supreme Court highlighted the fact that the need for
confidentiality is significantly different in the
psychotherapist-patient relationship than in the doctor-patient
relationship.[^180] A noted treatise on military law has echoed this
finding in discussing MRE 501(d), stating that "it is unclear whether a
narrow psychotherapist-patient privilege, rather than a broader
doctor-patient privilege is barred by this subdivision.[^181] We would
think that it would not be barred in light of the extraordinary need for
confidentiality between psychotherapist and patient that is as important
in military as in civilian life."[^182]

The Supreme Court's actions in *Jaffee* show its recognition of the
separate basis for the psychotherapist-patient privilege. The Court, in
recognizing the privilege, went well beyond the parameters envisioned in
Proposed Rule 504 which covered only physicians and psychologists
engaged in the treatment of mental illness. In *Jaffee*, the Court
extended the privilege to cover clinical social workers engaged in
psychotherapy, based largely on a functional analysis as discussed
earlier in this paper.[^183] The Supreme Court's extension of the
privilege highlights its view of the psychotherapist-patient privilege
as separate and distinct from the traditional doctor-patient privilege.

The drafters themselves recognized that a privilege arising from a basis
other than the doctor-patient basis would not be barred by MRE 501(d),
even if the communication is made to a physician. In the Analysis they
state, "\[t\]he privilege expressed in Rule 302 and its conforming
Manual change in para. 121, is not a doctor-patient privilege and is not
affected by Rule 501(d)."[^184] The text of MRE 501(d) is clear:
"information not otherwise privileged does not become privileged on the
basis that it was acquired by a medical officer or civilian physician in
a professional capacity." Information protected by the
psychotherapist-patient privilege is not privileged **on that basis**.
If a statute's meaning is clear, then courts do not resort to the
legislative history in interpreting the law.[^185] The same maxim would
apply to the text of the Rules in the Manual for Courts-Martial,[^186]
barring reference to the drafters' Analysis if the text of the rule is
clear. Additionally, the drafters' Analysis is not binding.[^187]

The drafters were aware of the existence of Proposed Rule 504 when they
combined "the flexible approach taken by Congress" under FRE 501 with
the adoption of specific privileges to guide military practitioners.
That rule[^188] included non-physicians in the coverage of the
privilege. Numerous state statutory privileges also extended the
privilege to non-physicians. More importantly, psychologists have been
involved in mental health care with patients in the military since the
mid-1950s.[^189] The technical meaning of the term "medical officer" in
the military includes only physicians.[^190] The drafters were aware of
these mental health care realities, but chose wording in MRE 501(d) that
barred only privileges based on status as physicians.

Finally, the text of MRE 501(d) itself makes its attempted limitation on
MRE 501(a)(4) irrelevant.[^191] The rule begins, "Notwithstanding any
other provision of these rules, information not otherwise privileged
does not become privileged on the basis . . . ." [^192] However,
information which is protected by the *Jaffee* psychotherapist-patient
privilege is "otherwise privileged" by the operation of MRE 501(a)(4)
rendering the remainder of MRE 501(d) irrelevant. Since no ambiguity
exists in the text of the rule, MRE 501(d), however interpreted, has no
effect on the incorporation of the *Jaffee* privilege under MRE
501(a)(4). A strict interpretation of the text of MRE 501(d), leads to
the conclusion that the psychotherapist-patient privilege recognized by
the Supreme Court in *Jaffee*, and incorporated into military law by MRE
501(a)(4), is not contrary to or inconsistent with the code, the rules,
or the Manual.

4\. *Conclusion*

Of the four interpretations above, the final two are the most
supportable under the law, and legislative history of the UCMJ, and MCM.
The third interpretation recognizing the privilege for non-military
personnel is the most supportable when the drafters' intent for MRE
501(d)---barring any privilege that would interfere with the commander's
ability to ensure the fitness for duty of his soldiers---is included in
the analysis. However, this interpretation requires ignoring the text of
MRE 501(d). In my opinion an unbiased reading of *Jaffee* recognizes
that the Supreme Court clearly viewed the psychotherapist-patient
privilege as separate and distinct from the physician-patient privilege.
Thus, MRE 501(d), however interpreted, does not prevent the immediate
incorporation of the psychotherapist-patient privilege under MRE
501(a)(4). Further there is no ambiguity in the text of MRE 501(d); it
does not apply by its own terms.[^193] Military courts will initially
determine which of the four interpretations of *Jaffee* discussed above
will apply in courts-martial. Several military courts-martial have
addressed the issue. None so far have explicitly recognized the
applicability of *Jaffee* and based the exclusion of evidence solely on
that basis.[^194] The Air Force Judge Advocate General and Surgeon
General circulated a memorandum to its field agencies and the judiciary
stating that the "application of *Jaffee* to the military is
impractical."[^195] The discussion of at least three intellectually
supportable positions on the applicability of *Jaffee* to military
courts-martial, the Air Force opinion, and military courts' actions to
date demonstrate that widely divergent positions on *Jaffee's* effect
exist. The uncertainty generated by these varied positions will only
worsen with time.

In July 1997, the Army Court of Criminal Appeals evaluated the claim of
a psychotherapist-patient privilege.[^196] The Court in that opinion
analyzed the privilege using the approach outlined in the fourth
interpretation above, and declined to explicitly recognize the privilege
for the accused solely because the Court found the accused had waived
the privilege by not objecting at trial. However, in *dicta*, the Court
clearly signaled its intention to recognize the privilege, even for
active-duty soldiers, in future cases. [^197]

Ultimately, the President and Congress, the two powers entrusted with
the regulation of the armed forces by the Constitution, will have to
determine what *Jaffee's* effect will be. This decision will be made in
the midst of public debate and controversy among the armed forces.[^198]
Congressional legislation on this issue is likely.[^199] In an attempt
to head off Congressional action, the Joint Service Committee on
Military Justice (JSC) met on 13 and 28 March 1997 to finalize a draft
Military Rule of Evidence implementing the psychotherapist-patient
privilege,[^200] which was published in the Federal Register on 6 May
1997 for public comment.[^201]

**V. SHOULD IT APPLY?**

**POLICY CONSIDERATIONS**

*1. Background*

The Constitution entrusts the power to raise and support armies, provide
and maintain a Navy, and make rules for the government and regulation of
the land and naval forces to Congress,[^202] and names the President as
the Commander-in-Chief.[^203] As part of this authority, Congress has
authorized the President to promulgate rules for courts-martial,[^204]
to specifically include the Manual for Courts-Martial.[^205]

However, Congress did not give this rule making power without guidance.
Article 36, UCMJ directs the President to, "so far as he considers
practicable, apply the principles of law and the rules of evidence
generally recognized in the trial of criminal cases in the United States
district courts, but which may not be contrary to or inconsistent with
this chapter."[^206] Congress, thus wanted to keep the military system
closely tied to the federal system, separated only when required by the
unique circumstances of the military. Senator Sam Nunn has characterized
Congress' intent, when exercising its Constitutional mandate, as a
careful balancing of the rights of individual servicemembers and the
needs of the armed forces.[^207] For him, Congress has played a leading
role in enhancing the rights of servicemembers.[^208]

One way military member's rights are protected is through limitations on
the use of mental health information. Current military regulations,
however, limit protection of military mental health records to that
provided by the Privacy Act, allowing access by agency officials with an
official need to know.[^209] Those agency officials include commanders,
law enforcement agents conducting investigations, and defense counsel
under appropriate discovery procedures under the MCM.[^210] In certain
cases, Congress has taken specific steps to protect misuse of the
military mental health system by commanders for improper purposes. This
legislation, as applied by DOD,[^211] has imposed significant procedural
safeguards for military members ordered to undergo command directed
mental health evaluations.

In addition to enhancing protections for military members against misuse
of mental health information, Congress has acted to protect crime
victims' rights.[^212]In recent years, Congress has taken significant
legislative steps to ensure that crime victims are treated with fairness
and respect for the victim's dignity and privacy. [^213] The Department
of Defense has implemented victims' rights programs in accordance with
this Congressional policy and direction.[^214] Typical scenarios
experienced by military courts-martial involve demands for victim's
psychotherapy records as part of pre-trial discovery by the defense.
These victims' experience with this process will implicate the
Congressional mandate that victims have the "right to be treated with
fairness and with respect for \[their\] . . . dignity and
privacy."[^215]

The judiciary is also enhancing victims' rights. Federal district courts
are applying a psychotherapist-patient privilege in criminal trials, and
are evaluating claims by both defendants and victims to the protections
afforded by the psychotherapist-patient privilege. These courts are also
extending the *Jaffee* decision to recognize parent-child and rape
counselor-patient privileges.

The federal judiciary will also have to address the issue of *Jaffee's*
applicability when called upon to support military subpoenas for
psychotherapy records and warrants of attachment. A practical issue
exists in how the military will enforce its attempts to compel testimony
from non-military mental health care professionals. Article 46, UCMJ
authorizes process to compel the appearance of witnesses and the
production of other evidence similar to that which courts of the United
States having criminal jurisdiction may lawfully issue. Article 47, UCMJ
makes refusal to appear or produce subpoenaed evidence a criminal
offense and authorizes trial in a United States district court.[^216]
Although the law of the particular forum in which the case is litigated
determines the applicability of the privilege, military courts-martial
would be required to have its service enforced, and have persons
refusing to testify or produce evidence prosecuted, in federal district
courts which do recognize the psychotherapist-patient privilege.
Alternatively Article 46, UCMJ authorizes the issuance of a warrant of
attachment taking the witness into custody by a U.S. marshal or military
officer.[^217] Beyond the obvious public relations sensitivities, a
person so taken into custody could bring suit to enjoin such an action
or commence a habeus corpus proceeding to secure his release from
military custody. Federal district courts would be forced to examine the
effect of *Jaffee* on military practice in either of these two
circumstances. In doing so, they will interpret the interaction of MRE
501(a)(4) and MRE 501(d). The outcome is far from clear---there are at
least four different interpretations of *Jaffee's* effect as discussed
above. These courts are unlikely to be receptive to military claims that
no privilege exists for both military and civilian personnel.

*2. Confidentiality and the Military's Need to Know*

The importance of confidentiality to successful mental health care
treatment, recognized by the Supreme Court, also exists within the
military community. However, the countervailing need for the military to
know the mental status of its personnel changes the utilitarian analysis
of the privilege. The mission of the military necessarily involves the
use of dangerous equipment, access to weapons and classified
information, control of nuclear weapons, and life-and-death reliance on
the stability of other service members.[^218] The rationale described
under the drafters' analysis to MRE 501(d), ensuring the health and
fitness for duty of military members, applies equally to their mental
health. The utilitarian approach weighs the benefits to society from
recognizing the privilege against the costs to society. In the military,
the costs to society must include not only the costs to the judicial
process, but also the dangers posed by mentally disturbed individuals
performing military missions.

The lack of confidentiality of mental health care treatment has resulted
in military members delaying or avoiding treatment[^219] and in the
underdiagnosis of mental illness.[^220] The military culture stigmatizes
mental illness.[^221] Military members feel that seeking help will
adversely affect their careers, particularly if the member is on flight
status or has a sensitive security clearance.[^222] A leader may avoid
seeking help for mental illness in fear that "his troops will view him
as 'weak' and lose confidence in his leadership."[^223] Fears that
mental illness can result in discharge, loss of security clearance, loss
of flying status, and loss of promotion opportunity in a sub-culture
where strength is valued over all else result in military members
avoiding treatment.[^224] Ninety-five percent of suicides are tied to
mental illness.[^225] Although the military suicide rates are roughly
commensurate with rates in the civilian sector, the military must
proactively encourage members to seek mental health care to combat the
"centuries old military culture in which strength is prized and anything
that could be perceived as weakness is concealed."[^226] Many consider
this culture essential to the combat success of our military forces.
This cost of military members avoiding or delaying treatment,[^227]
however, must be weighed against the need of the military to know the
mental status of its members and be able to accomplish its mission of
defending the nation.

The Supreme Court has recognized the military as "a specialized
community governed by a separate discipline from that of the
civilian."[^228] Their jurisprudence has been "characterized by the
highest degree of deference to the role of Congress and respect for the
judgment of the armed forces in the delicate task of balancing the
interests of national security and the rights of military
personnel."[^229] A decision by the military that this balancing
requires access to the mental health care information of military
personnel would also likely be judged with this judicial
deference.[^230]

However the need for access to military members' records is dramatically
different from the military's need to know the mental status of family
members or other civilian patients. The cost to the military judicial
process caused by recognizing a psychotherapist-patient privilege for
civilians would be the similar to that experienced by federal district
courts under *Jaffee*. Additional social costs are caused by the forced
production of these sensitive records in the military. The most likely
scenario where this issue would arise in a military court-martial would
be where a family member was the victim of a crime allegedly committed
by a military member, most typically sexual assault or child abuse.
Military members' morale would be affected by the trauma experienced by
their family members when sensitive mental health treatment information
is turned over to the defense counsel as part of the discovery
process.[^231] This additional social cost further supports the
recognition of the psychotherapist-patient privilege for civilian
patients.

The *Jaffee* decision directly implicates Article 36, UCMJ since federal
courts now recognize a psychotherapist-patient privilege. Article 36
embodies an explicit Congressional policy that military practice follow
as closely as possible practice in federal district court. Recent
Congressional action enhancing the crime victims' protections support
the recognition of the privilege for civilian patients.

Recent Congressional contacts with the Department of Defense urging the
amendment of the Military Rules of Evidence echo the current
Under-Secretary of Defense for Health Affairs' position that there is no
imperative need to have access to non-military patients' mental health
records. In addition, the President, although not explicitly addressing
this issue, has also been supportive of initiatives protecting victims
of crime.[^232] If the Department of Defense fails to take action to
amend the Rules of Evidence to recognize these policy declarations it is
likely that either Congressional or Presidential action will be
forthcoming to amend the Rules without military input.[^233] Awaiting
judicial determination of the validity and scope of the privilege will
be a luxury the military is unlikely to enjoy.[^234] An internal
redrafting of the Military Rules of Evidence to adopt this privilege for
civilian patients is more likely to result in a rule that the military
can live with.[^235] A possible Military Rule of Evidence providing a
privilege for civilian patients is proposed below.

*3. Incorporating* Jaffee

An explicit Military Rule of Evidence recognizing the
psychotherapist-patient privilege for civilian patients is the best
approach in resolving the issues created by the *Jaffee* decision. This
approach allows the military to craft a rule that addresses its specific
needs. An explicit rule recognizing this privilege as part of the MCM
would operate to foreclose additional expansion of the privilege by
federal courts in the future since changes would likely be "contrary to
or inconsistent with the MCM" if a specific rule existed. It would also
conclusively resolve the open question of whether military personnel
have a privilege.[^236] The draft MRE 513 at appendix A is one attempt
to balance the needs of the patient with the needs of the military
through the definitions of a "civilian patient," "confidential
communication," and "psychotherapist."

This rule defines a civilian patient as one not subject to the UCMJ at
**both** the time the confidential communication was made and at the
time of the trial by courts-martial. This definition would allow the
military to have access to the records of reservists and other persons
accompanying the force who would be subject to the Code even if the
confidential communication was made as a civilian.[^237] It excludes
retirees so long as the retiree is not the accused. The military's need
to ensure the mental health of its members is protected by this rule
since personnel subject to the Code would not have a privilege.

The definition of "confidential communication" requires that the
communication not be intended for disclosure to third persons.
Disclosure to third persons present to further the interests of the
patient, reasonably necessary for the transmission of the communication,
and to those participating in the treatment of the patient under the
direction of the psychotherapist would be allowed under the umbrella of
the psychotherapist-patient privilege. Thus disclosures to clerks
assisting the psychotherapist by taking an intake history, members of
the patients' family or fellow group therapy members participating in
the treatment of the patient under the direction of the psychotherapist
would not make the communication non-confidential. This is similar to
the attorney-client privilege extending to cover representatives of the
attorney necessary for the provision of legal advice, and would include
enlisted medical specialists acting under the supervision of the
psychotherapist.

Finally, the definition of the "psychotherapist" would limit covered
disclosures to those made to a doctor (to include a psychiatrist),
psychologist, or clinical social worker when actually engaged in the
diagnosis or treatment of a mental or emotional condition, including
drug or alcohol addiction. Thus only those professionals, and only those
communications made in the course of treatment or diagnosis, would be
covered by the privilege.

Exceptions that would be relevant in trials by court-martial are rare if
the privilege exists only for civilian patients.[^238] Military
courts-martial are purely criminal in nature, thus exceptions designed
to operate in civil or commitment proceedings are not relevant. The
first exception in the proposed rule would cover those cases involving a
breach of duty between the patient and psychotherapist covering
dereliction of duty or other criminal charges against the
psychotherapist involving their care of a patient. The second exception
would allow disclosure in cases involving information involving likely
serious bodily harm or death or significant impairment of national
security, allowing disclosure in courts-martial in those few cases where
this would be relevant and parallels the ethical confidentiality
exception. Third, no privilege would bar disclosure of any reporting
required by state or federal law, or military regulation, such as for
suspected child abuse or neglect, spouse abuse, or elder abuse. Finally,
no privilege would exist where the accused was charged with crimes
against his or her spouse or either's child, covering the vast bulk of
spouse and child abuse cases where the victim recants. Some of these
exceptions involve situations that would be rare in courts-martial but
which recognize, and parallel, the effect of the privilege rule on the
psychotherapists' confidentiality rules.[^239]

The proposed rule includes a procedure to obtain information under the
discovery process, mandating the military judge's *in camera* inspection
of the records or information to determine if the privilege exists.
[^240] The party seeking the information must notify the alleged
civilian patient, allowing him to assert the privilege. Finally, the
psychotherapist-patient privilege would be subject to the same waiver
rules as other privilege provisions. MRE 510 describes voluntary waiver
in the military practice. An amendment of MRE 510 may be necessary to
clarify that a witness may testify concerning a privileged matter in
response to cross examination by a defense attorney or accused acting
*pro se* (required by the Sixth Amendment confrontation clause) without
waiving the protections of the privilege for the records or the
psychotherapist's testimony. A provision stipulating that a victim's
testifying on the emotional impact of a crime on himself does not waive
the privilege may also be appropriate.

Faced with Sixth Amendment challenges to the privilege, military
courts-martial would be limited to conducting *in camera* inspections of
the records or testimony to determine only if they were covered by the
privilege. If so, compelled disclosure would be prohibited.[^241]

Several alternate privilege rules could be drafted and supported in the
military.[^242] Alternate forms of the rule could distinguish on the
basis of the status of the person making the confidential communication,
denying the privilege to any accused while recognizing it for all other
persons. The protection of the privilege would then be dependent on
whether the individual is accused of a crime. Any of the proposed
exceptions to the proposed rule could be deleted based on policy
considerations. Alternatively, the privilege rule could differentiate on
the type of information disclosed by providing an exception to allow
disclosure of exculpating information. Further, the military privilege
rule could provide a qualified privilege of the type recognized by the
Seventh Circuit in *Jaffee*, which requires "an assessment of whether,
in the interests of justice, the evidentiary need for the disclosure of
the contents of a patient's counseling sessions outweighs that patient's
privacy interests."[^243]

Any workable military privilege rule must, however, recognize the
imperative need of the military to ensure its personnel's health and
fitness for duty. The proposed MRE 513 has the advantage of following
the Supreme Court's *Jaffee* decision as closely as possible, with
changes based solely on the special nature of the military society and
mission.[^244] The proposed MRE 513 recognizes a broad privilege for
civilian patients as implied by the expansive language in the Supreme
Court's *Jaffee* decision. It encourages the frank disclosure so
necessary for effective psychotherapy, while retaining the military's
power to supervise and control its personnel. Its major weakness is the
lack of protection for military victims. The cost of the loss of this
information to the military judicial system if such a privilege were
recognized, is not outweighed by the privacy interests of military
victims. Military authorities will have access to military victims'
mental health information to ensure their health and fitness for duty.
Imposing an additional cost on the truthseeking process of the courts
when the information is already not confidential is not supportable
under the utilitarian analysis of privileges advanced by Dean Wigmore
because of the military's need and ability to access this information.
Further the privacy interests of military personnel are subject to
different intrusions than those of civilians in a variety of
situations.[^245] The military's decision to provide differing
protections for its personnel is the type of decision normally deferred
to by the courts.[^246]

*4. Joint Service Committee Draft MRE 513*

The Joint Service Committee published their draft MRE 513 for public
comment on 6 May 1997.[^247] This draft rule is included at appendix C.
The primary differences between its proposed rule and the rule proposed
above are in the definition of the term "patient," in the types of
professionals covered, and in the exceptions delineated in the rule.

The JSC proposed rule focuses solely on the patient's status at the time
the disclosure is made. It excludes active component members; cadets and
midshipmen; members of the reserve component while on inactive duty
training; persons in custody of the armed forces serving a sentence
imposed by court-martial; members of the National Oceanic and
Atmospheric Administration, Public Health Service, and other
organizations, when assigned to and serving with the armed forces;
prisoners of war in custody of the armed forces; and in times of war,
persons serving with or accompanying an armed force in the field. Focus
on the status at the time the disclosure is made prevents military
authorities from having access to relevant data on the mental status of
reservists and other persons accompanying the force who would be subject
to the UCMJ. With today's increasing utilization of the reserve
component in most contingency operations, such an exclusion is arguably
dangerous if one accepts the basic premise of the commander's need to
know the mental status of his or her personnel.

Under the JSC proposed MRE 513, covered professionals are limited to
psychiatrists or psychologists. Within the military health care system
the privilege applies only to those professionals having credentials to
provide professional services as a psychologist or psychiatrist.
Licensed clinical social workers or other psychotherapists are excluded
from the coverage of the privilege. A portion of the mental health
counseling in military health care facilities is done by social workers.
Under this rule, confidences made to these personnel would not be
privileged. Further, this proposed rule differs in coverage from the
privilege recognized in federal courts, and from the Supreme Court's
holding in *Jaffee.* This difference would create the exact same
enforcement difficulties existing currently.

Although many of the proposed exceptions are similar to those in the
rule proposed above, the "military necessity" exception is very broad,
making the application of the privilege uncertain. Mere necessity
extinguishes the privilege. Additionally, the circumstances in which
"military necessity" would defeat the privilege---"to ensure the safety
and security of military personnel, military dependents, military
property, classified information or the accomplishment of a military
mission" ---are so encompassing that almost no privilege would survive.
No requirement of seriousness is required of the threat to the safety or
security of the listed categories before the privilege is extinguished.
Certainly a privilege strong enough to defeat an accused's Sixth
Amendment claims for victim's records and information is not created by
this proposed rule.

Again, although the exceptions in the proposed rule above are similar,
they are more narrowly cast, requiring serious bodily harm or death or
significant impairment of national security rather than necessity. These
more narrow exceptions make it more likely that the privilege would
survive a Sixth Amendment challenge. A rule encompassing broader
exclusions of covered personnel and covered professionals, coupled with
narrower exceptions would make a better overall rule---one that would
provide a greater degree of protection to victims.

Finally, the procedure envisioned by the rule contemplates an
evidentiary hearing rather than an *in camera* review by the military
judge. Although the proposed JSC rule permits a closed hearing, such a
closure is not mandated by the rule, leaving the privacy interests of
the patient subject to the discretion of the military judge and to the
requirement for the counsel for either party to request such a closure.
The patient claiming the privilege is not included among those who can
request a closed hearing.

*5. Confidentiality Requirements*

Since military courts-martial are purely criminal, the evidentiary rule
would have to be accompanied by ethical rules for military
psychotherapists that would address exceptions to the general rule of
confidentiality. Currently there are no guidelines for DOD
psychotherapists establishing when confidential information must, may,
or may not be disclosed.[^248] These rules could be issued in the form
of a Department of Defense Directive and specific service regulations
similar to the Army regulation which controls the conduct of Army
attorneys.[^249] These rules would address exceptions that would not be
applicable or relevant in a military courts-martial, but which might
occur in civil, administrative, or commitment proceedings. One example
might be an exception to the confidentiality requirement when the
patient sues for malpractice. Some proposed exceptions are listed at
appendix B. These limitations on confidentiality could be included in
the disclosure to patients mandated by current ethical rules,[^250] and
because of their similarity to restrictions in civilian practice might
help alleviate the perceived conflict of interest on the part of
military psychotherapists.[^251] The proposed clarifications of the
psychotherapist's ethical duties at appendix B would exist as exceptions
to their ethical duty of confidentiality, and should be included in
military psychotherapists' ethical rules.

Additionally, current military regulatory protections on mental health
records would have to be changed to provide the necessary protection for
non-military mental health records.[^252] These changes must
specifically include the requirement for a military judge's written
order prior to turning over non-military mental health records under
seal.

An explicit Military Rule of Evidence and Psychotherapist Ethics
regulation would provide guidance to military mental health care
providers, and could provide a basis to assess the duty owed by these
providers to their patients and to the military. Both are necessary
components in providing high quality mental health care to patients
while still ensuring the fair administration of military justice.

**VII. CONCLUSION: NOW WHAT?**

The Supreme Court's decision in *Jaffee v. Redmond* complicated military
practice by raising the issue of the applicability of a
psychotherapist-patient privilege. Congress, the media, professional
mental health associations, the Department of Defense, and various trial
courts are addressing this issue on a case-by-case basis. At least four
interpretations of the effect of *Jaffee* on the Military Rules of
Evidence exist. In the midst of all this uncertainty patients seeking
care in military facilities, and counsel dealing with them, do so in
ignorance of the extent or existence of any privilege protecting their
confidential communications. Military psychotherapists are similarly
ignorant. However, the opportunity still exists for the military to
shape the effects of *Jaffee* *v. Redmond* on military courts-martial
practice and the UCMJ.[^253]

Amendment of the Military Rules of Evidence to recognize a
psychotherapist-patient privilege for civilian patients is the best
method to resolve the controversy, provide protection to civilian
patients, and preserve the military's need to ensure the physical and
mental health of their personnel. Failure to take decisive action will
result in congressional action mandating a privilege which may be
broader than the military can live with.[^254] The privilege rule
proposed above simultaneously recognizes an expansive privilege for
civilian patients while retaining the military's ability to ensure the
health and fitness for duty of its personnel.

**APPENDIX A---Proposed Military Rule of Evidence 513**

Rule 513. Psychotherapist-Patient Privilege

\(a\) General rule of privilege. A civilian patient has a privilege to
refuse to disclose and to prevent any other person from disclosing
confidential communications, made for the purposes of diagnosis or
treatment of his mental or emotional condition, including drug and
alcohol addiction, among himself, his psychotherapist, or persons who
are participating in the diagnosis or treatment under the direction of
the psychotherapist, including members of the patient's family.

\(b\) Definitions. As used in this rule:

\(1\) A "civilian patient" is a person who: (1) is not subject to the
Uniform Code of Military Justice (UCMJ) as defined by Article 2, UCMJ
and Rule for Courts-Martial 202, at both the time the confidential
communication is made and at the time of the trial by court-martial,
excluding retired members of a regular component of the armed forces who
are entitled to pay unless such person is the accused; and (2) consults
or is examined by a psychotherapist.

\(2\) A "psychotherapist" is: (A) a person authorized to practice
medicine in any state, territory of the United States, the District of
Columbia, or nation, or reasonably believed by the patient so to be,
while engaged in the diagnosis or treatment of a mental or emotional
condition, including drug and alcohol addiction; or (B) a person
licensed or certified as a psychologist under the laws of any state,
territory of the United States, the District of Columbia, or nation,
while similarly engaged; or (C) a person licensed or certified as a
clinical social worker under the laws of any state, territory of the
United States, the District of Columbia, or nation, while similarly
engaged.

\(3\) A communication is "confidential" if not intended to be disclosed
to third persons other than those present to further the interest of the
civilian patient in the consultation, examination, or interview, or
persons reasonably necessary for the transmission of the communication,
or persons who are participating in the diagnosis or treatment under the
direction of the psychotherapist, including members of the patient's
family.

\(c\) Who may claim the privilege. The privilege may be claimed by the
civilian patient, or the guardian or conservator of the civilian
patient. The psychotherapist who received the communication may claim
the privilege but only on behalf of the civilian patient. His authority
to do so is presumed in absence of evidence to the contrary.

\(d\) Exceptions. There is no privilege under this rule under the
following circumstances:

\(1\) Breach of duty by psychotherapist or civilian patient. As to a
communication relevant to an issue of breach of duty by the
psychotherapist to the civilian patient or to the military or by the
civilian patient to the psychotherapist.

\(2\) Information involving likely serious bodily harm or death, or
significant impairment of national security. As to communications
clearly containing information that the psychotherapist reasonably
believes is likely to result in imminent death or substantial bodily
harm, or significant impairment of national security or the readiness or
capability of a military unit, vessel, aircraft, or weapon system.

\(3\) Mandatory Reporting Requirements. As to a communication which
would require the psychotherapist to report suspected offenses to the
appropriate authorities under applicable state or federal law, or
military regulations.

\(4\) Spousal or child victim: In proceedings in which one spouse is
charged with a crime against the person or property of the other spouse
or a child of either, or with a crime against the person or property of
a third person committed in the course of committing a crime against the
other spouse or child of either.

\(e\) Procedures to determine production or admissibility or allegedly
privileged information:

\(1\) A party intending to seek production of information under R.C.M.
701, or offer evidence under subdivision (a) must---

\(A\) file a written motion at least 14 days before trial specifically
describing the allegedly privileged information that the party
reasonably believes exists, the location of the information, the
identity of the custodian, and factual information sufficient to
establish a good faith belief that the privilege does not apply, and
stating the purpose for which it is sought unless the court, for good
cause requires a different time for filing or permits filing during
trial; and

\(B\) serve the motion on all parties and notify the alleged civilian
patient or, when appropriate, the alleged civilian patient's guardian or
conservator.

\(2\) Before ordering the release of information under R.C.M. 701, or
admitting evidence the court must first conduct an *in camera*
inspection of the records or information and afford the alleged civilian
patient a right to attend and be heard. The purpose of the *in camera*
inspection is to determine whether the psychotherapist-patient privilege
under this rule applies. The motion, related papers, and the record of
the *in camera* inspection must be sealed and remain under seal until
the court orders otherwise.

Drafters' Analysis: Nothing in this rule should be seen as affecting the
privilege expressed in Military Rule of Evidence 301 or 302. Nothing in
this rule should be seen as affecting the judicial interpretation of
Military Rule of Evidence 305 as applied to health care professionals.
The *in camera* inspection of allegedly privileged information is
designed to allow the military judge to determine whether the privilege
applies. The custodian of the information shall provide the allegedly
privileged information to the court under seal upon receipt of a the
military judge's order ordering its production.

Sources for this proposed rule include the Proposed Fed. R. Evid. 504,
*supra*, note 93; MCM, *supra* note 5, [Mil. R. Evid]{.smallcaps}. 502 &
504; and various state statutes.

**[APPENDIX B---Proposed Psychotherapist Ethical Rules on
Confidentiality]{.smallcaps}**

A psychotherapist shall not reveal information relating to the diagnosis
or treatment of a civilian patient unless the patient consents after
consultation, except for disclosures that are impliedly authorized in
order to carry out the diagnosis or treatment, and except as stated in
the below exceptions:

\(a\) Proceeding for hospitalization. There is no confidentiality under
these rules for communications relevant to an issue in proceedings to
hospitalize the patient for mental illness, if the psychotherapist in
the course of diagnosis or treatment has determined that the patient is
in need of hospitalization.

\(b\) Examination by order of judge. If the judge orders an examination
of the mental or emotional condition of the patient, communications made
in the course thereof are not confidential under this rule with respect
to the particular purpose for which the examination is ordered unless
the judge orders otherwise.

\(c\) Condition an element of claim or defense. There is no
confidentiality under these rules as to communications relevant to an
issue of the mental or emotional condition of the patient in any
proceeding in which he relies upon the condition as an element of his
claim or defense, or, after the patient's death, in any proceeding in
which any party relies upon the condition as an element of his claim or
defense. This exception does not include a crime victim's claim of
emotional distress caused by the commission of the crime.

\(d\) The existence of a psychotherapist-patient privilege shall not be
grounds for failure to report suspected child abuse or neglect to the
appropriate authorities when required under applicable state or federal
law, or military regulation.

\(e\) Validity of a document such as a will or power of attorney of a
patient. There will be no confidentiality as to communications relevant
to the validity of a patient's will, power of attorney, or other
equivalent document where the mental competency of a deceased or
incapacitated patient is at issue.

\(f\) Breach of duty by psychotherapist or civilian patient. There is no
confidentiality as to a communication relevant to an issue of breach of
duty by the psychotherapist to the civilian patient or by the civilian
patient to the psychotherapist.

\(g\) Information involving likely serious bodily harm or death, or
significant impairment of national security. There is no confidentiality
as to communications containing information that the psychotherapist
reasonably believes is likely to result in imminent death or substantial
bodily harm, or significant impairment of national security or the
readiness or capability of a military unit, vessel, aircraft, or weapon
system, and the psychotherapist must disclose this information.

\(h\) Licensing, Privileging, or other Professional Disciplinary
Proceedings. There is no confidentiality as to communications relevant
to an administrative or judicial proceeding commenced by a present or
former Department of Defense health care provider concerning the
termination, suspension, or limitation or clinical privileges of such
health care provider, and the psychotherapist must disclose this
information..

\(i\) Required by State or Federal Law: There is no confidentiality
where disclosure is required by state or federal law.

**[APPENDIX C---Joint Service Committee on Military Justice Proposed MRE
513]{.smallcaps}**

Rule 513. Psychotherapist-Patient Privilege

\(a\) General rule of privilege. A patient, as that term is defined in
this rule, has a privilege to refuse to disclose and to prevent any
other person from disclosing a confidential communication made by the
patient to a psychotherapist or an assistant to a psychotherapist, as
those terms are defined in this rule, if such communication was made for
the purpose of facilitating diagnosis or treatment of the patient\'s
mental or emotional condition.

\(b\) Definitions. As used in this rule:

> \(1\) A \"patient\" is a person who consults with or is examined or
> interviewed by a psychotherapist, but the term does not include a
> person who, at the time of such consultation, examination or
> interview, is subject to the Uniform Code of Military Justice under
> Article 2(a)(1), (2), (3), (7), (8), (9), or (10).
>
> \(2\) A \"psychotherapist\" is a psychiatrist or psychologist who is
> licensed or certified in any state, territory, the District of
> Columbia or Puerto Rico to perform professional services as such and,
> if such person is a member of, employed by, or serving under contract
> with the armed forces, who holds credentials to provide such services
> from any military health care facility, or is a person reasonably
> believed by the patient to have such qualifications.
>
> \(3\) An \"assistant to a psychotherapist\" is a person employed by or
> assigned to assist a psychotherapist in providing professional
> services, or is reasonably believed by the patient to be such.
>
> \(4\) A communication is \"confidential\" if not intended to be
> disclosed to third persons other than those to whom disclosure is in
> furtherance of the rendition of professional services to the patient
> or those reasonably necessary for the transmission of the
> communication.
>
> \(5\) \"Evidence of a patient\'s records or communications\" is
> testimony of a psychiatrist, psychologist, or assistant to the same,
> or patient records that pertain to communications by a patient to a
> psychiatrist, psychologist, or assistant to the same for the purposes
> of diagnosis or treatment of the patient\'s mental or emotional
> condition.

\(c\) Who may claim the privilege. The privilege may be claimed by the
patient or the guardian or conservator of the patient. The
psychotherapist or assistant to a psychotherapist who received the
communication may claim the privilege on behalf of the patient. The
authority of such a psychotherapist or assistant to so assert the
privilege is presumed in the absence of evidence to the contrary.

\(d\) Exceptions. There is no privilege under this rule under the
following circumstances:

> \(1\) Death of patient. The patient is dead;
>
> \(2\) Crime or fraud. If the communication clearly contemplated the
> future commission of a fraud or crime or if the services of the
> psychotherapist were sought or obtained to enable or aid anyone to
> commit or plan to commit what the patient knew or reasonably should
> have known to be a crime or fraud;
>
> \(3\) Spouse abuse or child abuse or neglect. When the communication
> is evidence of spouse abuse, or child abuse or neglect;
>
> \(4\) Mandatory reports. When a federal law, state law, or military
> regulation imposes a duty to report information contained in a
> communication;
>
> \(5\) Patient is dangerous to self or others. When a psychotherapist
> or assistant to a psychotherapist has a reasonable belief that a
> patient\'s mental or emotional condition makes the patient a danger to
> any person, including the patient, or to the property of another
> person;
>
> \(6\) Military necessity. When necessary to ensure the safety and
> security of military personnel, military dependents, military
> property, classified information, or the accomplishment of a military
> mission.

\(e\) Procedure to determine admissibility of patient records or
communications:

> \(1\) In any case in which the production or admission of records or
> communications of a patient other than the accused is a matter in
> dispute, a party may seek an interlocutory ruling by the military
> judge. In order to obtain such a ruling, the party shall:
>
> \(A\) file a written motion at least 5 days prior to entry of pleas
> specifically describing the evidence and stating the purpose for which
> it is sought or offered, or objected to, unless the military judge,
> for good cause shown, requires a different time for filing or permits
> filing during trial; and
>
> \(B\) serve the motion on the opposing party, the military judge and,
> if practicable, notify the patient or the patient\'s guardian or
> representative of the filing of the motion and of the opportunity to
> be heard as set forth in subparagraph (e)(2).
>
> \(2\) Before ordering the production or admission of evidence of a
> patient\'s records or communications, the military judge shall conduct
> a hearing. Upon the motion of counsel for either party and upon good
> cause shown, the military judge may order the hearing closed. At the
> hearing, the parties may call witnesses, including the patient, and
> offer other relevant evidence. The patient will be afforded a
> reasonable opportunity to attend the hearing and be heard at the
> patient\'s own expense unless the patient has been otherwise
> subpoenaed or ordered to appear at the hearing. However, the
> proceedings will not be unduly delayed for this purpose. In a case
> before a court-martial composed of a military judge and members, the
> military judge shall conduct the hearing outside the presence of the
> members.
>
> \(3\) If the military judge determines on the basis of the hearing
> described in subparagraph (2) of this subdivision that the evidence
> that the party seeks to acquire, offer, or exclude is privileged,
> irrelevant, or otherwise inadmissible, no further proceedings will be
> conducted on the issue and the military judge shall not order the
> production or admission of the evidence.
>
> \(4\) If the military judge is unable to determine whether the
> evidence is privileged or relevant, the military judge shall examine
> the evidence or a proffer thereof *in camera*.
>
> \(A\) If the military judge determines on the basis of the *in camera*
> examination that the evidence is privileged, irrelevant, or otherwise
> inadmissible, the military judge shall not order the production or
> admission of the evidence.
>
> \(B\) If the military judge determines that the evidence is relevant
> and not privileged, such evidence, or pertinent portions thereof,
> shall be produced and/or admitted in the trial to the extent specified
> by the military judge.
>
> \(5\) To prevent unnecessary disclosure of evidence of a patient\'s
> records or communications, the military judge may issue protective
> orders or may admit only portions of the evidence.
>
> \(6\) The motion, related papers, and the record of the hearing shall
> be sealed and shall remain under seal unless the military judge or an
> appellate court orders otherwise.

The analysis to Mil. R. Evid. 501 is amended by adding:

199\_ Amendment: The amendment of Mil. R. Evid 501(d), and the related
creation of Mil. R. Evid. 513, clarify the state of military law after
the Supreme Court decision in *Jaffee v. Redmond*, \_\_\_ U.S. \_\_\_
\[116 S. Ct. 1923, 135 L.Ed. 2d. 337\] (1996). *Jaffee* interpreted Fed.
R. Evid. 501, which refers federal courts to state law to determine the
extent of privileges in civil proceedings. Although Mil. R. Evid.
501(d), as it existed at the time of the *Jaffee* decision, precluded
application of such a privilege in courts-martial, Rule 501(d) was
amended to prevent misapplication of a privilege. The language of Mil R.
Evid 513 is based in part on Proposed Fed. R. Evid. (not enacted) 504
and state rules of evidence. Mil. R. Evid. 513 was created to establish
a limited psychotherapist-patient privilege for civilians not subject to
the UCMJ and military retirees. In keeping with the practice of American
military law since its inception, there is still no doctor-patient or
psychotherapist- patient privilege for members of the Armed Forces.

The analysis to Mil. R. Evid. 513 is created as follows:

199\_ Amendment: Mil. R. Evid. 513 was created to establish a limited
psychotherapist-patient privilege for civilians not subject to the UCMJ
and military retirees. In keeping with the practice of American military
law since its inception, there is still no doctor-patient or
psychotherapist-patient privilege for members of the Armed Forces. Rule
513, and the related amendment to Mil. R. Evid 501(d), clarify the state
of military law after the Supreme Court decision in *Jaffee v. Redmond*,
U.S. \_\_\_ \[116 S. Ct. 1923, 135 L.Ed. 2d. 337\] (1996). *Jaffee*
interpreted Fed. R. Evid. 501, which refers federal courts to state law
to determine the extent of privileges in civil proceedings. Although
Mil. R. Evid. 501(d), as it existed at the time of the *Jaffee*
decision, precluded application of such a privilege in courts-martial,
Rule 501(d) was amended to prevent misapplication of a privilege. The
language of Mil R. Evid 513 is based in part on Proposed Fed. R. Evid.
(not enacted) 504 and state rules of evidence.

[^1]: ^^ The term "right to everyman's evidence" derives from the maxim
    "that the public . . . has a right to every man's evidence" which
    "was a well known phrase as early as the mid-18th century. Both the
    Duke of Argyll and Lord Chancellor Hardwicke invoked the maxim
    during the May 25, 1742, debate in the House of Lords concerning a
    bill to grant immunity to witnesses who would give evidence against
    Sir Robert Walpole, first Earl of Orford. . . . The bill was
    defeated soundly." Jaffee v. Redmond, 116 S. Ct. 1923, n. 8 (1996)
    (quoting 12 T. Hansard, Parliamentary History of England 643, 675,
    693, 697 (1812)).

    *\* Major Brenner-Beck (B.S.F.F., Georgetown University; J.D.,
    Boston University; LL.M., The Judge Advocate General\'s School,
    United States Army) is a litigation attorney with USALSA, Washington
    DC. She is a member of the Washington bar.*

[^2]: [Fed. R. Evid]{.smallcaps}. 501.

[^3]: Jaffee v. Redmond, 116 S. Ct. 1923 (1996).

[^4]: [Fed. R. Evid]{.smallcaps}. 501. The "reason and experience"
    language of Rule 501 was taken from the Supreme Court's decision in
    Wolfle v. United States, 291 U.S. 7, 12 (1934) "which in turn
    referred to the oft-repeated observation that 'the common law is not
    immutable but flexible, and by its own principles adapts itself to
    varying conditions'". *Jaffee*, 116 S. Ct. at 1927 (quoting Funk v.
    United States, 290 U.S. 270, 271 (1933).

[^5]: *Jaffee*, 116 S. Ct. at 1931.

[^6]: [Manual for Courts-Martial,]{.smallcaps} United States, [Mil. R.
    Evid]{.smallcaps}. 501(a)(4) (1995 ed.) \[hereinafter MCM\].

[^7]: "Notwithstanding any other provision of these rules, information
    not otherwise privileged does not become privileged on the basis
    that it was acquired by a medical officer or civilian physician in a
    professional capacity." MCM, *supra* note Error: Reference source
    not found, [Mil. R. Evid.]{.smallcaps} 501(a)(4).

[^8]: The term "civilian personnel" or "civilian" used throughout this
    article is intended to mean persons not subject to the Uniform Code
    of Military Justice as defined by Article 2, UCMJ (Uniform Code of
    Military Justice), 10 U.S.C. § 802 (1988). The author recognizes
    that "civilians accompanying the force" are included under Article
    2, UCMJ, and it is not my intention to include these categories of
    civilians when using the term "civilians" in this article.

[^9]: Petitioner's Brief at 2-3, Jaffee v. Redmond, 116 S. Ct. 1923
    (1996) (No. 95-266) \[hereinafter Petitioner's Brief\]; Brief of
    *Amicus Curiae* The United States of America at 3, Jaffee v.
    Redmond, 116 S. Ct. 1923 (1996) (95-266) \[hereinafter US *Amicus*
    Brief\].

[^10]: Jaffee v. Redmond, 51 F.3d 1346, 1350 (7th Cir. 1995).

[^11]: *Id*. at 1350.

[^12]: *Jaffee*, 51 F.3d at 1351; US *Amicus* Brief, *supra* note Error:
    Reference source not found, at 4.

[^13]: *Jaffee*, 51 F.3d at 1351.

[^14]: *Id*. at 1352.

[^15]: *Jaffee,* 51 F.3d at 1355. *See In re* Zuniga, 714 F.2d 632, 638
    (6th Cir. 1983), *cert. denied*, 104 S. Ct. 426 (1983); *In re* Doe,
    964 F.2d 1325, 1328 (2d Cir. 1992).

[^16]: *Jaffee*, 51 F.3d at 1357.

[^17]: *Id*. at 1357.

[^18]: *Id*. at 1358.

[^19]: *Jaffee*, 116 S. Ct. at 1927. *Compare* *In re* Zuniga, 714 F.2d
    632, 638 (6th Cir. 1983), *cert. denied*, 104 S. Ct. 426 (1983)
    (recognizing privilege); *In re* Doe, 964 F.2d 1325, 1328 (2d Cir.
    1992) (same); with United States v. Burtrum, 17 F.3d 1299 (10th Cir.
    1994), *cert. denied*, 115 S. Ct. 176 (1994) (declining to recognize
    privilege); *In re* Grand Jury Proceedings, 867 F.2d 562 (9th Cir.
    1989), *cert. denied sub nom*. Doe v. United States, 110 S. Ct. 265
    (1989) (same); United States v. Corona, 849 F.2d 562 (11th Cir.
    1988), *cert. denied* 109 S. Ct. 1542 (1989) (same); United States
    v. Meagher, 531 F.2d 752 (5th Cir. 1976), *cert. denied* 97 S. Ct.
    146 (1976) (same).

[^20]: *Jaffee*, 116 S. Ct. at 1931.

[^21]: *Id*. at 1932.

[^22]: *Id*. at 1932.

[^23]: *Id*. at 1932 (quoting Upjohn Co. v. United States, 101 S. Ct.
    677, 684 (1981).

[^24]: [Fed. R. Evid]{.smallcaps}. 501.

[^25]: The Court did so under the power given it by Congress in 1934 to
    promulgate rules of evidence under The Rules Enabling Act. *See*
    Edward J. Imwinkelried, *An Hegelian Approach to Privileges Under
    the Federal Rules of Evidence 501: The Restrictive Thesis, the
    Expansive Antithesis, and the Contextual Synthesis*, 73 [Neb. L.
    Rev]{.smallcaps}. 511, 514 (1994).

[^26]: *See id*. at 514 (nine specific privileges, one general rule
    freezing federal privilege law, two general rules on issues such as
    waiver, and one on adverse comment upon a privilege); [Stephen A.
    Saltzburg & Kenneth R. Redden]{.smallcaps}, [Federal Rules of
    Evidence Manual]{.smallcaps} 198-260 (2d ed. 1977) \[includes text
    of rejected rules\] \[hereinafter F[RE Manual\]]{.smallcaps}
    (recognizing ten specific privileges: (1) reports required by
    statute (Rule 502); (2) attorney-client (Rule 503); (3)
    psychotherapist-patient (Rule 504); (4) husband-wife (Rule 505); (5)
    clergyman-penitent (Rule 506); (6) political vote (Rule 507); (7)
    trade secrets (Rule 508); (8) secret of state (Rule 509(a)(2)); (9)
    official information (Rule 509(a)(2)); (10) identity of informer
    (Rule 510). "Proposed rule 501 granted recognition only to these ten
    privileges and those established by Act of Congress and the
    Constitution.").

[^27]: *See* Imwinkelried, *supra* note Error: Reference source not
    found, at 513-523. Professor Imwinkelried has proposed two reasons
    for this controversy. First, controversy arose because the debate
    over the rules of privilege took place against the backdrop of the
    Watergate investigation, with President Nixon's assertion of
    executive privilege against Congress, and because privilege rules
    have the most effect on everyday behavior outside the courtroom. The
    majority of disagreement by bar organizations on the Advisory
    Committee's draft rules centered on the privilege rules. Both the
    House and Senate reports labeled these provisions as the most
    "controversial". According to Judge (then Representative) Hungate,
    who chaired the House hearings, "50% of the complaints in our
    committee related to the \[article\] on privileges." *See also*
    Federal Rules of Evidence, S. Rep. No. 1277, 93d Cong., 2d Sess. 6
    (1974) reprinted in 1974 U.S.C.C.A.N. 7051. ("Many of these rules
    contained controversial modifications or restrictions upon common
    law privileges."); Kathleen L. Cerveny & Marian J. Kent, *The
    Psychotherapist-Patient Privilege in Federal Courts*, 59 [Notre Dame
    L. Rev]{.smallcaps}. 791, 806 (1984) (In response to the Proposed
    Rules forwarded by the Supreme Court, Congress amended the Rules
    Enabling Act to require its approval for any amendment of the rules
    on privilege only. Previously any proposed rules would have taken
    effect automatically had Congress not acted within ninety days.).

[^28]: Imwinkelried, *supra* note Error: Reference source not found, at
    512-514.

[^29]: *See* Sen. Rep. No. 1277, 93 Cong., 2d Sess. 6 (1974) reprinted
    in 1974 U.S.C.C.A.N. 7051 (Much of the Congressional debate over
    this substituted rule centered on the decision on which rule to use
    in diversity cases in federal court.).

[^30]: *See id.*; United States v. Trammel, 445 U.S. 40, 47 (1980)
    (stating FRE 501 "manifests an affirmative intention not to freeze
    the law of privilege. Its purpose rather was to 'provide the courts
    with the flexibility to develop rules of privilege on a case-by-case
    basis,' and to leave the door open to change." (quoting 120 Cong.
    Rec. 40891 (1974) (Statement of Rep. Hungate) H.R. Rep. No. 93-650
    at 8 (1973)).

[^31]: Act of Jan. 2, 1975, Pub. L. No. 93-495, 88 Stat. 1926 (1975), as
    reprinted in [Wigmore on Evidence]{.smallcaps}, *supra* note Error:
    Reference source not found, at n.19 (current version of [Fed. R.
    Evid]{.smallcaps}. 501) (emphasis added).

[^32]: Imwinkelried, *supra* note Error: Reference source not found, at
    524-26 (referring to *In re* Grand Jury Proceedings, 867 F.2d 562
    (9th Cir. 1989)).

[^33]: *Id*. at 528.

[^34]: *See id*. at 528.

[^35]: *See id*. at 526-28.

[^36]: *See id*. at 514, 529. The proposed rules "did not include
    general medical privilege or privilege for confidential interspousal
    communications." The proposed statutory versions of the more
    familiar privilege were considerably narrower than their common law
    versions. The proposed Rule 501 would have abolished the federal
    courts' ability to create new privileges.

[^37]: Sen. Rep. No. 1277, 93d Cong., 2d Sess. 6 (1974), reprinted in
    1974 U.S.C.C.A.N. 7051.

[^38]: Allred v. State, 554 P.2d 411, 413 (Alaska 1976) (quoting
    Slovenko*, Psychiatry and a Second Look at the Medical Privilege*, 6
    [Wayne L. Rev]{.smallcaps}. 175, 181 (1960)).

[^39]: Allred v. State, 554 P.2d at 413-414.

[^40]: *Id.*

[^41]: *See* Major David Hayden, *Should There Be a Psychotherapist
    Privilege in Military Courts-Martial*, 123 [Mil. L.
    Rev]{.smallcaps}. 31 (1989).

[^42]: Because the original practitioners of psychotherapy were
    physicians (psychiatrists) the two privileges were originally
    intertwined before the two fields diverged.

[^43]: *See* Brian Domb*, I Shot the Sheriff, But only My Analyst Knows:
    Shrinking the Psychotherapist-Patient Privilege*, 5 [J.L. &
    Health]{.smallcaps} 209, 213 (1991).

[^44]: Ralph Slovenko*, Psychiatry and a Second Look at the Medical
    Privilege*, 6 [Wayne L. Rev]{.smallcaps}. 175, 178 (1960). The
    policy underlying these legislative actions was to increase public
    health. The privilege was necessary to encourage patients to seek
    medical treatment in a social atmosphere that stigmatized the
    victims of "dreadful diseases."

[^45]: *Medical and Counseling Privileges*, 98 [Harv. L.
    Rev]{.smallcaps}. 1530, 1533 (1985).

[^46]: *See* *id*., at 1539. (Exceptions, themselves defined to protect
    other overarching social values, increased while simultaneously the
    stigma associated with the seeking of health care diminished).

[^47]: *See* *id*., at 1539.

[^48]: Domb, *supra* note Error: Reference source not found, at n.51.

[^49]: *See In re* 'B', 394 A.2d 419, 425 (Pa. 1978); Allred v. State,
    554 P.2d 411 (Alaska 1976); Binder v. Ruvell, Civil Docket No.
    52-C-2535 (Cir. Ct., Cook Cty., Ill. June 24, 1952) \[reported in 15
    J.A.M.A. 1241 (1952)\]; State v. Evans, 454 P.2d 976 (Ariz. 1969).

[^50]: *See* Jessica G. Weiner, *Comment, "And the Wisdom to Know the
    Difference": Confidentiality vs. Privilege in the Self-Help
    Setting*, 144 [U. Pa. L. Rev]{.smallcaps}. 243, 266 (1995); Hayden,
    *supra* note Error: Reference source not found, at 55-60.

[^51]: *See* Weiner, *supra* note Error: Reference source not found, at
    268. (The "preservation of some degree of privacy in certain
    relationships in order to protect these values is as significant as,
    and perhaps more significant than, appropriate fact finding in
    litigation.").

[^52]: *Id*. at 270.

[^53]: *See* *id*. at 271.

[^54]: *Id*. at 269; 8 [J. Wigmore,]{.smallcaps} 8 [Evidence in Trials
    at Common Law,]{.smallcaps} s. 2285 (McNaughton rev. 1961); Hayden,
    *supra* note Error: Reference source not found, at 35 (quoting
    [Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and
    Procedure, Federal Rules of Evidence]{.smallcaps} s. 5522).

[^55]: Domb, *supra* note Error: Reference source not found, at 220-21.

[^56]: Slovenko, *supra* note Error: Reference source not found, at 184.

[^57]: Proposed Rule 504 (Psychotherapist-Patient Privilege), *infra*
    note Error: Reference source not found.

[^58]: The Advisory Committee described the need as follows:

    > Among physicians, the psychiatrist has a special need to maintain
    > confidentiality. His capacity to help his patients is completely
    > dependent upon their willingness and ability to talk freely. This
    > makes it difficult if not impossible for him to function without
    > being able to assure his patients of confidentiality and, indeed,
    > privileged communication. Where there may be exceptions to this
    > general rule . . ., there is wide agreement that confidentiality
    > is a *sine qua non* for successful psychiatric treatment. The
    > relationship may well be likened to that of the priest-penitent or
    > the lawyer-client. Psychiatrists not only explore the very depths
    > of their patients' conscious, but their unconscious feelings and
    > attitudes as well. Therapeutic effectiveness necessitates going
    > beyond a patient's awareness and, in order to do this, it must be
    > possible to communicate freely. A threat to secrecy blocks
    > successful treatment.

    Steven A. Saltzburg, *Privileges and Professionals: Lawyers and
    Psychiatrists*, 66 [Va. L. Rev]{.smallcaps}. 596, n.78 (1980)
    (quoting Proposed Fed. R. Evid. 504, 56 F.R.D. 180, 242 (1972)
    (Advis. Comm. Note) (quoting [Group for the Advancement of
    Psychiatry, Report No]{.smallcaps}. 45, at 92 (1960)).

[^59]: Slovenko, *supra* note Error: Reference source not found, at 186.
    *See also* Brief of *Amicus Curiae* American Psychoanalytic
    Association, et. al. at 7, Jaffee v. Redmond, 116 S. Ct. 1923 (1996)
    (95-266):

    > Psychoanalytic therapy starts from the premise that the human mind
    > operates on both conscious and unconscious levels. The 'conscious'
    > mind consists of those thoughts and feelings of which we are
    > aware. The 'unconscious' encompasses those parts of our minds of
    > which we are not aware. Psychoanalytic theory assumes that the
    > conscious concerns and symptoms (e.g., fear, anxiety, depression)
    > that bring a person into psychotherapy are caused, at least in
    > part, by unconscious factors . . . . Stated simply, the central
    > goal of psychoanalytic therapy is to help individuals become aware
    > of and/or rework the unconscious factors that (unbeknownst to
    > them) are shaping the way that they think, feel, act or react to a
    > given situation . . . . Once this is done, the individual is able
    > to use the abilities of the conscious mind---reason,
    > understanding, intention---to deal better with the unconscious
    > aspects of the mind that were causing the distressing symptoms,
    > behaviors or reactions. In this way, psychoanalytic therapy uses
    > insight to alleviate symptoms . . . . The central challenge of
    > psychoanalytically-based psychotherapy lies in the fact that it is
    > not easy to bring into conscious awareness that which is
    > unconscious.

[^60]: *See* Slovenko, *supra* note Error: Reference source not found,
    at 186.

[^61]: *See* Daniel W. Shuman & Myron S. Weiner, *The Privilege Study:
    An Empirical Examination of the Psychotherapist-Patient Privilege*,
    60 [N.C. L. Rev]{.smallcaps}. 893, 916, 919-20, 929 (1982).

    > \[The\] study concluded that although withholding data from
    > therapist is common, it has little relationship to fear of
    > disclosure but rather to the judgment of the therapist. Seventy
    > percent of this information had to do with sexual acts and
    > thoughts, nine percent concerned thoughts of violence and an
    > additional nine percent concerned financial issues. But when the
    > therapist threatens to disclose or actually does so, communication
    > of violent urges drops and often premature termination results.

    This study was discussed in Domb, *supra* note Error: Reference
    source not found, at n.130; David Nowell & Jean Spruill, *If It's
    Not Absolutely Confidential, Will Information Be Disclosed?,* 24
    [Prof. Psych.: Res. & Prac]{.smallcaps}. 367 (1993); Daniel W.
    Shuman, Myron F. Weiner, & Gilbert Pinard*, The Privilege Study
    (Part III): Psychotherapist-Patient Communications in Canada*, 9
    [Int'l. J. of Law and Psych]{.smallcaps}. 393 (1987) (comparing
    responses from two groups, one from Ontario which had no privilege,
    and one from Quebec, which did have a form of the
    psychotherapist-patient privilege, concluding that the privilege had
    little effect on patients' decisions concerning therapy); Jeffrey A.
    Klotz, *Limiting the Psychotherapist-Patient Privilege: The
    Therapeutic Potential*, 27 [Crim. Law Bull]{.smallcaps}. 46 (1991)
    (advocating that no privilege would actually have a positive effect
    since the patient disclosing an intent to commit a future crime
    would actually be deterred from committing the crime if he knew the
    therapist was obligated to disclose---a somewhat fallacious argument
    since it assumes that a patient intending to actually commit a
    future crime would tell a therapist in the first place if he knew of
    the duty to disclose).

[^62]: *See* Robert G. Meyer & Steven R. Smith, *A Crisis in Group
    Therapy*, 32 [Am. Psychol]{.smallcaps}. 638, 639-40 (1977) (finding
    that 81.8% of respondents to a questionnaire on confidentiality
    indicated that they would refuse to enter group therapy or would be
    substantially less inclined to speak freely without assurance of
    confidentiality); Deborah E. Willage & Robert G. Meyer, *The Effects
    of Varying Levels of Confidentiality on Self-Disclosure*, 2
    [Group]{.smallcaps} 88, 94-95 (1978) (finding that subjects were
    more open in answering personality inventories when confidentiality
    was assured than when they thought the results of the survey might
    be released*); Note, Functional Overlap between the Lawyer and Other
    Professionals: Its Implications for the Privileged Communications
    Doctrine*, 71 [Yale L.J.]{.smallcaps} 1226, 1262 (1962)
    \[hereinafter *Functional Overlap*\] (suggesting that many people
    are unaware of current privilege law but that a substantial number
    of people felt that they would be much less willing to disclose
    personal information in therapy if they knew that a psychotherapist
    was legally obligated to release information learned during a
    therapy session*); Note, Where the Public Peril Begins: A Survey of
    Psychotherapists to Determine the Effects of Tarasoff*, 31 [Stan. L.
    Rev]{.smallcaps}. 165, 183 (1978) (noting that one quarter of
    therapists found that patients were reluctant to discuss violent
    tendencies when patients were informed of the possibility of the
    breach of the breach of confidence). *See also* David J. Miller &
    Mark H. Thelen, *Knowledge and Beliefs About Confidentiality in
    Psychotherapy*, 17 [Prof. Psychol.: Res. & Prac]{.smallcaps}. 15, 18
    (1986) (finding that 42% of the study's subjects maintained that if
    they were told that the information they revealed was not kept
    completely confidential, they would exhibit reluctance and
    discretion before speaking to a therapist); Howard B. Roback et al.,
    *Guarding Confidentiality in Clinical Groups: The Therapist's
    Dilemma*, 42 [Int'l J. Group Psychotherapy]{.smallcaps} 81, 81
    (1992) (indicating that therapists who had not discussed
    confidentiality with their patients were likely to view such
    discussions as having an inhibiting effect on group process). All
    the above sources are discussed in Weiner, *supra* note Error:
    Reference source not found, at n. 120, & Steven R. Smith,
    *Psychotherapy and the Right of Privacy*, 49 [Geo. Wash. L.
    Rev]{.smallcaps}. 1, n. 163 (1980). *See also* Michele Smith-Bell &
    William J. Winslade*, Privacy, Confidentiality, and Privilege in
    Psychotherapeutic Relationships*, 64 [Amer. J.
    Orthopsychiat]{.smallcaps}. 180 (1994); Donald Schmid et al.,
    *Confidentiality in Psychiatry: A Study of the Patient's View*, 34
    [Hosp. & Community Psychiatry]{.smallcaps} 353-354 (1983) (stating
    that a study of 30 patients revealed that a statistically
    significant number of patients would be upset and less likely to
    share information if their confidences were released to a court);
    *Comment, Functional Overlap Between the Lawyer and Other
    Professionals: Its Implications for the Privileged Communications
    Doctrine*, 71 [Yale L. J.]{.smallcaps} 1226 (1962).

[^63]: Domb, *supra* note Error: Reference source not found, at 222.

[^64]: *See Medical and Counseling Privilege*, *supra* note Error:
    Reference source not found, at 1543.

[^65]: *See id*. at n.85 ("Freud described the importance of full
    patient disclosure in psychoanalysis in the following manner: 'We
    pledge him to obey the fundamental rule of analysis, which is
    henceforth to govern his behavior towards us. He is to tell us not
    only what he can say intentionally and willingly, what will give him
    relief like a confession, but everything else as well that his
    self-observation yields him, everything that comes into his head
    even if disagreeable for him to say it, even if it seems to him
    unimportant or actually nonsensical.'").

[^66]: Domb, *supra* note Error: Reference source not found, at n.91
    (quoting Judge Luther Alverson's speech in an address before the
    Connecticut Mental Health Association, in [M. Guttmacher & H.
    Weinofen, Psychiatry and the Law]{.smallcaps} 272 (1952)).

[^67]: *See* Daniel O. Tabue & Amiram Elwork, *Researching the Effects
    of Confidentiality Law on Patients' Self-Disclosures*, 21 [Prof.
    Psych.: Res. & Prac]{.smallcaps}. 72 (1990).

[^68]: *See* *id.* at 72.

[^69]: *See* Harold Rosen & LTC James P.T. Corcoran, USAF, *The
    Attitudes of USAF Officers Toward Mental Illness: A Comparison with
    Mental Health Professionals*, 143 [Mil. Med]{.smallcaps}. 570
    (1978). *See also* Debra Gordon, *Navy Tries to Demystify Mental
    Health, Boorda's Death Refocuses Attention on Idea That Seeking
    Psychiatric Help Can Hurt a Career*, [Virginian-Pilot & Ledger Star
    (Norfolk Va.)]{.smallcaps} June 11, 1996, at A1 (In wake of Admiral
    Boorda's suicide, article discussing pervasive and enduring belief
    that seeking mental health treatment can derail a career); Neil A.
    Lewis, *Military Conducting Anti-Suicide Campaign*, [The Seattle
    Times]{.smallcaps}, May 19, 1996, at A1 (Dr. Joseph, Assistant
    Secretary of Defense for Health Affairs, states that message that
    seeking professional mental health help is not a sign of weakness,
    and will not hurt career runs against "centuries-old military
    culture" in which strength is prized and anything that could be
    perceived as weakness is concealed); Bruce Hilton, *Suicide Seldom a
    Rash Act, Experts Say*, [Patriot Ledger]{.smallcaps} ([Quincy,
    Mass]{.smallcaps}.), May 21, 1996, at 21 (discussing stigma of
    mental illness---people in positions of high public responsibility
    such as Admiral Mike Boorda, feel that if they suffer from a mental
    illness they cannot let it be known if they want to continue in
    those high positions---also discusses Senator Thomas Eagleton who
    was dropped as a vice-presidential candidate after he revealed he
    had once been treated for depression).

[^70]: *See* Debra Gordon, *Navy Tries to Demystify Mental Health
    Boorda's Death Refocuses Attention on Idea That Seeking Psychiatric
    Help Can Hurt a Career*, [Virginian-Pilot & Ledger Star (Norfolk
    Va.),]{.smallcaps} June 11, 1996, at A1; Neil A. Lewis, *Military
    Conducting Anti-Suicide Campaign*, [The Seattle Times]{.smallcaps},
    May 19, 1996, at A1; Bryant Jordan, *Major Commands are Told to
    Target Stress*, [Air Force Times]{.smallcaps}, June 10, 1996, at 17
    (discussing the Air Force Chief of Staff's campaign to make it known
    that seeking help for mental health problems would not be seen as
    career ending).

[^71]: *See* Bruce J. Winnick, *The Psychotherapist-Patient Privilege: A
    Therapeutic Jurisprudence View*, [50 U. Miami L. Rev]{.smallcaps}.
    249, 258 (1996).

[^72]: *See* H. Carol Bernstein*, Criminal Law: The
    Psychotherapist-Patient Privilege Under Federal Rule of Evidence
    501*, 75 [J. Crim. Law]{.smallcaps} 388, 397 (1984) ("In
    psychotherapy, patients often act without regard to social
    conventions and differently from the way they conduct themselves in
    daily life. Patients' fears that their unconventional actions might
    be disclosed are forceful deterrents against seeking treatment.
    Also, patients' apprehension of societal ridicule of their mental
    problems may cause them to avoid consultations with psychotherapists
    about their ailments.").

[^73]: *See* Domb, *supra* note Error: Reference source not found, at
    222 (Dr. Steven Sharfstein estimated that in 1981, about fifteen
    percent of all adults who had employer provided mental health
    insurance waived reimbursement in order to conceal that they
    received treatment. One person even quit his job because he had to
    hand his medical bills to the personnel manager of his company.)

[^74]: Lynn VanMatre, *Some Patients' Dark Thoughts Test Therapists*,
    [Chi. Trib]{.smallcaps}. Feb. 9, 1996, at 1.

[^75]: *See* *id*.

[^76]: *See* Winnick, *supra* note Error: Reference source not found, at
    253 (Close to nine million of those with a mental disorder develop
    the problem for the first time each year. Another eight million of
    these suffer from a relapse of a condition developed earlier.)

[^77]: Winnick, *supra* note Error: Reference source not found, at 264.

[^78]: Smith, *supra* note Error: Reference source not found, at 27.

[^79]: *See id.* at 39.

[^80]: *Jaffee*, 116 S. Ct. at 1928. (quoting United States v. Trammel,
    445 U.S. 40, 50, 100 S. Ct. 906, 912 (1980)).

[^81]: *See* Cerveny & Kent, *supra* note Error: Reference source not
    found, at n.27; Slovenko, *supra* note Error: Reference source not
    found, at 195 ("Although absolutely necessary in treatment, data
    from free-association, or fantasies, or memories, are not reliable
    for use in court as they mostly represent the way the person
    experienced an event, and not how the event occurred. They are not
    facts. Psychic reality is not the same thing as actual reality. The
    psychiatrist in his records uses words having a special and rather
    abstruse meaning to him, such as 'Oedipus complex,' 'Electra
    complex,' 'castration complex,' 'narcissistic identification,'
    'homosexuality' and 'incest fantasies.' Introduced in court, the
    record will unfairly prejudice the patient's case, as the words have
    a different connotation for the layman."); Ralph Slovenko*,
    Psychotherapist-Patient Testimonial Privilege: a Picture of
    Misguided Hope*, 23 [Cath. U. L. Rev]{.smallcaps}. 643, 653 (1974)
    ("There may be 'truth in lending' but there is no truth in
    entertainment or psychotherapy. Psychotherapy is concerned with
    man's struggle to cope with internally or externally induced
    stresses. The law is concerned with the outside world, i.e., with
    objective facts, that which is called truth. The psychotherapist, on
    the other hand, is not engaged in a fact finding process . . . .")

[^82]: Several commentators have agreed that a psychotherapist-patient
    privilege is justified under Wigmore's test. *See* Slovenko,
    *Psychiatry and a Second Look at the Medical Privilege*, *supra*
    note Error: Reference source not found, at 179-187; Note,
    *Confidential Communications to a Psychotherapist: A New Testimonial
    Privilege*, 47 [NW. U. L. Rev]{.smallcaps}. 384, 386-87 (1952); 4
    [Group for the Advancement of Psychiatry, Reports and Symposiums,
    Report No. 45]{.smallcaps}, 95 (1960); Weiner, *supra* note Error:
    Reference source not found, at 284; Smith, *supra* note Error:
    Reference source not found, at 40.

[^83]: Smith, *supra* note Error: Reference source not found, at 59
    (Excellent argument for the privacy rationale for the
    psychotherapist-patient privilege).

[^84]: *See* Whalen v. Roe, 429 U.S. 589, 599, 97 S. Ct. 869, 877-78
    (1977); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678
    (1965); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973); Eisenstadt
    v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (1952); Nixon v.
    Administrator of Gen. Servs., 433 U.S. 425, 97 S. Ct. 2777 (1977).

[^85]: *See* Smith, *supra* note Error: Reference source not found, at
    59; Weiner, *supra* note Error: Reference source not found, at 283.

[^86]: Bernstein, *supra* note Error: Reference source not found, at
    400.

[^87]: *See* Caesar v. Mountanos, 542 F.2d 1064, 1068 n.9 (9th Cir.
    1976), *cert. denied*, 430 U.S. 954, 97 S. Ct. 1598 (1977) (holding
    that the constitutional right to privacy protects the
    confidentiality of psychotherapist-patient relations); *In re*
    Lifshutz, 467 P.2d 557, 567-68 (Cal. 1970) (basing patient's right
    to preserve confidentiality of communications made to a
    psychotherapist on the California Evidence Code and the federal
    Constitution's right to privacy); *In re* "B", 394 A.2d 419, 425
    (Pa. 1978) (recognizing the psychotherapist-patient privilege as
    rooted in Pennsylvania and Federal Constitution).

[^88]: *See* Weiner, *supra* note Error: Reference source not found, at
    271-72, 284-287.

[^89]: *See* Allred v. State, 554 P.2d at 418. The court avoided the
    constitutional/privacy issue because of a lack of state action in
    that case.

[^90]: *Id*. at 421. (limiting the privilege to specific types of
    disclosures made to specific individuals).

[^91]: Binder v. Ruvell, Civil Docket No. 52-C-2535 (Cir. Ct., Cook
    Cty., Ill. June 24, 1952) (reported in 15 J.A.M.A. 1241 (1952));
    State v. Evans, 454 P.2d 976 (Ariz. 1969).

[^92]: See Major Barbara J. Zanotti and Captain Rick A. Becker,
    *Marching to the Beat of a Different Drummer: Is Military Law and
    Mental Health Out-of-Step after Jaffee v. Redmond*, 41 [A.F. L.
    Rev]{.smallcaps}. 1, 7 (1997) (Commenting that *Jaffee* recognized
    that "once legislation is passed, the opportunity for common-law
    development of the issue is lost.").

[^93]: *See* Hayden, *supra* note Error: Reference source not found, at
    appendix A; Jaffee, 116 S. Ct. at n.11-18.

[^94]: Proposed Rule 504 provided:

    Rule 504. Psychotherapist-Patient Privilege

    \(a\) Definitions.

    \(1\) A "patient" is a person who consults or is examined or
    interviewed by a psychotherapist.

    \(2\) A "psychotherapist" is (A) a person authorized to practice
    medicine in any state or nation, or reasonably believed by the
    patient so to be, while engaged in the diagnosis or treatment of a
    mental or emotional condition, including drug addiction, or (B) a
    person licensed or certified as a psychologist under the laws of any
    state or nation, while similarly engaged.

    \(3\) A communication is "confidential" if not intended to be
    disclosed to third persons other than those present to further the
    interest of the patient in the consultation, examination, or
    interview, or persons reasonably necessary for the transmission of
    the communication, or persons who are participating in the diagnosis
    and treatment under the direction of the psychotherapist, including
    the members of the patient's family.

    \(b\) General rule of privilege. A patient has a privilege to refuse
    to disclose and to prevent any other person from disclosing
    confidential communications, made for the purpose of diagnosis or
    treatment of his mental or emotional condition, including drug
    addiction, among himself, his psychotherapist, or persons who are
    participating in the diagnosis or treatment under the direction of
    the psychotherapist, including members of the patient's family.

    \(c\) Who may claim the privilege. The privilege may be claimed by
    the patient, by his guardian or conservator, or by the personal
    representative of the deceased patient. The person who was the
    psychotherapist may claim the privilege but only on behalf of the
    patient. His authority to do so is presumed in the absence of
    evidence to the contrary.

    \(d\) Exceptions.

    \(1\) Proceedings for hospitalization. There is no privilege under
    this rule for communications relevant to an issue in proceedings to
    hospitalize the patient for mental illness, if the psychotherapist
    in the course of diagnosis or treatment has determined that the
    patient is in need of hospitalization.

    \(2\) Examination by order of judge. If the judge orders an
    examination of the mental or emotional condition of the patient,
    communications made in the course thereof are not privileged under
    this rule with respect to the particular purpose for which the
    examination is ordered unless the judge orders otherwise.

    \(3\) Condition an element of claim or defense. There is no
    privilege under this rule as to communications relevant to an issue
    of the mental or emotional condition of the patient in any
    proceeding in which he relies upon the condition as an element of
    his claim or defense, or, after the patient's death, in any
    proceeding in which any party relies upon the condition as an
    element of his claim or defense.

    56 F.R.D. 183, 240-41 (1972).

[^95]: [Fed. R. Evid]{.smallcaps}. 501.

[^96]: *See* United States v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983);
    Hancock v. Hobbs, 967 F.2d 462 (11th Cir. 1992); United States v.
    Corona, 849 F.2d 562, 567 (11th Cir. 1988), *cert. denied*, 489 U.S.
    1084, 109 S. Ct. 1542 (1989); United States v. Meagher, 531 F.2d
    752, 753 (5th Cir.), *cert. denied*, 429 U.S. 853, 97 S. Ct. 146
    (1976).

[^97]: *See* United States v. Burtrum, 17 F.3d 1299 (10th Cir.), *cert.
    denied*, 115 S. Ct. 176 (1994); *In re* Grand Jury Proceedings, 867
    F.2d 562 (9th Cir.), *cert. denied sub nom*. Doe v. United States,
    493 U.S. 906, 110 S. Ct. 265 (1989).

[^98]: *See* *In re* Zuniga, 714 F.2d 632, 636-637 (6th Cir. 1983),
    *cert. denied,* 464 U.S. 983, 104 S. Ct. 426 (1983) (recognizing
    privilege); *In re* Doe, 964 F.2d 1325 (2d Cir. 1992) (same).

[^99]: *See* *In re* Zuniga, 714 F.2d 632 at 636-637; *In re* Doe, 964
    F.2d at 1328-1329.

[^100]: *See In re* Zuniga, 714 F.2d at 637, 639-40 ; *In re* Doe, 964
    F.2d at 1328-29; Jaffee, 51 F.3d at 1357.

[^101]: *Jaffee*, 51 F.3d at 1357. *See also* Trammel v. United States,
    445 U.S. 40, 100 S. Ct. 906 (1980).

[^102]: *Jaffee*, 116 S. Ct. at 1927.

[^103]: *See* *In re* Zuniga, 714 F.2d 632 (6th Cir. 1983) (recognizing
    privilege); *In re* Doe, 964 F.2d 1325 (2d Cir. 1992) (same); United
    States v. Burtrum, 17 F.3d 1299 (10th Cir. 1994) (finding no
    privilege in context of criminal child sex abuse case); *In re*
    Grand Jury Proceedings, 867 F.2d 562 (9th Cir.), *cert. denied*, 110
    S. Ct. 265 (1989) (no privilege); United States v. Corona, 849 F.2d
    562, 567 (11th Cir. 1988), *cert. denied*, 109 S. Ct. 1542 (1989)
    (holding no psychotherapist privilege in federal criminal trials);
    United States v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983) (same);
    United States v. Meagher, 531 F.2d 752 (5th Cir.), *cert. denied*,
    97 S. Ct. 146 (1976) (same).

[^104]: *See* *Jaffee*, 116 S. Ct. at 1931. *See also* Brief of *Amicus
    Curiae* National Association of Social Workers, et. al. at 5-7, 116
    S. Ct. 1923 (1996) (No. 95-266).

[^105]: *See* Smith, *supra* note Error: Reference source not found,
    Richard Delgado, *Comment: Underprivileged Communications: Extension
    of the Psychotherapist-Patient Privilege to Patients of Psychiatric
    Social Workers*, 61 [Cal. Law. Rev]{.smallcaps}. 1050, 1061-1070
    (1973); Brief of *Amicus Curiae* American Psychoanalytic Association
    at 25, Jaffee v. Redmond, 116 S. Ct. 1923 (1996) (95-266); Brief of
    *Amicus Curiae* American Counseling Association at 25, 116 S. Ct.
    1923 (1996) (95-266); Respondent's Brief at 34-35, Jaffee v.
    Redmond, 116 S. Ct. 1923 (1996) (95-266).

[^106]: *See* *Jaffee*, 116 S. Ct. at 1931, n.16.

[^107]: *Id.* at 1931-1941 (Scalia, J., dissenting).

[^108]: *Id.* at 1936-41 (Scalia, J., dissenting).

[^109]: *See* United States v. Lowe, 948 F. Supp. 97 (D.Mass. 1996)
    (extending the *Jaffee* privilege to cover rape crisis counseling
    records in criminal case); United States v. Schensow, 942 F.Supp.
    402 (E.D. Wisc. 1996); *In re* Grand Jury Proceedings, Unemancipated
    Minor Child, 949 F. Supp. 1487 (E.D. Wash, 1996) (recognizing
    privilege for confidential parent-child communications in criminal
    context); *In re* Grand Jury Impounded, 103 F.3d 1140 (3d Cir. 1997)
    (declining to recognize a parent-child privilege); Greet v.
    Zagrocki, 1996 WL 724933 (E.D. Pa., Dec. 16, 1996) (No. CIV. A.
    962300) (applying the psychotherapist-patient privilege in a section
    1983 civil rights damages suit); United States v. Horton, 98 F.3d
    313 (7th Cir., 1996) (remanding for determination of whether
    *Jaffee* would allow the use of an inmate's psychiatric records as a
    condition for supervised release); United States v. Haworth, 168
    F.R.D. 660 (D. N.M., 1996) (applying *Jaffee* to protect
    psychotherapy records of key prosecution witness in criminal trial).

[^110]: United States v. Lowe, 948 F. Supp. 97 (D.Mass., 1996)
    (extending the *Jaffee* privilege to cover rape crisis counseling
    records---There the court found (1) that the victim had waived the
    privilege; and (2) that none of the information was exculpatory or
    material to the defense after an *in camera* review.).

[^111]: United States v. Schwensow, 942 F.Supp. 402 (E.D. Wisc. 1996).

[^112]: In this case using state law analogy for guidance on the
    definitions of "confidentiality" and "counselor".

[^113]: *In re* Grand Jury Proceedings, Unemancipated Minor Child, 949
    F. Supp. 1487 (E.D. Wash, 1996) (looking to the policy rationales
    underlying the *Jaffee* decision). *But see In re* Grand Jury
    Impounded, 103 F.3d 1140 (3d Cir. 1997) (declining to recognize a
    parent-child privilege).

[^114]: United States v. Haworth, 168 F.R.D. 660 (D. N.M., 1996).

[^115]: *Id.*

[^116]: *See* The Honorable Patricia Schroeder, *Confidentiality is
    Vital*, [Army Times]{.smallcaps}, Oct. 7, 1996, at 62 (Editorial
    discussing Elmendorf case and urging adoption of a
    psychotherapist-patient privilege in the Military Rules of Evidence
    for non-military patients) \[hereinafter Schroeder Editorial\]; The
    Honorable Patricia Schroeder, Press Release, Sept. 19, 1996 (same);
    The Honorable Patricia Schroeder, Congressperson, Letter to The
    Honorable William J. Perry, Secretary of Defense, Subject: Wall
    Street Journal Story on Elmendorf AFB Case, Sept. 11, 1996
    (Discussing Elmendorf case and asking for clarification on
    doctor-patient confidentiality in the military) \[hereinafter
    Schroeder Letter to SECDEF\]; The Honorable Patricia Schroeder,
    Congressperson, Letter to The Honorable Sheila Widnall, Secretary of
    the Air Force, Subject: Wall Street Journal Story on Elmendorf AFB
    Case, Aug. 22, 1996 (Discussing Elmendorf case and requesting the
    Air Force revisit their policy on medical record confidentiality)
    \[hereinafter Schroeder Letter to SECUSAF\]; LTC Beth A. Unklesbay,
    USAF, Office of Legislative Liaison, Congressional Inquiry Division
    Letter to The Honorable Patricia Schroeder, Congressperson, Subject:
    Response to Aug. 22, 1996 Letter, Sept. 9, 1996 (Explanation that
    disclosure of Elmendorf records was not a matter of policy but of
    law); The Honorable Stephen Joseph, Assistant Secretary of Defense
    (Health Affairs), Memorandum to The Honorable Judith Miller, DOD
    General Counsel, Subject: Confidentiality of Patient Records, Sept.
    9, 1996 (Urging amendment of the Military Rules of Evidence to
    create a privilege for non-active duty patients) \[hereinafter
    Joseph Letter to DOD GC\]; Memorandum, DOD General Counsel, to The
    Honorable Stephen Joseph, Under Secretary for Defense (Health
    Affairs), subject: Legal Privilege for Therapist-Patient
    Communications, (23 Sept. 1996) (Response that Joint Service
    Committee on Military Justice and military courts are addressing the
    issue); The Honorable Patricia Schroeder, Robert Dornan, Elijah
    Cummings, Robert Matsui, Joseph Kennedy, Lane Evans, Neil
    Abercrombie, and Barney Frank, Congresspersons, Letter to the
    Honorable William J. Perry, Secretary of Defense, Subject: Dr.
    Stephen Joseph's 9 Sept. 1996 Letter to DOD General Counsel, Oct.
    21, 1996 (Letter urging adoption of a privilege for non-military
    patients which discusses effect on military dependents and
    readiness) \[hereinafter Seven Congressperson Letter\]; Memorandum,
    Chair Ethics Consultants to the Surgeons General, Uniformed Services
    University of Health Sciences, to John F. Mazzuchi, Deputy Assistant
    Secretary of Defense (Clinical Services), subject: Ethical
    Considerations Regarding Privileged Communications Between Military
    Psychotherapists and Patients Who Are Not on Active Duty (3 Sept.
    1996) (discussing ethical component of confidentiality issue for
    non-military patients) \[hereinafter USUHS 3 Sept. 96 Memo\];
    Memorandum, Bryan G. Hawley, Major General, USAF, The Judge Advocate
    General, U.S. Air Force, HQ USAF/JA, to All Staff Judge Advocates,
    Chief Circuit Judges and Chief Circuit Trial and Defense Counsel,
    subject: Release of Medical Records in Criminal Proceedings (July
    31, 1996) \[hereinafter USAF TJAG July 31, 1996 Memo\] (*Jaffee* is
    contrary to MRE 501(d) and impracticable, subordinate units will
    continue to have access to these records); Memorandum, Edgar R.
    Anderson, Jr., Lieutenant General, USAF, Surgeon General, US Air
    Force, HQ USAF/SG to ALMAJCOM/SG, HQ AFIA/SG, HQ AFPC/DPAM, NGB/SG,
    HQ AFRES/SG, HQ USAF/REM, HQ USAFA/SG, ANGRC/SG, 1100 MED SQ, HQ
    AFMSA/SGS, subject: Release of Medical Records in Criminal
    Proceedings, (July 31, 1996) (same) \[hereinafter USAF SG July 31,
    1996 Memo\]; Gordon Livingston, *Serving Two Masters: The Ethical
    Dilemmas That Military Medical Students Want to Know About*---*But
    Can't*, [The Wash. Post]{.smallcaps}, Dec. 22, 1996, at C3
    (discussing the Elmendorf case, *Jaffee*, and conflict of military
    psychotherapists to care for patient and serve military master)
    \[*hereinafter Ethical Dilemmas*\]; Karen Jowers, *Joseph Asks for
    Ensured Patient Confidentiality*, Army Times, Sept. 23, 1996, at 30
    (describing Joseph's memo to DOD General Counsel) \[hereinafter
    *Joseph Asks*\]; Karen Jowers, *AF Psychiatrist Ordered Away from
    Patients*, [Army Times]{.smallcaps}, Sept. 23, 1996, at 31
    (discussing Elmendorf case) \[hereinafter *AF Psychiatrist*\]; Ellen
    Joan Pollock, *The Psychiatrist in the Middle*, [Wall St.
    J]{.smallcaps}., Aug. 22, 1996, at A1 (discussing Elmendorf case.
    This article was the catalyst for much Congressional interest.)
    (Copies of all correspondence are on file with the author).

[^117]: *See* Pollock, *supra* note Error: Reference source not found.
    *See also* Schroeder, *Schroeder Editorial*, *supra* note Error:
    Reference source not found; Jowers, *supra* note Error: Reference
    source not found; Jowers, *AF Psychiatrist, supra* note Error:
    Reference source not found.

[^118]: Ellen Joan Pollock, *The Psychiatrist in the Middle*, [Wall St.
    J.]{.smallcaps}, Aug. 22, 1996, at 1 (In this case, an airman was
    accused of raping the daughter of a fellow Air Force member. The
    nineteen year old woman sought counseling from the base mental
    health clinic in an attempt to deal with the rape. As the airman
    accused of rape neared trial, his defense counsel sought production
    of the victim's mental health records as part of the preparation of
    the defense case. The victim's mother discovered this fact and
    sought to retrieve the records to protect her daughter. The
    psychiatrist in charge of the clinic was reprimanded for failing to
    prevent her tearing the records in half in an attempt to stop their
    disclosure. The young woman described the feelings of having her
    records disclosed: "They think there's something big in the records
    but there's not. That's the funny thing. There's stuff in there I
    haven't even told my parents. There's stuff in there I don't want to
    review. There's stuff I just wanted to get off my chest and never
    think about again. That's my life. I'm only 21. I don' t have a very
    long life, and what I have is there written down. All my humiliating
    moments, my happy moments and my sad moments. They might as well
    strip me naked and make me walk in front of everybody naked. I'll
    tell you, it would be easier.").

[^119]: The Honorable Patricia Schroeder, Congressperson, Letter to The
    Honorable William J. Perry, Secretary of Defense, Subject: Wall
    Street Journal Story on Elmendorf AFB Case, Sept. 11, 1996; The
    Honorable Patricia Schroeder, Congressperson, Letter to The
    Honorable Sheila Widnall, Secretary of the Air Force, Subject: Wall
    Street Journal Story on Elmendorf AFB Case, Aug. 22, 1996; LTC Beth
    A. Unklesbay, USAF, Office of Legislative Liaison, Congressional
    Inquiry Division Letter to The Honorable Patricia Schroeder,
    Congressperson, Subject: Response to Aug. 22, 1996 Letter, Sept. 9,
    1996. \[On file with the author\].

[^120]: *See* USAF TJAG July 31, 1996 Memo, *supra* note Error:
    Reference source not found.

[^121]: *See* Letter from Melvin Sabshin, M.D. Medical Director,
    American Psychiatric Association, to The Honorable Stephen C.
    Joseph, Assistant Secretary of Defense (Health Affairs), subject:
    Request for Meeting to Discuss Confidentiality Limits in Military,
    June 20, 1996 (requesting meeting to discuss Elmendorf case and
    *Jaffee*); Letter from John F. Mazzuchi, Deputy Assistant Secretary
    of Defense (Clinical Services), subject: Response to June 20, 1996
    APA Letter, July 2, 1996 (agreeing to meeting); Memorandum from
    Eugene Cassel, J.D., Assistant Director Government Relations,
    American Psychiatric Association, to Commander Nancy Bakalar, M.D.,
    subject: July 24, 1996 Meeting, July 18, 1996 (listing items to
    discuss to include: current regulatory and statutory provisions on
    access to mental health information about military personnel and
    dependents, potential procedural safeguards, protection of military
    psychiatrists from ethical conflicts, protection of military
    psychiatrists from appointment as litigation consultants or expert
    witnesses in conflict to current or former patients, and anticipated
    impact of *Jaffee* on military courts); Memorandum from Eugene
    Cassel, J.D., Assistant Director Government Relations, American
    Psychiatric Association, to Commander Nancy Bakalar, M.D., subject:
    Rescheduled Meeting, July 23, 1996; Memorandum from Eugene Cassel,
    J.D., Assistant Director Government Relations, American Psychiatric
    Association, to Commander Nancy Bakalar, M.D., subject: Meeting
    Attendees, Aug. 1, 1996 (listing attendees); Letter from Melvin
    Sabshin, M.D., Medical Direction, American Psychiatric Association,
    to Colonel Thomas G. Becker, USAF, Associate Department of Defense
    General Counsel (Military Justice and Personnel Policy), subject:
    Request by the American Psychiatric Association to Amend the
    Military Rules of Evidence to Provide Privilege for Military
    Dependents, Aug. 19, 1996 (urging creation of privilege *a la
    Jaffee* for non-military patients, addressing morale and readiness
    impact on military members from lack thereof); Letter from Mr. John
    F. Mazzuchi, Deputy Assistant Secretary of Defense (Clinical
    Services), to Mr. Melvin Sabshin, M.D., Medical Director, American
    Psychiatric Association, subject: Meeting of Jul. 31, 1996 &
    referral to Joint Service Committee on Military Justice, Aug. 23,
    1996; Letter from Colonel Thomas G. Becker, Associate Deputy General
    Counsel, Department of Defense, to Mr. Melvin Sabshin, M.D., Medical
    Director, American Psychiatric Association, subject: Response to
    Request for Privilege, Sept. 16, 1996 (stating will raise issue with
    Joint Service Committee and DOD General Counsel, explaining
    discovery process under MREs, and stating applicability of Jaffee is
    matter for resolution by military courts.) (On file with the
    author).

[^122]: *See* Joseph Letter to DOD GC, *supra* note Error: Reference
    source not found.

[^123]: Letter from Colonel Thomas G. Becker, Associate Deputy General
    Counsel, Department of Defense, to Mr Melvin Sabshin, M.D., Medical
    Director, American Psychiatric Association, subject: Response to
    Request for Privilege, Sept. 16, 1996; LTC Beth A. Unklesbay, USAF,
    Office of Legislative Liaison, Congressional Inquiry Division Letter
    to The Honorable Patricia Schroeder, Congressperson, Subject:
    Response to Aug. 22, 1996 Letter, Sept. 9, 1996; The Honorable
    Stephen Joseph, Assistant Secretary of Defense (Health Affairs),
    Memorandum to The Honorable Judith Miller, DOD General Counsel,
    Subject: Confidentiality of Patient Records, Sept. 9, 1996
    \[hereinafter Joseph Letter to DOD GC\]; Memorandum, DOD General
    Counsel, to The Honorable Stephen Joseph, Under Secretary for
    Defense (Health Affairs), subject: Legal Privilege for
    Therapist-Patient Communications, 23 Sept. 1996. (On file with the
    author).

[^124]: *See* The Honorable Patricia Schroeder, *Confidentiality is
    Vital*, [Army Times]{.smallcaps}, Oct. 7, 1996, at 62; The Honorable
    Patricia Schroeder, Press Release, Sept. 19, 1996.

[^125]: *See* Seven Congressperson Letter, *supra* note Error: Reference
    source not found (Urging that the Military Rules of Evidence be
    amended to create a psychotherapist-patient privilege for non-active
    duty patients).

[^126]: Telephone interview with Colonel Charles Trant, *infra* note
    Error: Reference source not found, and accompanying text.

[^127]: Joint Service Committee on Military Justice, Notice of Proposed
    Amendments, 62 FR 24640-01 (text of the proposed rule is included at
    appendix C).

[^128]: "Notwithstanding any other provision of these rules, information
    not otherwise privileged does not become privileged on the basis
    that it was acquired by a medical officer or civilian physician in a
    professional capacity." MCM, *supra,* note Error: Reference source
    not found, [Mil. R. Evid.]{.smallcaps} 501(d).

[^129]: Again because privilege rules necessarily impact on the
    confidentiality of information, any decision on the
    psychotherapist-patient privilege in military courts-martial will
    impact on administrative proceedings.

[^130]: *See* United States v. Mansfield, 38 M.J. 415 (C.M.A. 1993),
    *cert. denied* 114 S. Ct. 1610 (1994); United States v. Brown, 38
    M.J. 696 (A.F.C.M.R. 1993), *review denied* 40 M.J. 287 (C.M.A.
    1994). *See also* Zanotti & Becker, *supra* note Error: Reference
    source not found, at 15-32 (presenting good discussion of all
    preceding cases addressing this issue to include Art. 31b and
    attorney-client privilege cases).

[^131]: United States v. Mansfield, 38 M.J. 415, 418 (C.M.A. 1993).
    *See* United States v. Brown, 38 M.J. 696 (A.F.C.M.R. 1993) (citing
    Mansfield simply for the quoted proposition).

[^132]: [MCM,]{.smallcaps} *supra* note [Error: Reference source not
    found.]{.smallcaps}

[^133]: 10 U.S.C. § 836, UCMJ art. 36 (1983), ("Pretrial, trial, and
    post-trial procedures, including modes of proof, for cases arising
    under this chapter triable in courts-martial, military commissions
    and other military tribunals, and procedures for courts of inquiry,
    may be prescribed by the President by regulations which shall, so
    far as he considers practicable, apply the principles of law and the
    rules of evidence generally recognized in the trial of criminal
    cases in the United States district courts, but which may not be
    contrary to or inconsistent with this chapter.").

[^134]: *See* United States v. Fisher, 37 M.J. 812 (N.M.C.M.R. 1993)
    (R.C.M.s are binding, they are issued by the President IAW the
    authority in Article 36, UCMJ, but the Discussion accompanying each
    Rule is not binding); [David A. Schlueter, Military Criminal
    Justice: Practice and Procedure]{.smallcaps} (3d ed. 1992)
    (hereinafter [Military Practice]{.smallcaps}); [Stephen A.
    Saltzburg, et. al.,]{.smallcaps} [Military Rules of Evidence
    Manual]{.smallcaps}, 7 (3d ed. 1991) (hereinafter [MRE
    Manual]{.smallcaps}). *See also* S. Rep. 96-197, 96th Cong., 1st
    Sess. 1979, 1979 U.S.C.C.A.N. 1818 (Legislative history clarifying
    Congressional intent in passing Article 36, UCMJ.

    > The Proposal neither changes nor expands the existing power under
    > which the President promulgates the Manual for Courts-Martial. The
    > language of the present Article 36 may be traced to Article 38 of
    > the Articles of War of August 29, 1916, Chapter 418, sec. 1342, 39
    > Stat. 656, which provided: 'The President may by regulations,
    > which he may modify from time to time, prescribe the procedure,
    > including modes of proof, in cases before courts-martial, courts
    > of inquiry, military commissions, and other military tribunals:
    > provided, that nothing contrary to or inconsistent with these
    > Articles shall be so prescribed: Provided further, that all rules
    > made in pursuance of this Article shall be laid before Congress
    > annually.' This provision has remained virtually unchanged in
    > pertinent part through successive amendments of the Articles of
    > War and incorporation into Article 36 of the Uniform Code of
    > Military Justice. It has provided the statutory authority for
    > coverage of pretrial and post-trial procedures in every edition of
    > the Manual for Courts-Martial issued by the President since 1928.
    > The fair and efficient operation of the military justice system is
    > dependent upon the authoritative legal guidance provided to
    > members of the armed forces by the Manual for Courts-Martial.
    > Enactment of the proposed legislation will reaffirm the power
    > exercised by the President for more than fifty years to prescribe
    > a comprehensive and effective Manual for Courts-Martial.

[^135]: MCM, *supra* note Error: Reference source not found, [Mil. R.
    Evid]{.smallcaps}. 102 ("These rules shall be construed to secure
    fairness in administration, elimination of unjustifiable expense and
    delay, and promotion of growth and development of the law of
    evidence to the end that the truth may be ascertained and
    proceedings justly determined."). *See also* [Saltzburg, et. al.,
    MRE Manual]{.smallcaps}, *supra* note Error: Reference source not
    found, at 12. MRE 102 lists six goals: "securing fairness in the
    administration of justice; eliminating unjustifiable delay;
    eliminating unjustifiable expense; promoting the growth and
    development of the law of evidence; enhancing the truth finding
    process; and justly determining the guilt or innocence of the
    accused." MRE 102 will provide limited aid in resolving the
    psychotherapist-patient issue since arguments can be made for both
    positions from MRE 102. The recognition of the applicability of
    Jaffee promotes the growth and development of the law. Conversely
    recognizing any new privilege does not enhance the truth finding
    process.

[^136]: *See* United States v. Lucas, 1 C.M.R. 19, 22 (C.M.A. 1951) ("We
    can and do hold that the act of Congress (the Code) and the act of
    the Executive (the Manual) are on the same level and that the
    ordinary rules of statutory construction apply. In the event that
    the general rule is that statutes dealing with the same subject
    should, if possible, be so construed that effect is given to every
    provision of each."); United States v. LaGrange, 3 C.M.R. 76 (C.M.A.
    1952) (stating regulations and statutes are to be construed with
    reference to their manifest object, and if the language is
    susceptible of two constructions, one which will carry out and the
    other defeat that object, they should receive the former
    construction). Thus, Presidential intent for Manual provisions is
    akin to Congressional intent for Code provisions. If there is a
    conflict between the Manual and the Code the Code prevails. *See*
    United States v. Greer, 13 C.M.R. 132 (C.M.A. 1953).

[^137]: MCM, *supra* note Error: Reference source not found, [Mil. R.
    Evid]{.smallcaps}. 101(b)(1).

[^138]: This view continued so long as military practitioners viewed
    changes in the Federal Rules of Evidence as supporting the dual
    goals of the military justice system---the fair administration of
    justice and the preservation of good order and discipline. The
    creation and adoption of [Fed. R. Evid]{.smallcaps}. 413 & 414
    (Evidence of Similar Crimes in Sexual Assault Cases, and Evidence of
    Similar Crimes in Child Molestation Cases) caused military
    practitioners to question whether continued close ties between the
    civilian and military systems was still desirable. The JSC is now
    examining a proposal to extend the 180 days waiting period under
    [Mil R. Evid]{.smallcaps}. 1102 before amendments to the Federal
    rules apply to the Military Rules to one and one and one-half years
    allowing the military more time to examine new rules and take action
    to avoid their automatic implementation if necessary.).

[^139]: [MCM,]{.smallcaps} *supra* note Error: Reference source not
    found, [Mil. R. Evid]{.smallcaps}. 101 analysis, app. 22, at A22-2
    (1995 ed.).

[^140]: *Id*.

[^141]: *Id*. It goes on to say, "\[c\]onsequently, to the extent to
    which the Military Rules do not dispose of an issue, the Article III
    Federal practice when practicable and not inconsistent or contrary
    to the Military Rules shall be applied. In determining whether there
    is a rule of evidence 'generally recognized,' it is anticipated that
    ordinary legal research shall be involved with primary emphasis
    being placed upon the published decisions of the three levels of the
    Article III courts."

[^142]: MCM, *supra* note Error: Reference source not found, [Mil. R.
    Evid. 501]{.smallcaps} analysis, app. 22, at A36-37 (1995 ed.).

[^143]: MCM, *supra* note Error: Reference source not found, [Mil. R.
    Evid. 501]{.smallcaps} analysis, app. 22, at A36-37 (1995 ed.).

[^144]: *Id*.

[^145]: MCM, *supra* note Error: Reference source not found, [Mil. R.
    Evid]{.smallcaps}. 502 Lawyer-client privilege; [Mil. R.
    Evid]{.smallcaps}. 503 Communication to a Clergy; [Mil. R.
    Evid]{.smallcaps}. 504 Husband-wife privilege; [Mil. R.
    Evid]{.smallcaps}. 505 Classified Information; [Mil. R.
    Evid]{.smallcaps}. 506 Government Information other than classified
    information; [Mil. R. Evid]{.smallcaps}. 507 Identity of informant;
    [Mil. R. Evid]{.smallcaps}. 508 Political vote; [Mil. R.
    Evid]{.smallcaps}. 509 Deliberations of courts and juries.

[^146]: MCM, *supra* note Error: Reference source not found, [Mil. R.
    Evid. 501 (]{.smallcaps}emphasis added[).]{.smallcaps}

[^147]: *Id*.

[^148]: *See* *Jaffee*, 116 S. Ct. at 1932.

[^149]: [Fed. R. Evid]{.smallcaps}. 101 & 1101 states that the Federal
    Rules of Evidence apply in courts of the United States, including
    both civil actions and proceedings and criminal cases and
    proceedings; and that rules of privilege apply at all stages of all
    proceedings. *See* [Stephen A. Saltzburg & Michael M. Martin,
    Federal Rules of Evidence Manual]{.smallcaps} 9-11, 563-579 (5th Ed.
    1990).

[^150]: *See* *Jaffee*, 116 S. Ct. at 1931.

[^151]: *Id*. at 1932.

[^152]: *See* *Jaffee,* 116 S. Ct. at 1932; *Jaffee,* 51 F.3d at 1357;
    Respondent's Brief at 7-8, Jaffee v. Redmond, 116 S. Ct. 1923 (1996)
    (No. 95-266).

[^153]: *See* United States v. Lowe, 948 F. Supp. 97, 1996 WL 713070
    (D.Mass. 1996) (extending *Jaffee* to rape-counselor-victim
    privilege, recognized yet waived here, Confrontation Clause issue
    not addressed); United States v. Schwensow, 942 F. Supp. 402 (1996)
    (dealing with motion for reconsideration of suppression motion of
    defendant's asserted psychotherapy admissions. Admissions not made
    to psychotherapists for purpose of obtaining counseling services);
    United States v. Haworth, 168 F.R.D. 660 (1996) (finding
    psychotherapy records are privileged under *Jaffee v. Redmond*.
    Sixth Amendment confrontation rights are satisfied by allowing cross
    examination of witness about therapy, access to records is
    prohibited).

[^154]: *See* United States v. Haworth, 168 F.R.D. 660 (1996).

[^155]: [Fed. R. Evid]{.smallcaps}. 501.

[^156]: *See* Zanotti & Becker, *supra* note Error: Reference source not
    found, at 15.

[^157]: *See id*. at 63, n.454 ("In general, military mental health care
    is similar to that provided in the civilian sector. All of the same
    issues seen in small practices to large medical centers have their
    counterpart in the military. Where military practice differs from
    its civilian counterpart is in relation to administrative military
    duties and the special challenges combat and combat related
    pressures create." Examples of administrative duties are:
    "performing mental status exams for administrative separations,
    investigations into suspected suicides of military members,
    psychiatric evaluations as part of security clearance assessments,
    and clinical review of positive urine drug screens.").

[^158]: [Dep't of the Army Reg]{.smallcaps}. 40-66, [Medical Record
    Administration]{.smallcaps}, (July 20, 1992) (medical records are
    not privileged) \[hereinafter AR 40-66\], [Dep't of the Army
    Reg]{.smallcaps}. 40-68[, Medical Services]{.smallcaps} --- [Quality
    Assurance Administration]{.smallcaps}, (20 Dec. 1989) (IO3, 30 Jun.
    1995) \[hereinafter AR 40-68\].

[^159]: *See* Zanotti & Becker, *supra* note Error: Reference source not
    found, at n.224 (The authors argue that claims of impracticability
    reduce down to bare policy arguments, since the drafters recognized
    "that Fed. R. Evid. 501, without any specificity, was itself
    'impracticable' for the military").

[^160]: The term "enabling legislation" is used broadly here to cover
    both the President's rule making authority under Article 36, UCMJ
    and Congress' legislative amendment of the UCMJ.

[^161]: Telephone interview with LTC Linda Webster, U.S. Army Trial
    Judiciary (Feb. 14, 1996). The JSC is unanimous that some sort of
    Manual provision is required to incorporate a Jaffee privilege. The
    author disagrees since the text of MRE 501(a)(4) is clear and
    unambiguous in requiring no additional action by the President. *See
    also* Zanotti & Becker, *supra* note Error: Reference source not
    found, at 32-37 (discussing military cases predating *Jaffee* which
    directly incorporated privilege exceptions recognized in federal
    common law into military practice under MRE 501(a)(4) and concluding
    that they can be automatically incorporated).

[^162]: MCM, *supra* note Error: Reference source not found, [Mil. R.
    Evid]{.smallcaps}. 501; M[il. R. Evid]{.smallcaps}. 501(a)(4); [Mil.
    R. Evid]{.smallcaps}. 501 analysis, app. 22 at A36-37 (1995 ed. ).
    *See generally* [Saltzburg, et. al., MRE Manual,]{.smallcaps}
    *supra* note Error: Reference source not found, at 538 (3d ed. 1991)
    (noting it is an open question of whether military courts can
    recognize new common law privileges or must wait for federal courts
    to do so and incorporate through [Mil. R. Evid]{.smallcaps}.
    501(a)(4). Further noting drafters compromised to allow some
    dynamism, and enough clarity for non-practitioners to use MCM.).

[^163]: MCM, *supra* note Error: Reference source not found, [Mil. R.
    Evid]{.smallcaps}. 501(d).

[^164]: *Id*.

[^165]: MCM, *supra* note Error: Reference source not found, [Mil. R.
    Evid]{.smallcaps}. 501(d) analysis, app. 22, at A22-37 (1995 ed.).

[^166]: *Id*.

[^167]: Telephone interview with Fred Lederer, Professor of Law, William
    & Mary Law School (Feb. 25, 1997) (MRE 501(d) was intended to bar
    any medical privilege that would interfere with the commander's
    ability to ensure the health or fitness for duty of their soldiers,
    sailors, airmen, and marines. Specific scenarios involving mentally
    disturbed individuals were discussed in the Joint Service Committee
    on Military Justice.) Then Major Fredric Lederer, U.S. Army, of the
    Evidence Working Group of the Joint Service Committee on Military
    Justice primarily prepared the original Analysis of the Military
    Rules of Evidence. MCM, *supra* note Error: Reference source not
    found, [Mil. R. Evid]{.smallcaps}. 501(d) analysis, app. 22, at A1
    (1995 ed.).

[^168]: *See* [Dep't of the Army Pam. 600-4, Army Medical Department
    Officer Professional Development and Utilization]{.smallcaps},
    Paras. 2-4c & 8-2d (May 1977) (Army Medical Corps includes only
    physicians. Psychologists and Social Work Officers are members of
    the Medical Service Corps.).

[^169]: [Stephen A. Saltzburg, et. al.]{.smallcaps}, [Military Rules of
    Evidence Manual]{.smallcaps}, 535-43 (3d ed. 1991).

[^170]: *Id*. at 537; United States v. Johnson, 47 C.M.R. 406 (C.M.A.
    1973).

[^171]: MCM, *supra* note Error: Reference source not found, Mil. R.
    Evid. 501(d) analysis, app. 22, at A36-37.

[^172]: Proposed Rule 504 applied to "persons authorized to practice
    medicine in any state or nation . . . or a person licensed as a
    psychologist under the laws of any state or nation, while engaged in
    the diagnosis or treatment of a mental or emotional condition,
    including drug addiction." Proposed Rule 504, *supra* note Error:
    Reference source not found.

[^173]: Telephone interview with Fred Lederer, Professor of Law, William
    & Mary Law School (Feb. 25, 1997) (The inclusion of MRE 501(d) was
    intended to bar any medical privilege that would interfere with the
    commander's ability to ensure the fitness for duty of their
    soldiers, sailors, airmen, and marines. The rule was intended to bar
    a doctor-patient privilege or medical privilege of any kind.
    Specific scenarios involving mentally disturbed individuals were
    discussed in the committee. However, there was no contemplation of
    any social worker privilege at that time. The primary focus was on
    barring application of any such privilege for military members, no
    specific discussion of victim's records was held. Additionally, the
    committee did include specific protections in the drafting of MRE
    412, which was more protective than the federal rule at that time.
    The issue of the confidentiality limits was seen as outside the
    purview of the rule since no privilege was written into the military
    rules, although necessarily interrelated as a practical matter.
    These confidentiality limits were considered to be a service matter
    to be addressed by regulation. The intent of the words in MRE 501(d)
    were intended to bar a privilege on any medical matter. The
    drafters' intent was to ensure that the commanders' need to know the
    mental status of their personnel---to avoid the "madman in the
    missile silo scenario"---was protected by the Military Rules of
    Evidence.) Whether they do so is the subject of this paper. *See
    also* discussion *infra* note Error: Reference source not found and
    accompanying text for discussion of the "madman in the missile silo"
    type scenario exemplifying why the military needs to have access to
    its personnel's mental health information.

[^174]: *See* [Saltzburg, et. al., MRE Manual]{.smallcaps}, *supra* note
    Error: Reference source not found, at 7.

[^175]: The military's need to know the health and fitness for duty of
    its personnel.

[^176]: *See* [Saltzburg, et. al., MRE Manual]{.smallcaps}, *supra* note
    Error: Reference source not found, at 7 (In addition, some military
    courts have been reversed for failure to consider persuasive federal
    authority that would have had a direct effect on the issue at hand
    when interpreting Military Rules of Evidence). *See e.g.* United
    States v. Moore, 34 C.M.R. 415 (C.M.A. 1964); United States v.
    Clemons, 16 M.J. 44 (C.M.A. 1983) (noting failure to consider
    federal authority which had a bearing on the interpretation of a
    Military Rule of Evidence).

[^177]: At the time of the drafting of the Military Rules of Evidence,
    the more stringent requirements of pleading and proving
    service-connection limited the number of situations where the
    military tried typical criminal cases involving off-duty conduct and
    civilian victims. *See* Parker v. Levy, 417 U.S. 733 (1974); Relford
    v. Commandant, 401 U.S. 355, 367-368 (1971). *United States v.
    Solorio* expanded and simplified military practice. *See* 483 U.S.
    435 (1987). The Supreme Court was more willing to recognize a wider
    subject matter jurisdiction for military courts-martial because of
    its perception of the system's fairness and protection of individual
    rights. MRE 501(d) and the drafters' analysis were written against
    this pre-*Solorio* background. Limiting the effect of MRE 501(d) to
    barring the application of the privilege only for military members
    supports both the intent of the drafters, however inartfully
    drafted, and the changes in military practice and society since
    *Solorio*.

[^178]: The term "civilians" here is not intended to include personnel
    included in art. 2, UCMJ. S*upra* note Error: Reference source not
    found.

[^179]: *See* United States v. McConnell, 20 M.J. 577 (N.M.C.M.R. 1985)
    (stating it is only where the military rules do not dispose of an
    issue that the Article III federal practice when practicable and not
    inconsistent or contrary to the military rules shall be applied).

[^180]: *Jaffee*, 116 S. Ct. at 1928.

[^181]: Referring to MRE 501(d).

[^182]: *See* [Saltzburg, et. al., MRE Manual]{.smallcaps}, *supra* note
    Error: Reference source not found, at 537.

[^183]: *See* *Jaffee,* 116 S. Ct. at 1931, n.16; *supra* note Error:
    Reference source not found and accompanying text.

[^184]: MCM, *supra* note Error: Reference source not found, [Mil. R.
    Evid]{.smallcaps}. 501, analysis, app. 22, at A36-37 (1995 ed.).

[^185]: *See* United States v. Teal, 34 C.M.R. 890, 892-893 (A.F.B.R.
    1964) (holding there is no room for statutory interpretation through
    reference to extrinsic materials where the text of the statute
    carries within itself a plain, unambiguous meaning, constructional
    changing of a statute is resorted to only when there is persuasive
    basis for concluding that the literal text does not conform to the
    legislative intent); United States v. Ware, 1 M.J. 282 (C.M.A. 1976)
    (explaining plain and unambiguous statute is to be applied, not
    interpreted, and where no ambiguity is apparent there is no reason
    to resort to the rules of statutory construction. To the extent that
    a Manual for Courts-Martial provision is irreconcilably in conflict
    with the Uniform Code of Military Justice, it must yield to the
    statute). *See also* Levy v. Killon, 286 F. Supp 593 (D.C. Kan.
    1968), *aff'd*, 415 F.2d 1263 (recognizing MCM has the force of
    statutory law).

[^186]: The Military Rules of Evidence were originally enacted by
    President Carter in 1980 by Executive Order No. 12,198, 45 Fed. Reg.
    16,832 (1980). Since then the Manual, including the Rules, has been
    amended, mostly recently by Executive Order No. 12,960, signed by
    President Clinton on 12 May 1995.

[^187]: *See* United States v. Fisher, 37 M.J. 812 (N.M.C.M.R. 1993),
    *aff'd,* 40 M.J. 293 (C.M.A. 1994) (stating the supplementary
    materials in the MCM, which include the Discussion, Analysis, and
    appendices, do not constitute a rule, do not represent the views of
    the Department of Defense or the military departments, and do not
    create rights or responsibilities that are binding on any person,
    party, or entity. Therefore they are not a part of the Rules and do
    not constitute a mandate by the President under his UCMJ rule-making
    authority).

[^188]: Proposed Rule 504, *supra* note Error: Reference source not
    found.

[^189]: Telephone interview with Colonel Dennis Grill, Psychology
    Consultant to the U.S. Army Surgeon General (Feb. 4, 1997) (Walter
    Reed's psychology training program was accredited in 1958. Training
    commenced prior to that date.).

[^190]: [Dep't of the Army Pam. 600-4, Army Medical Department Officer
    Professional Development and Utilization]{.smallcaps}, (May 1977)
    (Para. 2-4c: Army Medical Corps includes only physicians. Para.
    8-2d: Psychologists and Social Work Officers are members of the
    Medical Service Corps.).

[^191]: Telephone interview with Colonel Thomas G. Becker, USAF,
    Associate Deputy General Counsel (Military Justice and Personnel
    Policy), Department of Defense (Mar. 11, 1997) (clearer language was
    available to bar any medical privilege but was not used by the
    drafters).

[^192]: MCM, *supra* note Error: Reference source not found, [Mil. R.
    Evid]{.smallcaps}. 501(d).

[^193]: No interpretation is required or permitted if no ambiguity
    exists. *See* United States v. Teal, 34 C.M.R. 890, 892-893 (1964)
    (explaining there is no room for statutory interpretation through
    reference to extrinsic materials where the text of the statute
    carries within itself a plain, unambiguous meaning, constructional
    changing of a statute is resorted to only when there is persuasive
    basis for concluding that the literal text does not conform to the
    legislative intent); United States v. Ware, 1 M.J. 282 (1976)
    (holding plain and unambiguous statute is to be applied, not
    interpreted, and where no ambiguity is apparent there is no reason
    to resort to the rules of statutory construction.).

[^194]: Telephone interview with Colonel Kenneth D. Pangburn, Military
    Judge, Office of the Circuit Judge, Second Judicial Circuit, Fort
    Stewart Georgia (Feb. 4, 1997) \[discussing United States v. Jeffers
    (HQ Ft. Stewart, July 1996) (acquittal). Admissions by accused were
    excluded based on combination of effects of Jaffee v. Redmond and
    Article 31 concerns\]; Telephone interview with Lieutenant Colonel
    Linda Webster, U.S. Army Trial Judiciary (Feb. 14, 1997) (Of cases
    that raised psychotherapist-patient privilege issue, one dealt with
    admissions by the accused and by close family members of the accused
    in counseling with non-military counselors. Lieutenant Colonel
    Webster determined that Jaffee was not immediately applicable to the
    military in the first case, and deferred ruling on the applicability
    of Jaffee in the second.)

[^195]: USAF TJAG July 31, 1996 Memo & USAF SG July 31, 1996 Memo,
    *supra* note Error: Reference source not found. *But see* Zanotti &
    Becker, *supra* note Error: Reference source not found (a claim of
    impracticability is essentially a policy argument not based on the
    text or interpretation of the rules).

[^196]: United States v. Demmings, 46 M.J. 877 (Army Ct. Crim. App.
    1997).

[^197]: *Id.* at 883.

[^198]: Deep divisions exist among the military services on the
    psychotherapist-patient privilege and the issue of the effect of the
    *Jaffee* decision with the Navy taking a strong position against the
    privilege. *Infra* note Error: Reference source not found.

[^199]: Telephone Interview with Colonel Charles Trant, Chief, Criminal
    Law Division, Office of the Assistant Judge Advocate General for
    Military Law and Operations (Mar. 14, 1997) (Two Congressional
    staffers on the Senate Armed Services Committee have threatened to
    legislate in this area. In response DOD may forward draft
    legislation which attempts to limit any legislation to directing the
    President to adopt a Military Rule of Evidence implementing a
    psychotherapist-patient privilege by a date certain. The short time
    constraints arise from the fact that the Senate Armed Services
    Committee is currently reviewing the 1998 DOD Authorization Act.)
    *See also* Seven Congressperson Letter, *supra* note Error:
    Reference source not found.

[^200]: *Id*. (In these meetings the JSC reviewed both the substance and
    procedural aspects of the proposed rule. The procedural aspects of
    the rule includes the mechanism by which the military judge will
    access and review alleged privilege information. The proposed rule
    was completed, and presented to the DOD General Counsel in the JSC's
    annual review. On 6 May 1997 the proposed rule was published in the
    Federal Register for a ninety day public comment period. The
    proposed rule creates a privilege for civilians but not for active
    duty military. Much of the debate centered over whether the rule
    would cover some of the other categories of personnel subject to the
    code such as retirees, reservists, and personnel accompanying the
    force. There are generous exceptions for military necessity, for
    information relating to future crimes, mandatory reporting under
    federal and state law and military regulation which would cover the
    child sex abuse situation. There was a difference of opinion between
    the DOD and Navy representatives reflecting a basic disagreement
    over the purpose of the rule. DOD wanted to include exceptions that
    recognize the necessary interrelation of the privilege rule and the
    ethical limits of confidentiality. The Navy, however, wanted to
    limit the scope of the rule to address only those situations
    relevant to courts-martial. DOD hopes the public comment period,
    following publication of the proposed rule, will generate valuable
    input from experts, to include the medical community. The text of
    the proposed rule is included at appendix C and will be discussed
    later in this paper).

[^201]: Joint Service Committee on Military Justice, Notice of Proposed
    Amendments, 62 FR 24640-01.

[^202]: [U.S. Const]{.smallcaps}. art. I, sec. 8, cl. 14.

[^203]: [U.S. Const]{.smallcaps}. art. II, sec. 2, cl. 1.

[^204]: UCMJ art. 36, 10 U.S.C. § 836 (1983).

[^205]: *See* S. Rep. 98-197, 96th Cong., 1st Sess. 1979, reprinted in
    1979 U.S.C.C.A.N. 1818 (Article 36 intended to authorize President
    to promulgate Manual for Courts-Martial.).

[^206]: UCMJ art. 36, 10 U.S.C. § 836 (1983).

[^207]: The Honorable Sam Nunn*, The Fundamental Principles of the
    Supreme Court's Jurisprudence in Military Cases*, 29 [Wake Forest L.
    Rev]{.smallcaps}. 557, 566 (1994).

[^208]: *Id*. at 565 (Senator Nunn lists as examples: enacting the UCMJ,
    establishing an independent civilian tribunal, the U.S. Court of
    Military Appeals to review court-martial cases, authorizing the
    appeal of specified military justice cases directly to the Supreme
    Court, enhanced procedural rights in the promotion process,
    expanding opportunity for wearing religious apparel while in
    uniform, and providing protection for military whistleblowers). The
    U.S. Court of Military Appeals was later renamed The United States
    Court of Appeals for the Armed Forces. 10 U.S.C. § 924 as amended by
    Act of Oct. 5, 1994, Pub. L. 103-337, 108 Stat. 2831, 2832 (1994).

[^209]: *See* AR 40-66 & AR 40-68, *supra* note Error: Reference source
    not found; [Dep't of the Navy, Ins. 6150.1, Health Care Treatment
    Records]{.smallcaps} (25 Feb. 1987) \[hereinafter NAVMEDCOMINST
    6300.4\]; [Dep't of the Air Force Ins. 41-210, Patient
    Administration Functions]{.smallcaps} (26 Jul. 1994) \[hereinafter
    AFI 41-210\].

[^210]: *See* MCM, *supra* note Error: Reference source not found,
    R.C.M. 701 (1995 ed.).

[^211]: *See* Pub. L. 101-510, "National Defense Authorization Act for
    Fiscal Year 1991" (NDAA FY 91) (Nov. 5, 1990); Pub. L. 101-484, NDAA
    for FY 93 (Oct. 23, 1992[); Dep't of Def. Dir. 6490.1, Mental Health
    Evaluations of Members of the Armed Forces]{.smallcaps} (Sept. 14,
    1993). *See also* Zanotti & Becker, *supra* note 92, at 47-48
    (discussing these whistleblower protections).

[^212]: *See* United States v. Lowe, 948 F. Supp. 97 (D.Mass. 1996)
    (extending *Jaffee* privilege to cover rape crisis counseling
    records); *In Re* Grand Jury Proceedings, Unemancipated Minor Child,
    949 F. Supp. 402 (E.D. Wash. 1996) (recognizing privilege for
    confidential parent-child communications in criminal context).

[^213]: *See* 42 U.S.C. § 10601, § 10681 (1995); 18 U.S.C. § 1512-1514
    (1984).

[^214]: *See* [Dep't of Def., Dir. 1030.1, Victim and Witness
    Assistance]{.smallcaps} (Nov. 23, 1994) \[hereinafter DOD Dir.
    1030.1\]; [Dep't of Def., Ins. 1030.2, Victim and Witness Assistance
    Procedures]{.smallcaps}, (Dec. 23, 1994); [Dep't of the Army Reg.
    27-10 Military Justice]{.smallcaps} (June 24, 1996).

[^215]: 42 U.S.C.A. § 10606(b)(2) (1995).

[^216]: UCMJ art. 47, 10 U.S.C. §. 847 (1983) as amended by Act of Feb.
    10, 1996, Pub. L. 104-106, 110 Stat. 461 (1996).

[^217]: *See* Major Calvin M. Lederer, *Warrant of
    Attachment*---*Forcible Compelling the Attendance of Witnesses*, 98
    [Mil. L. Rev]{.smallcaps}. 1 (1982). Now this offense can be tried
    as a misdemeanor or a felony. UCMJ art. 47, 10 U.S.C. § 847 (1983)
    as amended by Act of Feb. 10, 1996, Pub. L. 104-106, 110 Stat. 461
    (1996).

[^218]: The most obvious include aircraft, tanks, and self-propelled
    artillery. In one well publicized case in late 1980, an 8th Infantry
    Division soldier in Mannheim Germany stole a fully uploaded M-60
    tank and went on a rampage after being rejected by his long-time
    girlfriend. His intent was to take the tank to her home in Mannheim
    and kill her. After being blocked on the Neckar River Bridge by the
    German Polizei, he drove the tank off the bridge and died. Telephone
    Conversation with LTC Cliff Dickman, Member of 3d Brigade, 8th
    Infantry Division at the time (Feb. 25, 1997). *See also*
    *Editorial/Opinion: A Rapid Response*, [News & Observer (Raleigh,
    NC]{.smallcaps}), June 3, 1996, at A10 (SGT William Kreutzer, who
    opened fire on a stadium full of comrades at Fort Bragg, NC suffered
    from mental problems and sought help prior to the shooting);
    Interview with Major John Einwechter, Government Counsel in United
    States v. Kreutzer, (Mar. 14, 1997) (SGT Kreutzer made homicidal
    threats against members of his unit as early as eighteen months
    prior to the shooting while deployed in the Sinai. He was seen by a
    social worker who returned him to duty. SGT Kreutzer also received
    counseling from Division Mental Health for the month and one-half
    prior to the shooting). *See* earlier reference to "madman in the
    missile silo scenario," *supra* note Error: Reference source not
    found.

[^219]: LCDR Taylor L. Porter & LT W. Brad Johnson, *Psychiatric Stigma
    in the Military*, 159 [Mil. Med]{.smallcaps}. 602 (1994).

[^220]: *See* CPT Anderson B. Rowan, *Demographic, Clinical, and
    Military Factors Related to Military Mental Health Referral
    Patterns*, 161 [Mil. Med]{.smallcaps}. 324 (1996); Regina Pedigo
    Galvin, *Even Soldiers Get the Blues, But Issues of Stigma,
    Confidentiality Keep Those in Need from Getting Help*, [Army
    Times]{.smallcaps}, July 29, 1996, 12, 13.

[^221]: David L. Kutz, *Military Psychiatry: A Cross-Cultural
    Perspective*, 161 [Mil. Med]{.smallcaps}. 78 (1996); Neil A. Lewis,
    *Military Conducting Anti-Suicide Campaign*, [The seattle
    times]{.smallcaps}, May 19, 1996, at A1 (Dr. Stephen Joseph states
    that the major thrust of the campaign has been to emphasize that
    seeking help for mental illness is not a sign of weakness . . . a
    message that he acknowledged run counter to a centuries-old military
    culture in which strength is prized and anything that could be
    perceived as weakness is concealed); Debra Gordon, *Navy Tries to
    Demystify Mental Health, Boorda's Death Refocuses Attention on Idea
    that Seeking Psychiatric Help Can Hurt a Career*, [Virginian-Pilot &
    Ledger Star]{.smallcaps} (Norfolk Va.), June 11, 1996, at A1
    (discussing Admiral Boorda's suicide and military attitudes toward
    seeking psychiatric care, effect of lack of confidentiality on
    willingness to seek care, and ethical conflicts of military
    psychotherapists); Bruce Hilton, *Suicide Seldom a Rash Act, Experts
    Say*, [Patriot-Ledger (Quincy, Mass]{.smallcaps}.), May 21, 1996, at
    21 (mental illness link to suicide and Admiral Boorda's stresses).

[^222]: *See* Kutz, *supra* note Error: Reference source not found, at
    80.

[^223]: *Id*. at 79.

[^224]: *See* Porter & Johnson, *supra* note Error: Reference source not
    found; Harold Rosen and LTC James P.T. Corcoran, *The Attitudes of
    USAF Officers Toward Mental Illness: A Comparison with Mental Health
    Professionals*, 143 [Mil. Med]{.smallcaps}. 570 (1978) (Although
    line officers in USAF had a more negative view of psychiatric
    patients than mental health care providers, the line officers'
    opinions were "relatively liberal, and "approximated those of
    college educated civilians."); Zanotti & Becker, *supra* note Error:
    Reference source not found, at 66 (discussing Admiral Boorda's
    suicide and the Air Force campaign against suicide and the
    perception that seeking counseling would have negative career
    impacts).

[^225]: Sue Goetinch & Tom Siegfried, *Mentally Ill Fight Disease and
    Stereotypes*, [The Dallas Morning News,]{.smallcaps} Apr. 28, 1996,
    at 1A.

[^226]: Neil A. Lewis, *Military Conducting Anti-Suicide Campaign*,
    *supra* note Error: Reference source not found (discussing military
    culture prizing strength and concealing weakness, and suicide
    statistics in the military).

[^227]: Of military personnel delaying or avoiding treatment.

[^228]: Orloff v. Willoughby, 345 U.S. 83, 94 (1953). *See also* Parker
    v. Levy, 417 U.S. 733, 743 (1974).

[^229]: Nunn, *supra* note Error: Reference source not found, at 557.

[^230]: *See* Orloff v. Willoughby, 345 U.S. 83, 94 (1952) ("The
    military constitutes a specialized community governed by a separate
    discipline from that of the civilian. Orderly government requires
    that the judiciary be as scrupulous not to interfere with legitimate
    Army matters as the Army must be scrupulous not to intervene in
    judicial matters."). *See also* Zanotti & Becker, *supra* note
    Error: Reference source not found, at 76.

[^231]: Telephone interview with Dr. Richard Epstein, Chair of the
    American Psychiatric Association Ethics Committee, (Feb. 4, 1997).
    *See* Letter from Melvin Sabshin, M.D., Medical Direction, American
    Psychiatric Association, to Colonel Thomas G. Becker, USAF,
    Associate Department of Defense General Counsel (Military Justice
    and Personnel Policy), subject: Request by the American Psychiatric
    Association to Amend the Military Rules of Evidence to Provide
    Privilege for Military Dependents, Aug. 19, 1996 (urging creation of
    privilege *a la Jaffee* for non-military patients, addressing morale
    and readiness impact on military members from lack thereof).

[^232]: *See Clinton Urges Amendment on Victim's Rights*, [Boston
    Globe]{.smallcaps}, June 26, 1996, at 6; J. Scott Orr, *Fight is
    Rally Cry for Rights of Victims*, [Star-Ledger (Newark,
    NJ]{.smallcaps}), June 26 1996, at 001; Martin Kasindorf*, Clinton
    Pushes for Victims' Rights*, [Newsday]{.smallcaps}, June 26, 1996,
    at A16.

[^233]: *See* Schroeder Editorial; Patricia Schroeder, Press Release;
    Schroeder Letter to SECDEF; Schroeder Letter to SECUSAF; LTC Beth A.
    Unklesbay, USAF, Office of Legislative Liaison, Congressional
    Inquiry Division Letter to The Honorable Patricia Schroeder,
    Congressperson, Subject: Response to Aug. 22, 1996 Letter, Sept. 9,
    1996; Joseph Letter to DOD GC; Memorandum, DOD General Counsel, to
    The Honorable Stephen Joseph, Under Secretary for Defense (Health
    Affairs), subject: Legal Privilege for Therapist-Patient
    Communications, (23 Sept. 1996); Seven Congressperson Letter;
    Livingston, *Ethical Dilemmas*, *supra* note Error: Reference source
    not found (parentheticals same) (On file with the author). *See
    also* Zanotti & Becker, *supra* note Error: Reference source not
    found, at n.349 (recognizing that: "Legislation could be somewhat
    deferential by directing the military departments to develop a
    confidentiality provision compatible with the military's mission, or
    not at all deferential, as would be the case if it passed
    legislation, applicable in trials by courts-martial, creating a
    psychotherapist-patient privilege.").

[^234]: The military can choose to take no action pending judicial
    determination of the extent of the privilege. However, it is
    unlikely that Congress will wait for that determination. *See*
    Zanotti & Becker, *supra* note Error: Reference source not found, at
    n.349. The resolution of the issue by judicial means is likely to be
    slow. Few military courts are recognizing the
    psychotherapist-patient privilege for either accuseds or victims. At
    least one military service has officially stated that the
    application of *Jaffee* in the military is impractical. Cases
    resulting in acquittals will not be appealed, and with the
    relatively stringent rules on government appeals, an interlocutory
    appeal is unlikely. The continuing media attention, and the lobbying
    by the American Psychiatric and Psychological Associations, will
    spur Congress into taking some action, if the military takes none.
    Congress has indicated interest in legislating in this area. *See*
    sources cited *supra* note Error: Reference source not found (On
    file with author); Gordon Livingston, *Serving Two Masters: The
    Ethical Dilemmas That Military Medical Students Want to Know
    About*---*But Can't*, [The Wash. Post]{.smallcaps}, Dec. 22, 1996,
    at C3; Karen Jowers, *Joseph Asks for Ensured Patient
    Confidentiality*, [Army Times]{.smallcaps}, Sept. 23, 1996, at 30;
    Karen Jowers, *AF Psychiatrist Ordered Away from Patients*, [Army
    Times]{.smallcaps}, Sept. 23, 1996, at 31; Ellen Joan Pollock, *The
    Psychiatrist in the Middle*, [The Wall St. J]{.smallcaps}., Aug. 22,
    1996, at A1.

[^235]: It is the author's opinion that recognition of the privilege for
    civilians is appropriate. However the military's mission mandates
    command access to psychotherapy information for military personnel.
    An explicit amendment to the Military Rules of Evidence is the best
    course to clarify this issue, however, implementation of a
    regulatory privilege is another option. [Regulatory
    Privilege]{.underline}: Prior to *Jaffee*, a regulatory privilege
    similar to that extended to alcohol and drug rehabilitation records
    was proposed. *See* Hayden, *supra* note Error: Reference source not
    found, at 90-91. Although this type of regulatory privilege might
    operate to protect accuseds' records by preventing the government
    from introducing this evidence, it is unlikely that it would protect
    victims' records from Sixth Amendment based discovery demands. Since
    the most troublesome cases arise in that context and excite
    emotional reactions by the victims, Congress, and the media, this
    alternative would not prove to be a long-term solution.

[^236]: The fourth interpretation, which the author feels is the most
    supportable, clearly recognizes the privilege for military
    personnel. However, the author's personal opinion is that military
    personnel cannot have a privilege since it would interfere with
    commanders' responsibilities to know the mental status of their
    personnel.

[^237]: Failure to require that the patient not be subject to the Code
    at both the time the confidence is made and at the time of the trial
    is necessary if the command is to have knowledge of the mental
    health status of reservists. Otherwise a reservist may never be
    involved in psychotherapy during his drill periods (inactive duty
    training) or his two-week annual training (active duty training),
    but may be regularly seeing a psychotherapist during the intervening
    time. Failure to exclude reserve forces from the definition of
    civilian patient would result in commanders not having access to
    mental status information for their reserve soldiers. With the
    increased involvement of reserve forces in any significant military
    mission both in the US and abroad, the need of the command to know
    the mental status of reserve soldiers is of equal importance to that
    of the active component.

[^238]: MCM, *supra* note Error: Reference source not found, [Mil. R.
    Evid]{.smallcaps}. 101, analysis, app. 22, at A1-2 (1995 ed.)
    (Military Rules of Evidence do not apply to military commissions,
    tribunals, etc., unless expressly made to do so by competent
    authority.).

[^239]: Some parallelism between the confidentiality rule and the
    privilege rule of evidence is desirable since the privilege rule
    necessarily involves effects in society.

[^240]: I deliberately did not include an explicit exception for when
    information is constitutionally required. This is due to my view
    that the privilege, outside of the enumerated exceptions, should be
    roughly akin to the attorney-client privilege. One of the primary
    purposes of this rule is to protect confidences of victims and to
    encourage them to obtain psychotherapy to help deal with the
    emotional toll of the crime. If a disclosure is actually
    "constitutionally required," then the addition of such an exception
    would not assist the military judge in making this tough decision.
    *See* [Saltzburg, et. al]{.smallcaps}., *supra* note Error:
    Reference source not found, at 522 (The authors state in reference
    to the "constitutionally required" exception to MRE 412 that "Any
    limitation on a constitutional right would be disregarded whether or
    not such a Rule existed." The MRE 412 protection, is even less
    strong when compared to a constitutional claim since it is a mere
    rule of evidence, and not a common law privilege.).

[^241]: The success of a claim of privilege against a Sixth Amendment
    Confrontation Clause challenge would depend on the view of the scope
    of the privilege. If viewed as akin to the attorney-client
    privilege, as many States have adopted, the assertion of privilege
    would probably be successful even if the requested information
    contained exculpatory information. A detailed discussion of this
    question is beyond the scope of this paper but it raises interesting
    issues since DOD must deal with accused's claims for this
    information under R.C.M. 701a(6)/*Brady* material, even though
    protected by the psychotherapist-patient privilege. The Supreme
    Court has condoned this procedure (judge's *in camera* inspection of
    material to determine applicability of privilege) when analyzing
    Sixth Amendment claims in the context of attorney-client and other
    privileges. *See* Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105
    (1974); Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S. Ct. 989,
    1003 (1987); United States v. Wilson, 798 F.2d 509, 514 (1st Cir.
    1986) (reviewing documents protected under the attorney-client
    privilege to determine if any were exculpatory); United States v.
    Cuthbertson, 630 F.2d 139, 148 (3d Cir. 1980), *cert. denied*, 499
    U.S. 1126 (1981) (permitting *in camera* review of statements of a
    government witness despite qualified journalistic privilege because
    of the unavailability from another source.) These cases are
    discussed in United States v. Lowe, 948 F. Supp. 97 (D.Mass. 1996).
    The defense would still be allowed to cross examine the civilian
    witness on the content of the psychotherapy, but would not have
    access to either the records or the psychotherapist in order to
    conduct the cross-examination. *See* Davis v. Alaska, 415 U.S. 308,
    94 S. Ct. 1105 (1974); Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107
    S. Ct. 989, 1003 (1987). *See also* [Saltzburg &
    Martin]{.smallcaps}, *supra* note Error: Reference source not found,
    at 427-28 (discussing United States v. Brown, 634 F.2d 819 (5th Cir.
    1981), United States v. Zoln, 109 S. Ct. 2619 (1989), and Caldwell
    v. District Court, 644 P.2d 26, 33 (Colo. 1982). These courts
    evaluated situations where a privilege or rule of evidence must give
    way to a defendant's Sixth Amendment rights. The Supreme Court
    approved an *in camera* inspection only after a threshold showing of
    a factual basis adequate to support a good faith belief by a
    reasonable person that an *in camera* review of the materials may
    reveal evidence to establish the claim that the exception to the
    privilege applies. The decision whether to conduct a review is
    within the sound discretion of the court. The *Brown* court
    required, in the context of a claim of marital privilege, a showing
    that the inability to introduce the testimony or evidence covered by
    a privilege substantially deprived the defendant of the ability to
    test the truth of a witness' testimony. Otherwise there was no
    infringement of the defendant's Sixth Amendment confrontation
    rights. These cases support the *in camera* inspection procedure to
    determine if the privilege applies.)

[^242]: Telephone interview with LTC Linda Webster, U.S. Army Trial
    Judiciary (Feb. 14, 1997) (discussing possible alternatives);
    Zanotti & Becker, *supra* note Error: Reference source not found, at
    76-81 (The authors propose a rule creating a privilege for both
    military and civilian patients, with exceptions for national
    security information, child abuse, sanity boards, future crime or
    fraud, and when used as an element of a defense. They also include a
    procedure for determining if the information is privileged.);
    Telephone interview with COL Charles Trant, *supra* note Error:
    Reference source not found (discussing the present draft rule 513
    being prepared by the JSC for presentation to the DOD General
    Counsel and for publication in the Federal Register for public
    comment).

[^243]: *Jaffee*, 51 F.3d at 1357.

[^244]: *See* Parker v. Levy, 417 U.S. 733 (1974); Orloff v. Willoughby,
    345 U.S. 83 (1953); Nunn*, supra* note Error: Reference source not
    found.

[^245]: Differing reasonableness determinations of expectations of
    privacy under the Fourth Amendment are common in military and
    federal case law.

[^246]: *See* Parker v. Levy, 417 U.S. 733 (1974); Orloff v. Willoughby,
    345 U.S. 83 (1953); Nunn*, supra* note Error: Reference source not
    found.

[^247]: Joint Service Committee on Military Justice, Notice of Proposed
    Amendments, 62 FR 24640-01.

[^248]: Telephone interview with Dr. Gregory Lande, Forensics Psychiatry
    Consultant to the U.S. Army Surgeon General (Mar. 14, 1997) (There
    are no regulations or directives governing the ethical duties of
    military psychiatric personnel to protect the confidentiality of
    mental health information. The only protections are: the protections
    for sanity boards IAW R.C.M. 706, UCMJ; the ADAPCP limited use
    policy [IAW]{.smallcaps} ch[. 6, Dep't of the Army Reg. 600-85,
    Alcohol and Drug Abuse Prevention and Control Program]{.smallcaps},
    (Oct. 21, 1988) & change (Sept. 17, 1995), and protections for FACMT
    information [IAW]{.smallcaps} ch. 6 & para[. 3-8, Dep't of the Army
    Reg. 608-18, The Army Family Advocacy Program]{.smallcaps}, (Sept.
    1, 1995). .

[^249]: [Dep't of the Army Reg. 27-26, Rules for Professional Conduct
    for Lawyers]{.smallcaps}, (May 1, 1992). A DOD Directive would be a
    better approach allowing a single set of rules to apply to all
    military health care providers. With the advent of Tricare and the
    increased assignment and training of military medical personnel to
    medical centers, patients should be able to expect that the same set
    of rules governs the confidentiality of their mental health records
    regardless of whether they are seen by an Army, Navy, or Air Force
    psychotherapist.

[^250]: *See* *Jaffee*, 116 S. Ct. at n.12 (At the outset of their
    relationship, the ethical therapist must disclose to the patient
    "the relevant limits on confidentiality." *See* American
    Psychological Association, Ethical Principles of Psychologists and
    Code of Conduct, Standard 5.01, 9 Dec. 1992). *See also* National
    Federation of Societies for Clinical Social Work, Code of Ethics
    V(a) (May 1988); American Counseling Association, Code of Ethics and
    Standards of Practice A.3.a (effective July 1995).

[^251]: *See* Livingston, *supra* note Error: Reference source not
    found; Pollock, *supra* note Error: Reference source not found;
    Jowers, *AF Psychiatrist*, *supra* note Error: Reference source not
    found. These confidentiality rules show the necessary
    interrelationship between the confidentiality and privilege rules.

[^252]: Presently the Privacy Act protects these health records, but
    allows access by agency officials with an official need to know, to
    include law enforcement investigations. *See* the Privacy Act, 5
    U.S.C. § 552a(b); [Dep't of the Army Reg. 340-21, The Army Privacy
    Program]{.smallcaps} (July 5, 1985) \[hereinafter AR 340-21\]; AR
    40-66. Military medical centers, hospitals, and clinics, would have
    to segregate and provide additional protections to these mental
    health records. Some segregation already exists, but an explicit
    Military Rule of Evidence recognizing the privilege for civilian
    patients, coupled with a regulation governing other ethical
    exceptions to the confidentiality obligation, would provide firm
    guidance for military health care providers. These regulations would
    have to address the specific issues of joint or group therapy and
    the protection of those sessions, and whether that protection is
    destroyed if a military member is a participant as a patient. This
    may necessitate separate group therapy sessions for military and
    non-military members.

[^253]: Failure to take decisive action may result in Congressional
    amendment of the UCMJ which would be incorporated by the operation
    of MRE 501(a)(2). *See supra* note Error: Reference source not
    found.

[^254]: *See* Zanotti & Becker, *supra* note Error: Reference source not
    found, at n.349 (recognizing that: "Legislation could be somewhat
    deferential by directing the military departments to develop a
    confidentiality provision compatible with the military's mission, or
    not at all deferential, as would be the case if it passed
    legislation, applicable in trials by courts-martial, creating a
    psychotherapist-patient privilege.").