This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Wendell E. MELLETTE Jr.,

Electrician’s Mate (Nuclear) First Class Petty Officer

United States Navy, Appellant

No. 21-0312

Crim. App. No. 201900305

Argued February 8, 2022—Decided July 27, 2022

Military Judge: Warren A. Record

For Appellant: Lieutenant Commander Michael W. Wester, 

JAGC, USN (argued).

For Appellee: Lieutenant Commander Jeffrey S. Marden, 

JAGC, USN (argued); Lieutenant Colonel Christopher G. 

Blosser, USMC, Major Clayton L. Wiggins, USMC, Lieutenant John L. Flynn IV, JAGC, USN, and Brian K. Keller, Esq.

(on brief).

Amicus Curiae on behalf of Patient/Victim SS: Peter Coote,

Esq. (on brief).

Amici Curiae on behalf of the United States Navy, the 

United States Marine Corps, and the United States Coast

Guard Victims’ Legal Counsel and Special Victims’ Counsel 

Programs: Major Nathan H. Cox, USMC, Lieutenant Commander Adam J. Sitte, JAGC, USN, and Paul T. Markland, 

Esq. (on brief).

Judge HARDY delivered the opinion of the Court, in 

which Chief Judge OHLSON and Senior Judge RYAN

joined. Judge MAGGS filed a dissenting opinion in which 

Judge SPARKS joined.

_______________

Judge HARDY delivered the opinion of the Court.

The Government charged Appellant with sexually abusing 

and assaulting SS, a fifteen-year-old girl with a history of 

mental health issues. In preparation for his court-martial, 

Appellant sought access to SS’s mental health diagnoses and 

treatments on the basis that the records could prove relevant 

to SS’s credibility as a witness. The Government declined to 
United States v. Mellette, No. 21-0312/NA

Opinion of the Court

2

provide the requested records, asserting that the psychotherapist-patient privilege provided by Military Rule of Evidence 

(M.R.E.) 513 protected the records in toto from disclosure. Appellant filed a motion to compel production and in camera review of SS’s mental health records, arguing primarily that the 

psychotherapist-patient privilege does not sweep so broadly 

as to protect a patient’s diagnoses and treatment plan.

The military judge denied the motion, and the United 

States Navy-Marine Corps Court of Criminal Appeals 

(NMCCA) affirmed, holding that the psychotherapist-patient 

privilege protects not only confidential communications, but 

diagnoses and treatment plans contained within medical records. United States v. Mellette, 81 M.J. 681, 691–93 (N-M. Ct. 

Crim. App. 2021). We granted review to determine the scope 

of the patient-psychotherapist privilege under M.R.E. 513.

United States v. Mellette, 82 M.J. 13 (C.A.A.F. 2021) (order 

granting review).

Based on the plain language of M.R.E. 513, and mindful 

of the Supreme Court’s admonition that privileges must be 

strictly construed, we conclude that diagnoses and treatments contained within medical records are not themselves 

uniformly privileged under M.R.E. 513. The decision of the 

NMCCA is set aside, and we return the case to the Judge Advocate General of the Navy for further proceedings consistent 

with this opinion.

I. Background

While serving in the Navy, Appellant engaged in a sexual 

relationship with SS, the fifteen-year-old sister of Appellant’s 

then-wife. After Appellant’s wife discovered the relationship,

the couple divorced, with Appellant’s now ex-wife receiving 

custody of their young daughter. During a later dispute over 

Appellant’s visitation rights, Appellant’s ex-wife reported his 

prior sexual relationship with SS to Appellant’s commanding 

officer, leading to an investigation by the Naval Criminal Investigative Service (NCIS). 

After the NCIS investigation, which included an interview 

with SS in which she revealed that she had spent time in a 

mental health facility, the Government charged Appellant 

with one specification of sexual abuse of a child and one specification of sexual assault of a child, both under Article 120b, 
United States v. Mellette, No. 21-0312/NA

Opinion of the Court

3

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b

(2012). A critical element of each charge was that the alleged 

misconduct occurred prior to SS’s sixteenth birthday in July 

2014. See Article 120b(h)(4), UCMJ (defining a child as “any 

person who has not attained the age of 16 years”).

In parallel to the criminal investigation and proceedings, 

Appellant and his ex-wife continued their legal dispute over 

custody of their daughter. As part of those civil proceedings, 

SS sat for a deposition in which she discussed her prior sexual 

relationship with Appellant. During the deposition, SS disclosed that in August 2013, she voluntarily spent a week in a 

mental health facility after her high school administrators 

discovered she had engaged in self-harm. SS revealed at least 

part of the mental health diagnoses she received at the facility, her treatment plan during her stay, and the follow-up 

treatment plan she received when she was discharged.

Prior to his court-martial, Appellant sought discovery of 

any evidence that SS “sought or received mental health treatment” and copies of “S.S.’s medical records related to mental 

health and prescriptions” from the period when SS was in the 

mental health facility through the start of Appellant’s courtmartial. The Government denied the request, partially on the 

basis that the requested information was protected by the

psychotherapist-patient privilege provided in M.R.E. 513. In 

response, Appellant moved to compel production and in camera review of SS’s mental health records. Appellant asserted 

that the requested information was “relevant to issues of suggestion, memory, and truthfulness” with respect to SS.

The military judge denied Appellant’s motion to compel, 

holding that the documents sought by Appellant were protected by the psychotherapist-patient privilege under 

M.R.E. 513. The military judge further concluded that Appellant had not provided any evidentiary or legal basis to order 

production of the documents and perform in camera review.

At Appellant’s court-martial, SS testified that she had engaged in self-mutilation and spent time in a mental health 

treatment facility for depression and anxiety in August 2013. 

SS stated that she started spending more time with Appellant 

in the months following her discharge from the mental health 
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Opinion of the Court

4

facility. SS described how Appellant starting sexually abusing her during those encounters, but she struggled to provide 

precise dates for when the abuse occurred. Although Appellant departed for deployment in February 2014, SS testified 

that the sexual abuse escalated when Appellant returned in 

April 2014.

Given the need for the Government to prove beyond a reasonable doubt that Appellant’s alleged misconduct occurred 

before SS’s sixteenth birthday in July 2014, Appellant’s defense counsel focused on SS’s inability to provide specific 

dates for the incidents of abuse and assault during SS’s 

cross-examination. SS repeatedly answered that she didn’t 

know or was not sure when the events she described during 

her direct testimony occurred, a fact that Appellant’s counsel 

highlighted during his closing arguments.

The members, sitting as a general court-martial, convicted 

Appellant of one specification of sexual abuse of a child but 

acquitted him of sexual assault of a child, both offenses under 

Article 120b, UCMJ. The members sentenced Appellant to 

confinement for five years and a dishonorable discharge. The 

convening authority approved the sentence.

Before the NMCCA, both Appellant and the Government 

argued that the military judge erred in holding that medical 

records that revealed SS’s diagnoses and treatments were 

privileged under M.R.E 513. Mellette, 81 M.J. at 691. The 

NMCCA disagreed, holding both that the plain language of 

M.R.E. 513 protected such records and that it would be absurd to conclude otherwise. Id. at 692. The NMCCA further 

held SS had waived the privilege by discussing her mental 

health diagnoses and treatment, including her prescribed 

medications, with her family, with NCIS, and during her civil 

deposition. Id. at 693.1

Having found error, the NMCCA then held that Appellant’s lack of access to the requested information about SS’s 

 

1 Even if SS had not waived the privilege, the NMCCA held in 

the alternative that the military judge abused his discretion in concluding that Appellant had not shown, at the very least, that in 

camera review of the pertinent mental health records was constitutionally required to protect Appellant’s due process and confrontation rights. Mellette, 81 M.J. at 694.
United States v. Mellette, No. 21-0312/NA

Opinion of the Court

5

mental health diagnoses and treatments only prejudiced Appellant with respect to the post-deployment allegations,

which were supported solely by SS’s testimony. Id. at 695–96. 

Because strong corroborating evidence existed for the predeployment allegations, the NMCCA held that the error was 

harmless beyond a reasonable doubt with respect to those 

findings. Id. Accordingly, the NMCCA struck the words “on 

divers occasions” from Appellant’s conviction for sexual abuse 

of a child and reduced Appellant’s sentence to three years of 

confinement and a dishonorable discharge. Id. at 701. 

This Court granted review of the following three issues:

I. M.R.E. 513 extends the psychotherapist-patient 

privilege to a “confidential communication” between 

patient and psychotherapist or assistant. Did the 

lower court err by concluding diagnoses and treatment are also subject to the privilege, invoking the 

absurdity doctrine?

II. Did the NMCCA depart from Supreme Court and 

CAAF precedent by not reviewing the evidence at issue—diagnoses and treatment, including prescriptions—in concluding: (1) the mental health evidence 

was both prejudicial and non-prejudicial; and 

(2) failure to produce it was harmless beyond a reasonable doubt where the unknown evidence could 

have negated the evidence the NMCCA claimed to 

be “overwhelming” evidence?

III. Whether the Court of Criminal Appeals erred by 

holding that [SS] waived the psychotherapist-patient privilege.

Mellette, 82 M.J. at 13–14.

II. Discussion

We granted review of three questions in this case, but our

answer to the first question—whether the patient-psychotherapist privilege established by M.R.E. 513 protects a patient’s diagnoses and treatments from disclosure—moots the 

remaining two. Because we conclude that such records are not 

privileged under M.R.E. 513, we do not reach the second or 

third questions presented.

A. Standard of Review

This Court reviews questions regarding the scope of the 

patient-psychotherapist privilege established by the Military 
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6

Rules of Evidence de novo. United States v. Beauge, 82 M.J. 

157, 162 (C.A.A.F. 2022). When construing those rules, we apply the standard principles of statutory construction. United 

States v. Kohlbek, 78 M.J. 326, 330 (C.A.A.F. 2019). When the 

language of a rule is susceptible to only one interpretation, we 

enforce the rule according to its terms. Id. (citing Hartford 

Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 

1, 6 (2000)). But when a rule’s language is ambiguous, we interpret that language within the broader context of the rule.

Beauge, 82 M.J. at 162.

When interpreting M.R.E. 513, we must also account for

the Supreme Court’s guidance that “[t]estimonial exclusionary rules and privileges contravene the fundamental principle that the public has a right to every man’s evidence,” Trammel v. United States, 445 U.S. 40, 50 (1980) (alteration in 

original removed) (internal quotation marks omitted) (citation omitted), and our own view that “privileges ‘run contrary 

to a court’s truth-seeking function,’ ” United States v. Jasper, 

72 M.J. 276, 280 (C.A.A.F. 2013) (quoting United States v. 

Custis, 65 M.J. 366, 369 (C.A.A.F. 2007)). The Supreme Court 

has further advised that evidentiary privileges “must be 

strictly construed and accepted only to the very limited extent 

that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining 

truth.” Trammel, 445 U.S. at 50 (internal quotation marks 

omitted) (citation omitted); see also Jasper, 72 M.J. at 280 

(recognizing that privileges must be “narrowly construed”).

B. Military Rule of Evidence 513

We begin our analysis, as we must, with the text of the 

rule. M.R.E. 513(a) states:

A patient has a privilege to refuse to disclose and to 

prevent any other person from disclosing a confidential communication made between the patient and a

psychotherapist or an assistant to the psychotherapist, in a case arising under the [UCMJ], if such communication was made for the purpose of facilitating 

diagnosis or treatment of the patient’s mental or 

emotional condition.

By its terms, the rule protects “confidential communication[s]” between a patient and a psychotherapist “made for 
United States v. Mellette, No. 21-0312/NA

Opinion of the Court

7

the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.”2

Although the first question presented asks whether “diagnoses and treatment are also subject to the privilege,” that is 

not precisely the correct query. We have no doubt, and neither 

party disputes, that communications between a patient and a 

psychotherapist involving diagnoses and treatments are privileged and that a medical record could transcribe a communication in such a way to make it privileged. The critical question in this case is whether other evidence that does not 

qualify as a communication between a patient and a psychotherapist—such as a patient’s routine medical records—are 

also protected by the rule. Essentially, the question before us 

is whether “communication[s]” in rule M.R.E. 513(a) should 

be interpreted narrowly to exclude medical records and other 

similar evidence that does not constitute a confidential communication or interpreted broadly to include all evidence that 

in some way reflects, or is derived from, confidential communications. 

The Government argues that the plain language of 

M.R.E. 513(a) protects medical records that contain diagnoses and treatment, but we disagree. The phrase “communication made between the patient and a psychotherapist” does 

not naturally include other evidence, such as routine medical 

records, that do not memorialize actual communications between the patient and the psychotherapist. We must begin 

with the assumption that the President’s specific choice of the 

word “communication” in M.R.E. 513(a)—rather than

broader nouns such as “documents,” “information,” or “evidence”—and the President’s inclusion of the limiting phrase 

“made between the patient and a psychotherapist” have

meaning. Otherwise, nothing would distinguish the language 

of M.R.E 513(a) from a hypothetical, alternative rule that 

 

2 More accurately, the rule protects such communications between a patient and “a psychotherapist or an assistant to the psychotherapist.” M.R.E. 513(a) (emphasis added). To be clear, all references to communications with a psychotherapist in this opinion 

include communications to an assistant to the psychotherapist.
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Opinion of the Court

8

simply protected “documents made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.”

The President has the authority, within the limits of the 

Confrontation Clause, to define the scope of the patient-psychotherapist privilege as broadly as he sees fit. If the President intended M.R.E. 513(a) to broadly protect all patient 

medical records, the President could have used express language that unambiguously reflected that intent. Indeed, 

other jurisdictions have done exactly that. In Florida, for example, the legislature expressly protected mental health patients’ records and diagnoses:

A patient has a privilege to refuse to disclose, and to 

prevent any other person from disclosing, confidential communications or records made for the purpose 

of diagnosis or treatment of the patient's mental or 

emotional condition, including alcoholism and other 

drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis 

made, and advice given, by the psychotherapist in the 

course of that relationship.

Fla. Stat. Ann. § 90.503(2) (West 2018) (emphasis added).3

But here, the President chose a different path, including only 

confidential communications made between the patient and a

psychotherapist with no mention of any other types of 

evidence.

The Government argues that, despite the specific language of M.R.E. 513(a), broader consideration of the entire 

rule makes clear that M.R.E. 513 protects all evidence that 

discloses a patient’s diagnoses and treatment, regardless 

whether that evidence qualifies as a communication made between the patient and the psychotherapist. In support of this 

 

3 See also, e.g., Wyo. Stat. Ann. § 33-38-113(a) (1999) 

(preventing the disclosure of “confidential information, including 

information contained in administrative records”); 740 Ill. Comp. 

Stat. Ann. 110/10(a) (West 2017) (preventing the disclosure of a 

patient’s “record or communications”), Ark. R. Evid. 503(b)

(preventing the disclosure of a patient’s “medical records or 

confidential communications”).
United States v. Mellette, No. 21-0312/NA

Opinion of the Court

9

argument, the Government points to two provisions, 

M.R.E. 513(e)(2) and M.R.E. 513(b)(5). Again, we disagree. 

Neither provision overcomes the plain language of 

M.R.E. 513(a), especially given that we are required to narrowly construe the language of the rule. Trammel, 445 U.S. 

at 50; Jasper, 72 M.J. at 280.

M.R.E. 513(e) establishes a procedure to determine the 

admissibility of patient records or communications. Because 

the rule authorizes a military judge to examine the proffered 

evidence in camera “if such examination is necessary to rule 

on the production or admissibility of protected records or 

communications,” M.R.E. 513(e)(3) (emphasis added), the 

Government argues that the patient-psychotherapist 

privilege must extend to all patient records. We disagree.

Military Rule of Evidence 513(e)(3)—the only provision in 

M.R.E. 513(e) that uses the word “protected”—does nothing 

more than acknowledge the well-established rule that 

documents that are not themselves communications may be 

partially privileged to the extent that those records 

memorialize or otherwise reflect the substance of privileged 

communications. See, e.g., Colton v. United States, 306 F.2d 

633, 639 (2d Cir. 1962) (“Documentary evidence of 

confidential communications is necessarily privileged as 

much as testimonial evidence.”). It does not mean that every

document or record related to the diagnosis or treatment of a 

patient’s mental health is privileged.

Similarly, M.R.E. 513(e)(2) requires a military judge to 

conduct a hearing before ordering the production or admission of “evidence of a patient’s records or communication,” defined as “testimony of a psychotherapist, or assistant to the 

same, or patient records that pertain to communications by a 

patient to a psychotherapist, or assistant to the same, for the 

purposes of diagnosis or treatment of the patient’s mental or 

emotional condition.” M.R.E. 513(b)(5) (emphasis added). The 

Government argues that because all patient records “pertain 

to communications” between the patient and the psychotherapist, they must all be included within the scope of 

M.R.E. 513(a). Again, we disagree. We interpret these provisions as simply recognizing that to the extent testimonial or 

documentary evidence reveals what M.R.E. 513(a) expressly 
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Opinion of the Court

10

protects—confidential communications—they are also partially protected; not, as the Government argues, that the entirety of every patient record is necessarily included within 

the patient-psychotherapist privilege.

The Government also argues that we should interpret 

M.R.E. 513(a) as protecting all patient records related to the 

diagnosis or treatment of a patient’s mental health because 

the textually similar lawyer-client privilege established by 

M.R.E. 502 protects attorney records. This argument is fatally flawed because it disregards the fact that the attorney 

work-product privilege is separate and distinct from the attorney-client privilege. United States v. Nobles, 422 U.S. 225, 

238 n.11 (1975). As defined by the Federal Rules of Evidence, 

attorney-client privilege is “the protection that applicable law 

provides for confidential attorney-client communications,” 

while the work-product protection is “the protection that applicable law provides for tangible material (or its intangible 

equivalent) prepared in anticipation of litigation or for trial.” 

Fed. R. Evid. 502(g)(1)–(2).

This distinction between communications and tangible 

materials (i.e., records and other nontestimonial evidence), is 

also reflected in the Manual for Courts-Martial, United 

States. Although the military’s attorney-client privilege protects “confidential communications made for the purpose of 

facilitating the rendition of professional legal services,” 

M.R.E. 502(a) (emphasis added), an entirely separate provision—Rule for Courts-Martial (R.C.M.) 701(f)—protects attorney-work product. That provision expressly shields from 

disclosure or production “notes, memoranda, or similar working papers prepared by counsel and counsel’s assistants and 

representatives.” Id. Thus, the existence of an entirely separate provision from M.R.E. 502 protecting attorney-work 

product—and the lack of any parallel provision establishing a 

psychotherapist work-product privilege—undermines the 

Government’s argument that M.R.E. 513(a) protects patient 

records. 

Finally, the Government argues that a psychotherapist’s 

diagnoses and treatment of a patient should be protected by 

M.R.E. 513(a) in the same way that an attorney’s legal advice 

is protected by the attorney-client privilege. This argument 

fails because it conflates the content of communications with 
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Opinion of the Court

11

underlying facts. See 1 Paul R. Rice, Attorney-Client Privilege 

in the United States § 5:1 (2014) (“An important but commonly misunderstood limitation of the privilege is that it does 

not protect the information contained within communications 

to the attorney.”); Upjohn Co. v. United States, 449 U.S. 383, 

395 (1981) (“The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts 

by those who communicated with the attorney . . . .”).

As explained by the United States Court of Appeals for the 

Second Circuit in a case where the government prosecutors 

sought answers from witnesses to a series of factual questions 

related to work performed by the corporate defendant’s employees at the direction of their attorneys in preparation for 

litigation:

Although an attorney-client communication is 

privileged and may not be divulged, the underlying 

information or substance of the communication is 

not, as appellants incorrectly believe, so privileged. 

Further, the remaining 19 questions seek 

underlying factual information to which the 

prosecutor is clearly entitled. The factual 

information is not protected by the attorney-client 

privilege just because the information was 

developed in anticipation of litigation.

In re Six Grand Jury Witnesses, 979 F.2d 939, 945 (2d Cir. 

1992) (citation omitted). Even though the answers to the prosecutor’s questions might reveal the substance of the legal advice provided by the defendant’s attorneys, the government 

was still entitled to ask the recipients of the legal advice specific factual questions, such as:

 What analysis did you perform?

 What records did you review?

 What conclusions did your draw?

 What information did you give anyone other 

than an attorney?

 When did you give them this information?

Id. at 946 (Appendix A). This case demonstrates the fundamental principle that the attorney-client privilege prevents

the disclosure of what an attorney advised a client to do, but 
United States v. Mellette, No. 21-0312/NA

Opinion of the Court

12

it does not prevent the disclosure of what the client actually 

did or did not do in response to that advice.

Accordingly, the Government is incorrect in its assertion 

that M.R.E. 513(a) must extend “not just to confidential communications . . . , but also to the underlying diagnoses and 

treatments.” Brief for Appellee at 22, United States v. Mellette, No. 21-0312 (C.A.A.F. Dec. 20, 2021). A patient’s diagnosis and the treatment that a patient received to care for

those conditions are “underlying facts,” Upjohn Co., 449 U.S. 

at 395, not confidential communications. Although 

M.R.E. 513(a) prevents a witness from being required to disclose the substance of the communications between a patient 

and a psychotherapist, it does not extend to all evidence that 

might reveal a patient’s diagnoses and treatments. The 

NMCCA erred in holding otherwise.

It is worth emphasizing that this conclusion is not based 

on our views on the proper scope of the patient-psychotherapist privilege or a belief that the benefits of protecting a patient’s diagnoses and treatment from disclosure fail to “transcend[] the normally predominant principle of utilizing all 

rational means for ascertaining truth.” Trammel, 445 U.S. at 

50 (internal quotation marks omitted) (citation omitted). Instead, our analysis rests solely on the specific text of 

M.R.E. 315(a) and the Supreme Court’s mandate—and our 

own precedent—that states that evidentiary privileges “must 

be strictly construed.” Trammel, 445 U.S. at 50; see Jasper, 

72 M.J. at 280. As the promulgator of the Military Rules of 

Evidence, the President has both the authority and the responsibility to balance a defendant’s right to access information that may be relevant to his defense with a witness’s 

right to privacy. Unless the President’s decision with respect 

to that balance contravenes a constitutional or statutory limitation, we must respect that choice.

C. Remaining Issues

Because we hold that the NMCAA erred when it concluded 

that M.R.E. 513(a) protects all evidence of a mental health 

patient’s diagnoses and treatments from disclosure, we need 

not decide whether SS waived the privilege with respect to 

those topics or whether the NMCCA erred by performing its 
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Opinion of the Court

13

prejudice analysis without examining the undisclosed 

evidence.

D. Remedy

Before trial, Appellant filed a motion to compel production 

and in camera review of “S.S.’s mental health records: to include the dates visited said mental health provider, the treatment provided and recommended, and her diagnosis.” These 

documents were not protected from disclosure by 

M.R.E. 513(a), and as noted by the NMCCA, they involved 

key areas of concern that “go to the very essence of witness 

credibility and reliability—potential defects in capacity to understand, interpret, and relate events.” Mellette, 81 M.J. at 

694 (internal quotation marks omitted) (citation omitted). To 

the extent that these documents existed—and were otherwise 

admissible under the Military Rules of Evidence and the 

Rules for Courts-Martial—they should have been produced or 

admitted subject to the procedural requirements of 

M.R.E. 513(e).

The military judge’s error may have denied Appellant

from reviewing relevant and material evidence before his 

court-martial. Without any way of knowing whether any such 

evidence existed, or if so, how important that evidence might 

have been to Appellant’s defense, we decline to decide 

whether Appellant was prejudiced by this error. Instead, we 

remand to the NMCCA to order a DuBay hearing for the purpose of obtaining any records that were responsive to Appellant’s original motion to compel and determining whether 

those records should have been provided to Appellant prior to 

his court-martial.4 Once all the responsive, relevant, and admissible evidence has been identified, the lower court shall 

determine whether the military judge’s original denial of Appellant’s motion to compel materially prejudiced Appellant’s 

defense pursuant to its authority under Article 66, UCMJ, 10 

U.S.C. § 866 (2012). Following these proceedings, Article 67, 

UCMJ, 10 U.S.C. § 867 (2012), shall apply.

 

4 United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). 

This may require the DuBay military judge to conduct an in camera

review, issue appropriate protective orders, and place portions of 

the record under seal as necessary. See R.C.M. 701(g); R.C.M. 1113.
United States v. Mellette, No. 21-0312/NA

Opinion of the Court

14

III. Conclusion

The decision of the United States Navy-Marine Corps 

Court of Criminal Appeals is reversed. The record is returned 

to the Judge Advocate General of the Navy for remand to the 

lower court for further proceedings consistent with this 

opinion.
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, with whom Judge SPARKS joins, 

dissenting.

The first assigned issue, and the only question that the 

Court decides in this appeal, is whether the United States 

Navy-Marine Corps Court of Criminal Appeals (NMCCA) 

erred in concluding that the psychotherapist-patient privilege 

established by Military Rule of Evidence (M.R.E.) 513 covers 

diagnoses and treatments. This issue is difficult and 

important. Indeed, it has divided the Courts of Criminal 

Appeals. Compare H.V. v. Kitchen, 75 M.J. 717, 719 (C.G. Ct. 

Crim. App. 2016) (holding that the privilege covers diagnoses 

and treatments), and United States v. Mellette, 81 M.J. 681, 

692 (N-M. Ct. Crim. App. 2021) (same), with United States v. 

Rodriguez, No. ARMY 20180138, 2019 CCA LEXIS 387, at 

*7–8, 2019 WL 4858233, at *4 (A. Ct. Crim. App. Oct. 1, 2019) 

(unpublished) (holding that the privilege does not cover 

diagnoses and treatments).

In its thoughtful opinion, the Court determines, with some 

qualifications, that the privilege does not extend to diagnoses 

and treatments and holds that the NMCCA erred in deciding 

otherwise. My analysis is different, leading me to conclude 

that the privilege covers diagnoses and treatments to the 

extent that they reveal what a patient told a psychotherapist 

or a psychotherapist told a patient for the purpose of 

facilitating the diagnosis and treatment of the patient’s 

mental condition. I therefore do not believe that the military 

judge or the NMCCA erred in their resolution of this issue.

The Court’s conclusion with respect to the first assigned 

issue makes it unnecessary for the Court to reach the other 

assigned issues in this case. Because I disagree with the 

Court’s resolution of the first assigned issue, I must go further 

and also address the other assigned issues. For the reasons 

that I present below, although I disagree with some aspects 

of the NMCCA’s opinion in this case, I would affirm that 

court’s judgment. Mellette, 81 M.J. at 701.

I. Background

Prior to the trial in this case, Appellant moved for 

production of the victim’s mental health records, requesting 

information about any “treatment provided and 
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

2

recommended, and her diagnosis.”

1 Appellant sought these 

records for their potential value in cross-examining the victim 

when she testified against him with respect to the sole 

specification at issue in this appeal.2 Appellant asserted that 

this evidence would be “relevant to issues of suggestion, 

memory, and truthfulness.”

The military judge, however, denied Appellant’s motion, 

ruling that the psychotherapist-patient privilege in M.R.E. 

513(a) shielded the records from discovery. Relying on the 

opinion of the United States Coast Guard Court of Criminal 

Appeals (CGCCA) in H.V. v. Kitchen, 75 M.J. at 719, the 

military judge further ruled that even if the records were not 

privileged, they were not discoverable under R.C.M. 703 

because Appellant had failed to show that they were “relevant 

and necessary.” The military judge reasoned that Appellant 

had no basis for believing that any nonprivileged records of 

the kind he sought existed or that such records would not be 

merely cumulative of information that he already had. 

Indeed, the military judge further ruled that there was no 

evidence that the victim might be suffering from a condition 

relevant to issues of “suggestion, memory, and truthfulness.” 

The military judge accordingly concluded that “the defense 

[was] engaged in a ‘fishing expedition.’ ”

The NMCCA partially agreed and partially disagreed with 

the military judge’s ruling. Mellette, 81 M.J. at 688, 691–93. 

The NMCCA’s analysis consisted of four steps relevant to this 

appeal.3 First, the NMCCA held that the psychotherapistpatient privilege in M.R.E. 513(a) covers “diagnoses and 

 

1 Appellant also sought records concerning the dates that the 

victim visited her mental health provider, but the production of 

records concerning these dates is not at issue in this appeal.

2 The sole specification at issue in this appeal alleged that 

Appellant, in violation of Article 120b, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 920b (2012), “did at or near Trenton, 

Florida, on divers occasions, between on or about August 2013 to on 

or about 12 July 2014, commit lewd acts upon [the victim], a child 

who had not attained the age of 16 years.”

3 The NMCCA addressed a possible alternative to the second 

and third steps but discussion of this alternative is not relevant to 

this appeal.
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

3

treatment, including prescribed medications.” Id. at 691–92. 

Second, the NMCCA held that the victim waived this 

privilege under M.R.E. 510(a) by making voluntary 

disclosures of some of her diagnoses and treatments. Id. at 

693. Third, the NMCCA held that the military judge abused 

his discretion in concluding that the requested medical 

records were not “relevant and necessary” under R.C.M. 703 

given that other diagnoses “could impact her credibility” and 

medications could have a “potential for adverse effect on 

memory.” Id. Fourth, the NMCCA held that the military 

judge’s error caused material prejudice to the Appellant by 

limiting how effectively he could challenge the victim’s 

allegations. Id. at 695–96. The NMCCA redressed the error 

by excepting from the specification at issue the words “on 

divers occasions,” but it otherwise affirmed the finding of 

guilt. Id. at 696. In so doing, the NMCCA reasoned that other 

evidence corroborated the victim’s testimony with respect to 

at least one occurrence of the charged offense. Id.

In this appeal, Appellant challenges the first and fourth 

steps of the NMCCA’s reasoning. With respect to the first 

step, Appellant contends that the NMCCA erred in 

concluding that the psychotherapist-patient privilege in 

M.R.E. 513(a) extends to diagnoses and treatments. With 

respect to the fourth step, Appellant argues that the NMCCA 

erred in conducting its prejudice analysis because the 

NMCCA did not conduct an in camera review of the victim’s 

mental health records to determine their content. Appellant 

asks this Court to set aside the NMCCA’s decision and 

remand for a DuBay hearing with respect to the issue of 

prejudice. See United States v. DuBay, 17 C.M.A. 147, 149, 37 

C.M.R. 411, 413 (1967).

The Government, in contrast, generally supports the 

NMCCA’s analysis. But the Government asserts that if we 

choose to revisit the second step of the NMCCA’s analysis, we 

should hold that the NMCCA erred in concluding that the 

victim completely waived her psychotherapist-patient 

privilege. In any event, the Government argues that this 

Court should affirm the adjudged and approved findings and 

sentence.

In my view, the NMCCA chose the correct four-step

framework for deciding this case and its decision should be 
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

4

affirmed. I also generally agree with the NMCCA’s reasoning 

in these steps. But that said, I would qualify the NMCCA’s 

conclusions as follows:

With respect to the NMCCA’s first conclusion, I agree 

that the psychotherapist-privilege in M.R.E. 513(a) covers 

diagnoses and treatments but only to the extent that they 

reveal confidential communications between the patient and 

psychotherapist that were made for the purpose of diagnosing 

or treating the patient’s mental condition. 

With respect to the NMCCA’s second conclusion, I agree 

that the victim in this case waived her psychotherapistpatient privilege but only with respect to the communications 

containing the information that she revealed.

With respect to the NMCCA’s third conclusion, I agree 

that the military judge erred in denying production of the 

victim’s medical records but only to the extent that he denied 

production of the narrow class of records that contained 

communications about diagnoses and treatments with respect 

to which the victim previously had waived her privilege.

With respect to the NMCCA’s fourth conclusion, the 

qualifications above cause my prejudice analysis to differ 

somewhat from the analysis of the NMCCA. Unlike the 

NMCCA, I conclude that any error did not prejudice 

Appellant. Having reached that determination, I conclude 

that regardless of whether the NMCCA’s remedial measure 

(i.e., excepting the words “on divers occasions” from the 

specification at issue) was required for addressing an error 

with respect to M.R.E. 513(a), no further remedy is necessary. 

II. Standards of Review

Several different standards of review apply to this case. 

This Court must uphold the military judge’s findings of fact 

unless they are clearly erroneous. United States v. Mosby, 56 

M.J. 309, 310 (C.A.A.F. 2002). Issues about the meaning of 

evidentiary rules such as M.R.E. 510(a) and M.R.E. 513(a) are 

questions of law that this Court must decide de novo. United 

States v. Matthews, 68 M.J. 29, 35–36 (C.A.A.F. 2009). This 

Court reviews a military judge’s denial of production of 

evidence under M.R.E. 703(e)(1) for abuse of discretion. 

United States v. Mosley, 42 M.J. 300, 303 (C.A.A.F. 1995). 
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

5

Finally, “[w]e review prejudice determinations under a de 

novo standard of review.” United States v. Ward, 74 M.J. 225, 

227 (C.A.A.F. 2015) (citing United States v. Diaz, 45 M.J. 494, 

496 (C.A.A.F. 1997)).

III. Discussion

Following the framework of the NMCCA’s opinion, I 

address the following issues: (A) the application of the 

psychotherapist-patient privilege in M.R.E. 513(a) to 

diagnoses and treatments; (B) the victim’s possible waiver of 

the psychotherapist-patient privilege under M.R.E. 510(a); 

(C) Appellant’s right to production of records under R.C.M. 

703; and (D) the prejudice to Appellant under Article 59(a), 

UCMJ, 10 U.S.C. § 859(a).

A. Application of the Psychotherapist-Patient Privilege in

M.R.E. 513(a) to Diagnoses and Treatments

M.R.E. 513(a) creates an evidentiary privilege that 

protects from disclosure certain communications between a 

patient and a psychotherapist.

4 The rule states in relevant 

part: 

A patient has a privilege to refuse to disclose and to 

prevent any other person from disclosing a 

confidential communication made between the 

patient and a psychotherapist . . . if such 

communication was made for the purpose of 

facilitating diagnosis or treatment of the patient’s 

mental or emotional condition.

M.R.E. 513(a).

This Court interprets the M.R.E., including those rules 

establishing privileges, according to their plain meaning. 

Matthews, 68 M.J. at 38. Although the Supreme Court strictly 

construes federal common law privileges to limit their 

application, Trammel v. United States, 445 U.S. 40, 50 (1980), 

this practice has no clear application to the interpretation of 

codified privileges. 25 Charles Alan Wright & Kenneth W. 

Graham, Jr., Federal Practice and Procedure: Evidence

 

4 M.R.E. 513(b)(2) defines the term “[p]sychotherapist” in part 

to include “a psychiatrist, clinical psychologist, clinical social 

worker, or other mental health professional who is licensed . . . to 

perform professional services.”
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

6

§ 5586, at 715 (1989) (explaining that Trammel does not affect 

the meaning of privileges codified in statutes). Consistent 

with this view, this Court has not construed privileges in the 

M.R.E. to be more limited than what their text provides. See

United States v. Custis, 65 M.J. 366, 369 (C.A.A.F. 2007) 

(declining to create an exception to M.R.E. 504 by departing 

from the rule’s text notwithstanding what the Supreme Court 

said in Trammel). 

In this case, the parties’ dispute over the meaning of 

M.R.E. 513(a) is simply summarized. Appellant argues 

that the psychotherapist-patient privilege covers 

“communication[s] . . . made for the purpose of facilitating 

diagnosis or treatment” but does not extend to the diagnosis 

and treatment themselves. Relying on the opinion of the 

United States Army Court of Criminal Appeals in Rodriquez, 

2019 CCA LEXIS 387, at *7–8, 2019 WL 4858233, at *4, 

Appellant contends that the plain meaning of M.R.E. 513’s 

text supports this conclusion. The Government responds that 

diagnoses and treatments are privileged. Quoting the 

CGCCA’s opinion in H.V. v. Kitchen, 75 M.J. at 719, the 

Government argues that “ ‘diagnoses and the nature of 

treatment necessarily reflect, at least in part, the patient’s 

confidential communications to the psychotherapist’ because 

‘[m]ost diagnoses of mental disorders rely extensively on what 

the patient has communicated to the psychotherapist.’ ” 

(Alteration in original.) The Government further contends 

that diagnoses and treatment are part of the confidential 

communications that a psychotherapist makes to facilitate 

treatment.

In my view, the text of M.R.E. 513 supports the view of the 

Government and the H.V. v. Kitchen opinion. M.R.E. 513(a) 

grants a patient a privilege to prevent anyone from 

“disclosing” a confidential communication between the 

patient and a psychotherapist that was made for the purpose 

of facilitating diagnosis or treatment of the patient’s mental 

condition. Key to interpreting this provision is a careful 

consideration of how someone might “disclose” a covered 

communication. In general, the verb “to disclose” means “to 

reveal in words (something that is secret or not generally 

known).” Merriam–Webster Unabridged Dictionary https://

unabridged.merriam-webster.com/unabridged/disclose (last 
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

7

visited July 26, 2022). The central question here is whether 

M.R.E. 513(a) addresses only complete and verbatim 

disclosures of covered communications or instead addresses

any disclosures of such communications.

M.R.E. 513(a) certainly empowers a patient to prevent a 

complete and verbatim disclosure of a covered 

communication. For example, the patient could prevent the 

psychotherapist from releasing either the original copy or a 

photocopy of a confidential written communication between 

the psychotherapist and the patient that was made for the 

purpose of facilitating the diagnosis or treatment of the 

patient’s condition. Similarly, if the covered communication 

was made orally, the patient could prevent the 

psychotherapist from releasing a video or audio recording or 

a transcription of the communication. Such acts would be 

disclosures within the meaning of M.R.E. 513(a) because they 

would reveal the covered communications.

But R.C.M. 513(a) does not qualify the term “disclosing” 

in such a way that the privilege only allows a patient to 

prevent someone from disclosing a complete and verbatim 

record of a covered communication. A partial or nonverbatim 

disclosure is still a disclosure so long as it reveals some of 

what would otherwise be secret. Accordingly, a patient may 

use the privilege in R.C.M. 513(a) to prevent the 

psychotherapist from disclosing notes of what was discussed 

during covered communication, even if those notes are not 

necessarily a complete and verbatim transcript of what was 

said. See United States v. Beauge, 82 M.J. 157, 159–60 

(C.A.A.F. 2022) (holding that the military judge did not abuse 

his discretion in denying the appellant’s motion for in camera 

review of the victim’s psychiatric records including “the 

psychotherapist’s notes”). Similarly, the privilege allows a 

patient to prevent a psychotherapist from testifying about 

what he or she remembered was said in a covered 

communication, even if the psychotherapist could not 

necessarily recollect the exact words that were uttered. See

United States v. Jenkins, 63 M.J. 426, 428 (C.A.A.F. 2006) 

(assuming that a psychotherapist’s testimony was covered by 

R.C.M. 513(a) but determining that it fell within the 

exceptions in M.R.E. 513(d)(4) and (6)).
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

8

Much like a nonverbatim summary or recollection, a 

diagnosis or treatment also may provide some evidence of 

what a patient confidentially told the psychotherapist or what 

the psychotherapist confidentially told the patient for the 

purpose of treating the patient’s mental condition. As a U.S. 

district court explained in Stark v. Hartt Transportation 

Systems, Inc., “[a] person’s mental health diagnoses and the 

nature of his or her treatment inherently reveal something of 

the private, sensitive concerns that led him or her to seek 

treatment and necessarily reflect, at least in part, his or her 

confidential communications to the psychotherapist.” 937 F. 

Supp. 2d 88, 91 (D. Me. 2013); see also H.V. v. Kitchen, 75 M.J. 

at 719 (citing and following Stark). Or as another U.S. district 

court explained in United States v. White, “[a] party armed 

with knowledge of a patient’s diagnosis will be able to make 

an educated guess about the substance of the communications 

that gave rise to the diagnosis.” Criminal Action No. 2:12-cr00221, 2013 U.S. Dist. LEXIS 49426, at *23, 2013 WL 

1404877, at *7 (S.D.W.Va. Apr. 5, 2013), rev’d sub nom.

Kinder v. White, 609 F. App’x 126, 131 (4th Cir. 2015) 

(agreeing with the trial court that the records of a diagnosis 

were privileged but overruling its determination that an 

exception to the privilege applied). In other words, disclosing 

a diagnosis or a treatment may reveal what the patient said 

to the psychotherapist or what the psychotherapist said to the 

patient for the purpose of facilitating treatment of the 

patient’s mental condition.

Accordingly, I would hold that a record of a patient’s 

diagnosis is privileged to the extent that its disclosure would 

reveal what the patient confidentially told the 

psychotherapist or what the psychotherapist confidentially 

told the patient for the purpose of diagnosing or treating the 

patient’s mental condition. For example, a record containing 

a diagnosis of anxiety or depression would be privileged to the 

extent that disclosure of the diagnosis reveals, even if only 

indirectly, that the patient told the psychotherapist that the 

patient was anxious or depressed for the purpose of obtaining 

treatment. Likewise, I would hold that a treatment is 

privileged to the extent that its disclosure would reveal what 

the psychotherapist confidentially told the patient or what 

the patient confidentially told the psychotherapist for the 
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

9

purpose of diagnosing or treating the patient’s mental 

condition. For example, a record showing that the 

psychotherapist prescribed a regimen of counseling or 

medication would be privileged to the extent that disclosing 

the treatment regimen provides some evidence about what 

the psychotherapist confidentially told the patient for the 

purpose of treating the patient’s mental condition.5

Similar questions about what constitutes a disclosure 

have arisen with respect to other privileges. A leading treatise 

notes that “[a]n important question about the power of the 

client to prevent disclosure of attorney-client 

confidences . . . is whether the privilege bars circumstantial 

as well as direct evidence of attorney-client communications.” 

24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal 

Practice and Procedure: Evidence § 5489, at 424 (1986). Some 

courts have reasoned, correctly in my view, that a “lawyer’s 

papers should be privileged if they would be circumstantial 

evidence of the client’s communication” under the attorneyclient privilege. Id. § 5491, at 459; see also 24 Charles Alan 

Wright, Kenneth W. Graham, Jr. & Ann Murphy at 318 n.89 

(1986 & Supp. 2022) (citing cases). Likewise, although the 

government deliberations privilege generally does not cover 

portions of documents that contain only facts, the privilege 

will cover factual “material [that] is so inextricably 

intertwined with the deliberative sections of documents that 

its disclosure would inevitably reveal the government’s 

deliberations.” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 

1997).

In this case, as explained above, Appellant moved for 

production of the victim’s mental health records, requesting 

information about any “treatment provided and 

 

5 Communications from a psychotherapist to a patient about a 

diagnosis or treatment might be beneficial or even required. After 

observing that “psychiatrists often have to break difficult news to 

patients,” the author of one peer-reviewed study discusses both the 

“negative and positive effects of disclosing the diagnosis to 

patients.” Michelle Cleary et al., Delivering Difficult News in 

Psychiatric Settings, 17 Harv. Rev. Psychiatry 315, 319 (2009). 

Such disclosures, the author asserts, may facilitate treatment by 

providing patients the benefits of “increased insight into their 

symptoms, ability to access treatment, and plans for the future.” Id.
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

10

recommended, and her diagnosis.” To the extent that any 

such records containing a diagnosis and treatment would 

reveal what the victim confidentially told her psychotherapist 

or the psychotherapist confidentially told the victim for the 

purpose of facilitating her diagnosis and treatment, they are 

privileged. Such records are not discoverable.

But what about possible records containing diagnoses and 

treatments that somehow disclose nothing about the 

confidential communications between the victim and her 

psychotherapist? The answer is twofold. First, if any such 

records somehow existed, they would not be privileged under 

R.C.M. 513. Second, as the military judge recognized, they 

still would not necessarily be discoverable. Under R.C.M. 

703(e)(1), the accused “is entitled to the production of 

evidence which is relevant and necessary.” To obtain an order 

of production under this rule, the accused must show more 

than a mere prospect or possibility that a production order 

will yield relevant and necessary evidence. “[T]he defense, as 

the moving party, . . . [is] required as a threshold matter to 

show that the requested material exist[s].” United States v. 

Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004).

In this case, the military judge found that “the defense has 

offered some evidence that the records might include an 

additional diagnosis.” But the military judge concluded that 

the defense “has offered no factual basis upon which to 

conclude the records would yield evidence admissible under 

M.R.E. 513.” I agree with the military judge’s assessment. 

Appellant has not provided any reason for this Court to 

believe that the victim’s mental health records contain any 

information about diagnoses and treatments that do not 

reveal what the victim confidentially told her psychotherapist 

or what the psychotherapist confidentially told the victim for 

the purpose of facilitating her diagnosis or treatment. And 

even if the records somehow might exist, I agree with the 

military judge’s assessment that such records would not be 

“reasonably segregable from records of communications 

between [the victim] and her mental health providers.” 

Appellant in this case has not suggested any method by which 

a military judge could decide whether a diagnosis or 

treatment provides evidence of their confidential 
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

11

communications.

6 For these reasons, Appellant has not 

shown that he is entitled to the records or even an in camera 

review of the records.

B. Waiver of the Privilege Under M.R.E. 510(a)

Under M.R.E. 510(a), a party may waive the protection of 

the psychotherapist-patient privilege. This provision states in 

relevant part: 

A person upon whom these rules confer a privilege 

against disclosure of a confidential matter or 

communication waives the privilege if the person or 

the person’s predecessor while holder of the privilege 

voluntarily discloses or consents to disclosure of any 

significant part of the matter or communication 

under such circumstances that it would be 

inappropriate to allow the claim of privilege.

M.R.E. 510(a). Appellant argues that the victim waived 

whatever privilege she may have had by voluntarily revealing 

numerous details about her mental health in a deposition, in 

an interview with agents of the Naval Criminal Investigative 

Service, and in an interview with trial counsel. The 

Government responds that when the victim disclosed some of 

her diagnoses and treatments, she waived her privilege only 

for “that particular communication” between her and her 

psychotherapist that “included the diagnoses and treatments 

that she disclosed.”

I agree with the Government because its argument 

accords with the text of both M.R.E. 510(a) and M.R.E. 513(a). 

Although M.R.E. 510(a) states a general waiver rule 

applicable to any disclosure of a privileged “matter or 

communication,” M.R.E. 513(a) provides a privilege only for 

“communication[s],” not for “matters.” Thus, the test for 

waiver of the psychotherapist-patient privilege in M.R.E. 

513(a) is not whether the patient talked about her mental 

health in general, but is instead whether she disclosed a 

“significant part” of a particular privileged “communication.” 

 

6 Perhaps in other cases, the record might contain evidence that 

would allow a military judge to make such a decision. For example, 

a psychotherapist might testify that he or she made a diagnosis 

without relying on confidential communications with the patient for 

the purpose of treating the patient’s mental condition.
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

12

See Custis, 65 M.J. at 371 (holding that under M.R.E. 510(a), 

the appellant did not waive the spousal privilege because a 

“comment to his coworker did not relay either the actual 

conversation between Appellant and his wife or the substance 

of the privileged communications between Appellant and his 

wife”).

The NMCCA appears to have missed this distinction when 

it concluded that the victim waived her psychotherapistpatient privilege when she “openly discussed her mental 

health matters with multiple people on multiple occasions.” 

Mellette, 81 M.J. at 693 (emphasis added). The NMCCA 

instead should have determined whether particular 

disclosures by the victim waived her privilege with respect to 

particular communications. In my view, because the NMCCA 

did not follow this approach, it overstated the victim’s waiver 

of her privilege in this case.

Under M.R.E. 510(a), when the victim disclosed evidence 

of her diagnosis and treatment for two mental health 

conditions (hereinafter the “two disclosed conditions”), she 

waived the privilege over her psychotherapist’s 

communications to her about the diagnoses and treatments 

with respect to these two disclosed conditions. The victim, 

however, did not waive her privilege over other 

communications—including other communications that 

might have led to additional diagnoses and treatments. As 

discussed immediately below, this important distinction 

affects the analysis of the necessity of producing records 

containing communications for which the privilege was 

waived.

C. Production of Records Under R.C.M. 703(e)(1)

Under R.C.M. 703(e)(1), a “party is entitled to the 

production of evidence which is relevant and necessary.” 

Under R.C.M. 703(f), an accused seeking production of an 

item of evidence must “include a description of [the] item 

sufficient to show its relevance and necessity.” The military 

judge, in my view, did not abuse his discretion in concluding 

that Appellant could not meet these requirements in seeking 

records of diagnoses and treatments for possible conditions 

other than the two that the victim had disclosed. Although 

Appellant “offered some evidence that the [psychotherapist’s] 
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

13

records might include an additional diagnosis,” the military 

judge concluded that the defense “has offered no factual basis 

upon which to conclude the records would yield evidence 

admissible under M.R.E. 513.” See Rodriguez, 60 M.J. at 246 

(holding that, where the appellant “did not carry his burden 

as the moving party to demonstrate that the [evidence] he 

requested existed,” he could not show it was relevant or 

necessary). To the extent the NMCCA ruled otherwise, I

disagree.

But in my view, the military judge did abuse his discretion 

in denying production of records containing diagnoses and 

treatments for the two disclosed conditions. These records 

were not privileged because the victim waived her privilege 

with respect to them. And even if such records would be 

mostly cumulative, I agree with the NMCCA that they were 

still subject to production under R.C.M. 703, to “confirm [the 

victim’s] stated diagnoses” and “prescribed medications, not 

all of which she could remember the names of.” Mellette, 81

M.J. at 693. 

D. Prejudice Under Article 59(a), UCMJ

In the foregoing discussion, I have concluded that the 

military judge abused his discretion in not ordering the 

production of records concerning the victim’s diagnoses and 

treatments with respect to two disclosed conditions. The final 

question is whether this abuse of discretion materially 

prejudiced Appellant under Article 59(a), UCMJ. I conclude 

that it did not.

When assessing prejudice for nonconstitutional errors, 

this Court weighs “(1) the strength of the Government’s case, 

(2) the strength of the defense case, (3) the materiality of the 

evidence in question, and (4) the quality of the evidence in 

question.” United States v. Kohlbek, 78 M.J. 326, 334

(C.A.A.F. 2019) (internal quotation marks omitted) (citations 

omitted). Here, although the first two factors do not strongly 

favor either party, I do not believe the materiality and quality 

of the evidence are such that the error could have 

substantially impacted the findings. As explained above, 

Appellant already knew from the victim’s own statements 

that she had been diagnosed with the two disclosed conditions 

and had received treatments for them. Her mental health 
United States v. Mellette, No. 21-0312/NA

Judge MAGGS, dissenting

14

records might have provided confirmation of what the victim 

disclosed. But the record of trial provides no suggestion that 

having such mental health records would have benefitted 

Appellant at trial.

After the victim testified, trial defense counsel crossexamined and then recross-examined her. During these crossexaminations, trial defense counsel never asked the victim 

about her two disclosed conditions. Unless trial defense 

counsel erred (which Appellant has not alleged), then the 

most reasonable inference is that trial defense counsel 

believed that the two disclosed conditions were not “relevant 

to issues of suggestion, memory, and truthfulness.” And if 

they are not so relevant, then I cannot see how additional or 

confirmatory communications about those two disclosed 

conditions would have made a difference.

The NMCCA believed that there was prejudice but that 

the appropriate remedy for addressing the prejudice was to 

except from the specification at issue the words “on divers 

occasions.”

7 Because I would not have awarded any remedy 

for the failure to produce the medical records, I easily 

conclude that Appellant is not entitled to any additional 

remedy.

IV. Conclusion

For the foregoing reasons, I would affirm the decision of 

the United States Navy-Marine Corps Court of Criminal 

Appeals.

 

7 The NMCCA also based its decision to except this language 

because some of the evidence purporting to support it was improper 

opinion testimony. Mellette, 81 M.J. at 698.