Petition for Writ of Certiorari — Farrell-Francis v. United States

D 8 „ 2 1.8.

001278 FER -5 20

No. Urtitc OF THE CLERK

IN THE

Supreme Court of the United States

AIRMAN BASIC (E-1) MARILYN M. FARRELL-

FRANCIS, Petitioner

D.

UNITED STATES OF AMERICA, Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeal for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

JEFFREY A. VIRES

Major, U. S. Air Force

Air Force Legal Services Agency

Counsel of Record

JAMES R\WISE TIMOTHY W. MURPHY

Counsel for Petitioner Counsel for Petitioner

Colonel, U.S. Air Force Lt Colonel, U.S. Air Force

Air Force Legal Services Agency Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB D.C. 20332-8000

(202) 767-1563

February 2001

=

QUESTION PRESENTED!

\

Whether the United States Court of Appeals for the

Armed Forces erred in holding that this Honorable

Court’s recognition of a psychotherapist-patient

privilege in Jaffee v. Redmond, 518 U.S. 1 (1996) did

not apply to military courts-martial, despite the

language of Article 36, U.C.M.J. [10 U.S.C. § 836],

Mil.R.Evid. 101(b) and 501(a)(4), providing that rules

of evidence generally recognized in the trial of

criminal cases in the United States district courts

shall apply.

This same question is presented in the petition for a writ of

certiorari filed on December 20, 2000 with this Honorable in the

case of United States v. Rodriguez, No. 00-1038.

***

TABLE OF CONTENTS

Page

QUESTIONED PRESENTED ii

TABLE OF AUTHORITIES v

OPINIONS BELOW 1

JURISDICTION 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 1

STATEMENT OF THE CASE 2

Facts 2

Proceedings Below 3

REASON FOR GRANTING THE WRIT 7

Summary 7

Source of Presidential Authority to Prescribe Rules

for Courts-Martial 7

The President's Exercise of his Authority to

Prescirbe Rules for Courts-Martial 8

The Preemption and Frustration of Presidential

Authority by the United States Court of Appeals

for the Armed I rces 11

CONCLUSION 15

APPENDIX A

(Opinion of the United States Court of Appeals for

the Armed Forces) , la

iv

APPENDIX B

(Opinion of the United States Air Force Court of

Criminal Appeals) . — os 2a

APPENDIX C

Relevant Constitutional and Statutory

Provisions 3a

Vv

TABLE OF AUTHORITIES

Page

United States Constitution

Art. II, 82 7, 3a

Federal Statute

10 U.S.C. 8 836 [Article 36, U. C. M. J.. . 7, 8, 13, 14, 2a

10 U.S.C. § 858 (b) [Article 58b, U. C. M.]. 3

10 U.S.C. 5886 [Article 86, U. C. M.]. r

10 U.S.C. § 912a [Article 112a, U. C. M.]. 3

Supreme Court Cases:

Jaffee v. Redmond, 518 U.S. 1 (1996). passim

Swindler & Berlin v. United States, 524 U.S. 399

(1998) 9

Federal Circuit Cases:

In re Doe, 964 F.2d 1325 (2d Cir. 1992)... . .. 10

In re Zuriga, 714 F.2d 632 (6% Cir. 1983) 10

United States v. Glass, 133 F.3d 1356

(10% Cir. 1998) 10

United States v. Schwenson, 151 F.3d 650 (7 Cir.

1998) 10

Federal Rules of Evidence

Fed.R.Evid. 501 9, 10, 13

Military Cases:

United States v. English, 47 M.]. 215 (1997) . 11, 12

United States v. Flack, 47 M. J. 415 (1996). 12

vi

Executive Orders:

Executive Order No. 12473, 49 Fed. Reg. 17,152

(1984), as amended. ..... 8

Executive Order No. 13140, 64 Fed. Reg. 55,115

1999) 13, 14

Manual for Courts-Martial

App. 22, Analysis, Mil. R. Evid. 9a-12a

Mil.R.Evid. 101 8-8, 12, 14

Mil.R.Evid. 501.. passim

Mil.R.Evid. 513 5, 6, 13, 14, 4a-8a

The petitioner, Airman Basic Marilyn Farrell-

Francis, respectfully prays that a writ of certiorari

issue to review the order and judgment of the United

States Court of Appeals for the Armed Forces entered

in her case on November 16, 2000.

OPINIONS BELOW

The order and judgment of the United States

Court of Appeals for the Armed Forces, United States

v. Farrell-Francis, USCA Dkt. No. 00-0280/AF, is

located at Appendix A. The unpublished opinion of

the United States Air Force Court of Criminal

Appeals (No. ACM 32907, December 7, 1999) is

located at Appendix B.

JURISDICTION

The judgment of the United States Court of

Appeals for the Armed Forces was entered on

November 16, 2000.1 The jurisdiction of this Court is

invoked under 28 U.S.C. § 1259(3) (West Supp. 1999)

and 10 U.S.C. § 867(a)(3) (West Supp. 1999).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant portions of the Constitution, the

Uniform Code of Military Justice (U. C. M. J.), and the

Manual for Courts-Martial (M. C. M.) are set forth in

Appendix C, p. 7a-25a.

Appendix A, p. Ia.

2

STATEMENT OF THE CASE

Facts:

The Petitioner did not report to work on

Thursday, January 9, 1997; Friday, January 10, 1997; or

Monday, January 13, 1997, as scheduled. On January

10, 1998, the Petitioner made a telephone call to the

Kimball Medical Center in Lakewood, New Jersey.

She called because she was seeking mental health

assistance for her depression, suicidal thought, and

financial and marital stress. On January 13, 1997,

during the day shift, the petitioner again

telephonically contacted the Kimball Medical Center

and indicated that she was seeking help for

depression and the stressors of her pending divorce.

After she made the phone call, the petitioner went to

the Kimball Medical Center seeking hospitalization

and psychiatric help for her depression and anxiety.

Upon her arrival at the medical center, the petitioner

went to see a triage nurse because of a self-inflicted

cut on her wrist.

After reviewing the triage nurse’s notes,

Jennifer O’Hearns, a psychiatric emergency screener,

spoke to the petitioner. Miss O’Hearns and the

petitioner discussed the reasons for her telephone

calls, her suicide attempt and the cut on her wrist,

whether she was still suicidal and some of her

depressive symptoms as part of a full mental status

exam of the petitioner, which included, inter alia,

substance abuse. Prior to discussing the petitioner's

history of substance abuse, Miss O’Hearns did not

explain confidentiality issues to the petitioner, and

the petitioner did not ask any such questions. The

3

petitioner told Miss O’Hearns that she had

used cocaine just once that week. After discussing

her recent drug use, the petitioner expressed a

concern to Miss O’Hearns about confidentiality.

Miss O’Hearns told the petitioner not to worry

because the medical records could only be obtained

with a subpoena or through a hospital to hospital

transfer. It is customary for such records to be

transferred with the patient when the patient

transfers to another medical facility. The petitioner

was transferred to a military facility on January 17,

1997.

Proceedings below:

On May 13-15, 1997, the Petitioner was tried by

a general court-martial convened at McGuire Air

Force Base, New Jersey. Contrary to her pleas, the

petitioner was found guilty of one specification of

being absent without authority from her unit and one

specification of the wrongful use of cocaine, in

violation of Articles 86 and 112a, respectively, of the

Uniform Code of Military Justice [hereinafter cited as

U. C. M. J.] (10 U.S.C. §§ 886 and 912a). All her offenses

were alleged to have occurred between January 1-14,

1997. She was sentenced to a bad conduct discharge

and confinement for 18 months. Pursuant to Article

58b, U.C.MJ. (10 U.S.C. §858b), the convening

authority waived $750.00 pay per month of the

required forfeitures for a period of six months to be

paid for the benefit of her three minor children.

The petitioner made a motion a trial to

suppress her drug use admission to Ms O’Hearn. The

basis of the motion was this Honorable Court's ruling

4

in Jaffee v. Redmond?, which recognized a

common law psychotherapist-patient privilege in

federal judicial proceedings. The trial judge denied

the motion and ruled the Jaffee decision did not

create a psychotherapist-patient privilege in the

military under the common law or the Military Rules

of Evidence.

On appeal to the Air Force Court of Criminal

Appeals, the petiticner argued the trial judge erred

by not granting her motion to suppress her admission

of cocaine use on the basis of this Honorable Court's

decision in Jaffee. On December 7, 1999, the Air Force

Court of Criminal Appeals affirmed the findings and

sentence as adjudged. (Appendix B). The Air Force

Court of Criminal Appeals held that the trial judge

did not abuse his discretion nor did he err when he

denied the petitioner's motion to suppress her

admission to Ms. O’Hearn, stating that Mil.R.Evid.

501(d) does not set forth a physician-patient privilege

in a court-martial, and declining to create a

psychotherapist-patient privilege in the petitioner's

case.

On September 20, 2000, the United States Court

of Appeals for the Armed Forces granted review on

the following issues:

I. WHETHER THE MILITARY

JUDGE ERRED BY NOT

GRANTING THE DEFENSE

MOTION TO SUPPRESS

APPELLANT’S ADMISSION OF

518 U.S. 1 (1996).

ee me

5

COCAINE USE BASED ON

THE ERRONEOUS FINDING

THAT THE

PSYCHOTHERAPIST-PATIENT

PRIVILEGE WAS NOT

APPLICABLE AT COURTS-

MARTIAL.

II. WHETHER THE MILITARY

JUDGE ERRED BY NOT

GRANTING APPELLANT'S

MOTION TO SUPRESS THE

RESULTS OF HER URINALYSIS

TEST FOR LACK OF PROBABLE

CAUSE.

On November 16, 2000, the United States Court

of Appeals for the Armed Forces affirmed the

decision below, citing their decision in United States

v. Rodriguez. The question presented in this petition

is based on the first issue granted by the Court of

Appeals for the Armed Forces. In Rodriguez, Court of

Appeals for the Armed Forces held that a

psychotherapist-patient privilege was not applicable

to trials by courts-martial prior to November 1, 1999,

the effective date of Mil.R. Evid. 513. Crawford, C. J.,

joined by Effron, J., found a psychotherapist-patient

privilege at the time of the petitioner’s court-martial

contrary to and inconsistent with Mil.R.Evid. 501(d),

which stated there was no physician-patient privilege

in trials by courts-martial. The Court considered the

President's adoption of Mil.R.Evid. 513 on October 6,

1999, effective for “communications made after 1

> 54 M. J. 156 (2000).

6

November 1999”4, demonstrated the

President’s commitment to occupy the filed by: (1)

not relying on Mil.R.Evid. 501(a)(4); and (2) adopting

a Rule that does not literally incorporate Jaffee.

Sullivan, J., concurring in part and concurring

in the result, supported the plurality’s opinion as it

related its decision that Mil.R.Evid. 501(d) at the time

of the petitioner’s statements and trial precluded a

privilege for statements made to a physician. Even if

Jaffee created a pyschotherapist-patient privilege in

trials by court-martial prior to the effective date of

Mil.R.Evid. 513, Judge Sullivan would have found

the appellant’s statements to fall within an exclusion

for instances in which the psychotherapist believes a

patient’s mental or emotional condition makes that

patient a danger to herself or others.

Gierke, J., joined by Cox, Senior J., dissenting,

followed this Honorable Court’s decision in Jaffee,

and found no justification in law or policy denying

the petitioner this common law privilege. Their

decision focused on the language in Jaffee

emphasizing the difference between “physicians”

and “psychotherapists”, as well as the plain language

of the rules, of course.

4 64 Fed. Reg. 55120.

REASON FOR GRANTING THE WRIT

Summary

The psychotherapist-patient privilege became

applicable to trials by courts-martial as a result of this

Honorable Court's decision in Jaffee. The President

determined that the federal common law provisions,

with certain inapplicable exceptions, may be claimed

by an accused in a court-martial. Despite the fact that

the decision to recognize a privilege rests with the

President, the United States Court of Appeals for the

Armed Services has created its own rules for courts-

martial that are directly contrary to the rules properly

promulgated by the President. This Honorable Court

should exercise its supervisory power to ensure that

the Court of Appeals for the Armed Services does not

preempt and frustrate the constitutional and statutory

scheme that empowers the President to determine the

evidentiary rules for courts-martial.

Source of Presidential Authority to Prescribe Rules for

Courts-Martial

The President's authority to prescribe the rules

for courts-martial is derived from both the

Constitution and from congressional enactment. The

Constitution establishes that the President is the

Commander in Chief of the armed forces.5 Under

Article 36, U.C.M.J. [10 U.S.C. § 836], Congress

expressly granted to the President the authority to

5 U.S. Const., Art. II, § 2.

8

promulgate rules of evidence for trials by

courts-martial. Congress, however, mandated that

when exercising this authority to promulgate

evidentiary rules, the President “shall, so far as he

considers practicable, apply the principles of law and

the rules of evidence yea recognized in the trial

of criminal cases in the United States district courts,

but which may not be contrary to or inconsistent with

[the U.C.M.J.]”6

The President’s Exercise of his Authority to Prescribe

Rules for Courts-Martial

By his authority pursuant to 10 U.S.C. § 836(a),

the President promulgated the Military Rules of

Evidence’, which are set forth in the Manual for

Courts-Martial, United States, 1984. Mil.R.Evid.

101(b) provides:

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,

courts-martial shall apply:

(1) First, the rules of evidence

generally recognized in the trial of

criminal cases in the United States

district courts; and

© Article 36, U. C. M. J. [10 U.S.C. § 836(a)]} —

Executive Order No. 12473, 49 Fed. Reg. 17,152 (1984), as

amended.

—: . . —˖*. 0,0

9

(2) Second, when not

inconsistent with subdivision (b)(1), the

rules of evidence at common law.

Mil.R.Evid. 501(a)(4) provides that a person

may not claim a privilege with respect to any matter

except as required by or provided for in:. .”(t)he

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.”

As the language of Mil.R.Evid. 501 indicates,

Fed.R.Evid. 501 does not specifically enumerate

which privileges are applicable in the federal courts,

but instead provides that evidentiary privileges are

common law principles as interpreted in the United

States district courts. Therefore, it is necessary to

examine whether the courts of the United States have

recognized a particular privilege under F.R.Evid. 501

to determine whether a common law privilege

applies to courts-martial by application of

Mil. R. Evid. 501 (a) (4).

This Honorable Court's decision in Jaffee v.

Redmond, recognized a common law

psychotherapist-patient privilege in federal judicial

proceedings. Although Jaffee was a civil action, its

holding applies to criminal proceedings in federal

court as well. In Swidler & Berlin v. United States?,

8518 U.S. 1, 18 (1996).

9524 U.S. 399 (1998).

10

this Honorable Court found that “there is no

case authority for the proposition that the [attorney-

client] privilege applies differently in criminal and

civil cases.” Several Circuits have recognized that the

psychotherapist-patient privilege applies in both

criminal and civil cases.

In Jaffee, this Honorable Court examined

Fed.R.Evid. 501 which “authorizes federal courts to

define new privileges by interpreting ‘common law

principles... in the light of reason and experience.“ 11

It observed the Rule 501 “did not freeze the law

governing the privileges of witnesses in federal

trials[.]” While recognizing that a trial is a search for

the truth, this Honorable Court acknowledged that

public policy may require certain exemptions and

exceptions to the admissibility of evidence.” Public

policy protects certain communications to encourage

individuals to seek assistance; for example, the

attorney-client privilege. Society should encourage

an individual to seek assistance from a

psychotherapist, but such assistance would not be

encouraged if there were not “an atmosphere of

confidence and complete disclosure of facts,

emotions, memories, and fears.” The importance of

this privilege was recognized by the Judicial

Conference Advisory Committee. 1s This Honorable

Court noted that if the privilege was not recognized,

“confidential conversations between

10 In re Doe, 964 F.2d 1325 (23d Cir. 1992); In re Zuriga, 714 F.2d 632

(66 Cir. 1983); United States v. Schwenson, 151 F.3d 650, 656-57

(7 Cir. 1998); United States v. Glass, 133 F.3d 1356 (10% Cir.

1998).

11518 U.S. at 8.

2 Id. at 9.

3 Id. at 10.

— — — oeeenne sem

11

psychotherapists and their patients would

surely be chilledl. ]“ The Court concluded that on

the basis of “reason and experience, a

psychotherapist privilege “promotes sufficiently

important interests to outweigh the need for.

probative evidence.

In Jaffee, this Honorable Court recognized that

there is a fundamental difference between treatment

by a physician and a psychiatrist, stating that

[t]reatment by a physician for physical

ailments can often proceed successfully

on the basis of a physical examination,

objective information supplied by the

patient, and the results of diagnostic

tests. Effective psychotherapy, by

contrast, depends upon an atmosphere

of confidence and trust in which the

patient is willing to make a frank and

complete disclosure of facts, emotions,

memories, and fears. . .

The Preemption and Frustration of Presidential

Authority by the United States Court of Appeals for

the Armed Forces

Following this Honorable Court's decision in

Jaffee, the Court of Appeals for the Armed Forces, in

United States v. English”, stated in dicta that the

1 Id. at 11-12.

5 Id. at 9-10.

16 518 U.S. at 10.

17 47 M.]. 215, 216 (1997).

12

MCM “does not recognize a_ general

doctor-patient or psychotherapist-patient privilege.”

In English, however, the appellant did not assert the

privilege, and the Court did not address whether

Jaffee’s recognition of a psychotherapist-patient

privilege applied to courts-martial. In a subsequent

case, the Court of Appeals for the Armed Forces

noted its statement in English, but specifically

declined to decide whether the psychotherapist

privilege recognized in Jaffee applies to the military

because the appellant did not show that he had

standing to claim the privilege on behalf of another

person.!9

In affirming the decision of the Air Force

Court of Criminal Appeals, the United States Court of

Appeals for the Armed Forces held in United States v.

Rodriguez, a companion case, that this Honorable

Court’s decision in Jaffee, despite the language

contained in Mil.R.Evid. 101(b) and 501(a)(4), does

not create a psychotherapist-patient privilege in the

military, stating that the President “occupied the

field” through his exclusion of a physician-patient

privilege in Méil.R.Evid. 501(d), precluding the

application of a doctor-patient or psychotherapist-

patient privilege to the military.

To the extent that there existed any ambiguity

concerning the scope of Méil.R.Evid. 501(d), that

ambiguity was conclusively resolved on October 6,

1999, when the President, subsequent to the

18 Id. at 216, n. 2; see also id. at 223, n. 3 (Crawford, J., dissenting,

“Jaffee’s applicability to the military is not at issue in this case

and need not be decided today.”).

United States v. Flack, 47 M.J. 415, 417 (1998).

2 USCA Dkt. No. 00-0280/AF

13

petitioner's court-martial, acting pursuant to his

authority under Article 36, 10 U.S.C. § 836, issued

Executive Order prescribing Mil.R.Evid. 513.21 This

new evidentiary rule recognized a psychotherapist-

patient privilege in all cases arising under the

U. C. M.]. 2 The analysis for Mil.R.Evid. 513 explains:

Rule 513 clarifies military law in light of

the Supreme Court decision in Jaffee. .

Jaffee interpreted Federal Rule of

Evidence 501 to create a federal

psychotherapist-patient privilege in

civil proceedings and refers federal

courts to state laws to determine the

extent of privileges. In deciding to

adopt this privilege for courts-martial,

the committee balanced the policy of

following federal law and rules, when

practicable and not inconsistent with the

UCMJ or MCM, with the needs of

commander for knowledge of certain

types of information affecting the

military.

By its language, Mil.R.Evid. 513 applies to

statements made after November 1, 1999. However,

the President’s action in prescribing Mil.R.Evid. 513

is relevant to and sheds light on the unfounded

policy decision and legal interpretation made by the

Court of Appeals for the Armed Forces in Rodriguez.

The President’s promulgation of Mil.R.Evid. 513

21 Executive Order No. 13140, 64 Fed.Reg. 55, 115 (1999).

22 Td. at 55,116.

* Id. at 55,119-20.

14

without amending Rule 501(d)’s prohibition of a

physician-patient privilege reflects that Rule 501(d) is

not, and never was, inconsistent with the recognition

of the psychotherapist-patient privilege in courts-

The President's action also reflects that Jaffee

applies to the military by operation of law.“ The

application of Jaffee to the military by operation of

law occurs automatically unless such application

would be inconsistent with the UCMJ or MCM or

would not be practicable.> As the President has

recognized, the application of Jaffee to the military is

not impracticable or inconsistent with the UCMJ or

MCM. Therefore, Jaffee applied to the conduct of

courts-martial, effective from the date of this

Honorable Court's recognition of a federal

psychotherapist-patient privilege on June 13, 1976 -

which occurred prior to the petitioner's court-

martial. Thus, the Court of Appeals for the Armed

Services erred in holding there was no

psychotherapist-patient privilege in the military

preceding the adoption of Mil.R.Evid. 513, applicable

to statements made after November 1, 1999.

1 See 10 U.S.C. § 836; Mil.R.Evid. 101(b) and 501(a)(4).

214

2% Executive Order No. 13140, 64 Fed. Reg. At 55,122.

v See Jaffee, 518 U.S. at 1.

15

CONCLUSION

There is no justification in law or policy for

denying the petitioner the protection of the common-

law privilege recognized by this Honorable Court in

Jaffee. Under Mil.R.Evid. 501(a)(4), the petitioner was

entitled to invoke that common law privilege. The

decision by the United States Court of Appeals for

the Armed Forces nullifies Mil.R.Evid. 501(a)(4) and

precludes service members from enjoying the same

rights as all other Americans - rights the President

determined service members should enjoy.

Therefore, the petitioner respectfully requests that

this Honorable Court grant certiorari to the United

States Court of Appeals for the Armed Forces.

The petitioner respectfully requests this Court

grant his petition for a writ of certiorari.

Respectfully submitted,

JEFFREY A. VIRES

Major, United States Air Force

Appellate Defense Counsel

Counsel of Record *

16

TIMOTHY R. MURPHY

Lt Colonel, United States Air Force

Chief Appellate Defense Counsel

JAMES R. WISE —

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel for Petitioner

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

la

Appendix A

U.S. v. Marilyn M. FARRELL-FRANCIS.

No. 00-0280/AF.

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

2000 CAAF LEXIS 1248

November 16, 2000, Decided

PRIOR HISTORY: CCA 32907.

JUDGES: GIERKE, Judge (dissenting).

OPINION: On consideration of the granted issues in

this case (Daily Journal September 20, 2000) in light

of United States v. Rodriguez, 54 MJ 156 (2000), the

decision of the United States Air Force Court of

Criminal Appeals is affirmed.

DISSENT BY: GIERKE

DISSENT: GIERKE, Judge (dissenting): I dissent for

the reasons set forth in my dissenting opinion in

United States x. Rodriguez, 54 M.J. 156, 162-63 (2000).

2a

Appendix B

UNITED STATES v. Airman

Basic MARILYN M. FARRELL-

FRANCIS, United States Air

Force

ACM 32907

UNITED STATES AIR FORCE

COURT OF CRIMINAL

APPEALS

1999 CCA LEXIS 326

December 7, 1999, Decided

NOTICE:

NOT FOR PUBLICATION

PRIOR HISTORY:

Sentence adjudged 15 May 1997 by GCM convened

at McGuire Air Force Base, New Jersey. Military

Judge: Terry J. Woodhouse. Approved sentence: Bad-

conduct discharge and confinement for 18 months.

DISPOSITION:

AFFIRMED.

COUNSEL:

Appellate Counsel for Appellant: Colonel Douglas H.

Kohrt and Major Thomas R. Uiselt.

3a

Appellate Counsel for the United States: Colonel

Brenda J. Hollis, Colonel Michael J. Breslin, and

Major Bruce T. Smith.

JUDGES:

Before YOUNG, HEAD, and ROBERTS, Appellate

Military Judges. Senior Judge YOUNG and Judge

HEAD concur.

OPINIONBY:

ROBERTS

OPINION:

OPINION OF THE COURT

ROBERTS, Judge:

The appellant was convicted contrary to her pleas

of absenting herself from her unit without authority

and cocaine use. Articles 86 and 112a, UCMJ, 10 U.S. C.

§ § 886, 912a. A court composed of officer members

sentenced her to a bad-conduct discharge and

confinement for 18 months. The appellant assigned

the following issues as error: (1) The trial judge erred

by not granting appeliant's motion to suppress

appellant's admission of cocaine use that she made to

a psychiatric emergency screener; (2) The trial judge

erred by not granting appellant's motion to [*2]

suppress the results of her urinalysis test for lack of

probable cause; and (3) The appellant's sentence was

inappropriately severe. Finding no error, we affirm.

The appeilant failed to show up for work on 9

January 1997 and remained away from her unit until

14 January 1997. On 10 January 1997 she telephoned

4a

the Kimball Medical Center, Lakewood, New

Jersey, and stated she was looking for help for

depression, and that she was having suicidal

thoughts. The appellant also indicated she was in the

military. On 13 January the appellant telephoned the

same clinic and went to the clinic after 1300. She

obtained emergency room treatment for a cut on her

wrist, and then spoke with Ms. Jennifer O'Hearn, a

psychiatric emergency screener. In the course of a

routine mental status examination by Ms. O'Hearn

the appellant mentioned her military status and

reported her cocaine use.

The appellant made a motion at trial to suppress

her drug use admission to Ms. O'Hearn. The basis of

the motion and the assigned error on appeal is that

the United States Supreme Court's ruling in Jaffee v.

Redmond, 518 U.S. 1, 135 L. Ed. 2d 337, 116 S. Ct. 1923

(1996), created a common law psychotherapist-patient

privilege under Mil. R. [*3] Evid. 501. The trial judge

denied the motion and ruled that the Jaffee decision

did not create a psychotherapist-patient privilege in

the military under the common law or the Military

Rules of Evidence.

We hold that the trial judge did not abuse his

discretion nor did he err when he denied the

appellant's motion to suppress her admission to Ms.

O'Hearn. Article 36 of the UCMJ empowers the

President to make regulations for pretrial, trial, and

post-trial procedures, including modes of proof, for

courts-martial. Article 36(a), UCMJ. The President

prescribed a comprehensive set of rules pertaining to

privileges in the Military Rules of Evidence. We refer

to secondary sources such as the rules of evidence

used in federal courts or at common law only "insofar

\ Sa

as practicable and not inconsistent with or

contrary to the Code or this Manual." Mil. R. Evid.

101(b).

Military Rule of Evidence 501(d) plainly states

that a physician-patient privilege does not exist in

courts-martial. In United States v. Brown, 38 M.]. 696,

699 (A.F.C.M.R. 1993), we specifically declined to

create a special physician-patient privilege to cover

the facts and circumstances of that case. We also [*4]

decline to create a psychotherapist-patient privilege

in the appellant's case. The President recently created

such a privilege by adding Mil. R. Evid. 513,

Psychotherapist-patient privilege. (Exec. Order No.

13140, 64 Fed. Reg. 55115 (1999)). This new privilege

applies only to communications made after 1

November 1999. Id.

We considered the remaining matters submitted

by the appellant pursuant to United States v.

Grostefon, 12 M.J. 431 (C.M.A. 1982). We find that,

looking at the totality of the circumstances, there was

probable cause for the military magistrate to

authorize the search and seizure of the appellant's

urine when she returned to her unit after being

absent without authority. Mil. R. Evid. 315 (f)(2). The

appellant's commander then acted in good faith when

he ordered the appellant to provide a urine sample.

Mil. R. Evid. 311(b)(3). Finally, we find that the

appellant's sentence was not inappropriately severe.

United States v. Snelling, 14 M. J. 267 (C.M.A. 1982).

The findings are correct in law and fact, and no

error prejudicial to the substantial rights of the

appellant occurred. Accordingly, the findings and

sentence [*5] are

6a

AFFIRMED.

Senior Judge YOUNG and Judge HEAD concur.

7a

Appendix C

1. Article II, § 2, of the United States Constitution

provides in pertinent part:

The President shall be Commander in Chief of the

Army and Navy of the United States...

2. 10 U.S.C. § 836(a) provides:

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.

8a

3. The Military Rules of Evidence provide in

pertinent part:

PRIVILEGES

Rule 501. General rule

(a) A person may not claim a privilege with respect to

any matter except as required by or provided for in:

(1) The Constitution of the United States as

applied to members of the armed forces;

(2) An Act of Congress applicable to trials by

courts-martial;

(3) These rules or this Manual; or

(4) 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 to contrary to or inconsistent with the

code, these rules, or this Manual.

* * *

(d) 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.

* * *

Rule 513. Psychotherapist- patient privilege

(a) General rule of privilege. 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

9a

for the purpose of facilitating diagnosis or

treatment of the patient's mental or emotional

condition.

(b) Definitions. As used in this rule of evidence:

(1) A “patient” is a person who consults with or is

examined or interviewed by a psychotherapist for

purposes of advice, diagnosis, or treatment of a

mental or emotional condition.

(2) A “psychotherapist” is a psychiatrist, clinical

psychologist, or clinical social worker who is licensed

in any state, territory, possession, the District of

Columbia or Puerto Rico to perform professional

services as such, or 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 license or credentials.

(3) An “assistant to a psychotherapist” is a person

directed 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 such transmission of

the communication.

(5) “Evidence of a _ patient's records or

communications” is 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.

(c) Who may claim the privilege. The privilege may be

claimed by the patient or the guardian or conservator

of the patient. A person 8 may claim the privilege

10a

may authorize trial counsel or defense

counsel to claim the privilege on his or her behalf.

The psychotherapist or assistant to the

psychotherapist who received the communication

may claim the privilege on behalf of the patient. The

authority of such a psychotherapist, assistant,

guardian, or conservator to so assert the privilege is

presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:

(1) when the patient is dead;

(2) when the communication is evidence of spouse

abuse, child abuse, or neglect or in a proceeding in

which one spouse is charged with a crime against the

person of the other spouse or a child of either spouse;

(3) when federal law, state law, or service

regulation imposes a duty to report information

contained in a communication;

(4) when a psychotherapist or assistant to a

psychotherapist believes that a patient’s mental or

emotional condition makes the patient a danger to

any person, including the patient;

(5) if the communication clearly contemplated the

future commission of a fraud or crime or if the

services of the psychotherapist are 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;

(6) when necessary to ensure the safety and

security of military personnel, military dependents,

military property, classified information, or the

accomplishment of a military mission;

(7) when an accused offers statements or other

evidence concerning his mental condition in defense,

extenuation, or mitigation, under circumstances not

covered by R.C.M. 706 or Mil. R. Evid. 302. In such

situations, the military judge may, upon motion,

lla

order disclosure of any statement made by the

accused to a psychotherapist as may be necessary in

the interests of justice; or

(8) when admission or disclosure of a

communication is constitutionally required.

(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 practical, notify the patient or

the patient’s guardian, conservator, or representative

that the motion has been filed and that the patient

has an 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 communication, 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 shall 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

12a

at the hearing. However, the proceedings shall 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) The military judge shall examine the evidence

or a proffer thereof in camera, if such examination is

necessary to rule on the motion.

(4) 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.

(5) 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.

13a

4. The Manual for Courts-Martial (MCM),

United States (2000 ed.), app. 22, Analysis of the

Military Rules of Evidence, provides in pertinent

part: 1

PRIVILEGES

Rule 501. General rule

Section V contains all of the privileges applicable

to military criminal law except for those privileges

which are found within Rules 301, Privilege

Concerning Compulsory Self-Incrimination; Rule

302, Privilege Concerning Mental Examination of an

Accused; and Rule 303, Degrading Questions.

Privilege rules, unlike other Military Rules of

Evidence, apply in “investigative hearings pursuant

to Article 32; proceedings for vacation of suspension

of sentence under Article 72; proceedings for search

authorization; proceedings involving pretrial

restraint; and in other proceedings authorized under

the Uniform Code of Military Justice of this Manual

and not listed in rule 1101(a).” See Rule 1101(c); see

also Rule 1101(b).

In contrast to the general acceptance of the

proposed Federal Rules of Evidence by Congress,

Congress did not accept the proposed privilege rules

because a consensus as to the desirability of a

number of specific privileges could not be achieved.

See generally, S. Saltzburg & K. Redden, FEDERAL

RULES OF EVIDENCE MANUAL 200-201 (2d ed.

1977). In an effort to expedite the Federal Rules

generally, Congress adopted a general rule, Rule 501,

which basically provides for the continuation of

common law in the privilege area. The Committee

deemed the approach taken by Congress in the

Federal Rules impracticable within the armed forces.

l4a

Unlike the Article III court system, which is

conducted almost entirely by attorneys functioning in

conjunction with permanent courts in fixed locations,

the military criminal legal system is characterized by

its dependence upon large numbers of laymen,

temporary courts, and inherent geographical and

personnel instability due to the worldwide

deployment of military personnel. Consequently,

military law requires far more stability than civilian

law. This is particularly true because of the

significant number of non-lawyers involved in the

military criminal legal system. Commanders,

convening authorities, non-lawyer investigating

officers, summary court-martial officers, or law

enforcement personnel need specific guidance as to

what material is privileged and what is not.

Section V combines the flexible approach taken by

Congress with respect to privileges with that

provided in the 1969 Manual. Rules 502-509 set forth

specific rules of privilege to provide the certainty and

stability necessary for military justice. Rule 501, on

the other hand, adopts those privileges recognized in

common law pursuant to Federal Rules of Evidence

501 with some limitations. Specific privileges are

generally taken from those proposed Federal Rules of

Evidence which although not adopted by Congress

were non-controversial, or from the 1969 Manual.

Rule 501 is the basic rule of privilege. In addition

to recognizing privileges required by or provided for

in the Constitution, an applicable Act of Congress,

the Military Rules of Evidence, and the Manual for

Courts-Martial, Rule 501(a) also recognizes privileges

“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 court-

15a

martial is practicable and not contrary to or

inconsistent with the Uniform Code of Military

Justice, these rules, or this Manual.“ The latter

language is taken from 1969 Manual Para. 137. As a

result of Rule 5010 a) (J), the common law of privileges

as recognized in the Article III courts will be

applicable to the armed forces except as otherwise

provided by the limitation indicated above. Rule

501d) prevents the application of a doctor-patient

privilege. Such 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. See 1969 Manual Para. 151 c

It should be noted that the law of the forum

determines the application of privilege.

Consequently, even if a service member should

consult with a doctor in a jurisdiction with a doctor-

patient privilege for example, such a privilege is

inapplicable should the doctor be called as a witness

before the court-martial. Subdivision (b) is a non-

exhaustive list of actions which constitute an

invocation of a privilege. The subdivision is derived

from Federal Rule of Evidence 501 as originally

proposed by the Supreme Court, and the four specific

actions listed are also found in the Uniform Rules of

Evidence. The list is intentionally non-exclusive as a

privilege might be claimed in a fashion distinct from

those listed.

Subdivision (c) is derived from Federal Rule of

Evidence 501 and makes it clear that an appropriate

representative of a political jurisdiction or other

organizational entity may claim an applicable

privilege. The definition is intentionally non-

exhaustive.

1999 Amendment: The privileges expressed in Rule

513 and Rule 302 and the conforming Manual change

16a

in R.C.M. 706, are not physician-patient

privileges and are not affected by Rule 501(d).

* * *

Rule 513. Psychotherapist- patient privilege

1999 Amendment: Military Rule of Evidence 513

establishes a psychotherapist- patient privilege for

investigations or proceedings authorized under the

Uniform Code of Military Justice. Rule 513 clarifies

military law in light of the Supreme Court decision in

Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135

L.Ed.2d 337 (1996). Jaffee interpreted Federal Rule of

Evidence 501 to create a federal psychotherapist-

patient privilege in civil proceedings and refers

federal courts to state laws to determine the extent of

privileges. In deciding to adopt this privilege for

courts-martial, the committee balanced the policy of

following federal law and rules, when practicable

and not inconsistent with the UCMJ or MCM, with

the needs of commanders for knowledge of certain

types of information affecting the military. The

exceptions to the rule have been developed to address

the specialized society of the military and separate

concerns that must be met to ensure military

readiness and national security. See Parker v. Levy,

417 U.S. 733, 743 (1974); U.S. ex rel. Toth v. Quarles,

350 U.S. 11, 17 (1955); Dept. of the Navy v. Egan, 484

U.S. 518, 530 (1988). There is no intent to apply Rule

513 in any proceeding other than those authorized

under the UCMJ. Rule 513 was based in part on

proposed Fed. R. Evid. (not adopted) 504 and state

rules of evidence. Rule 513 is not a physician-patient

privilege. It is a separate rule based on the social

benefit of confidential counseling recognized by

Jaffee, and similar to the clergy-penitent privilege. In

17a f

keeping with American military law since its

inception, there is still no physician- patient privilege

for members of the Armed Forces. See the analyses

for Rule 302 and Rule 501.

(a) General rule of privilege. The words “under the

UCM)” in this rule mean Rule 513 applies only to

UCMJ proceedings, and do not limit the availability

of such information internally to the services, for

appropriate purposes.

(d) Exceptions These exceptions are intended to

emphasize that military commanders are to have

access to all information that is necessary for the

safety and security of military personnel, operations,

installations, and equipment. Therefore,

psychotherapists are to provide such information

despite a claim of privilege.