Rule 513. Psychotherapist Patient Privilege in a Court Martial

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Rule 513 provides a limited privilege for communications to psychotherapists and counselors. The privilege is applicable only to actions arising under the UCMJ and is not a broader doctor-patient privilege. In United States v. Rodriguez, 54 M.J. 156 (2000), the CAAF upheld the Army Court's decision that Jaffee v. Redmond does not establish a psychotherapist-patient privilege in the military. In United States v. Paaluhi, 54 M.J. 181 (2000), consistent with Rodriguez, the court held that Jaffe v. Redmond did not establish a psychotherapist-patient privilege in the military. The CAAF set aside the conviction, but, holding it was ineffective assistance for the defense counsel to ask the accused to talk to a Navy psychologist without first getting the psychologist appointed to the defense team. Quasi psychotherapist-patient privilege also exists under certain circumstances:

Where psychiatrist or psychotherapist is detailed to assist the defense team, communications are protected as part of lawyer-client confidentiality. See United States v. Tharpe, 38 M.J. 8, 15 n.5 (C.M.A. 1993)

Communications made by an accused as part of a sanity inquiry under Rule 302. See United States v. Toledo, 26 M.J. 104 (C.M.A.), cert. denied, 488 M.J. 889 (1988). C

Confidentiality privilege for statements made during mental responsibility exams may not generally apply retroactively to exams which the military judge deems as adequate replacement for court-ordered R.C.M. 706 examinations. See United States v. English, 44 M.J. 612 (N.M.Ct.Crim.App. 1996), rev‚ôd on other grounds, 47 M.J. 215 (1997).

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Case laws on privileges in the Military Justice System

Adultery. United States v. Taylor, 64 M.J. 416 (C.A.A.F. 2007). Adultery is a crime ‚against the person or property of the other spouse. So, if a spouse is charged with adultery, the marital privilege, pursuant to M.R.E. 504(c)(2)(A) does not apply to communications about the adultery.

Presumption of Confidentiality. In United States v. McCollum, 58 M.J. 323 (2003), the appellant raped his wife's 14-year-old sister, who was staying with the family for a summer visit. He communicated various statements to his wife about the incident. During trial, the military judge admitted two of the statements, stating that the appellant did not prove the intent to hold the communications confidential. The CAAF set aside, stating that marital communications have a presumption of confidentiality. When the party claiming the privilege has shown that the communication was made privately during a valid marriage, the burden shifts to the opposing party to overcome the presumption.

Joint-Participant Exception. Although civilian federal courts accept the joint-participant exception to the marital privilege, the joint-participant exception does not apply in military cases. See United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007). In Custis, the Court held that unlike privileges in the federal civilian courts that evolve based on case law, privileges in the military system are specifically delineated. So, the only exceptions are those expressly authorized. Hence, there is no joint-participant exception to the marital privilege. The ACCA in United States v. Davis, 61 M.J. 530 (Army Ct. Crim. App. 2005) had earlier recognized a joint-participant exception to marital communications privilege.

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Military Sexual Assault Prevention and Response Procedures - UCMJ Sex Crimes under DoDI 6495.02

Here are some of the policies governing sex crime response involving Army, Navy, Air Force and Marine Corps sexual assault and rape cases. If you are accused of a sex crime under the UCMJ, then contact an experienced court martial defense lawyer to learn your rights.

5.7. The Secretaries of the Military Departments shall:

5.7.1. Establish comprehensive policies, procedures, and programs implementing this Instruction and consistent with Reference (c), and ensure implementation, monitoring, and evaluation at all levels of military command, including those levels at the National Guard and Reserve components, and training for members of their Military Departments. Program requirements and procedures are further detailed in Enclosure 3.

5.7.2. Establish required standards for command assessment of organizational SAPR climate, to include periodic follow-up assessments.

5.7.3. Publicize policies and procedures for reporting a sexual assault and provide information regarding the availability of medical treatment, advocacy, and referral services.

5.7.3.1. Ensure Service members are aware of the reporting options available to them, to include any exceptions and/or limitations on use applicable to each option. Information on the reporting options available to Service members is included in Reference (c).

5.7.3.2. Personnel shall be made aware that sexual assault includes rape, nonconsensual sodomy, indecent assault, and attempts to commit these acts, which are crimes in violation of specific articles of Chapter 47 of Reference (b).

5.7.3.3. Ensure that victims of unrestricted reports of sexual assaults are afforded throughout the investigative and legal process the information outlined in DoD Directive 1030.1 and DoD Instruction 1030.2 (References (v) and (w)).

5.7.4. Provide quarterly and annual reports of sexual assault involving members of the Armed Forces to DoD SAPRO to be consolidated into the Secretary of Defense annual reports to the House and Senate Armed Services Committees in accordance with Sections 113 and 4331 of Reference (b), and Reference (c). (See Enclosure 8 for additional information on report requirements.)

5.7.5. Annually identify the fiscal and personnel resources necessary to implement, monitor, and evaluate the SAPR policies, and report these resource totals to USD(P&R).

5.7.6. Provide budget program and obligation data, as requested to DoD SAPRO.

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Former State Rep. T.D. El Amin Sentenced To 18 Months

Posted at http://www.fox2now.com/news/ktvi-td-el-amin-sentenced-bribe-010610,0,2750312.story

ST. LOUIS, MO -- (KTVI - FOX2now.com) - The third Missouri politician to plead guilty under a federal anti-public corruption campaign failed Wednesday to convince a judge to be lenient. U.S. District Judge Henry Autrey ordered 39-year Talibdin "TD" El-Amin of St. Louis to serve 18 months in federal prison and two years of supervised release for soliciting and accepting a bribe of $2100. He was also ordered to pay back the bribe money.

Standing before the federal judge, El-Amin admitted he broke the law and must accept the consequences. "I detest myself," he told Autrey. His lawyer, Paul D'Agrosa told the judge his client's actions were "aberrant conduct" and he deserved a sentence less than the federal guidelines of 18 to 24 months. D'Agrosa pointed to El-Amin's previous efforts to help those in his north St. Louis community, his willingness to support his five children and his generosity in donating a kidney to his father. "Twelve months and a day is sufficient to address this crime and still serve as punishment," D'Agrosa said.

Assistant U.S. Attorney Hal Goldsmith disagreed arguing El-Amin "sold his public office and used the power of his office to prey on constituents." Goldsmith added, "what citizens got was a classic shakedown."

The conviction derailed what had been a promising political career for the northside politician. He was elected to the 57th district seat after his wife, State Representative Yaphett El-Amin vacated it to seek the Democratic nomination for the fourth Senate District seat in 2006. She lost that race to Democrat Jeff Smith who is now serving a year long federal prison term for lying to federal agents about campaign activities during his 2004 bid for Congress. "TD" El-Amin had been considered a frontrunner for Smith's Missouri Senate seat until he too ran afoul of the law.

El-Amin pled guilty in September 2009 to one count of soliciting and accepting a bribe after he learned federal agents had surveillance video showing him accepting cash from a small business owner and passing written notes about the bribe in his state representative office. The business owner had asked El-Amin for help dealing with St. Louis City inspectors who were impacting his business. The man subsequently sought help from federal authorities who launched an undercover investigation.
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