Should There be a Psychotherapist Privilege in Military Courts-Martial?

• Author: by Mqor David L. Hayden
• Pages: 03

I don't see where you people are gomg to stop. hetty soonyou won't have anybody left who can testify to anything. We will all be pnwleged classes, the privileged folks, and then there will be the common people who actually have to go to court and act like American citizens We will all be chiefs,and no Indians. I think it IS crazy.'

1. INTRODUCTION

   The statement illustrates the frustration most people share can. cerning rules of privilege Privileges hinder admmsibility of relevant evidence that could aid the fact-finder in ascertaimng the ultimate truth! Many modern commentators have described them as en-cumbrances, originating from competing professional jealousies, impeding the orderly pursuit of truth and serving no important societal god3 Nonetheless, testimonial privileges serve a useful purpose ~n

   'Mwor, Judge Advacais General'a Carpi Presently aacgned as Senior Defense Counael. III Corps and Fort Hood. Texaa Formerly assigned BI Chief of Legal Aamatance. Senior Trial counsel, and Chief of Military Jueliee, 82d 4irborne Dimsmn. FiBragg, Nonh Carohna. served ai Cams af Engineers officer from 1976-1981 B S , United States Military Academy 1976 J D , Univeraify of Texas, 1934, LL M I The Judge Advocate General's School, 1988 Author of Recent Dewlapmenr. Fourth Amendmni-Search & Se12urc 11 Am J Cnm L 387 (19831 Member of the hara of lexar,theU S SupremeCaurt and LheCouriofYilitary Appeali This anLdex based upon s thesis rubrnitfed ~n partial satisfaction uf the requirements of the 36th Judge Advocate Officer Graduate Courbe

   'Hearings Be/oiorp The Specmi Subeomm On Ciimr~i

   Justice a/ Tho House Sub- comm On Tho Judiclov, 93d Cong , 1st Spas 483 IComm Pmt 19731 (statement of Mr Dennis) [heremalter Hraiingsl, q m l d ~n C Wright and K Graham. Federal Prac-tire and Procedure: Evidence 8 6422, at 890 (1980) [hereinafter Wnght Evidence1

   'Oldham, Piibilwged Communicofzms rn Milifvv Lau. 6 Md L Rev 17 (1959) 8 J Wigmars, Evidence. 3 2196, at 111 (McNaughfon rev 1961) [hereinafter 8 Wigmorel. Wright Endenee, 6upm note 1. at 676-86, me dm 2 J Wemsfnn and M Berger Wemstem's Evidence, 5 JOl(011. st 601- 13 119861 [heremafier Weinatein, Evidence1 (dlacusnng the v l e ~ b of the Advmorj Committee m drafiing the Fedsral Rules of E w dence)

   'C MeCormlek, EIidence B 77, at 166-67.169 (2d ed 19721.8 Wigmare, upra note 2,8 2286, at 532, Wnghr. Evidence. supra note 1. I6422, ai 676 See Pate, D~vslopmrnii Ln IhrL.ii-PIILil~grdCommunimlions, %Ham L Rei 1480 1493(19851 [hereinafter DILelopminfsl Ldescrhng the power theory as one basis for pr~v~lsgebl,

   Krattenrnaker.

   T~ihmon~.iPlii.ii~~gra

   &n Frhml Courts An AILerwliue Lo ihoPropao.dFrd.miRvlrs ofEiihnce, 62 Georgetown L J 61. 85 (1973i

   preserving the sanctity of confidential relationships that must, in the public interest, be fostered and protected' Courts are forced to balance conflicting values when privileges are in mue. They must ren-der an accurate and efficient decision, while attempting to protect the privacy and confidentiality of privilege claimants?

   The military Justice System recognize8 some testimamal privileges as rules of law.6 Nonetheless, certain privileges are outright rejected. The military has always held a strong antimedical privilege position Any doctor-patient privilege was considered contrary to the military's interest m maintaining the health and welfare of Its personnel.' A recent Court of Military Appeals opinion, United State8 U. Toledo,' reaffirmed that position

   In Toledo a military judge allowed an Air Force psychologist to testify for the government m rebuttal concerning a prevmus noncom. pelled examination of the accused, despite defense objeetmn on prmilege grounds lo The Court of Military Appeals held that the "Military Rules of Evidence recognize no doctor-patient pnwlege per ~e.''" Absent from the decision was any reference to a psychotherapist pnv. >lege, due ~n large part no doubt, to the absence of any ObJeCtlOn onthat ground. The court did identify the attorneyclient pnvdege as an alternative for the defense to prevent disclosure of the psychologist's statements." The issues identified by the Toledo court will be analyzed later in this article

   It 1s essential at this point to identify and define psychotherapy to assist in understanding the complexities of the issue. Psychotherapy involves the treatment by a psychotherapmt of mental or emotional

   19891 PSYCHOTHERAPIST PRIVILEGE

   disorders, including drug and alcohol addiction." For the purposes of this article, a psychotherapist shall be. 1) any person licensed to practice medieme in any state or nation who practices psychiatry all or part of the time; or 2) any person licensed or certified 8s a psychologist under the laws of any state or nation and who practices elmmeal psychology all or part of the time.'4 The 1971 draft of the Proposed Federal Rules of Evidence, in Rule 504, used a broader definition to include persons reasonably believed by the patient to be practicing psychiatry or elimcal psychology. This was believed necessary be-cause of the number of people who render similar psychotherapeutic aid but are not psychiatrists or psychologists That definition creates many potential ISSUBS of interpretation and 18 an unnecemary expansion for purposes of the military.

   The law of privilege should also be diatinpished from eonfidentiality. A privilege rule allows an individual to prevent court ordered, disclosure of certain communications. Confidentiality refers to a duty, normally an ethical restriction imposed by a professional code, not to engage in gratuitous diaclosures of certainThe terms often are used mterehangeably; yet, they are distinct concepts. This article addresses only the law ofprivilege The only eon. fidential communications discussed will be those not intended for disclosure to third persons except when necessary for the patient's di-agnoais and treatment."

   The purpme of this article 18 to address the issue of whether psychotherapists should be allowed any testimonial pnvrlege ID

   military courts-martial. The article begins by exploring several theories currently used to justify exmtmg pnvileges at common law, and then by applying them to the psyehotherapist.patient pnvhge. This will be followed by a brief analysis of the development of the

   LiThie definition IS denved ~n pan from the 1971 and 1972 drafis of the Proposed FederalRule olEwdenee, Rule504 IhersmafterPropasedRule5011 51 F RD 315,366 (19711. 56 F RD 163, 240 (1972)

   ' I h a definitmn E ~~mllar

   tn the 1971 draft of Proposed Rule 504, 61 F R D 315, 366 See &e Deuolopmmts. 8upm note 3, at 1540 (dercnbing how all state statntee concerning psychothoraplit-type pndegea limit appllcsnon ta those meeting pdeb-lions1 licensing standard.)

   "The subsequent 1972 drafi ol Roposed Rule 504 expanded the dcfinirion wen further to include general prartltmers rreatlng mental or emotronal eondmans. I". cluding drug addiction. and unheenaed therapists engaged ~n pdychotheraputie aid 66 F R D sf 240-243 These changsb to the original draft of Proposed Rule 504 will bpdiscussed later

   privilege under federal and state 18~'. A stud,- of Proposed Federal Rule of Ewdence 504 and the current Federal Rule of Evidence E01 will be Included Federal case law development of the pnvllege wlll also be traced, including federal statutes. This will be followed by a hnef look at state laws creating similar privdeges. Xext, the article covers the treatment of the privilege under the Military Rules of Ew. dence and military case law Finally, the article will discuss the re-sults ofan empirical aurveyofArmypsychlatnst~ that w8s conducted as research for this article.

   Empirical data obtained from Army psychiatnsts promded some Insight. but surprisingly mixed support for the psychotherapeutic privilege The survey responses, on the surface, mdnated little or no impact on Army psychiatmts' practices from the lack of a privilege. The responses did not appear to support assertions that the privilege would allow Army psychiatrists to treat patients more effectively. After further analysis of the responses, however. the results may have been misleading A closer look reveals the necessity for some form of a pcrchotherapist.patieni pnv~lege.

   There should be a psychotherapist privilege in courts-martial There 1% Substantial precedent in federal common law and federal practice to support such a rule. Indeed, absent the antimedical priv-ilege language in the Military Rules of Evidence." recognition pursuant to federal common law would be likely. Nonetheless, adoption of a psychotherapist-patient privilege ~n military courts LS unlikely without a regulatory or executive mandate

   11. HISTORICAL BASIS FOR

   PHYSICIAN-PATIENT PRIVILEGE

   S o doctor-patient privilege existed at common law Lord Mans-field. addressing the LSSW at trial in England stated. "If a surgeon was voluntarily to reveal there Secrets, to be sure, he would be guilty of a breach of honor and of great Indiscretion, but to give that in-formation in a court of justice, which by the law of the land he ISbound to do. will never be imputed to him as any indiscretion whatever ''20 Despite this eloquent discourse, varlatmns of the prlvilege exmt today by statute in many forum8 The absence of hlstor-

   19891 PSYCHOTHERAPIST PRIVILEGE

   leal precedent in the English or federal common law has not deterred the states from creating numerous medically related privileges?' In-deed, the common law may yet be disposed to recognize such a privilege

   A. THEORIES JUSTIFYING PRIVILEGES

   1 The Utilitarton Analysts

   Current theories advanced by privilege proponents normally fall within two basic categories. The first is the utilitarian theory." The rationale begins by assuming that nondisclosure of information 1s not

   favored unless It furthers some social policy?6 For example, the attorney-client privilege is accepted because it will encourage clients to be more forthright with their lawyers.26 The privilege iB analyzed in terms...