United States v. Clark , 62 M.J. 195 ( 2005 )

UNITED STATES, Appellee
v.
Anthony J. CLARK, Airman First Class
U.S. Air Force, Appellant
No. 04-0722
Crim. App. No. 34791
United States Court of Appeals for the Armed Forces
Argued March 8, 2005
Decided September 30, 2005
GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J., filed a
dissenting opinion.
Counsel
For Appellant: Captain L. Martin Powell (argued); Lieutenant
Colonel Carlos L. McDade and Major Sandra K. Whittington (on
brief); Major Terry L. McElyea.
For Appellee: Captain Stacey J. Vetter (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Captain C. Taylor Smith (on brief).
Military Judge: David Brash
This opinion is subject to revision before final publication.
United States v. Clark, No. 04-0722/AF
Chief Judge GIERKE delivered the opinion of the Court.
Generally, in the absence of a privilege, any relevant
statement by an accused could be admitted into evidence by the
Government as a statement of a party opponent.1 M.R.E. 302,
however, maintains the integrity of the sanity review process by
protecting an accused when a sanity review board is ordered
under Rule for Courts-Martial (R.C.M.) 706. Any statement made
by the accused or any derivative evidence obtained through use
of such a statement is confidential and may not be admitted into
evidence.2 But there is no privilege under M.R.E. 302 when the
accused first introduces into evidence any qualifying statements
or derivative evidence.
This case presents the issue of whether the military judge
violated the M.R.E. 302 privilege rule when he granted the
Government’s motion to compel the production of Appellant’s
statements in the sanity board report. We hold that the
military judge erred by releasing Appellant’s privileged
statements to the Government. We conclude that Appellant’s
defense counsel did not first introduce derivative evidence.
Accordingly, the defense did not trigger M.R.E. 302’s exception
1
See generally Military Rules of Evidence (M.R.E.) 801(d)(2)
(admitting a party’s own statement into evidence against that
party).
2
See R.C.M. 706(c)(5), Manual for Courts-Martial, United States
(2000 ed.)(MCM).
2
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permitting disclosure of Appellant’s statements to the sanity
board.
BACKGROUND
Contrary to Appellant’s pleas, a military judge found him
guilty of disobeying a lawful order, wrongfully using psilocyn,3
and breaking restriction, in violation of Articles 90, 112a, and
134, of the Uniform Code of Military Justice (UCMJ).4 In
addition, the military judge found Appellant guilty, pursuant to
his pleas, of wrongfully using methamphetamine, in violation of
Article 112a, UCMJ.5 He sentenced Appellant to a bad-conduct
discharge, six months of confinement, forfeiture of $600 pay per
month for six months, and reduction to the grade of E-1.
When Appellant violated an order not to drive and attempted
to leave base, Appellant admitted to his first sergeant, Senior
Master Sergeant Crute, that he knew it was wrong to leave base
while on restriction. The next day Appellant was hospitalized
because his co-workers thought he displayed irregular behavior.
Between May 31, 2001, and June 6, 2001, Dr. Peterson treated
Appellant and prescribed a mood stabilizer, a sedative and a
“very high potency anti-psychotic” medication for Appellant.
3
The Air Force Court of Criminal Appeals later set aside this
charge and specification on factual insufficiency grounds.
United States v. Clark, 60 M.J. 539 (A.F. Ct. Crim. App. 2004).
4
10 U.S.C. §§ 890, 912a, 934 (2000).
5
10 U.S.C. § 912a (2000).
3
United States v. Clark, No. 04-0722/AF
Appellant remained in Dr. Peterson’s care until the end of June
2001.
At the defense counsel’s request, Dr. Gregoria Marrero held
an R.C.M. 706 sanity board to assess Appellant’s mental
responsibility for the charged offenses. She submitted a
complete report of her findings. During the trial, the defense
decided not to rely on the results of the sanity board. The
defense instead called Dr. Peterson to testify. The military
judge qualified Dr. Peterson as an expert in the field of
psychiatry, and she testified about her impressions of Appellant
during the period she was treating him. She described
Appellant’s beliefs that “he had special powers, special
abilities” and “could read [people’s] minds.” Dr. Peterson
explained that it was “fairly difficult to follow his train of
thought, even though he was coherent” because Appellant was
speaking very rapidly and “basically jumping from topic to
topic.” Dr. Peterson concluded that she believed Appellant had
a manic episode, most likely due to Bipolar I disorder.
Regarding whether Appellant knew the nature and quality or
wrongfulness of his actions on May 29 and 30, Dr. Peterson
stated, “Given the way he presented to me and my experience
working with people who have had a manic episodes [sic] where it
builds up over a matter of a few days, I could only surmise that
it would affect his ability -- his judgment.”
4
United States v. Clark, No. 04-0722/AF
The defense did not inquire into the results of the sanity
board during the direct examination of Dr. Peterson. However,
Dr. Peterson admitted that she had reviewed Dr. Marrero’s
report. When asked whether she reviewed the report before
forming her opinion, Dr. Peterson replied, “No and I wouldn’t
want to. No. I looked at all the other information first then
met with him.” She explained that she did not base her opinion
on the report. Rather, “I just wanted to see what my colleague
-- what her findings were. I came to my own conclusion and then
I wanted to look at that and see what she had drawn up.”
The military judge conducted his own inquiry of Dr.
Peterson and asked about the impact of the sanity board report
on her diagnosis. Dr. Peterson reaffirmed that her opinion was
formed independent of Dr. Marrero’s report. But the military
judge asked, “Did Colonel Marrero reference within the report
any statements made by Airman Clark?” Dr. Peterson confirmed
that Dr. Marrero had included Appellant’s statements in the
report and that she had reviewed them.
The Government then argued that in light of the defense
testimony, the Government should have an opportunity to
interview Dr. Marrero regarding her examination of Appellant and
to fully review her report from the sanity board. The military
judge granted the Government’s motion and, over defense
counsel’s objection, ordered the defense to produce and to
5
United States v. Clark, No. 04-0722/AF
disclose to the prosecution the sanity board report, which
included Appellant’s statements. The military judge did not
make any findings of fact regarding this issue and did not
explain his decision. The military judge did not allow the
defense to redact Appellant’s statements from the report.
As a result, the Government presented Dr. Marrero as a
prosecution witness. Although the military judge did not allow
the Government to enter the sanity board report into evidence,
Dr. Marrero testified to the entire contents of the report
including Appellant’s admissions of culpability and his attempts
to feign mental problems. Furthermore, at the trial, Dr.
Marrero revealed more of her interview with Appellant than she
included in her report. For example, when Dr. Marrero
questioned Appellant about his declarations to treatment staff
that he was God, he responded “[t]hat he was playing along and
enjoying the attention that he was getting.”
DISCUSSION
In federal civilian courts, if a defendant presents an
insanity defense with expert witnesses to confirm his infirmity,
the prosecution may compel the defendant to submit to a
psychiatric evaluation by the Government.6 The medical expert
who examined the accused may testify only to his conclusions and
their basis and cannot reveal the contents of any statements the
6
See Fed. R. Crim. P. 12.2.
6
United States v. Clark, No. 04-0722/AF
accused made during the examination because the defendant is
still protected by the doctor-patient privilege.7
Court-martial practice has a similar process to protect
statements to a sanity board but different rules pertain.
M.R.E. 302 guarantees a servicemember a right to confidentiality
comparable to a civilian under Fed. R. Crim P. 12.2(c)(4). The
military accused often must rely on military doctors for
evaluation and treatment. But there is generally no doctor-
patient privilege in the military.8 As a result, the prosecution
could retrieve any records of medical diagnosis or treatment.
The drafters of M.R.E. 302 recognized this uniquely military
concern. They noted that “even when the actual communications
made by the accused are not revealed by the expert witness in
open court, under the present Manual they may be studied by the
prosecution and may be used to discover other evidence later
admitted against the accused.”9 Accordingly, M.R.E. 302 was
proposed and implemented to provide “a form of testimonial
immunity intended to protect an accused from use of anything he
might say during a mental examination” ordered under R.C.M.
706.10 Contrary to the dissent’s assertions, M.R.E. 302 does not
7
See Fed. R. Crim. P. 12.2(c)(4). See, e.g., United States v.
Curtis, 328 F.3d 141, 144 (4th Cir. 2003); United States v.
Johnson, 362 F. Supp. 2d 1043, 1087-97 (N.D. Iowa 2005).
8
See M.R.E. 501(d).
9
MCM, App. 22, A22-7 (2000 ed.)(referring to the Manual for
Courts-Martial, United States (1969 revised ed.)).
10
Id. at A22-8.
7
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distinguish between a psychiatric evaluation ordered by the
Government and an evaluation requested by the defense. R.C.M.
706(a) allows “any investigating officer, trial counsel, defense
counsel, military judge, or member” to request “an inquiry into
the mental condition of the accused.”11 And M.R.E. 302 applies
to any “mental examination ordered under R.C.M. 706.”12 “It is a
general rule of statutory construction that ‘if the statute is
clear and unambiguous, a court may not look beyond it but must
give effect to its plain meaning. . . .’”13 We reject the
dissent’s invitation to construe M.R.E. 302 in a manner clearly
inconsistent with its plain meaning.14
“[T]he creation of Rule 302 was purely to protect the
privilege against self-incrimination of an accused undergoing a
11
R.C.M. 706(a), MCM, (2000 ed.).
12
M.R.E. 302(a).
13
United States v. McGowan, 41 M.J. 406, 413 n.4 (C.A.A.F. 1995)
(quoting Tibbs v. United States, 507 A.2d 141, 143-44 (D.C. App.
1986)). The Manual for Courts-Martial is interpreted according
to rules of statutory construction. United States v. Lucas, 1
C.M.A. 19, 22, 1 C.M.R. 19, 22 (1951).
14
The dissent does not provide any citation of authority to
support its assertion that “[t]he R.C.M. 706 evaluation in this
case was not one contemplated by the drafters.” __ M.J. __, __
(8 n.1) (C.A.A.F. 2005) (Crawford, J., dissenting). Regardless,
this situation is clearly within the ambit of the plain meaning
of R.C.M. 706, which expressly lists the defense counsel as one
of the individuals who shall transmit to appropriate authority
that he/she has reason to believe the accused lacks mental
responsibility or mental competence. Query: if the rule were as
the dissent proposes, how often would a defense counsel seek an
R.C.M. 706 evaluation of the accused?
8
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mental examination . . . .”15 Accordingly, M.R.E. 302 includes a
provision that generally prohibits use of any derivative
evidence of an accused’s statements to the sanity board to
determine guilt or innocence or during the sentencing phase of a
court-martial.16 “There is no privilege under this rule when the
accused first introduces into evidence such statements or
derivative evidence.”17
Following the Supreme Court’s decision in Jaffee v.
Redmond,18 the President adopted a psychotherapist-patient
privilege for the military justice system with the
implementation of M.R.E. 513.19 The rule allows a patient the
privilege to refuse to disclose, or allow another to disclose, a
confidential communication between the patient and a
psychotherapist. But this rule “is not a physician-patient
privilege.”20 Rather, it is “based on the social benefit of
confidential counseling recognized by Jaffee, and similar to the
clergy-penitent privilege.”21 M.R.E. 513 intends to safeguard
statements “made for the purpose of facilitating diagnosis or
15
MCM, App. 22, at A22-8.
16
See M.R.E. 302(a).
17
M.R.E. 302(b)(1).
18
518 U.S. 1 (1996).
19
Exec. Order No. 13,140, 64 Fed. Reg. 55,115, 55,116-17 (Oct.
12, 1999).
20
MCM, App. 22, at A22-44.
21
Id.
9
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treatment of the patient’s mental or emotional condition.”22 An
exception to M.R.E. 513, however, eliminates the privilege “when
an accused offers statements or other evidence concerning his
mental condition in defense, extenuation, or mitigation.”23
Because Appellant presented an insanity defense, he could not
have claimed a psychotherapist-patient privilege under M.R.E.
513.
This Court has previously addressed whether an expert’s
diagnosis sufficiently derives from a sanity board report to
warrant its release to the prosecution. In United States v.
Bledsoe,24 the prosecution called Dr. Townsend-Parchman, a member
of the accused’s sanity board, to testify about the results of
the board during its case-in-chief. The defense called Dr.
Martin to testify that he and two other members of the sanity
board had concurred in a diagnosis that the accused had a
“conversion disorder.”25 After the direct examination of Dr.
Martin, the trial counsel asked to review the sanity board
report. The prosecution alleged that Dr. Martin’s testimony
opened the door to the accused’s medical history, “particularly
the statements made by the accused in the evaluation process.”26
The trial counsel requested access to those statements alleging
22
M.R.E. 513(a).
23
M.R.E. 513(d)(7).
24
26 M.J. 97 (C.M.A. 1988).
25
Id. at 100.
26
Id.
10
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they were necessary for an effective cross-examination of Dr.
Martin. The military judge overruled a defense objection and
provided the sanity board documents to the prosecution. While
this Court held there was no prejudicial error in Bledsoe, we
expressed “doubt that the diagnosis offered by a defense expert
can, in and of itself, be considered ‘derivative evidence’
merely because it is based in part on what the accused has told
the examining psychiatrists.”27
In this case, the Government alleges that Appellant waived
his right to the privilege by submitting derivative evidence
from the sanity board, specifically expert testimony of a
psychiatrist who reviewed the report. We disagree.
The Government concedes that “the defense did not elicit
statements made by Appellant during his sanity board.” The
Government asserts, however, that Appellant presented derivative
evidence because Dr. Peterson admitted that she had read the
report before testifying and thus “opened the door” for the
Government. While Dr. Peterson admitted on direct examination
that she “reviewed the sanity board [report] written by Doctor
Marrero,” she further clarified that she did not read the report
until after forming her own opinion. Aside from this single
statement by Dr. Peterson, the defense counsel’s direct
examination did not mention or allude to the report or the
27
Id. at 103.
11
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included statements.28 The military judge, however, elicited
information regarding the sanity board report.
M.R.E. 302 was specifically drafted to allow the defense to
control whether an accused’s statements to a sanity board would
be released to the prosecutors and presented at the court-
martial. If the defense does not allege insanity at court-
martial, or does so only through lay testimony, the sanity board
report will not be provided to the prosecution. But “[i]f the
defense offers expert testimony concerning the mental condition
of the accused,” the military judge shall compel the defense to
release to the prosecution “the full contents, other than any
statements made by the accused,” of the sanity board report.29
“If the accused presents a defense, however, which includes
specific incriminating statements made by the accused to the
sanity board, the military judge may order disclosure to the
trial counsel of ‘such statement . . . as may be necessary in
the interest of justice.’”30 While the defense chose to present
an insanity defense in this case, Dr. Peterson’s testimony
relied only on her own treatment of Appellant and did not in any
28
The dissent asserts that Dr. Peterson’s testimony was “at
least to some colorable degree, ‘received from’ or ‘deduced
from’” the sanity board report. __ M.J. at __ (10) (Crawford,
J., dissenting). But Dr. Peterson’s testimony affirms the
defense’s claim that Dr. Peterson did not rely on the sanity
board report in her evaluation of Appellant.
29
M.R.E. 302(c).
30
MCM, App. 22, at A22-9 (quoting M.R.E. 302(c)).
12
United States v. Clark, No. 04-0722/AF
way reveal to the members Appellant’s incriminating statements
to the sanity board.
In this case, the defense counsel’s direct examination of
Dr. Peterson is not derivative evidence, and therefore Appellant
did not waive his right to confidentiality under M.R.E. 302.
Once the defense offers expert testimony concerning an accused’s
mental condition, M.R.E. 302(c) allows the military judge to
provide the Government with the sanity board report after
redacting the accused’s statements. Here, the military judge
provided the entire sanity board report to the Government, and
he allowed the Government to elicit Appellant’s statements from
a Government rebuttal witness. This violated the privilege
extended to Appellant by M.R.E. 302.
The military judge abused his discretion by releasing the
sanity board report to the prosecution in its entirety and
allowing the Government to admit Appellant’s statements into
evidence. While the defense requested Appellant’s sanity board,
M.R.E. 302 afforded Appellant a privilege to prevent the
Government from using his statements against him.
To determine the impact of the improper testimony, we must
first determine whether the military judge’s release and
admission of Appellant’s statements is constitutional error. It
is not. The Supreme Court has concluded that if a defendant
requests the psychiatric evaluation or presents an insanity
13
United States v. Clark, No. 04-0722/AF
defense, “The defendant would have no Fifth Amendment privilege
against the introduction of [testimony from his psychiatric
evaluation] by the prosecution.”31 Because Appellant requested
the sanity board, he may not claim a Fifth Amendment violation
because the Government did not compel his appearance at the
board. Here, the disclosure resulted in a trial error. The
military judge’s ruling violated a privilege guaranteed to
Appellant under M.R.E. 302.
“For nonconstitutional errors, the Government must
demonstrate that the error did not have a substantial influence
on the findings.”32 Our consideration “cannot be merely whether
there was enough to support the result,” aside from the military
judge’s error.33 We must also examine “whether the error itself
had substantial influence.”34 To evaluate the prejudice from the
military judge’s erroneous ruling, we consider “(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.”35 After evaluating each of
these factors, we remain uncertain whether Appellant’s
31
Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987). See also
United States v. Byers, 740 F.2d 1104, 1111-13 (D.C. Cir. 1984).
32
United States v. McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003)
(citing United States v. Walker, 57 M.J. 174, 178 (C.A.A.F.
2002)).
33
Kotteakos v. United States, 328 U.S. 750, 765 (1946).
34
Id.
14
United States v. Clark, No. 04-0722/AF
conviction was “substantially swayed by the error.”36 Appellant
was prejudiced not only by the military judge’s decision to
release to the Government Appellant’s statements in the report,
but also by the Government’s later use of those statements and
others made to the report’s author to rebut Appellant’s claims
of diminished mental responsibility. The Government called only
one expert witness, Dr. Marrero, to rebut the insanity defense.
Dr. Marrero’s testimony was not limited to her conclusions;
rather, she freely recalled Appellant’s statements and behavior
during the sanity board.37 Dr. Marrero testified that Appellant
said, “I know what I was doing,” and that he was not concerned
with his punishment since “the worst that could happen was
getting out of the military.” Dr. Marrero further described
Appellant’s attitude when he admitted that “he was playing along
and enjoying the attention that he was getting.” Dr. Marrero
examined Appellant only once: when she conducted the R.C.M. 706
sanity board. Accordingly, the statements that she recounted
35
United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)(citing
United States v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985)).
36
Kotteakos, 328 U.S. at 765.
37
The dissent states that the “prosecution did not seek to admit
the accused’s statement to Dr. Marrero, but to obtain the
conclusions from that expert, which are based on case-specific
facts.” __ M.J. at __ (14) (Crawford, J., dissenting). The
prosecution, however, did attempt to admit into evidence the
entire sanity board report. While the military judge did not
allow the report to be admitted into evidence, he did allow the
trial counsel to elicit Appellant’s statements from Dr. Marrero
during direct examination.
15
United States v. Clark, No. 04-0722/AF
were necessarily made as part of the sanity board process. The
military judge should not have given the prosecution Appellant’s
statements to the sanity board. He further compounded the error
by allowing the Government to elicit testimony about Appellant’s
statements during the cross-examination of Dr. Peterson and the
direct examination of Dr. Marrero.
The Government’s case relied heavily on the improper
testimony of the sole member of Appellant’s sanity board.38
While Appellant’s first sergeant testified that Appellant
appeared normal to her on May 29, 2001, it is reasonable to
assume that the military judge would have given more weight to a
doctor’s diagnosis. The insanity defense may have succeeded if
the military judge had not released Appellant’s privileged
statements to the Government and allowed the prosecution to use
them to his detriment.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is reversed. The findings of guilty to Charges
II and IV, their specifications, and the sentence are set aside.
The findings of guilty to the remaining charge and specification
are affirmed. The record is returned to the Judge Advocate
General of the Air Force with authorization for a rehearing on
38
We do not question Dr. Marrero’s qualifications as a
psychiatrist nor do we suggest that Dr. Marrero is incompetent,
16
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Charges II and IV. If there is not a rehearing on the findings,
a sentence rehearing on the remaining charge and specification
may be held. If the convening authority determines that a
sentence rehearing is impracticable then he may approve a
sentence of no punishment.
as suggested by the dissent. But we do hold that her testimony
was improper under the Military Rules of Evidence.
17
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CRAWFORD, Judge (dissenting):
The majority’s application of Military Rule of Evidence
(M.R.E.) 302 would allow a defendant to obtain, at Government
expense, an expert mental evaluation, devoted solely to the
defense, and cloak with immunity any statements made during the
examination. With this immunity in place, the defense is then
free to call to the stand another Government-paid expert, whose
opinion and testimony were likely based, at least in part, on
both the earlier examination and the statements of the defendant
made during that examination. This second expert could then
testify for the defense without fear that the Government could
either obtain or use the defendant’s statements made during the
earlier examination. The majority’s holding runs counter to the
self-incrimination clause, is an improper balance of competing
interests, and overlooks the history behind M.R.E. 302.
In describing the posture of this case, the majority omits
an important, if not controlling, fact: the sanity board
conducted by Colonel (Dr.) Marrero was requested by the defense,
with all portions of the board report being delivered only to
the defense. Although Rule for Courts-Martial (R.C.M.)
706(c)(3)(A) requires that the board’s ultimate conclusions on
all questions “shall be submitted to the officer ordering the
examination, [under R.C.M. 706(b)(1)] . . . and to all counsel
in the case, the convening authority, and, after referral, to
United States v. Clark, No. 04-0722/AF
the military judge” (emphasis added), the results of this report
–- lock, stock, and barrel –- were delivered only to the
defense. This is hardly the instance of involuntary examination
and compelled statements that the drafters of M.R.E. 302 had in
mind.
In this case, a defense counsel zealously and creatively
represented her client by skillfully manipulating the Rules for
Courts-Martial, the Military Rules of Evidence, and military
health care assets to achieve a case posture that counsel
believed would prove most advantageous to her client at trial.
That is her job. At trial, the trial counsel argued that this
manipulation, and the testimony of Dr. Peterson, resulted in a
waiver of Appellant’s privilege under M.R.E. 302 as to
statements made by Appellant to an earlier sanity board convened
at Appellant’s request. That is his job. In the interest of
fairness and justice, the military judge construed the
evidentiary and procedural rules to permit access to and use by
the trial counsel of Appellant’s statements at the sanity board
Appellant had requested. That is his job.
Because, as the majority correctly notes, we address
neither a constitutional question nor one arising under Article
31, UCMJ, it is now this Court’s job to decide whether the
military judge’s decision to admit evidence in potential
abrogation of a privilege was an abuse of his discretion.
2
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The decision to admit evidence is reviewed for an
abuse of discretion. Whether a conversation is
privileged is a mixed question of law and fact. To
find an abuse of discretion requires more than a mere
difference of opinion -- the challenged ruling must be
“arbitrary, fanciful, clearly unreasonable,” or
“clearly erroneous.”
United States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F.
2000)(internal citations omitted). “As has often been said, the
purpose of a criminal trial is truthfinding within
constitutional, codal, Manual, and ethical rules. Because the
privilege rules limit truthfinding by excluding legally relevant
evidence, these rules are not ‘favored’ by the federal courts.”
United States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997)
(internal citations omitted).
Like other federal courts, we should not construe rules
conferring privileges in such a way as to defeat both the truth-
finding process and the intent of the drafters. In United
States v. Bledsoe, 26 M.J. 97 (C.M.A. 1988), this Court
construed M.R.E. 302, contrary to its literal language, to
achieve what we perceived as the drafters’ intent. We should
once again construe this rule so as to preserve that same
intent, and to promote the orderly administration of military
justice. M.R.E. 302 provides:
(a) General rule. The accused has a privilege to
prevent any statement made by the accused at a mental
examination ordered under R.C.M. 706 and any
derivative evidence obtained through use of such a
statement from being received into evidence against
3
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the accused on the issue of guilt or innocence or
during sentencing proceedings. This privilege may be
claimed by the accused notwithstanding the fact that
the accused may have been warned of the rights
provided by Mil. R. Evid. 305 at the examination.
(b) Exceptions.
(1) There is no privilege under this rule when the
accused first introduces into evidence such statements
or derivative evidence.
(2) An expert witness for the prosecution may testify
as to the reasons for the expert’s conclusions and the
reasons therefore as to the mental state of the
accused if expert testimony offered by the defense as
to the mental condition of the accused has been
received in evidence, but such testimony may not
extend to statements of the accused except as provided
in (1).
(c) Release of evidence. If the defense offers expert
testimony concerning the mental condition of the
accused, the military judge, upon motion, shall order
the release to the prosecution of the full contents,
other than any statements made by the accused, of any
report prepared pursuant to R.C.M. 706. If the
defense offers statements made by the accused at such
examination, the military judge may upon motion order
the disclosure of such statements made by the accused
and contained in the report as may be necessary in the
interests of justice.
This rule is designed to balance the competing interests of
the self-incrimination clause and the insanity defense. Under
the rule, the “prosecution may compel the accused to submit to
government psychiatric examination.” But that expert may
testify “only as to his or her conclusions and their basis and
not the contents of any statements by the accused during the
examination.” MCM, App. 22, A22-7.
4
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FACTS
On May 29, 2001, Appellant, when he was restricted, was
arrested for wrongfully trying to leave the post. Appellant’s
first sergeant testified Appellant appeared normal when he was
brought back to the unit. However, the next day Appellant was
hospitalized because of what a co-worker thought was bizarre
behavior. Dr. (Major) Karen Peterson, a psychiatrist, treated
Appellant from May 31 to June 28, 2001.
Later, pursuant to a defense request, the convening
authority ordered a sanity board. The sole member of the board
was Dr. (Colonel) Gregoria Marrero, a forensic psychiatrist.
Upon completion of the examination, the sanity board report was
returned directly to the defense team and not given to the trial
counsel or the convening authority. While Dr. Marrero agreed
with Dr. Peterson that Appellant suffered from a manic episode
on May 29-30, 2001, Dr. Marrero concluded that Appellant knew
what he was doing on those dates, and his hospitalization was
due to malingering. After the sanity board, Appellant obtained
the assistance of Dr. Peterson as a confidential consultant and
notified the prosecution of the intent to raise the lack of
mental responsibility as a defense. At trial, the defense
called Dr. Peterson as an expert witness. She opined that there
was a “high likelihood” that Appellant was suffering from a
severe mental disease or defect on May 29 and 30, 2001. As a
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result of this, it would be difficult for Appellant to
appreciate the nature and quality or the wrongfulness of his
actions.
The record of trial reveals the following colloquy between
defense counsel and Dr. Peterson:
Q. Was there anything else that you used to
formulate that opinion?
A. This week, I also met for the first time an
Airman Paytas and she described the change in his
behavior back at this period of time. I also
reviewed the sanity board written by Doctor
Morrero [sic].
Q. Now, did you review that prior to formulating
your opinion?
A. No and I wouldn’t want to. No. I looked at
all the other information first then met with him.
Q. So, did you use that as part of your opinion,
to base your opinion on?
A. Not to base my opinion on, I just wanted to
see what my colleague -- what her findings were.
I came to my own conclusion and then I wanted to
look at that and see what she had drawn up.
Emphasis added.
The following inquiry was with the military judge:
Q. Major, have you seen the charge sheet in this case?
A. Yes, I have.
Q. Do you know the offenses that were alleged to have
occurred at approximately 29 or 30 May?
A. I don’t recall the specifics of them.
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United States v. Clark, No. 04-0722/AF
Q. Did you sit down and go through the elements -- what
we call the elements of the law in those offenses?
A. Yes, I did.
Q. Okay. So you’ve taken that in your [sic] account in
your ultimate assessment?
A. Yes.
Q. You told us that you looked at the medical records
that Airman Clark had maintained on him over at the
hospital correct?
A. Right.
Q. Do those include prior mental health records?
A. No. He did not have any.
Q. Had none? My next few questions come from a vantage
point of ignorance, I’m afraid. The only person who has
seen the full sanity board report is Captain Johnson [the
defense counsel], Airman Clark, of course and I assume
you have seen it. We haven’t seen it so some of my
questions may be a little off cue, because I don’t know
what’s in the thing.
A. Okay.
Q. Apparently Colonel Marrero rendered a diagnosis
during the course of that report, is that right?
A. She said rule out -- she would rule out several
diagnoses. She didn’t pin point anything.
Q. Okay. Did Colonel Marrero reference within the
report any statements made by Airman Clark?
A. Yes, she did.
Q. Did you read those?
A. Yes.
Q. So you’re [sic] overall assessment is based on the
following: your inpatient contact with Airman Clark 30
[sic] through 6 June?
A. Right
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United States v. Clark, No. 04-0722/AF
. . . .
Q. You reviewed Colonel Marrero’s assessment in the
sanity board report to include both narrative and certain
statements attributed to Airman Clark?
A. Right.
Q. You took a look at the charge sheet and reviewed what
we call elements of the law?
A. Uh-huh. Right.
Q. Affirmative response. And you reviewed the DSM-IV is
that correct?
A. That’s correct.
Q. Aside from your own professional experience, anything
else brought to bear upon your ultimate opinion?
A. No. No, Sir.
Emphasis added.
The military judge ruled that after Dr. Peterson’s
testimony, M.R.E. 302 no longer barred the testimony of Dr.
Marrero as to either Dr. Marrero’s opinions or the statements of
Appellant made during Dr. Marrero’s examination.
“Ordered Under R.C.M. 706”
M.R.E. 302 is designed to ensure Fifth Amendment
protections when “the accused” is “ordered under R.C.M. 706” to
submit to a Government psychiatrist.1 In this case, the
1
One can parse the language from R.C.M. 706(a) to support a
number of positions. The R.C.M. 706 evaluation in this case was
not one contemplated by the drafters. It was requested by the
defense, and returned to the defense, but not to the commander
or convening authority. Any defense counsel would like any
number of these types of evaluations until they get the one they
desired.
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United States v. Clark, No. 04-0722/AF
examination the defense would like to exclude was one requested
by the trial defense team and returned only to that team. This
was not the type of examination contemplated by M.R.E. 302.
R.C.M. 706 permits the Government to order a psychiatric
examination of an accused, an examination to which the accused
must submit if he or she wishes to introduce expert testimony in
support of an insanity defense. Once the defense of lack of
mental responsibility is raised by the defense, M.R.E. 302
allows testimony or other evidence regarding the conclusions of
the R.C.M. 706 examination, but generally excludes statements
made by the accused.
In this case, because the defense was dissatisfied with the
results of its essentially “private” R.C.M. 706 board, it called
Dr. Peterson, Appellant’s treating psychiatrist, to testify.
She reviewed the full report of Dr. Marrero’s R.C.M. 706 board
before testifying.
In 1987, the Supreme Court addressed this dilemma:
[I]f a defendant requests such [a psychiatric]
evaluation or presents psychiatric evidence, then at
the very least, the prosecution may rebut this
presentation with evidence from reports of the
examination that the defendant requested. The
defendant would have no Fifth Amendment privilege
against the introduction of this psychiatric testimony
by the prosecution.
Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987).
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“Derivative” Evidence
M.R.E. 302 does not apply when the defense introduces
evidence “derivative” of the sanity board. “Derivative” is
defined as “a word formed from derivation.” A secondary meaning
is “something derived.” “Derived” is defined as “to take or
receive esp. from a specified source.” Webster’s New Collegiate
Dictionary 342 (1983). As indicated, derived means “receive
from.” Major (Dr.) Karen Peterson’s testimony was, at least to
some colorable degree, “received from” or “deduced from” Colonel
(Dr.) Gregoria Marrero and the statements that Appellant had
made to Colonel Marrero. Once Dr. Peterson testified, Dr.
Marrero was permitted to testify as to both her findings and
Appellant’s statements.
The majority holds that, even if the defense perverts the
mechanism of R.C.M. 706 to receive an essentially private
psychiatric examination, uncontemplated by the drafters, the
results of which the defense does not like, then both the
results of that examination and Appellant’s statements would
remain privileged under a rule intended to protect statements
made in the course of a compliant R.C.M. 706 inquiry. This
result, the majority reasons, is compelled by a plain reading of
both rules, notwithstanding subsequent use of both those results
and statements by a second defense expert who is called to
testify to contrary conclusions after a second examination. In
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United States v. Clark, No. 04-0722/AF
answer to the majority’s query,2 I must posit a corollary: If
the rules were as the majority proposes, what defense counsel
would not be per se ineffective in failing to request such an
R.C.M. 706 inquiry?
The same scenario in this case was presented to Judge
Weinstein in United States ex rel. Edney v. Smith, 425 F. Supp.
1038 (E.D.N.Y. 1976) aff’d without opinion, 556 F.2d 556 (2d
Cir.), cert. denied, 431 U.S. 958 (1977). Edney, at his trial,
raised the insanity defense and called a psychiatric expert to
testify on his behalf. The court permitted the prosecution to
call in rebuttal the psychiatrist who originally examined the
defendant at counsel’s request for the purpose of trial
preparation. This psychiatrist testified for the Government
that Edney did not suffer any mental disease or defect and
appreciated the nature of his acts. Judge Weinstein delivered a
lengthy and careful decision and concluded that although the
psychiatric testimony may have been privileged, the defendant
waived any attorney-client privilege by offering the expert
testimony on the insanity defense. A number of other courts
have done likewise, including the Supreme Court of Washington in
State v. Pawlyk, 800 P.2d 338, 350 (Wash. 1990); see also
Pawlyk v. Wood, 248 F.3d 815 (9th Cir. 2001).
2
__ M.J. __ (8 n.14).
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United States v. Clark, No. 04-0722/AF
Insanity Defense
A third exception is M.R.E. 302(c), which recognizes that
the defense waived the privilege under M.R.E. 302 by presenting
testimony from Dr. Peterson. Once the “defense offers expert
testimony concerning the mental condition of the accused, the
military judge . . . shall order the release to the prosecution
of the full contents . . . of any report prepared pursuant to
R.C.M. 706.” Thus, the privilege under M.R.E. 302(a) did not
extend to the testimony of Dr. Marerro when the defense first
called Dr. Peterson to the stand, and used her findings and
conclusions resulting from a psychiatrist examination of the
defendant to show lack of mental responsibility.
M.R.E. 302 protects direct communications with the expert.
Generally, consulting with the expert does not create an
opposing witness. But when an attorney asks an expert to
examine his client to gain the expert’s opinion, that opinion
will be privileged except when the defense seeks to employ that
report to improve the opinion of another expert and to prevent
any counter arguments. The opinions of both experts do not rely
totally on statements from the accused but include other
information from other sources, including witnesses as to the
specific facts. While the first expert’s opinion is privileged,
the opinion is only partially related to the accused’s
communication. But even those communications that are
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United States v. Clark, No. 04-0722/AF
privileged, either under the Fifth Amendment or the attorney-
client privilege, are waived when there is a derivative use of
the first expert’s report as in this case. M.R.E. 302. Cf.
United States v. Olivero, 39 M.J. 246 (C.M.A. 1994) (failing to
catalog or seal the statements resulted in the inference of
derivative use, allowing the inference that the witness’s
statements were obtained prior to the immunized statements,
whether or not it was seen or relied upon). See also United
States v. Mapes, 59 M.J. 60 (C.A.A.F. 2003) (timing by itself
was enough to show derivative use). A member of the prosecution
may not, in the first instance, interview or call the expert
from the first sanity board. But M.R.E. 302 does not render the
first expert completely incompetent to testify. If that
testimony is contrary to the defense position, it should not
allow the defense to continue shopping around until it finds an
opinion to its liking. To expand the Fifth Amendment and the
attorney-client privilege to exclude the first expert’s opinion
when the defense has the second expert examine that report
deprives the trier of fact of the benefit of valuable expert
advice. Edney, 425 F. Supp. 1038; Pouncy v. State, 353 So. 2d
640, 642 (Fla. Dist. Ct. App. 1977); State v. Carter, 641 S.W.2d
54, 58 (Mo. 1982). The defense should not be allowed to bury
the witness or corner the market on expert witnesses. Cf.
United States v. Warner, ___ M.J. ___ (C.A.A.F. 2005)(requiring
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United States v. Clark, No. 04-0722/AF
comparable witnesses for defense). The fact that the statements
of the accused were elicited by Dr. Marrero does not mean they
are always privileged if the defense seeks to admit these same
statements through Dr. Peterson. But as mentioned, Dr.
Marrero’s opinion does not rely solely on the accused’s
statements but also on case-specific facts and third-party
descriptions of the accused’s behavior and reactions on
particular occasions.
In this case, the prosecution did not seek to admit the
accused’s statement to Dr. Marrero, but to obtain the
conclusions from that expert, which are based on case-specific
facts. This is permissible when there has been derivative use
of her opinion and report. Thus, Dr. Marrero should be able to
give her opinion, which is based on observations of the accused,
third parties’ descriptions of the accused’s behavior, and other
facts surrounding the conduct. What the majority seeks to do is
transform the privilege under M.R.E. 302 unto a broad rule of
incompetency that undermines the truthfulness of a criminal
trial. The result is to unnecessarily expand the privilege.
For these reasons, I respectfully dissent.
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