M.R.E. 513: The Psychotherapist-Patient Privilege
Key takeaways
- The privilege covers confidential communications between a patient and a psychotherapist — psychiatrist, clinical psychologist, clinical social worker, or other licensed or credentialed mental health professional — or an assistant, made for diagnosis or treatment. M.R.E. 513(a), (b).
- It applies at all stages of a case or proceeding, including Article 32 hearings and pretrial matters. M.R.E. 1101(c).
- Seven enumerated exceptions remain — including deceased patient, evidence of child abuse or neglect, duty-to-report laws, danger to any person, crime-fraud, and military safety and mission necessity. M.R.E. 513(d).
- The FY 2015 NDAA removed the “constitutionally required” exception, but the CCAs have held Congress cannot legislate away the Sixth Amendment at trial. J.M. v. Payton-O’Brien, 76 M.J. 782 (N-M. Ct. Crim. App. 2017); LK v. Acosta, 76 M.J. 611 (Army Ct. Crim. App. 2017).
- Even in camera review requires a preponderance showing of a specific, credible factual basis, an enumerated exception, non-cumulativeness, and exhausted non-privileged sources. M.R.E. 513(e)(3).
What the privilege covers
M.R.E. 513 is a distant derivative of Jaffee v. Redmond, 518 U.S. 1 (1996) — distant because military courts initially held that Jaffee created no military privilege at all, United States v. Rodriguez, 54 M.J. 156 (C.A.A.F. 2000); United States v. Paaluhi, 54 M.J. 181 (C.A.A.F. 2000), and the rule instead arrived by Executive Order 13,140 in 1999. It has grown steadily stronger since.
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 Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.
M.R.E. 513(a)
The definitions determine the coverage. A “psychotherapist” is a psychiatrist, clinical psychologist, clinical social worker, or other mental health professional licensed in any state or credentialed by a military health facility — or someone the patient reasonably believes to be one. “Assistants” are covered. So are records: the rule defines “evidence of a patient’s records or communications” to include patient records pertaining to treatment communications, which is why 513 governs the production of mental-health files, not just courtroom testimony. The privilege applies “at all stages of a case or proceeding” under M.R.E. 1101(c) — including the Article 32 hearing. It may be claimed by the patient, a guardian or conservator, or the psychotherapist or assistant on the patient’s behalf. What it is not is a general doctor-patient privilege: M.R.E. 501(d) makes clear that ordinary medical information is not privileged merely because a physician acquired it. Adjacent doctrines fill gaps — a psychotherapist detailed to the defense team is protected by attorney-client confidentiality, United States v. Tharpe, 38 M.J. 8 (C.M.A. 1993), and an accused’s statements to an R.C.M. 706 sanity board are separately privileged under M.R.E. 302.
The enumerated exceptions
Military privileges and their exceptions are expressly delineated — they do not evolve case by case as federal common-law privileges do. United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007). M.R.E. 513(d) lists seven:
| Exception | Scope |
|---|---|
| (d)(1) Deceased patient | No privilege when the patient is dead |
| (d)(2) Child abuse or neglect | Communications that are evidence of child abuse or neglect, or proceedings where a spouse is charged with a crime against a child of either spouse |
| (d)(3) Duty to report | When federal law, state law, or service regulation imposes a duty to report the information |
| (d)(4) Danger | When the psychotherapist or assistant believes the patient’s condition makes the patient a danger to any person, including the patient |
| (d)(5) Crime-fraud | Communications contemplating future crime or fraud, or services sought to enable one |
| (d)(6) Military necessity | When necessary to ensure the safety and security of military personnel, dependents, property, classified information, or mission accomplishment |
| (d)(7) Accused’s own mental condition | When the accused offers mental-condition evidence in defense, extenuation, or mitigation outside R.C.M. 706 / M.R.E. 302 |
The exceptions reflect the military’s “specialized society”: in United States v. Jenkins, 63 M.J. 426 (C.A.A.F. 2006), a doctor’s testimony was permitted under (d)(4) and (d)(6) because the military privilege is more limited than its civilian cousin, shaped by readiness and national security. Note what is absent from the list — and that absence is the modern battleground.
The removed constitutional exception
Until 2015, M.R.E. 513(d)(8) contained an exception for evidence “constitutionally required” to be disclosed. The Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 removed it — part of a package that clarified the privilege’s scope, curtailed exceptions, strengthened patients’ procedural remedies, and made privileged matter harder to obtain and admit. Because the rule’s production standard requires the moving party to show the information fits one of the enumerated exceptions, in theory a constitutional claim can no longer succeed at all.
The Courts of Criminal Appeals have refused to read the removal that far. In LK v. Acosta, 76 M.J. 611 (Army Ct. Crim. App. 2017), ACCA distinguished discovery from trial rights: there is no constitutional right to discovery, but Congress cannot remove the constitutional considerations governing admissibility, and M.R.E. 513 is not a rule of discovery. The Navy-Marine Corps court reached a parallel conclusion in J.M. v. Payton-O’Brien, 76 M.J. 782 (N-M. Ct. Crim. App. 2017): striking the exception did not remove the Sixth Amendment’s reach at trial — so when a judge concludes the Constitution requires in camera review or admission, the privilege must be waived or the court must provide a remedy, such as abatement of the proceedings. The CAAF has not yet resolved the question directly, which makes the trial-level record decisive.
In camera review: the four-part showing
M.R.E. 513(e) builds a formal gate in front of the records. A party disputing production or admission files a written motion at least five days before entry of pleas, serves the opposing party and the military judge, and notifies the patient, who has the right to attend a closed hearing and be heard — including through counsel, such as a Special Victims’ Counsel. Ordering production before holding that hearing is reversible error. D.B. v. Lippert, 2016 CCA LEXIS 63 (Army Ct. Crim. App. 2016).
Even to look at the records in camera, the military judge must find by a preponderance of the evidence that the moving party showed:
- a specific, credible factual basis demonstrating a reasonable likelihood the records would yield evidence admissible under an exception;
- that the information sought meets one of the enumerated (d) exceptions;
- that it is not merely cumulative of other available information; and
- that the party made reasonable efforts to obtain the same or substantially similar information from non-privileged sources.
The standard descends from United States v. Klemick, 65 M.J. 576 (N-M. Ct. Crim. App. 2006), which borrowed a threshold-showing requirement from state law; Congress adopted it — and added the enumerated-exception element — in the 2015 NDAA. Any production the judge permits must be narrowly tailored to the specific records fitting the exception, protective orders are available, and the motion, papers, and hearing record are sealed. Victims enforce the rule the same way as M.R.E. 412: Article 6b, UCMJ lets them petition the CCA for a writ of mandamus, though the CAAF lacks jurisdiction over such petitions. E.V. v. United States, 75 M.J. 331 (C.A.A.F. 2016); Randolph v. H.V., 76 M.J. 27 (C.A.A.F. 2017).
What this means if the case against you rests on one witness’s word
In a credibility case, a complaining witness’s mental-health history can hold the only evidence of a motive to fabricate, a memory disorder, or a materially different prior account — and M.R.E. 513 is built to keep you from ever seeing it. The four-part showing cannot be improvised at trial: it takes early investigation of non-privileged sources, precise theory development, and a motion filed before pleas. A defense that starts this work late usually ends with sealed records and an undeveloped appellate issue. Get experienced counsel building the 513 record from day one.
Victim mental-health records in practice
The typical fight arises in a sexual assault prosecution: the defense learns the complaining witness received counseling, and moves for production and in camera review. The case law calibrates expectations. The mere fact that a witness underwent counseling is not enough to pry into her medical history for bias or credibility. United States v. Sullivan, 70 M.J. 110 (C.A.A.F. 2011). Records showing marginal relationship dissatisfaction did not meet the constitutional threshold, United States v. Hudgins, 2014 CCA LEXIS 227 (A.F. Ct. Crim. App. 2014), and impeachment use at sentencing was properly refused in United States v. Bazar, 2012 WL 2505280 (A.F. Ct. Crim. App. 2012). What moves judges is specificity: a documented diagnosis bearing on perception or memory, a report to a therapist inconsistent with trial testimony, a duty-to-report trigger, or treatment records already partially disclosed to third parties — disclosure that can defeat confidentiality altogether.
The 513 motion also travels with its neighbors. The production rules govern how the defense compels evidence generally, and non-privileged sources — command records, prior statements, witnesses who heard the account firsthand — are both a required showing under (e)(3) and often the better impeachment anyway. Where the witness confided in a victim advocate rather than a therapist, the parallel M.R.E. 514 victim advocate privilege applies, with its own — notably, still extant — constitutionally required exception. And at the Article 32 stage, the privilege applies in full, so counsel should not expect the preliminary hearing to open doors the trial rules keep shut.
Practitioner’s note
In our practice, we treat the four-part showing as an investigation plan, not a brief-writing problem. Months before the motion deadline, we exhaust the non-privileged record — prior statements, first-report witnesses, personnel and medical administrative files — both because the rule requires that effort and because it usually surfaces the specific, credible factual basis the rule demands. When the judge denies review, we make the constitutional record anyway: a precise offer of what we believe the records contain and why the Sixth Amendment requires their consideration, so the abatement remedy recognized in the post-2015 case law has something to attach to. Sealed records with no record around them win no appeals.
Frequently asked questions
Who is covered by the M.R.E. 513 privilege?
Patients communicating with a psychiatrist, clinical psychologist, clinical social worker, or other mental health professional licensed in any state or credentialed by a military health facility — or someone the patient reasonably believes is one — plus assistants to the psychotherapist. The privilege covers confidential communications made for diagnosis or treatment of a mental or emotional condition, and it extends to treatment records, not just testimony.
What are the exceptions to the psychotherapist-patient privilege in the military?
Seven are enumerated: the patient is dead; the communication is evidence of child abuse or neglect; a law or service regulation imposes a duty to report; the therapist believes the patient is a danger to any person; the communication contemplated future crime or fraud; military safety, security, or mission necessity; and when the accused puts his own mental condition in issue outside the sanity board rules.
Is there still a constitutionally required exception to M.R.E. 513?
Not in the rule's text — the FY 2015 NDAA removed it. But the Army and Navy-Marine Corps appellate courts have held Congress cannot eliminate the Sixth Amendment's reach at trial: when a military judge concludes the Constitution requires in camera review or admission, the privilege must be waived or the court must provide a remedy such as abatement. The CAAF has not yet squarely resolved the issue.
What must the defense show to get a victim's mental-health records reviewed?
By a preponderance of the evidence: a specific, credible factual basis showing a reasonable likelihood the records would yield admissible evidence under an exception; that the information fits an enumerated exception; that it is not merely cumulative; and that reasonable efforts were made to obtain the information from non-privileged sources. Only then may the judge examine the records in camera, after a closed hearing.
Does M.R.E. 513 apply at an Article 32 preliminary hearing?
Yes. Under M.R.E. 1101, the rules of privilege apply at all stages of a case or proceeding arising under the UCMJ — including Article 32 preliminary hearings, pretrial confinement reviews, and search authorization proceedings. A patient's privileged mental-health communications are protected at the preliminary hearing just as they are at trial.
Can a victim challenge a judge's ruling on privileged records?
Yes. Article 6b of the UCMJ, as amended by the FY 2015 and 2016 NDAAs, allows a victim who believes the military judge violated M.R.E. 513 to petition the service Court of Criminal Appeals for a writ of mandamus. That court has jurisdiction over the petition; the CAAF has held it lacks jurisdiction to review such rulings further.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington, reviewing counsel for this page, has litigated privilege and production fights in courts-martial for more than 25 years, from sanity board disclosures under M.R.E. 302 to sealed 513 hearings over a complaining witness’s counseling records. A former Army prosecutor and defense counsel, he pairs the privilege motion with the cross-examination it is meant to arm — and when judges keep records sealed, he builds the offer of proof that turns a denied motion into a preserved constitutional issue.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington and the author of this deep dive, has spent more than 20 years defending sexual assault and domestic violence courts-martial in which the complaining witness’s mental-health history was the case’s hidden center. She has litigated M.R.E. 513 motions through the post-2015 landscape — closed hearings, in camera showings, Article 6b writ practice — and she builds the non-privileged investigative record that both satisfies the rule and often makes the sealed records unnecessary.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.