U.S. Army Court of Criminal Appeals, in United States v. Trigueros, 69 M.J. 604, (2010) recently discussed the failure of the government to disclose records of mental health counseling sessions which the victim attended after the rape incident. Civilian counsel had submitted a written discovery request, including inter alia “copies of any and all records, to include notes, whether hand-written or otherwise, maintained by any health care provider, to include mental health care such as social workers and the Army Substance Abuse Program, for any sessions with [the alleged victim].” Ultimately, after the court-martial the defense raised the issue of nondisclosure with the judge by declaring a mistrial. The appellate court upheld the conviction but warned “an intentional decision to withhold inculpatory physical [and written] evidence from defense counsel with the intent to use it as rebuttal evidence” offends Article 46, UCMJ, and could result in reversal.
Civilian and military defense counsel must zealously push for discovery of mental health records, and not wait until after trial to raise the issue. Trigueros makes clear it is the duty of the government to subpoena such records, not the defense. Additionally, undisclosed mental health records may offer a source of relief if either inculpatory (could be used by government to convict client) or exculpatory (could be used by defense in undercutting government case). Most lawyers make the mistake in only focusing on the latter basis, so read Article 46 and make that record by requesting a post-trial Daubert hearing.