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6th Amendment right of Confrontation and Mental health records in Sexual Assault cases

Supreme Court has its eye on mental health record privilege

 A Colorado case involving a dispute over murder versus suicide begs the question: are mental health records absolutely subject to psychologist-patient privilege, or is there a set of circumstances where they can be revealed to the accused to aid in defense? The Supreme Court is awaiting briefing in Perez v. Colorado, 19-1357.


What is psychologist-patient privilege?


Psychologist-patient privilege, or therapist-patient privilege, is just like the more commonly known doctor-patient privilege. It basically means that the patient has a right to keep his or her medical information private, and that right extends to mental health as well. This right belongs to the patient, not the doctor, so the patient is the one who can prevent, or waive, the disclosure of the confidential communication.


The confidential communication in a psychologist-patient privilege can include communication made in the course of diagnosis or treatment and can include mental or emotional conditions. In Jaffee v. Redmond, 518 U.S. 1, 15 (U.S. 1996), the U.S. Supreme Court held that, to be covered under this privilege, three things must exist:


1) the communications must be confidential;

2) the therapist must be a licensed psychotherapist; and

3) the communications must occur in the course of diagnosis or treatment.


In Jaffee, the Court also noted that “it is appropriate for the federal courts to recognize a psychotherapist privilege is confirmed by the fact that all 50 States and the District of Columbia have enacted into law some form of the privilege.” This is also found in its holding in Trammel v. United States, 445 U.S., at 48–50, 100 S.Ct., at 911–912.


Are there any exceptions to this privilege?


Yes, certain exceptions exist. In child abuses cases, disputes between co-patients, disputes between a patient and therapist, or in the instance of crime or fraud. There is also a duty to warn exception, where if a patient presents a serious danger of violence toward another person, the therapist must take reasonable steps to protect that person. That can include notifying the victim or the police.


One big exception to the psychotherapist-patient privilege is if mental health is an issue in the case. If the mental health itself is a direct legal issue, like competency to stand trial, or emotional injuries, or civil commitment hearings, or even child custody cases, there can be exceptions considered. In this case, the court in Colorado held that the defendant’s assertion that his wife was depressed and may have discussed this with her mental health provider – thus evidence of a suicide instead of a murder – did not rise to the level needed to overcome Colorado’s policy on privileged records.


Colorado’s privilege law.


Colorado’s privilege law is absolute and, barring a waiver of the psychologist-patient privilege by the victim’s estate, the statute deems the mental health records of the victim privileged and inadmissible. It complies with the Federal Rules of Evidence, Article V, which discusses the different types of privileges that exist to protect those who are involved in court proceedings.


Colorado Statute §13-90-107(1)(g), C.R.S. 2018 discusses psychologist-patient privilege on which the trial court in Perez based its decision to quash the subpoena for mental health records.


What happened in Perez?


In Perez, the defendant Robert Perez is accused of murdering his wife, although he maintains his innocence and believes it was a suicide due to depression and mental health issues. As part of his defense, Perez sought medical records, via subpoena, from his wife’s mental health providers. The trial court quashed the subpoena, abiding by its interpretation of the Colorado Statute referenced above. Perez contends that the trial court should not have quashed the subpoena without an in-camera review of the records. An in-camera review allows the court to review seemingly privileged documents to determine if they are admissible.


Perez believes that the court’s failure to even review the records in-camera, let alone allowing him to use them as part of his defense, violated his constitutional rights under the Due Process Clause, the Compulsory Process Clause, and the Confrontation Clause of the United States and Colorado Constitutions. U.S. Const. amends. VI, XIV; Colo. Const. art. II, §§ 16, 25.


Can a state privilege law be unconstitutional?


The Colorado Court of Appeals cited to Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989,94 L. Ed. 2d 40 (1987), where the U.S. Supreme court held that the defendant was entitled to have privileged records reviewed by the trial court to determine whether it contained information that probably would have changed the outcome of the trial, and defense counsel was not entitled to examine the confidential information itself. The U.S. Supreme Court held that a victim’s statutory right may yield to a defendant’s right to present a complete defense under particular circumstances. Perez believes his case rises to that threshold.


However, the Colorado Court of Appeals distinguished its own privilege statute from that of the state of Pennsylvania. In Colorado, the statute does not recognize any per se exception to the psychologist-patient privilege based on a defendant’s due process or confrontational rights. Perez wants the U.S. Supreme Court to answer: is this statute itself unconstitutional?

Perez’s exact question to the U.S. Supreme Court is: Whether, and to what extent, the Sixth and Fourteenth Amendments guarantee a criminal defendant the right to discover potentially exculpatory mental health records held by a private party, notwithstanding a state privilege law to the contrary.

What does this mean for me in Massachusetts?


In Massachusetts, your mental health records are protected under the Massachusetts Guide to Evidence, Section 503 under Article V. This gives similar protections as mentioned above regarding psychotherapist-client communication and the attached privileges. However, just like other statutes, this one also comes with its own exceptions you should know about.


The exceptions to this privilege include if you need treatment in a hospital or if there is a threat of dangerous activity either toward yourself or toward another person, if the court orders a psychiatric exam, if you raise your mental or emotional condition as an element of defense or claim, in child custody and adoption cases, in child abuse or neglect cases, in claims against the therapist, or in criminal actions.


A big exception in Massachusetts – and perhaps one that the U.S. Supreme Court will turn to when it is reviewing the merits of the Perez case – is the exception of a deceased patient. Any party claiming or defending through, or as a beneficiary of, the deceased patient as an element of the claim or defense, can possibly have the privilege waived if the court finds that it is more important to the interests of justice that the communication be disclosed than the relationship be protected.


Want to read more about this case?


You can read the Perez Writ of Certiorari to the U.S. Supreme Court here: https://www.supremecourt.gov/DocketPDF/19/19-1357/144902/20200604143656817_Perez%20-%20Cert%20Petition.pdf


You can read the Perez Supreme Court of Colorado opinion here: https://www.supremecourt.gov/DocketPDF/19/19-1357/144902/20200604143751337_Perez%20-%20Appendix.pdf


You can keep track of the U.S. Supreme Court docket on Perez here: https://www.supremecourt.gov/docket/docketfiles/html/public/19-1357.html

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