The right of confrontation is the most important and cherished right for protecting an accused‘ a right to a fair trial in the United States.  It is preserved by the Sixth Amendment to the United States Constitution.  Judges have spoken of the right of confrontation in the following terms:

With sexual assault cases, the Court has diminished the right of confrontation in an effort to protecting statutory privileges against the disclosure of records regarding psychiatric treatment, educational records and other type of records.

In the case of Commonwealth v. Richard Jones, the Massachusetts Supreme Judicial Court imposed an extremely high bar on defense lawyers seeking access to records to impeach the complaining witness.

The Massachusetts Supreme Judicial Court in the case of Commonwealth v. Dwyer set forth a procedure that most be followed if a defendant seeks access to statutorily privileged records.

This procedure requires the moving party to show good cause that:

1. The documents are evidentiary and relevant
2. That they  are not otherwise procurable reasonable in advance of trial by the exercise of due diligence;
3. That the party cannot property prepare for trial without such production and inspection in advance of trial; and
4. That the application is made in good faith and is not a general fishing expedition.

The Court in Jones was very strict in its interpretation of the relevancy prong. The Cour found that to satisfy the first prong the defendant must make a factual showing that the documentary evidence sought has a rational tendency to prove or disprove and issue in the case.  The Court stated that potential relevancy and conclusory statements about the documents are insufficient to satisfy the rule.  The Court went to state that relevancy is merely one factor in the analysis and it is not established by rank speculation.  Further, the Court stated that the requested documents must be likely to be admissible at trial.

The defendant in Jones was convicted of sexual abuse of his two daughters.  The victim started to act out in school.  As a result of the behavior, the victim was referred to a psychiatrist and also met with a therapist at a counseling center.  The Court found that around the same time, the victim first disclosed to a friend that her father sexually abused her two years earlier.

A high school counselor talked about the victim about the allegations.

In its motion, the defendant argued the following as basis for obtaining access to the psychiatric and counseling records.  The defendant argued that since the victim denied the abuse occurred to the counselor the records would be relevant to her credibility.  The Judge found that the records were not relevant because at the time the victim was referred she had not disclosed the abuse.  The Judge further found that since the counselors were mandatory reports that she must not have disclosed the abuse because there was not a 51A report.

In Commonwealth v. Olivier, the Massachusetts Appeals Court continued this trend among the Massachusetts courts of severely limiting a defendant’s ability to access privileged records.  The Court found that the defendant argument that records of the victims appointment with her therapist after the alleged rape might contain an inconsistent account was too speculative where there was no evidence that the victim spoke to her counselor about the alleged rape.  The Court places an impossible burden on defense counsel to show relevancy.  Unless the victim speaks to the defense attorney, which is unlikely, there would be no way fro defense counsel to learn the information that the court is requiring in the affidavit.

The Jones Court stated as follows that the defendant did not demonstrate that the records would be admissible at trial.  The Court said that since a mandatory report was not filed it is strong evidence that the records were not relevant.  The Court required more of a showing that the records might contain information regarding the alleged assault.

The defendant in Jones next requested psychiatrist records.  The defendant argued that these records were relevant because the DCF records stated that the allegations may be the product of repressed memory.  The defendant stated in the affidavit that the victim only recalled one incident and anything else she cannot remember and that she had a flashback triggered by an incident with her classmate.  The SJC found that the defendant argument was too speculative because the DCF records do not indicate that the victim forgot the abuse.  At trial, the defense counsel should have renewed any request for these records based on the testimony of the witnesses or at any motion.  The SJC is requiring an impossible burden for defense counsel to meet to obtain records.

Finally, the defendant in Jones attempted to obtain the victim’s middle school records.  The judge denied the request for school records because they predate the initial disclosure.  The defense requested these records to uncover statement made but by the defendant to school guidance counselor.

The Jones case reveals that it is extremely difficult to obtain third party records of counseling, psychiatric treatment.  Many clients who come in charged with an Indecent Assault and Battery or Rape charge will mention the mental problems of the victim.  To overcome the Jones standard will take a detailed defense investigation to learn what would be in the documents under the reasoning of the Jones case.

To read more about the Jones case you can listen to the oral arguments on the Suffolk University Law School Website.

To learn more about defenses to sexual assault and Indecent Assault and Battery cases, feel free to call Attorney DelSignore at 781-686-5924.