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January 10, 2001


The opinion of the court was delivered by: Bernard Zimmerman, United States Magistrate Judge.


Defendant Howard Alperin is charged with assaulting a United States Customs Inspector performing official duties, in violation of 18 U.S.C. § 111(a)(1). The Inspector alleges that defendant shoved her without provocation; defendant claims that the Inspector first forcibly grabbed his shoulder and that he then pushed the taller and heavier woman away in self-defense.

As part of its initial disclosure, the United States provided defendant with a letter from Psychiatrist Lennart Moller, M.D., stating that Dr. Moller has treated the Inspector for depression since September 1, 1999, and that since the incident of January 14 (sic), 2000, she has suffered "a marked worsening in her depression." Defendant then subpoenaed the Inspector's psychiatric records. The Inspector asserted her psychotherapist-patient privilege not to disclose those records. The government now moves to quash the subpoena.

The United States argues that the subpoena should be quashed because the Inspector's psychiatric records are protected as confidential communications between a patient and her psychiatrist, citing Jaffe v. Redmond, 518 U.S. 1 (1996). The United States argues in the alternative that I must conduct an in camera review of the records to determine their relevance and balance potential prejudice against any possible probative value before I can compel the production of any records to defendant.

Defendant argues that he is entitled to review the Inspector's psychiatric records because they potentially (1) support his claim of self-defense and (2) cast doubt on the veracity and accuracy of the Inspector's testimony.

The federal common law psychotherapist-patient privilege was recently recognized by the Supreme Court in Jaffe. Id. at 15. In that case, brought under 42 U.S.C. § 1983 and the Illinois wrongful-death statute, plaintiffs sought disclosure of a social worker's records of counseling sessions with the defendant police officer. Id. at 5. The Supreme Court based its decision to recognize the new privilege on Federal Rule of Evidence 501, which "authorizes federal courts to define new privileges by interpreting `common law principles . . . in the light of reason and experience.'" Id. at 8. The Court noted that all 50 states and the District of Columbia recognized some form of the privilege, and explained that the new privilege, like the spousal and attorney-client privileges, is "rooted in the imperative need for confidence and trust." Id. at 10.

The Supreme Court refrained from defining the contours of the privilege, stating that "because this is the first case in which we have recognized a psychotherapist privilege, it is neither necessary nor feasible to delineate its full contours in a way that would `govern all conceivable future questions in this area.'" Id. at 18, quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The Court specifically instructed courts not to conduct a balancing test in deciding whether to apply the privilege. Id. at 17. However, the Court did anticipate situations in which disclosure of psychotherapist-patient communications might be compelled, such as when disclosure would prevent harm to the patient or to others. Id. at 18, n. 18.

Jaffe does not discuss how the privilege is to be applied when a criminal defendant's constitutional rights are implicated. At least one noted commentator has concluded that an exception to Jaffe will be established when necessary to vindicate a defendant's constitutional rights to a fair trial. 3 Weinstein's Federal Evidence, § 504.07[9], 504-24 (2nd ed. 2000).

No circuit court has addressed this issue following Jaffe. Ninth Circuit law pre-Jaffe is no help since the Ninth Circuit was one of the circuits which did not recognize the psychotherapist-patient privilege in a criminal context. see, e.g., In re Grand Jury Proceedings, 867 F.2d 562, 564 (9th Cir. 1989), cert. denied 493 U.S. 906 (1989).

In deciding what to do in this vacuum, I begin by looking at California law. The Supreme Court adopted the psychotherapist-patient privilege largely because all fifty states had concluded that there was a need to protect such communications, although the degree of protection varied from state to state. Although the Supreme Court rejected the notion of a balancing test in the civil context, there are strong reasons to question whether the same result would obtain in a criminal case such as this for at least two reasons.

First, the psychotherapist-patient privilege in California has never been absolute.*fn1 In Tarasoff, the California Supreme Court held that a psychotherapist who had reasonable cause to believe that a patient would likely commit a violent assault had a duty to disclose that information to the potential victim.*fn2 Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 442 (1976).

The United States Supreme Court seems to have had Tarasoff in mind when it left open the possibility of exceptions to its rule. Jaffe v. Redmond, 518 U.S. at 18, n. 18.*fn3 The public policy reasons favoring a breach of the psychotherapist-patient privilege when it will prevent harm to a person or property thus would seem to be equally compelling when a breach would prevent imprisonment of an innocent person.

More importantly, under California law, California courts are expected to balance a criminal defendant's Sixth Amendment rights to a fair trial and to confront witnesses against the patient's interest in maintaining confidentiality. People v. Hammon, 15 Cal.4th 1117, 1119 (1997). The privilege does not apply "in any criminal proceeding in which the privilege would infringe on the defendant's constitutional rights of due process and confrontation of witnesses." 2 Jefferson's California Evidence Benchbook § 38.9, 818 (3d ed. 1999), citing People v. Reber, 177 Cal.App.3d 523, 531 (1986), overruled on other grounds in People v. Hammon, 15 Cal.4th at 1123.) In restricting a defendant's rights to pre-trial discovery of a victim's psychotherapeutic records, Hammon held that Reber incorrectly "assumed that a defendant might obtain before trial any information he would be able under Davis [v. Alaska, 415 U.S. 308 (1974)] to obtain at trial."

People v. Hammon, 15 Cal.4th at 1124. Justice Mosk's concurrence notes the impracticability of deferring the subpoena of psychiatric ...

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