The opinion of the court was delivered by: Bernard Zimmerman, United States Magistrate Judge.
ORDER DENYING GOVERNMENT'S MOTION TO QUASH SUBPOENA FOR PRODUCTION
OF MEDICAL FILES OF JUDITH C. PENNEY
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
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.
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,
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 ...