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,
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 records
until trial. Id. at 1130.*fn4
Since an important reason for the Supreme Court's rejection of the
balancing test approach in Jaffe was concern that patients would not
confide in psychotherapists if they thought the information might be
disclosed, that reason does not apply in California where the patient
would expect from the outset that certain kinds of communications, such
as those at issue here, are subject to disclosure under appropriate
This approach is consistent with the approach favored by those circuits
which had adopted the psychotherapist-patient privilege prior to Jaffe.
See, e.g., In re Doe, 964 F.2d 1325, 1328-29 (2nd Cir. 1992) (recognizing
privilege but holding that mental health records of key government witness
and chief accuser of defendant should be disclosed where witness had
history of mental illness which could bear on his credibility)*fn5; In
re Zuniga, 714 F.2d 632, 639 (6th Cir. 1983), cert. denied, 464 U.S. 983
(1983) (recognizing privilege, weighing scope of request against privacy
interests of patients and allowing psychiatric records of patients' names
and dates of treatment to be disclosed in billing fraud case).
This approach is also consistent with that taken by two of the three
District Courts which have considered Jaffe in the criminal context where
defendants sought psychological records to establish an element of their
defense, or to impeach a witness's credibility. See United States v.
Hansen, 955 F. Supp. 1225 (D.Mont. 1997); United States v. Haworth, 168
F.R.D. 660, 661 (D.New Mexico 1996); but see United States v. Doyle,
1 F. Supp.2d 1187 (D.Oregon 1999)*fn6.
The Hansen and Haworth courts both appear to have conducted some sort of
balancing or in camera review of the requested documents in order to
determine their potential relevance and probative value in light of the
criminal context of the cases. See United States v. Hansen, 955 F. Supp.
at 1226; United States v. Haworth, 168 F.R.D. at 661.
Evidence of the Inspector's mental health could be material to
defendant's claim that she began the physical altercation, as well as to
her credibility as the government's key witness against him. The United
States points out that several other witnesses will testify that they
also witnessed the altercation, and attached police reports describing
those witnesses versions of the events to its motion. However, it is
unclear whether those witnesses actually saw or heard the beginning of
the altercation, and the Inspector's testimony will be the principal
testimony against defendant.
However, pretrial production of documents pursuant to such a subpoena
is appropriate where those documents are (a) evidentiary and relevant,
(b) not otherwise procurable in advance of trial, (c) necessary for
proper preparation for trial, and (d) sought in good faith. United States
Nixon, 418 U.S. 683, 699-700 (1974). I find that the Inspectors records
meet all of these criteria.
While the Inspector clearly has a strong interest in keeping her
communications with her psychiatrist confidential, the potential
evidentiary benefit and materiality of those records to defendant's claim
of self-defense mandates that I conduct an in camera review of the
records.*fn7 The government IS HEREBY ORDERED to produce those records
for an in camera review by 12:00 p.m. on Wednesday, January 17, 2001.
Following the review, I will issue a further ruling prior to the
commencement of trial on January 22, 2001.