In Re State
162 N.H. 64
N.H.2011Background
- MacDonald was indicted for aggravated felonious sexual assault involving K.H., who was alleged to be mentally defective.
- MacDonald moved for in camera review of K.H.’s medical and mental health records from five stays at NH Hospital and records from other providers for the prior year.
- The trial court granted in camera review and ordered disclosure to counsel under strict confidentiality with a plan to address admissibility in a closed hearing.
- The State sought reconsideration; the court denied, leading the State to petition for writ of certiorari.
- The State argued the records are privileged (physician-patient and psychotherapist-patient) and should be reviewed in camera to determine essential need and limited disclosure.
- The NH Supreme Court held the lower court failed to conduct an in camera review and reversed/remanded for in camera consideration of which records, if any, may be disclosed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do the records fall under physician/psychotherapist privilege? | State contends privilege applies and requires in camera review. | MacDonald contends privilege should protect records from disclosure. | Yes; privileges apply and require in camera review. |
| Is there an implied waiver of privilege in criminal cases when the State prosecutes? | State asserts implied waiver by issue of the charged crime. | MacDonald argues no implied waiver in criminal context that nullifies privilege. | Implied waiver in criminal context rejected. |
| Can the privilege be pierced to disclose records in criminal case? | State argues records are essential for defense and prosecution; piercing may be warranted. | MacDonald contends there is no baseline showing essential need without in camera review. | Piercing requires essential need proven with initial showing of material relevance; remand for in camera review. |
| What standard governs the court’s handling of privileged records in this context? | State relies on Desclos and Gagne to require in camera review if initial showing exists. | MacDonald contends trial court misapplied standard by assuming relevance without review. | Trial court erred by not conducting in camera review; remanded for in camera analysis. |
Key Cases Cited
- State v. Laporte, 157 N.H. 229 (2008) (certiorari standard; discretionary remedy)
- State v. Amirault, 149 N.H. 541 (2003) (unsustainable exercise of discretion; discovery/evidence)
- Desclos v. Southern New Hampshire Medical Center, 153 N.H. 607 (2006) (two-step privilege piercing and essential need; improper standard)
- Kupchun, 117 N.H. 412 (1977) (privileges yield when essential need; protective standard)
- In re Grand Jury Subpoena (Medical Records of Payne), 150 N.H. 436 (2004) (physician-patient privilege; confidentiality and admissibility)
- Gagne, 136 N.H. 101 (1992) (reasonable probability that records are material; in camera review standard)
- Elwell, 132 N.H. 599 (1989) (privacy and scope of privileges; criminal context)
- Desclos, 153 N.H. 607 (2006) (describes implied waivers and piercing standards)
- Medical Records of C.T., In re Search Warrant, 160 N.H. 214 (2010) (essential need; material and relevant standard)