McCloud v. State, 310 P.3d 767

In 2001 Larry McCloud was convicted of sexual offenses against a victim who, beginning at age 16 in 2000, reported repeated abuse dating back to childhood; convictions were largely affirmed on direct appeal.
In 2007 McCloud filed a postconviction petition claiming, among other things, ineffective assistance of appellate counsel for failing to obtain the victim’s treatment records showing disclosures to therapists and doctors.
In 2011 McCloud moved for subpoenas duces tecum for the victim’s medical and mental-health records and requested an in camera review; the victim intervened and the State opposed disclosure.
The district court granted the motion, finding billing records, a grandmother’s diary entry, and the victim’s trial/prelim. testimony established with “reasonable certainty” that the records contained multiple disclosures and possible inconsistencies relevant to McCloud’s defense.
The State sought interlocutory review; the Court of Appeals reversed, holding the district court erred in (1) finding an exception to Utah’s patient privilege under Utah R. Evid. 506(d)(1)(A) without an adequate finding of a qualifying physical/mental/emotional condition, and (2) finding McCloud met the stringent “reasonable certainty” extrinsic-evidence test to show the records contained exculpatory material.

Issue	Plaintiff's Argument (McCloud)	Defendant's Argument (State)	Held
Whether victim’s therapy/medical records fall outside the patient privilege under Utah R. Evid. 506(d)(1)(A) because the victim’s condition is an element of a defense	Inconsistent statements in the victim’s treatment records could provide a defense; those inconsistencies make the victim’s mental/emotional condition an element	Mere possibility of inconsistencies does not establish a persistent physical/mental/emotional condition required by Rule 506(d)(1)(A)	Reversed: possibility of inconsistent statements alone does not show the requisite condition; district court failed to identify/support such a condition
Whether extrinsic evidence met the “reasonable certainty” standard to justify in camera review of privileged records	Billing records, a grandmother’s 1989 diary entry, and the victim’s trial/prelim. testimony show disclosures and thus reasonably indicate records exist and may contain exculpatory inconsistencies	Extrinsic evidence shows disclosures occurred but does not show with reasonable certainty that records contain exculpatory or inconsistent statements; speculation insufficient	Reversed: evidence showed disclosures likely occurred but failed to prove with reasonable certainty that records contain exculpatory material

State v. Worthen, 222 P.3d 1144 (Utah 2009) (defines qualifying patient condition and emphasizes strong patient-privilege policy)
State v. Blake, 63 P.3d 56 (Utah 2002) (sets stringent ‘‘reasonable certainty’’ extrinsic-evidence test for in camera review)
State v. King, 283 P.3d 980 (Utah Ct. App. 2012) (applies reasonable certainty requirement to patient-privilege disclosures)
State v. Lenkart, 262 P.3d 1 (Utah 2011) (distinguishes conditions from transient problems for Rule 506 analysis)
State v. Cardall, 982 P.2d 79 (Utah 1999) (example of sufficiency where victim’s psychological traits bore on credibility)