People v. Kailey
2014 CO 50
Colo.2014Background
- Defendant Randy Kailey, a convicted inmate, met with a DOC-employed psychologist candidate (Willson) in a therapy session during which Kailey allegedly made statements that Willson considered serious, imminent threats against specific trial witnesses.
- Willson reviewed and Kailey signed a DOC disclosure form at the session start warning that statements indicating intent to harm self or others would not be confidential.
- Willson reported the statements to DOC and prepared an incident report pursuant to Colorado’s statutory "duty to warn," and later testified about Kailey’s statements.
- The People charged Kailey with retaliation against a witness based largely on Willson’s report and testimony.
- Kailey moved to exclude Willson’s testimony under the psychologist‑patient privilege; the trial court granted the motion, suppressing the testimony.
- The People sought original relief in the Colorado Supreme Court, which reviewed de novo whether the duty to warn abrogates the privilege for threatening statements and reversed the suppression order.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Kailey) | Held |
|---|---|---|---|
| Whether threatening statements disclosed under the duty to warn remain protected by the psychologist‑patient privilege | Duty-to-warn disclosures are not privileged because they are not confidential and must be admissible to further public safety and prosecutions | Privilege protects any in‑therapy communications; disclosure to potential victims or law enforcement should not strip testimonial privilege | Held: When a therapist, in reasonable professional judgment, discharges the duty to warn about a patient’s serious, imminent threat to a specific person(s), those threatening statements are not confidential and are not protected by the privilege |
| Whether statutory confidentiality rules permit disclosure required by law to remain non‑confidential | Statutes in Title 12 recognize exceptions for disclosures required by law and require patients be informed such exceptions exist, so duty‑to‑warn disclosures are not confidential | Privilege should still bar courtroom testimony even if provider warned victims or law enforcement; maintaining privilege promotes candid therapy | Held: Title 12 provisions and related scheme demonstrate such disclosures are not confidential as a matter of law; excluding testimony would frustrate legislative intent |
| Scope of privilege after a duty‑to‑warn disclosure (categorical rule vs. case‑specific) | Court may hold threatening communications triggering duty to warn are never privileged as a matter of law | Admission should at least depend on whether the patient had a reasonable expectation of confidentiality (e.g., advisement forms) | Held: Majority: categorical rule — threatening communications that trigger duty to warn are not confidential and thus not privileged; concurrence: narrower ground based on Kailey’s explicit advisement that threats were not confidential |
| Whether suppression materially impairs prosecution and warrants original relief | Excluding the therapist’s testimony would significantly impede prosecution and appellate review would be inadequate due to double jeopardy concerns | Suppression appropriate to protect privilege and therapeutic candor | Held: Original jurisdiction appropriate; suppression reversed and case remanded for further proceedings |
Key Cases Cited
- Jaffee v. Redmond, 518 U.S. 1 (U.S. 1996) (recognizes psychotherapist‑patient privilege protects confidential therapy communications)
- Tarasoff v. Regents of the Univ. of Cal., 17 Cal.3d 425 (Cal. 1976) (establishes duty to warn/protect where disclosure necessary to avert danger to others)
- United States v. Auster, 517 F.3d 312 (5th Cir. 2008) (holds privilege inapplicable where patient lacked reasonable expectation of confidentiality in threatening statements disclosed pursuant to duty to warn)
- United States v. Hayes, 227 F.3d 578 (6th Cir. 2000) (concludes therapist’s courtroom testimony may be barred despite duty‑to‑warn disclosures)
- People v. Sisneros, 55 P.3d 797 (Colo. 2002) (explains policy rationale for psychologist‑patient privilege and narrow construction of privileges)