849 N.W.2d 427
Minn. Ct. App.2014Background
- Jerry Expose Jr. attended court-ordered anger-management therapy with counselor N.M. at a mental-health clinic.
- During an October 10, 2012 session Expose threatened a child-protection worker (D.P.); N.M. informed her supervisor and then warned D.P. and the police.
- Expose was charged with one count of terroristic threats; at trial the state called N.M. and D.P. to testify about the threats.
- Expose objected that the psychologist-client testimonial privilege (Minn. Stat. § 595.02, subd. 1(g)) barred N.M.’s testimony; the district court admitted the testimony, reasoning a "threats exception" applied.
- The jury convicted Expose; he appealed arguing the privilege applied, no threats exception exists, and the admission was not harmless error.
Issues
| Issue | Expose's Argument | State's Argument | Held |
|---|---|---|---|
| 1. Timeliness/waiver of objection | Preserved via motion in limine and pretestimony objection; timely under Minn. R. Evid. 103 | Claim of waiver for not raising earlier under Minn. R. Crim. P. 10.01 | Expose did not waive; objection preserved. |
| 2. Applicability of psychologist-client privilege | Communications with N.M. fall within §595.02(1)(g): confidential therapeutic relationship and statements necessary for treatment | N.M. not a "psychologist" under statute; statements not necessary for treatment | Privilege applies: N.M. functioned as a psychologist or was reasonably held out as one; statements were necessary to therapy. |
| 3. Existence of a "threats" exception to the privilege | No statutory or common-law threats exception; privilege not waived absent knowing, intentional consent | Court below and state argued threats of imminent harm are an exception allowing testimony | No threats exception recognized in Minnesota law; exceptions must come from legislature. |
| 4. Harmlessness of admission | Admission was prejudicial; error not harmless because testimony substantially influenced conviction | Testimony by D.P. (warned third party) could sustain conviction (residual hearsay exception) | Admission was not harmless; residual hearsay cannot override the statutory privilege. |
Key Cases Cited
- Jaffee v. Redmond, 518 U.S. 1 (1996) (recognizing federal psychotherapist-patient confidentiality policy and importance of trust in therapy)
- State v. Gianakos, 644 N.W.2d 409 (Minn. 2002) (evidentiary privilege availability is reviewed for abuse of discretion)
- Staat v. State, 291 Minn. 394 (Minn. 1971) (discussing testimonial privileges and that absence of an essential fact defeats privilege)
- State v. Williams, 842 N.W.2d 308 (Minn. 2014) (abuse of discretion standard and reversal where conclusions are clearly erroneous)
- State v. Penkaty, 708 N.W.2d 185 (Minn. 2006) (waiver of testimonial privileges requires intentional relinquishment)
- State v. DeShay, 669 N.W.2d 878 (Minn. 2003) (harmless-error analysis regarding improperly admitted evidence)
- United States v. Hayes, 227 F.3d 578 (6th Cir. 2000) (noting that a majority of states do not recognize a threats exception to psychotherapist privilege)