278 Or. App. 690
Fla. Cir. Ct., Columbia Cty.2016Background
- Defendant was convicted by a jury of 47 sex offenses against his daughter E and sentenced to 600 months’ incarceration.
- Allegations arose after a friend reported suspicious interactions; DHS and police investigated; E gave a forensic interview at the Amani Center and later began counseling at Columbia County Mental Health (CCMH).
- In the Amani Center interview E made equivocal statements (e.g., “if he did it,” and that she did not “think” sex had occurred) but also described touching of breasts and vagina.
- Defendant subpoenaed E’s CCMH counseling records; E and the State opposed on psychotherapist-patient privilege grounds; the trial court ordered delivery but declined an in camera review, finding defendant had not shown the records “might yield” exculpatory evidence.
- On appeal the court found the trial court erred in denying an in camera review because defendant met the Reed/Frease “might yield” threshold given timing of counseling and E’s equivocal statements.
- Court vacated and remanded for the trial court to conduct an in camera review; if disclosable material is found, the court must assess prejudice under Cartwright and either reinstate the verdict or order a new trial.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court should have conducted an in camera review of E’s CCMH counseling records | Denied threshold showing under Reed; defendant did not show records “might yield” evidence subject to disclosure | Reed/Frease standard met because E began counseling after the Amani interview and made equivocal statements there, so records might contain exculpatory statements | Reversed: trial court erred — defendant met the “might yield” threshold and is entitled to an in camera review |
| Whether ORS 419B.040(1) permits disclosure of privileged counseling material in child-abuse prosecutions | (implicit) ORS 419B.040(1) is not properly invoked here / not preserved | ORS 419B.040(1) and Hansen permit disclosure of exculpatory evidence in child-abuse cases; thus records may be subject to disclosure | Preservation satisfied; Hansen and ORS 419B.040(1) apply to allow disclosure of exculpatory material, so review required |
| Standard of review for sufficiency of threshold showing for in camera review | State urged abuse of discretion (relying on Zolin) | Court should review legal error as in Frease and Frease applied Zolin’s framework but reviewed for legal error | Court reviews trial court’s threshold determination for legal error and found legal error in this case |
| Remedy if in camera review reveals disclosable material | Not argued in detail | If material exists, defendant may show prejudice and seek new trial | Remanded: trial court to conduct in camera review; if no material, reinstate judgment; if material exists, hear defendant’s prejudice argument under Cartwright and either reinstate or order new trial |
Key Cases Cited
- State v. Cartwright, 336 Or. 408 (Sup. Ct. 2004) (prejudice framework when defendant is deprived of trial materials)
- State v. Reed, 173 Or. App. 185 (Or. App. 2001) (explains the threshold for in camera review in child-abuse cases)
- State v. Hansen, 304 Or. 169 (Sup. Ct. 1987) (ORS 419B.040 permits disclosure of evidence about child abuse despite psychotherapist-patient privilege)
- Frease v. Glazer, 330 Or. 364 (Sup. Ct. 2000) (applies Zolin framework and discusses the required showing for in camera review)
- State v. Warren, 304 Or. 428 (Sup. Ct. 1987) (remand for in camera review and remedy guidance)
- United States v. Zolin, 491 U.S. 554 (U.S. 1989) (establishes federal standard for in camera review when privilege is asserted)