BOBO v. THE STATE.
43237
Supreme Court of Georgia
OCTOBER 28, 1986
256 Ga. 357 | 349 SE2d 690
Thomas Jerald Bobo was indicted for burglary, aggravated as-
Prior to retrial, Bobo moved for the disclosure of the psychiatric history and examinations of Officer Sullivan, the state‘s main witness. His defense continues to be that he was not the perpetrator. He sought to impeach her eyewitness identification testimony by showing that she suffered from “post-traumatic stress syndrome,” which affected her memory and perception. The trial court ruled the communications privileged and denied the motion. We granted Bobo‘s application for interlocutory appeal.
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1. Bobo contends that no privileged relationship existed between Sullivan and the psychiatrists whom she consulted. The record shows that Sullivan voluntarily sought assistance from the psychiatrists who examined her. The requisite confidential relationship of psychiatrist and patient is thus established. Kimble v. Kimble, 240 Ga. 100, 101 (239 SE2d 676) (1977).
2. He next contends that Sullivan waived the privilege by allowing psychiatric testimony to be made public in her workers’ compensation cases. That is not the law.
3. Bobo contends that the statutory privilege must yield to his right of confrontation, which he asserts is superior to the statutory privilege and the public policy that it enunciates.1 He relies on
The state argues strenuously that United States v. Lindstrom, supra, is distinguishable because no statutory privilege was involved in that federal prosecution and indeed that court found no such privilege to exist. We note here, however, that the court in making its decision relied upon
Similarly, in Lindstrom, that court recognized all of the policy reasons for the privilege, but held such a “privilege” could not prevail where the privileged information was at the heart of the defendant‘s case. While the privilege should be given the utmost deference, when the privilege of a witness stands in the way of the defendant‘s right to confront the witnesses against him, then, upon a proper showing by the defendant, the balance must be tipped in favor of his constitutional rights and the search for the truth. See Hines v. State, 249 Ga. 257 (2) (290 SE2d 911) (1982). Compare Davis v. Alaska, 415 U. S. 308, 319 (94 SC 1105, 39 LE2d 347) (1974) (right of confrontation is paramount to a state policy protecting juvenile offenders); Greene v. Wainwright, 634 F.2d 272 (5th Cir. 1981) (right of confrontation requires that defendant be allowed to cross-examine the prosecuting police officer about his mental condition and the bizarre criminal actions he was involved in at the time of an alleged drug sale); United States v. Society of Independent Gasoline Marketers of America, 624 F.2d 461 (4th Cir. 1979) (error to deny access to hospital records revealing delusional and hallucinatory state of chief witness); In re Rob-
Thus, we must also conclude that in a proper case a witness’ statutory privilege must give way where countervailing interests in the truth-seeking process demand such a result.3
4. In order to abrogate the psychiatrist-patient privilege, the defendant must make a showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is otherwise unavailable to him.
The privilege established by
One, Dr. Villaneuva, had treated the witness during her surgical recuperation from the shooting and had diagnosed her as suffering from traumatic depressive reaction. He testified that the dominant characteristic of her mental state at that time was depression and that difficulty in concentrating was also an aspect of this reaction, which could be ongoing.
The other two testifying psychiatrists had treated the witness in relation to her claims for workers’ compensation and pension benefits resulting from her disability to work as a police officer after undergo-
Other characteristics of this syndrome include memory loss and constant reliving of the traumatic experience. The defendant urges therefore that her psychiatric condition greatly affects her credibility as the only eyewitness and her resulting identification of the defendant as the perpetrator. Thus, he contends, his constitutional right to explore her mental condition is central to his defense that she has mistakenly identified him.
The gravamen of the doctors’ testimony is that the witness suffers from post-traumatic stress syndrome which characteristically includes memory loss. No evidence was presented by them which directly shows that she is unable to identify or unsure of her identification of the defendant as the assailant.
On the other hand, other impeaching evidence is already available to the defendant. At the first trial a hypnotist, who was also a psychiatrist, at the request of the state, had attempted to hypnotize Officer Sullivan in order to enhance her ability to remember the perpetrator. The hypnotist testified that he was unsuccessful in this attempt in part because of her emotional state which he attributed to stress from the trauma of the incident. Because there is no psychiatrist-patient privilege where a witness agrees to be interviewed by an expert called by the state, Emmett v. Ricketts, 397 F. Supp. 1025, 1038 (N.D. Ga. 1975), the information now sought is and was already available to the defense.5
Likewise, at the first trial, Officer Sullivan was questioned about her statements to other state witnesses concerning her official reports and her lineup identification. Additionally, the trial court admitted the testimony of another psychiatrist who was hired by the police to help Sullivan recall the description of the perpetrator through the use of sodium pentothal. He and the hypnotist were examined concerning what she had disclosed to them. See 254 Ga. at 148 (3) (a).
We thus hold that the defendant has failed to show the necessity for the admission of this privileged information and the trial court
Judgment affirmed. All the Justices concur, except Marshall, C. J., Smith and Weltner, JJ., who concur specially, Bell, J., who concurs in the judgment only and Gregory, J., who dissents.
WELTNER, Justice, concurring specially.
The majority opinion removes the absolute protection of privileges, which our law has recognized for many decades, and casts them upon the doubtful scales of another “balancing” test. By thus weakening the patient-psychiatrist privilege, we also diminish other established privileges, notably as to communications between husband and wife, between attorney and client, and among grand jurors.
All of this is done in the name of “confrontation.” Yet, it need not be. “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U. S. 15 (106 SC 292, 295, 88 LE2d 15) (1985).
I would not inflate the concept of “confrontation” to admit of an inquisitorial scrutiny into private concerns that long have been shielded by the statutory law of our state. See
I am authorized to state that Chief Justice Marshall and Justice Smith join in this special concurrence.
GREGORY, Justice, dissenting.
In my view the defendant will be denied the right of confrontation under the majority opinion. The witness will be allowed to give testimony identifying the defendant as the perpetrator of the crime, but the defendant will be denied what might prove to be critical cross-examination of the witness on that subject because the area he wishes to explore is shrouded in secrecy by the psychiatrist-patient privilege. A defendant must be afforded the right to confront the witnesses against him. At the same time there is a very great need in our society for protection of communications between psychiatrists and patients. There is a way to preserve both and I would follow that way here.
Where a witness testifies on direct examination about a given subject, but on cross-examination refuses to be further examined on that same subject, claiming his constitutional privilege against self-incrimination, the proper remedy is for the court to strike that witness’ direct testimony on the given subject. Smith v. State, 225 Ga. 328 (7) (168 SE2d 587) (1969); Emmett v. State, 232 Ga. 110 (1) (205 SE2d 231) (1974); Rasnake v. State, 164 Ga. App. 765 (2) (298 SE2d 42) (1982); United States v. Cardillo, 316 F.2d 606, 610 (2nd Cir. 1963). While this case does not involve a constitutional privilege, it nonetheless involves a privilege which I consider essential to the proper rendering of psychiatric treatment. Thus, I would follow the rule used in cases of the privilege against self-incrimination. The witness will be protected in that the privilege will prevent exposure of the confidential information. At the same time the defendant on trial will be protected in his right to be confronted by the witnesses against him because direct testimony which cannot be cross-examined due to the privilege will be eliminated.
I recognize the cases cited above would not follow the rule for eliminating direct testimony where the matter as to which the privilege is claimed is collateral only. But here the matter goes to the heart of the case and bears directly on the identification testimony given by the witness upon which the State‘s case must stand or fall.
It is also necessary to provide further limitations on the application of the rule to the psychiatrist-patient privilege. If a witness claims the right against self-incrimination there is a way around the privilege by granting immunity from prosecution to the witness. That safety valve is missing in psychiatrist-patient privilege cases. Therefore, the trial judge should conduct an in-camera investigation into the privileged communications to allow disclosure of all relevant information not specifically objected to by the witness. Beyond that, I would afford the privilege but strike the direct testimony.
DECIDED OCTOBER 29, 1986.
Axam & Altman, Robert Altman, for appellant.
Lewis R. Slaton, District Attorney, H. Allen Moye, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.