IN RE SUBPOENA TO CRISIS CONNECTION, INC. STATE OF INDIANA, Appellee (Plaintiff below), v. RONALD KEITH FROMME, Appellee (Defendant below).
No. 19S05-1012-CR-678
Indiana Supreme Court
June 23, 2011
Sullivan, Justice.
Appeal from the Dubois Circuit Court, No. 19C01-0708-FA-192. The Honorable William E. Weikert, Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 19A05-0910-CR-602.
ATTORNEYS FOR CRISIS CONNECTION, INC.
Matthew T. Albaugh
Trina K. Taylor
Indianapolis, Indiana
ATTORNEY FOR RONALD KEITH FROMME
S. Anthony Long
Boonville, Indiana
ATTORNEY FOR AMICI CURIAE INDIANA COALITION AGAINST DOMESTIC VIOLENCE, BATTERED WOMEN‘S JUSTICE PROJECT - DOMESTIC ABUSE INTERVENTION PROGRAMS, INC., & INDIANA COALITION AGAINST SEXUAL ASSAULT
Kerry Hyatt Blomquist
Indianapolis, Indiana
ATTORNEY FOR AMICI CURIAE NATIONAL ASS‘N OF SOCIAL WORKERS & NATIONAL ASS‘N OF SOCIAL WORKERS, INDIANA CHAPTER
Paul L. Jefferson
Indianapolis, Indiana
June 23, 2011
Sullivan, Justice.
Ronald Keith Fromme, a defendant in a child molesting prosecution, contends that he has a constitutional right to inspect the records of a nongovernmental counseling
Background
Crisis Connection, Inc., is a nonprofit organization that “provide[s] services for emotional and psychological conditions that occur to an individual against whom an act of domestic or family violence, sexual assault, or dating violence is committed.” Appellant‘s App. 28. It operates in the Indiana counties of Crawford, Dubois, Orange, Perry, and Spencer.
After being charged with two counts of child molesting, Fromme asked the Dubois Circuit Court to require Crisis Connection to provide him with all records in its possession relating to the alleged victims, M.Y. and D.Y., and their mother. Crisis Connection argued that Indiana‘s “victim advocate privilege,” codified at
Before proceeding further, the court agreed to Crisis Connection‘s request that its decision be reviewed by the Court of Appeals. State v. Fromme (In re Subpoena to Crisis Connection, Inc.), 930 N.E.2d 1169, 1172 (Ind. Ct. App.), aff‘d on reh‘g, 933 N.E.2d 915 (Ind. Ct. App. 2010). That court concluded that “[t]he interest in privacy asserted by Crisis Connection, while important, [was] not strong enough to bar an in camera review of its records.” Id. at 1190.
Crisis Connection sought, and we granted, transfer, Crisis Connection, Inc. v. Fromme, 940 N.E.2d 832 (Ind. 2010) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).
Discussion
I
The General Assembly enacted Indiana‘s “victim advocate privilege” in 1987. Pub. L. No. 136-1987, § 5, 1987 Ind. Acts 1872, 1874-77. This privilege protects victims, victim advocates, and victim service providers1 from being “compelled to give testimony, to produce records, or to disclose any information concerning confidential communications2 and confidential information3 to anyone or in any judicial, legislative, or administrative proceeding.”
that this privilege applies to Crisis Connection‘s records, In re Subpoena to Crisis Connection, 930 N.E.2d at 1175; we adopt that portion of its opinion and incorporate it by reference, App. R. 58(A)(1).
II
In Indiana, рrivileges are statutory in nature and it is within the General Assembly‘s power to create them. State v. Pelley, 828 N.E.2d 915, 918 (Ind. 2005). By enacting the victim advocate privilege, the General Assembly has recognized the societal value of protecting the confidences existing within that relationship. See Canfield v. Sandock, 563 N.E.2d 526, 529 (Ind. 1990) (discussing the creation of the physician-patient privilege).
Nevertheless, we have acknowledged that when the General Assembly creates a privilege, it puts two policies of the law in direct conflict:
On the one hand is a policy which dictates exclusion of material and relevant evidence for its effectuation; on the other is the policy which favors full disclosure of all relevant facts at trial in order to arrive at a just determination of the issues presented. While the latter must give sway to the former where applicable, it would seem unwise indeed to give unwarranted effect to the former so as to utterly and unreasonably frustrate the fact finding process.
Collins v. Bair, 256 Ind. 230, 236-37, 268 N.E.2d 95, 98 (1971) (emphasis in original deleted).
Thus, we are bound by the General Assembly‘s determination of whether a particular interest is sufficient enough to justify the creation of a privilege and the scope of the protection provided under that privilege. See id. at 238, 268 N.E.2d at 99 (mindful “not [to] discount the concern of the Indiana General Assembly that the confidential nature of the physician-patient relationship be preserved at the сost of rendering certain evidence inadmissible,” but concluding that a patient waives the privilege “by pursing a course of conduct inconsistent with a continued observance of the privilege“); Terre Haute Reg‘l Hosp., Inc. v. Basden, 524 N.E.2d 1306, 1309-11 (Ind. Ct. App. 1988) (refusing to write-in a good faith requirement or to require a balancing
A victim may consent to the disclosure of confidential communications or confidential information.
test in the application of the peer review privilege); see also Massey v. State, 267 Ind. 504, 509-10, 371 N.E.2d 703, 706-07 (1978) (applying the probation officer-juvenile privilege).
III
The Court of Appeals did not grant Fromme‘s request that Crisis Connection‘s
In another case handed down today, Crawford v. State, No. 49S05-1106-CR-370, - N.E.2d - (Ind. 2011), we apply this test to determine the discoverability of information not protected by privilege. But this test is not reached when the question is the discoverability of information that is otherwise privileged. The General Assembly has made this information off-limits and we are compelled to uphold its decision unless it violates the Constitution.
The case law makes clear that the three-step test applies only to discover nonprivileged information. In Jorgensen v. State, we applied this test to determine the discoverability of nonprivileged information held by a psychologist under the homicide exception to the psychologist-patient privilege, as discussed in footnote 4, supra. 574 N.E.2d 915, 917-18 (Ind. 1991). We explicitly stated that the test applied “[w]ith respect to non-privileged information.” Id. at 917;
see id. at 918 (instructing the trial court on remand to first determine whether the information sоught was privileged and then determine whether the nonprivileged information was material to the defense under the three-step test); Pelley, 828 N.E.2d at 920-23 (Ind. 2005) (providing that “some discovery” is permissible under Jorgensen, but unless the homicide exception applies, any communication between the psychologist and patient is privileged and not discoverable).
To the extent that the decisions of the Court of Appeals have applied the three-step test to “privileged” information, they are distinguishable. For example, in Williams v. State, the privilege making prescriptions confidential contained an exception that allowed the information to be disclosed “in connection with a criminal prosecution.” 819 N.E.2d 381, 387 (Ind. Ct. App. 2004), trans. denied. Similarly, the privilege in Sturgill v. State contained a provision granting thе court access to the information. 497 N.E.2d 1070, 1071 (Ind. Ct. App. 1986).7
In the cases discussed above, some exception to an otherwise-applicable privilege
IV
We acknowledge, of course, that the privilege must yield to Fromme‘s constitutional rights. And he contends that invoking it to prevent his access to Crisis Connection‘s records violates his rights under the
IV-A
The Supreme Court‘s Confrontation Clause cases have been divided generally into two broad categories: “cases
ically to faсe those who testify against him, and the right to conduct cross-examination.” Ritchie, 480 U.S. at 51 (plurality opinion) (citing Fensterer, 474 U.S. at 18-19).
Criminal defendants in cases like the present one have traditionally argued a violation of this second protection – by denying access to records necessary to prepare his or her defense, so the argument goes, the trial court has interfered with the defendant‘s right of cross-examination. See, e.g., id.; People v. Turner, 109 P.3d 639, 646 (Colo. 2005) (defendant arguing that the privilege interfered with cross-examining the alleged victim by probing her motive and credibility); Commonwealth v. Wilson, 602 A.2d 1290, 1296 (Pa. 1992) (defendant arguing that the privilege interfered with the right to conduct effective cross-examination), cert. denied. Indeed, that is essentially Fromme‘s argument in this case.
A plurality of the Supreme Court, hоwever, has rejected this argument under the Confrontation Clause.12 Ritchie, 480 U.S. at 51-54. In Ritchie, the State of Pennsylvania had created an agency to investigate cases of suspected mistreatment and neglect called Children and Youth Services (“CYS“). Id. at 43 (majority opinion). After being charged with several sex offenses against his daughter, Ritchie subpoenaed CYS for her records. Id. CYS claimed that the records were privileged under a Pennsylvania statute similar to the one at issue in the present case. Id. Ritchie argued that his ability to question his daughter at trial was hindered without the CYS material because he did not know what types of questions would expose the weaknesses in her testimony, if she had made statements inсonsistent with her trial testimony, or if she had acted with an improper motive. Id. at 51 (plurality opinion). Thus, according to Ritchie, he had been denied his right to cross-examine his daughter effectively. Id. at 51-52.
But the plurality opinion refused to conclude that Ritchie‘s Sixth Amendment right to cross-examination had been violated. Instead, it reasoned that such a broad interpretation of the
Confrontation Clause would “transform [it] into a constitutionally compelled rule of pretrial discovery.” Id. at 52. Basing its conclusion on precedent, the plurality categorized the right of confrontation as a “trial right.” Id. (emphasis in original) (citing California v. Green, 399 U.S. 149, 157 (1970) (“[I]t is this literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation
Relying on the fact that Ritchie represented only a plurality view, the Court of Appeals concluded that Fromme had a Confrontation Clause right to have these documents inspected before trial. We do not agree. We have рreviously held that a criminal defendant‘s right under the Confrontation Clause to be present at all critical stages of the criminal proceedings is only implicated when it affects the accused‘s opportunity to cross-examine. Ridley v. State, 690 N.E.2d 177, 180 (Ind. 1997) (citing Kentucky v. Stincer, 482 U.S. 730, 737-38 (1987)); Stevenson v. State, 656 N.E.2d 476, 479 (Ind. 1995) (holding defendant had no Sixth Amendment right to be present at the pre-trial conference at issue). Moreover, we note that many courts have refused to conclude that the Confrontation Clause provides defendants with the right to confront witnesses at pretrial hearings. See Oakes v. Commonwealth, 320 S.W.3d 50, 55-56 (Ky. 2010) (relying on authority from other jurisdictions to conclude that the Confrontation Clause does not apply to
pretrial hearings); State v. Timmerman, 218 P.3d 590, 593-95 & n.2 (Utah 2009) (same). As we and other jurisdictions have not extended Confrоntation Clause rights to pretrial settings in other cases, we do not do so here. See also People v. Hammon, 938 P.2d 986, 992-93 (Cal. 1997) (declining to extend Confrontation Clause rights to require pretrial disclosure of privileged records in light of the divided views expressed on this issue in Ritchie), cert. denied. Because of the procedural status of this case on interlocutory appeal, we are unable to comment on Fromme‘s actual cross-examination of any witnesses to probe their bias or motive. Cf. Ritchie, 480 U.S. at 54 (plurality opinion) (failure to disclose CYS file did not violate the Confrontation Clause because defense counsel was able to cross-examine all of the trial witnesses fully); Rubalcada v. State, 731 N.E.2d 1015, 1021 (Ind. 2000) (reviewing the quality of cross-examination aftеr application of privilege limiting access to confidential
In the absence of a violation of Fromme‘s rights protected by the Confrontation Clause of the Sixth Amendment, we enforce the victim advocate privilege as provided by the General Assembly.
IV-B
Ritchie is also the touchstone for analyzing Fromme‘s arguments under the Compulsory Process and Due Process Clauses. A majority in Ritchie acknowledged thаt the Court had had “little occasion to discuss the contours of the Compulsory Process Clause.” Id. at 55 (majority opinion). It further recognized that it had “never squarely held that the Compulsory Process Clause guarantees the right . . . to require the government to produce exculpatory evidence.” Id. at 56 (emphasis added). Instead, claims like Ritchie‘s had traditionally been evaluated under the broader protections of the Due Process Clause. Id. Accordingly, because “compulsory process provide[d] no greater protections in this area than those afforded by due process,” the Court analyzed Ritchie‘s claims by reference to the Due Process Clause. Id. (emphasis in original); see
also Rubalcada, 731 N.E.2d at 1017-18 (considering together defendant‘s claimed violations of his rights to due process and compulsory process).
The Ritchie Court first noted the well settled obligation of the government “to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.” Id. at 57 (citing United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83, 87 (1963)). But because none of the prosecution, defense counsel, or trial judge had reviewed the full file, the Court could not say whether any information in the state‘s possession (recall that CYS was a state agency) was material to Ritchie‘s defense. Id.
The state argued that such a materiality inquiry was not required in light of the statute rendering the contents of the CYS file privileged and the compelling interеst in preserving confidentiality. Id. The Ritchie Court, however, concluded that although there was a strong public interest in protecting this type of sensitive information, it was not so strong as to prevent disclosure in all circumstances. Id. The Court reasoned, “This is not a case where a state statute grant[ed] CYS the absolute authority to shield its files from all eyes.” Id. To the contrary, the Pennsylvania privilege allowed for disclosure of the information in several circumstances, including when directed to do so by court order. Id. at 57-58. The Court wrote:
Given that the Pennsylvania Legislature contemplated some use of the CYS records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apрarent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is “material” to the defense of the accused.
Id. at 58 (emphasis in original). Thus, due process required that the trial court review the CYS file to determine whether it contained material information; if it did, then Ritchie was entitled to a new trial. Id. at 57-58.
The Court
provide absolute protection from disclosure and, thus, have not required an in camera review.14 See Turner, 109 P.3d at 647 (finding that, unlike the statute in Ritchie, the Colorado privilege has no exceptions); State v. J.G., 619 A.2d 232, 237 (N.J. Super. Ct. App. Div. 1993) (finding that New Jersey statute grants absolute privilege); Wilson, 602 A.2d at 1294-95 (finding that Pennsylvania privilege is absolute and prohibits disclosure of records under any circumstances).
The substance of Indiana‘s victim advocate privilege is similarly distinguishable from that in Ritchie. As mentioned above, the privilege protects victims, victim advocates, and victim service providers from being “compelled to give testimony, to produce records, or to disclose any information concerning confidential communications and confidential information to anyone or in any judicial, legislative, or administrative proceeding.”
Moreover, and perhaps more importantly, the Court in Ritchie grounded its due process analysis on the government‘s obligation under Brady v. Maryland “to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.” Id. at 57 (citations omitted). Some jurisdictions have therefore also distinguished their privileges from that in Ritchie by finding that they do not protect agents of the State from disclosure; as such, Brady does not require disclosure of the information.15 See Turner, 109 P.3d at 647 (Colorado privilege excludes law enforcement personnel from definition of “victim advocate“); see also United States v. Hach, 162 F.3d 937, 947 (7th Cir. 1998) (noting that Ritchie does not apply when the information the defendant seeks is not in the government‘s possession); United States
v. Shrader, 716 F. Supp. 2d 464, 473 (S.D.W.V. 2010) (Ritchie‘s analysis of Brady is inapplicable because the records are not in possession of the government or government agent); State v. Pinder, 678 So. 2d 410, 414 (Fla. Dist. Ct. App. 1996) (counselors are not state agents as contemplated by Brady); cf. WTHR-TV v. Milam, 690 N.E.2d 1174, 1176 n.3 (Ind. 1998) (discounting notion that the Brady obligation extends to third parties). But see Burns v. State, 968 A.2d 1012, 1024-25 (Del. 2009) (Ritchie analysis not limited to records held by government).
In sum, “[t]he dispositive issue in Ritchie was the government‘s obligation under the Due Process Clause to provide discovery of records in its possession containing evidence both favorable to the accused and material to guilt or punishment.” Commonwealth v. Barroso, 122 S.W.3d 554, 559 (Ky. 2003) (emphasis in original deleted).
For many courts then, a finding that a privilеge does not protect the government from disclosure ends the inquiry – Ritchie does not require an in camera review. But at least one court has not stopped there. In a case where the information was not in the government‘s possession, the Kentucky Supreme Court analyzed the privilege with reference to the Compulsory Process Clause, an analysis expressly not considered by the Supreme Court in Ritchie. Id. at 563 (concluding that criminal defendants have a right under the Compulsory Process Clause to obtain and present exculpatory evidence in the possession of a third party that would otherwise be privileged); see Ritchie, 480 U.S. at 56 (“[W]e need not decide today whether and how the guаrantees of the Compulsory Process Clause differ from those of the Fourteenth Amendment.“). Although
we are reluctant to engage in an uncertain Compulsory Process Clause analysis, we agree with the Kentucky Supreme Court that our inquiry into defendants’ constitutional rights should not end here. See also Pinder, 678 So. 2d at 414-15 (unqualified privilege held by nongovernment actors more properly analyzed under a more general concept of due process). Thus, our analysis of Fromme‘s constitutional rights continues below.
IV-C
“Whether rooted directly in the Due Process Clause of the
In determining whether Fromme‘s constitutional right to present a complete defense would be violated by nondisclosure of Crisis Connection‘s records, we weigh the interest advanced by Indiana‘s victim advocate privilege “against the inroads of such a privilege on the fair administration of criminal justice.” United States v. Nixon, 418 U.S. 683, 711-712 (1974); see also Crane v. Kentucky, 476 U.S. 683, 690-91 (1986) (weighing the potential value of the exculpatory evidence against the justification, or lack thereof, for its exclusion); Roviaro v. United States, 353 U.S. 53, 62 (1957) (“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual‘s right to prepare his defense.“).
Indiana‘s victim advocate privilege applies to victim service providers that “provide services for emotional and psychological conditions” to victims of domestic violence and sexual assault.
Although the Jaffee Court did not consider the application of the psychotherapist-patient privilege in the criminal context,16 we think its rationale strongly suрports Indiana‘s interest in maintaining the confidentiality of records protected by the victim advocate privilege. Notably, the Jaffee Court rejected a balancing approach to the application of the psychotherapist-patient privilege: “Making the promise of confidentiality contingent upon a trial judge‘s later evaluation of the relevant importance of the patient‘s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.” Id. at 17. In comparison, if the records protected by Indiana‘s victim advocate privilege were subject to even an in camera reviеw in cases like the present one, “confidential conversations between [victim advocates and victims] would surely be chilled, particularly when it is obvious that the circumstances that [gave] rise to the need for treatment will probably result in litigation.” Id. at 11-12. Rather, “if the purpose of [Indiana‘s victim advocate privilege]
cate privilege is one that generally prohibits disclosure for even in camera review of confidential information.
Nor do we think that the strong interest in maintaining the confidentiality of these records in this case is outweighed by the fair administration of criminal justice. Fromme‘s right to a fair trial and right to present a complete defense is well-protected by his extensive access to other sources of evidence. See In re WTHR-TV, 693 N.E.2d at 5-6 (noting that the Indiana Rules of Trial Procedure provide criminal defendants with liberal discovery). And, considering that the primary function of groups protected by the victim advocate privilege is not to investigate crimes but rather to provide counseling for emotional and psychological needs, we think it unlikely that Fromme would find evidence in Crisis Connection‘s records that is not available to him by way of other discovery sources. See Pinder, 678 So. 2d at 415-16 (“Given the function of counseling, it is improbable that an in camera inspection of counseling records would uncover information critical to the defense, irreplaceable by other means.“); Commonwealth v. Kennedy, 604 A.2d 1036, 1046 (Pa. Super. Ct. 1992) (“The compelling interest in allowing this rehabilitative process to occur in private is not to build a case for the prosecution, but rather to deal with the trauma of the assault and begin the healing process.“); cf. Ritchie, 480 U.S. at 43 (providing that CYS‘s function was to investigate suspected cases of mistreatment and neglect). Further, Indiаna‘s victim advocate privilege applies to both the prosecution and defense; it does not unfairly favor one side over the other. Cf. Wardius v. Oregon, 412 U.S. 470, 475 (1973) (“[I]n the absence of a strong showing of state interests to the contrary, discovery must be a two-way street.“).
In sum, by providing a complete ban to disclosure in cases like the present one, Indiana‘s victim advocate privilege advances the State‘s compelling interest in maintaining the confidentiality of information gathered in the course of serving emotional and psychological needs of victims of domestic violence and sexual abuse. For the reasons stated above, this interest is not outweighed by Fromme‘s right to present a complete defense. Accordingly, Fromme does not have a constitutional right to an in camera review of Crisis Connection‘s records. In the absence of a violation of Fromme‘s constitutional rights, we apply the victim advocate privilege as provided by the General Assembly.
Conclusion
We reverse the order of the trial court and remand for proceedings consistent with this opinion.
Shepard, C.J., and Dickson, Rucker, and David, JJ., concur.
Notes
Justice Blackmun later expressed his disagreement with the Ritchie plurality in Kentucky v. Stincer, 482 U.S. 730, 738 n.9 (1987).