STATE of Iowa, Appellant, v. Ross Ian CASHEN, Appellee.
No. 07-2109.
Supreme Court of Iowa.
July 2, 2010.
Rehearing Denied Aug. 5, 2010.
Jennifer L. Steffens of Steffens & Grife, P.C., Marshalltown, Kelly T. Bennett, Newton, and Christopher A. Clausen of Boliver, Clausen & Bidwell Law Firm, Marshalltown, for appellee.
WIGGINS, Justice.
In this appeal, we review a district court order and court of appeals decision allowing a criminal defendant to gain access to a victim‘s privileged mental health records. The district court and the court of appeals allowed the defendant access without restriction. We now adopt a protocol that balances a patient‘s right to privacy in his or her mental health records against a defendant‘s right to present evidence to a jury that might influence the jury‘s determination of guilt. Accordingly, we vacate the decision of the court of appeals, affirm in part and reverse in part the judgment of the district court, and remand the case for further proceedings consistent with this opinion.
I. Background Facts and Proceedings.
This case involves a domestic dispute
On July 3 Cashen filed a notice that he intended to rely on the defense of self-defense. On July 25 Cashen asked the court to enter an order authorizing him to hire an expert to review and aid in the interpretation of Doe‘s mental health records as well as to present expert testimony to the jury regarding Doe‘s credibility and propensity for violence. The district court denied the motion, finding it was premature because the court had not made a determination as to whether the records would be admissible at trial.
Cashen then proceeded to depose Doe. In her deposition, Doe acknowledged she had been involved in past abusive relationships with other men. She also testified she had been diagnosed with posttraumatic stress disorder, anxiety, depression, and had been in counseling and therapy since she was fifteen years old. She indicated she had displayed impulsive and reactive behavior in the past and became easily frustrated when she was in her relationship with Cashen. Doe also said she was taking a prescription antidepressant. She said she was taking the medication because she was nervous about the safety and welfare of her boyfriend, who was serving in the armed services. She also believed Cashen was a very violent man, and she worried about retribution from him.
Cashen also employed a private investigator who acquired some of Doe‘s mental health records from a medical office and a hospital. After the State learned Cashen had acquired these records, it filed a motion in limine to exclude the records, as well as other matters, from trial. The State also sought to preclude admission of Doe‘s prior mental health history revealed in her deposition.
The district court denied the motion in limine. It found the mental health history of Doe, specifically her propensities for violence and explosive behavior, was relevant to Cashen‘s defense of self-defense. It also determined the records could be relevant to Doe‘s credibility as a witness to accurately observe and recall the events leading to the charges and may be helpful to impeach her at trial. The court continued the trial to allow Cashen the opportunity to secure an expert to review the records and testify, if necessary, on the issues of Doe‘s propensity for violence and her credibility.
On November 29 Cashen filed two separate motions, the first to reconvene Doe‘s deposition and the second to obtain Doe‘s mental health records. On December 11 the court ordered Doe to execute a patient waiver form in favor of Cashen‘s counsel and, upon receipt of the records, permit Cashen‘s counsel to reconvene the deposition of Doe to explore those areas connected to the records.
The State responded by filing an application for discretionary review. We granted the application and transferred the case to the court of appeals. The only issue argued on appeal was whether the district court erred in allowing the disclosure of Doe‘s mental health records.
The court of appeals affirmed the district court‘s order in part and reversed in part. It found Cashen had demonstrated a compelling need for the mental health records and affirmed the decision of the district court ordering disclosure of the records and admission of expert testimony on the issues of Doe‘s propensity for vio-
II. Standard of Review.
Ordinarily, we review discovery orders for an abuse of discretion. State v. Schuler, 774 N.W.2d 294, 297 (Iowa 2009). However, to the extent the issues in this case involve constitutional claims, our review is de novo. State v. Reyes, 744 N.W.2d 95, 99 (Iowa 2008). Because the issues in this case rest on constitutional claims involving Cashen‘s due process right to present a defense, our review is de novo. See Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40, 57 (1987) (holding a due process analysis applies in determining whether to disclose a child protective service agency‘s privileged records for purposes of a defendant presenting a defense).
III. Analysis.
A. The State‘s Claims. In State v. Heemstra, 721 N.W.2d 549, 563 (Iowa 2006), we allowed a defendant to obtain the medical records of a homicide victim to assist the defendant in presenting his defense. There, the defendant was facing a first-degree murder charge that carried a sentence of life in prison without the possibility of parole. Heemstra, 721 N.W.2d at 551, 563. In this appeal, the State argues this case is distinguishable from our decision in Heemstra because it “does not present any ‘unique facts’ warranting abrogation of the psychotherapist privilege and intrusion into the victim‘s mental health records.” The only real difference between this case and Heemstra is the severity of the penalty. If convicted, Cashen can be deprived of his liberty and potentially sentenced to ten years in prison. See
The State‘s fallback position is that if the records are made available to the defendant‘s attorney, the records should only be disclosed on a limited basis. We agree that if privileged records are to be made available in a criminal proceeding, a certain protocol must be followed to balance the patient‘s right to privacy with the defendant‘s right to present evidence to a jury that might influence the jury‘s determination of guilt. Today, we set forth the proper protocol to be used by a court to determine when and how a defendant‘s attorney can gain access to a victim‘s privileged mental health records.
B. Prior Case Law. We have previously applied a balancing test to determine if a party to a proceeding is entitled to review the confidential medical records of a nonparty. Chidester v. Needles, 353 N.W.2d 849, 853 (Iowa 1984). The first decision to adopt and apply this test was Chidester. Id. In Chidester, the county attorney sought thirteen patients’ medical records in connection with his investigation into Medicaid fraud. Id. at 851. The first issue we considered was the nature of the patients’ right in keeping the records pri-
Although we recognized the patients had a constitutional right to privacy in their medical records, we acknowledged this privilege was not absolute, but qualified. Id. Thus, we adopted a balancing test and stated, “The privacy interest must always be weighed against such public interests as the societal need for information, and a compelling need for information may override the privacy interest.” Id. In weighing the interests, we said, “[S]ociety has a strong interest in allowing official investigators of criminal activity broad authority to conduct thorough investigations.” Id. We also declared, “[T]he privacy interest must be balanced against society‘s interest in securing information vital to the fair and effective administration of criminal justice.” Id. (emphasis added). We then concluded the patients’ privacy interest in their records yielded to “the State‘s interest in well-founded criminal charges and the fair administration of criminal justice” and allowed the county attorney to subpoena the records. Id. at 854.
The next case to discuss the balancing test was McMaster v. Iowa Board of Psychology Examiners, 509 N.W.2d 754, 759 (Iowa 1993). There, the board of psychology examiners subpoenaed a patient‘s records from a psychologist who was not under investigation. McMaster, 509 N.W.2d at 755. The patient filed a petition to quash the subpoena. Id. at 756. In concluding the patient‘s constitutional privacy interest in her records is not absolute, we applied the balancing test. Id. at 759.
In applying the balancing test, we found the board‘s public interest was its statutory duty to police mental health professionals. Id. After recognizing this public interest, we adopted a protocol for determining whether a patient‘s privacy interest in his or her mental health records must yield to a competing interest of the State. Id. at 759-60. The protocol first required the party seeking access to the records must “make a minimal showing that the complaint reasonably justifies the issuance of a subpoena in furtherance of the investigation.” Id. at 759. Second, the party seeking access to the records must show the records are necessary as evidence in the disciplinary proceedings. Id. This requirement can be satisfied by an in camera review of the records by the district court. Id. Third, the party seeking access to the records must notify the patient and request a waiver from the patient prior to issuing the subpoena. Id. at 760. Fourth, the party seeking access to the records should establish the existence of adequate safeguards to avoid unauthorized disclosure. Id. Last, the patient‘s privacy interest in the records will yield to a competing interest of the State only if there is an articulated public policy, recognized public interest, or an express statutory mandate “‘militating toward access.‘” Id. (quoting United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980)).
Our most recent case to apply the balancing test was Heemstra. In Heemstra, we allowed “limited disclosure” of the victim‘s medical records based on the unique facts presented in the case. Heemstra, 721 N.W.2d at 563. We held “the records [should] be made available to defense and
C. Third Party‘s Right to Privacy in her Mental Health Records. We recognize a patient‘s right to privacy in his or her mental health records because
“[p]sychotherapy probes the core of the patient‘s personality. The patient‘s most intimate thoughts and emotions are exposed during the course of the treatment. The psychiatric patient confides [in his therapist] more utterly than anyone else in the world. . . . [H]e lays bare his entire self, his dreams, his fantasies, his sin, and his shame. The patient‘s innermost thoughts may be so frightening, embarrassing, shameful or morbid that the patient in therapy will struggle to remain sick, rather than to reveal those thoughts even to himself. The possibility that the psychotherapist could be compelled to reveal those communications to anyone . . . can deter persons from seeking needed treatment and destroy treatment in progress.”
McMaster, 509 N.W.2d at 758 (quoting Haw. Psychiatric Soc‘y v. Ariyoshi, 481 F. Supp. 1028, 1038 (D. Haw. 1979) (citations omitted)). Accordingly, these reasons are important in our application of the balancing test.
D. Public Interest in Allowing the Defendant to Obtain the Records. Excluding evidence from a criminal trial for some purpose other than enhancing the truth-seeking process of the proceeding increases the danger of convicting an innocent person. Under the United States Constitution, a criminal defendant has a due process right to present evidence to a jury that might influence the jury‘s determination of guilt. Ritchie, 480 U.S. at 56, 107 S.Ct. at 1000-01, 94 L.Ed.2d at 56-57. The Supreme Court has also said that “disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice.” Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973, 984 (1966). Thus, a defendant‘s right to produce evidence that is relevant to his or her innocence is an important public interest that we must consider in applying the balancing test.
E. The Proper Protocol for Requesting the Privileged Mental Health Records of a Victim. The purpose of providing a defendant with the privileged records of a victim is to lessen the chance of wrongfully convicting an innocent person. Society shares this interest. In fact, the Federal and Iowa Constitutions include numerous safeguards to prevent the wrongful conviction of the innocent. See, e.g.,
We continue to adhere to a balancing test, and now take the opportunity to articulate a standard that judges can consistently apply to identify those circumstances when the defendant‘s right to a fair trial outweighs the victim‘s right to privacy. This standard allows a defendant to obtain the records necessary to put forth evidence tending to show the defendant‘s innocence, but does not permit the defendant to go on a fishing expedition into a victim‘s privileged records. Because of the importance of the public interest in not convicting an innocent person of a
In McMaster, we developed a protocol that balanced the interest of the State against the privacy interest of the patient when an agency sought to obtain the patient‘s privileged mental health records. McMaster, 509 N.W.2d at 759-60. Today, we formulate a similar protocol when a criminal defendant, who is represented by counsel, requests the privileged mental health records of a victim.2 The protocol we adopt today strikes the proper balance between a victim‘s right to privacy in his or her mental health records and a defendant‘s right to produce evidence that is relevant to his or her innocence.
First, we want to emphasize that a defendant is not entitled to engage in a fishing expedition when seeking a victim‘s mental health records. Before a subpoena may issue for a victim‘s privileged records, the defendant must make a showing to the court that the defendant has a reasonable basis to believe the records are likely to contain exculpatory evidence tending to create a reasonable doubt as to the defendant‘s guilt. Ritchie, 480 U.S. at 58 n. 15, 107 S.Ct. at 1002 n. 15, 94 L.Ed.2d at 58 n. 15. In doing so, the defendant need not show the records actually contain information for establishing the unreliability of a charge or witness. Commonwealth v. Bishop, 416 Mass. 169, 617 N.E.2d 990, 996-97 (1993), abrogated by Commonwealth v. Dwyer, 448 Mass. 122, 859 N.E.2d 400, 414, 417-19 (2006). A defendant need only advance some good faith factual basis indicating how the records are relevant to the defendant‘s innocence. Id. Thus, to begin this process, a defendant‘s counsel must file a motion with the court demonstrating a good faith factual basis that the records sought contain evidence relevant to the defendant‘s innocence. The motion shall be marked confidential, filed under seal, and set forth specific facts establishing a reasonable probability the records sought contain exculpatory evidence tending to create a reasonable doubt as to the defendant‘s guilt. The motion shall also request the court issue a subpoena requiring the custodian of the records to produce the records sought by the defendant. Defendants or their attorneys shall not subpoena a victim‘s privileged records without a court order.
Second, the county attorney shall notify the victim that the defendant has made a request for the victim‘s privileged records. After conferring with the victim, the county attorney shall provide the court with an affidavit signed by the victim stating the victim either consents to or opposes the disclosure of the records. If the victim consents to the disclosure, the court shall issue a subpoena for the records to be produced under seal to the court. If the victim opposes the disclosure, the court shall hold a hearing to determine if a reasonable probability exists that the records contain exculpatory evidence tending to create a reasonable doubt as to the defendant‘s guilt. If the court determines a reasonable probability exists that the records contain such evidence, the court shall issue a subpoena for the records to be produced under seal to the court.
Before issuing the subpoena, the court shall enter a protective order containing stringent nondisclosure provisions. The protective order shall prohibit any attorney, county attorney, or third party who is allowed to inspect or review the records under this protocol from copying, disclos-
Third, if the records are produced, the attorney for the defendant who obtained the subpoena shall have the right to inspect the records at the courthouse. An in camera review of the records by the court is insufficient. Only the attorneys representing the parties know what they are looking for in the records. The court cannot foresee what may or may not be important to the defendant. Heemstra, 721 N.W.2d at 563; see also Dwyer, 859 N.E.2d at 418 (“Despite their best intentions and dedication, trial judges examining records before a trial lack complete information about the facts of a case or a defense . . . and are all too often unable to recognize the significance, or insignificance, of a particular document to a defense.“).
Fourth, after the attorney for the defendant has identified the records he or she believes contain exculpatory evidence, the attorney shall notify the county attorney and the court of the specific records the defendant desires and ask that the matter be set for hearing. Prior to the hearing, the county attorney may review the designated records at the courthouse. If the county attorney reviews the records, he or she is subject to the protective order entered by the court.
Fifth, the court shall hold a hearing to determine if the designated records contain exculpatory evidence. The court shall close the hearing to the public to protect the victim‘s privacy. The court shall give notice of the hearing to the defendant‘s attorney and the county attorney. If the court determines the designated records contain such evidence, the court shall provide a copy of any such records to the defendant‘s attorney and the county attorney. Before providing these records to counsel, the court shall order that all non-exculpatory matters in the records provided be redacted prior to the records being removed from the courthouse. In order to protect the privacy rights of the victim, these records will continue to be subject to the protective order entered by the court. Before either attorney can disclose the records to a third party, including potential expert witnesses, the attorney must obtain an order from the court allowing such disclosure and requiring the person to whom the records are disclosed to be bound to the same nondisclosure
The protocol we have outlined for discovery purposes does not necessarily mean the victim‘s mental health records are admissible at trial. Whether the records meet the requirements for admission under our rules of evidence is a separate determination that the court will make at trial or in ruling on a motion in limine. If the court ultimately decides the records are admissible, the court shall consider alternatives to the introduction of the records as proffered. These alternatives may include stipulations by the parties or the introduction of redacted portions of the records.
All records produced under seal to the court pursuant to a subpoena shall be preserved for appeal purposes. After completion of the appeal, all persons who have copies of the records shall destroy their copies and certify to the court that the records in their possession have been destroyed.
In formulating this protocol, we have considered whether a defendant should be required to make a showing that the information sought in the records could not be obtained from another source, such as the victim‘s testimony, before the defendant is allowed to seek production of the victim‘s mental health records. We reject such a requirement because we do not believe a patient‘s rendition of his or her medical condition and treatment is necessarily reliable. For example, without examining Doe‘s records, Cashen cannot be sure the information provided in Doe‘s deposition testimony accurately reflects her true mental health condition. Sometimes individuals are less than candid concerning their condition when talking to others. In other instances, individuals may not fully understand their condition, notwithstanding their health care providers’ efforts to explain it to them. Finally, such records often contain information not given to a patient or information forgotten by a patient. The only way to assure that Cashen has adequate and accurate information to defend properly against the criminal charges is to give him access to those portions of Doe‘s records that are relevant to Cashen‘s innocence. By using the protocol outlined above, the invasion of Doe‘s right to privacy in her mental health records is minimized.
F. Application of the Protocol. In her deposition, Doe admitted punching the defendant. On two prior instances, she has been charged with domestic abuse against her ex-husband. She admits to having posttraumatic stress disorder for which she has sought counseling. She also admitted to being frustrated easily and having difficulty controlling impulsive behavior. Based on this testimony, the district court found the mental health history of Doe, relating to her propensities for violence and explosive behavior, was relevant to Cashen‘s defense of self-defense and to Doe‘s credibility as a witness. This evidence is exculpatory because it tends to create a reasonable doubt as to Cashen‘s guilt.
We agree with the district court that Doe‘s deposition testimony satisfies Cashen‘s requirement to establish a reasonable probability exists that the records contain exculpatory evidence. On remand, the court shall issue a subpoena for the records to be produced under seal to the court. Thereafter, the court and the parties shall comply with the remaining requirements of the protocol.
IV. Disposition.
We affirm the district court decision to the extent it allowed Cashen‘s attorney to
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.
All justices concur except CADY, J., who dissents.
CADY, Justice (dissenting).
I respectfully dissent. The majority announces and professes to apply a balancing test to reach its conclusion that Doe must turn over her confidential counseling records for examination by Cashen and his attorney (and others) under a protocol directed by the trial court. In truth, the majority has abandoned the balancing test without acknowledgement. In its place, the majority has substituted a policy judgment that all defendants in a criminal case are entitled to view confidential medical and counseling records of a victim to an alleged crime when the defendant asserts a legal claim or issue that makes the contents of the confidential records relevant to the claim or issue in the case. The balancing test is unceremoniously abandoned because confidential records must now be disclosed once relevance is shown regardless of any particular surrounding
One fundamental interest at stake in this case involves a belief of most Iowans that information communicated by a patient to a doctor or counselor will be confidential. For over 150 years, Iowa has recognized that confidential communications between a physician and a patient constitute privileged information. See
While our rules and cases applying
I recognize the privilege expressed in section 622.10 does not expressly apply to discovery disputes. Yet, the purpose and rationale of the statute unmistakably applies to pretrial discovery in a criminal case with the same vigor and importance as to the testimonial stage of trial. See Newman v. Blom, 249 Iowa 836, 844, 89 N.W.2d 349, 354-55 (1958) (recognizing medical records contain the same protected confidential information as a physician‘s direct testimony about the communications). Discovery of witness records is a predicate step to trial testimony and is guarded by the same basic underlying considerations. Moreover, it is important to discuss the privilege in the context of the statute because the statute has been the forum largely responsible for the development of the law, even though the privilege also has its roots in the broad constitutional right to privacy. See McMaster, 509 N.W.2d at 758 (recognizing the roots of the right to privacy in mental health records). Nevertheless, our legislature has left discovery disputes over confidential records for the courts to resolve, and it is incumbent on courts to develop a workable standard and resolve each dispute. The statutory privilege is not a legal defense to a discovery dispute, but the rationale of the privilege provides an important perspective in gaining a full understanding of the privacy interest at stake.
The competing fundamental interest at stake in this case is derived from constitutional protections provided to an accused to confront witnesses in a criminal trial and to be given a fair trial. A defendant in a criminal case not only has a right to confront witnesses with effective cross-examination, but due process and the right to a fair trial also demand an accused be given a full and fair opportunity to present a claim of self-defense. See Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974) (recognizing defendant‘s right to confront witnesses with adequate cross-examination); see also Chambers v. Mississippi, 410 U.S. 284, 297-98, 93 S.Ct. 1038, 1047, 35 L.Ed.2d 297, 310 (1973) (recognizing defendant‘s right to due process includes the right to present a defense by cross-examining witnesses). Although a defendant‘s constitutional right of confrontation is not limitless, a decision denying a defendant access to “a certain class of evidence, even for the purpose of preventing a witness from suffering embarrassment on the stand, should not limit the Sixth Amendment right of a defendant to confront the witness against him.” State v. Howard, 121 N.H. 53, 426 A.2d 457, 460 (1981) (quoting State of New Hampshire‘s appellate brief); see also Chambers, 410 U.S. at 295, 93 S.Ct. at 1046, 35 L.Ed.2d at 309 (“Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.“). Moreover, despite the power vested in state legislatures to protect the privacy rights of victims, “[c]riminal defendants have been guaranteed numerous rights by the fourth, fifth, and sixth amendments, and states may not infringe upon them regardless of general legislative power.” J. Alexander Tanford & Anthony J. Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U. Pa. L.Rev. 544, 554-55 (1980).
The clash between the two fundamental constitutional interests occurs in this case largely due to the presence of the self-
In Heemstra, we developed a compelling-need test to resolve the clash between the competing interests of confidentiality and a fair trial in the context of a criminal prosecution.5 Heemstra, 721 N.W.2d at 563. The test is based on the premise that a point exists when even the strong interest of confidentiality of mental health information must give way to a defendant‘s right to confront witnesses and the right to present a defense in a criminal case. Id. at 562-63. In other words, this case involves a clash of two constitutional rights, and each case must be carefully examined to determine the point where one right must give way to the other. See Chidester v. Needles, 353 N.W.2d 849, 853 (Iowa 1984).
We relied on four factors in Heemstra in balancing the interests at stake to conclude limited disclosure of confidential mental health records was required in that case. First, disclosure was not only sought in the course of a criminal case, but the defendant faced the most severe penalty possible under the law. Heemstra, 721 N.W.2d at 563. This factor indicated the weight of the consequential harm of non-disclosure to the accused. Second, the person who was the subject of the medical records was deceased. Id. Although the physician-patient privilege continues after death, this factor tended to diminish the importance of protecting the records from disclosure because the fear of disclosure for a patient after death is not as compelling for the patient as the fear of disclosure before death. See McCormick § 102, at 462 (recognizing privilege continues af-
The factors we identified in Heemstra were not exhaustive, but instructive of the general approach courts should take in applying a balancing test in criminal cases. This test focuses on all the facts and circumstances of each case to fully assess a compelling need for the information. The burden to establish a need for the victim‘s records is on the defendant. See McMaster, 509 N.W.2d at 759 (imposing burden on entity seeking the records). The relevant factors essentially allow the strength of the competing interests to be compared within the context of each individual case. This is the best method to achieve a just result.
The problem with the decision of the majority is the important case-specific balancing of the competing interests is discarded. As a clash between constitutional rights, this approach seems inconceivable. The majority claims to adhere to the balancing process through the use of protocol, but the protocol requires the disclosure of the confidential records based merely on a showing of relevancy. This new test does not consider any particular need for the victim to maintain privacy, nor does the test allow any particular circumstances of the defendant to be identified that may militate against full disclosure. More importantly, it fails to balance the competing interests by flushing out a compelling need for the confidential records. Instead, the new test presumes mere relevancy satisfies the compelling need and uses the protocol to realign the interests of the victim from preventing disclosure to minimizing disclosure. The right of the victim to keep records private from the court, defendant, attorneys, and various court and attorney employees is completely ignored.
In this case, the majority orders Doe to turn over all her medical and counseling records from the time she was a young teenager because Cashen has asserted a claim of self-defense and Doe has admitted she has a history of counseling that includes impulsive behavior and that she becomes frustrated easily due to posttraumatic stress disorder. Absent from the analysis is any consideration that could diminish Cashen‘s need for the confidential reports.
First, Doe is available to testify at trial, and she has already provided Cashen with an abundance of testimony under oath relevant to the claim of self-defense. Second, Cashen was married to Doe and likely possesses personal knowledge of the propensity and character of Doe to assist him in his claim of self-defense, including any
Conversely, the public policy embedded in the battle against domestic abuse should heighten the need to protect the confidentiality of medical and counseling records of victims in domestic-abuse cases. While domestic abuse was rarely prosecuted as a crime in the not-too-distant past, it is now a common subject of civil and criminal enforcement in this state and nationwide.6 Moreover, it is not uncommon for victims of domestic abuse to suffer from anxiety, depression, and posttraumatic stress disorder. Evan Stark, Re-Presenting Woman Battering: From Battered Women Syndrome to Coercive Control, 58 Albany L.Rev. 973, 997 (1995). Consequently, as the number of domestic-abuse prosecutions increases, so does the threat of disclosure of confidential records of prosecuting witnesses. Likewise, as the threat of disclosure of confidential records of victims increases, the public policy responsible for the greater reporting and prosecution of domestic abuse that is part of the overall effort to address domestic violence is likely to suffer. If victims of domestic violence must suffer the embarrassing and debilitating loss of their physician-patient privilege once they become a witness in a criminal domestic-abuse prosecution, a chilling effect will be cast over the reporting of domestic abuse, the disclosure of information to treatment providers by victims, the ability of physicians and psychotherapists to treat psychological disorders arising from domestic abuse, and the willingness of victims to testify against their abusers. The relevancy test of the majority fails to consider the impact of simple relevancy-based disclosure on society in general.
Finally, the holding of the majority deprives victims of domestic abuse crimes, and perhaps other victims of crimes, of a constitutional right of privacy without an opportunity to show how the deprivation of the right will impact their privacy interest. The victim is treated as if the right to privacy does not apply to judges, court staff, attorneys, defendants, and other people connected to the court system.
The majority has, without explanation, decided to paint with broad brushstrokes by making an implicit judgment that the
The new test developed by the majority may be easy and beneficial to defendants, but it is a step back both for victims and for the progress made in addressing domestic violence over the last decade. The only way victims of domestic abuse with a history of counseling will be able to ensure the confidentiality of their private counseling records is to not report domestic abuse. The law should be able to do better.