The STATE of Florida, Petitioner, v. David FAMIGLIETTI, Respondent.
No. 3D01-1158.
District Court of Appeal of Florida, Third District.
May 8, 2002.
817 So. 2d 901
Bennett H. Brummer, Public Defender, and Eric M. Cohen, Special Assistant Public Defender, for respondent.
H. Scott Fingerhut, Miami; Benedict P. Kuehne of Sale & Kuehne for the Florida Association of Criminal Defense Lawyers-Miami Chapter as amicus curiae.
William R. Samek, Ph.D. for the Florida Psychological Association as amicus curiae.
Before SCHWARTZ, C.J., and JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN, SORONDO, and RAMIREZ, JJ.
On Rehearing En Banc
COPE, J.
The question presented is whether the defendant in a criminal case can invade the victim‘s privileged communications with her psychotherapist if the defendant can establish a reasonable probability that the privileged matters contain material information necessary to his defense.1 We conclude that the answer is no.
First, the Evidence Code contains no authority for such an invasion of privileged matter. Second, no applicable constitutional provision authorizes an intrusion into matters protected by the psychotherapist-patient privilege.
I.
In this domestic violence case, the defendant is charged with attempted murder for beating the victim, his girlfriend, nearly to death with a tire iron, and with ramming the police vehicle of the officers who attempted to apprehend him the following day.
The defense took the deposition of the victim and asked her about prior incidents of domestic violence. The victim testified that in connection with a prior incident of domestic violence (for which she was hospitalized), she told her psychiatrist that she had been beaten by two unknown males. She indicated that she did this because she did not want to disclose that the defendant, her boyfriend, had beaten her.
The defendant moved for issuance of a subpoena duces tecum to the victim‘s psychiatrist, requiring disclosure of all of the victim‘s psychiatric records. The defendant‘s motion asserted that the information in the psychiatric files “is potentially either exculpatory evidence, goes to the credibility of the victim‘s testimony or is necessary information toward the preparation of the Defendant‘s defense.”2
The trial court granted the motion in part. The court ruled that all of the psychiatrist‘s files regarding the victim would be disclosed to the judge in camera. The
The State filed a petition for writ of certiorari. A panel of this court granted the petition and quashed the order. The panel opinion agreed with the defendant in principle that a defendant could invade a victim‘s privileged psychiatric records through the application of a balancing test.
The panel concluded, however, that in this case the defendant had not made a sufficiently specific showing of need to justify invading the victim‘s psychiatric records. The trial court order was quashed, but without prejudice to the defendant to make a more particularized showing.
On its own motion, this court set the case for rehearing en banc.
II.
In setting this case for en banc consideration, the court directed the parties to address (among other things) the question whether the State had standing to assert the psychotherapist-patient privilege on behalf of the patient. The State is not listed in subsection
We are now satisfied that the State does have standing. First, subsection
Second, the defense has not raised any objection to the State‘s standing. Under Florida Supreme Court precedent, the issue of standing is waived if it is not raised in the trial court. Krivanek v. Take Back Tampa Political Committee, 625 So.2d 840, 842 (Fla.1993); Markham v. Neptune Hollywood Beach Club, 527 So.2d 814, 814 n. 2 (Fla.1988); Cowart v. City of West Palm Beach, 255 So.2d 673, 674-75 (Fla.1971).
III.
Proceeding to the merits, the Evidence Code does not contain any provision which would allow the defendant to invade a victim‘s communications which are protected by the psychotherapist-patient privilege.
Under the Evidence Code, the patient of a psychotherapist “has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient‘s mental or emotional condition. ...”
In defining the scope of the psychotherapist-patient privilege, the Code contains three exceptions.
None of the statutory exceptions applies in this case. Thus, the psychiatric records at issue here are privileged. Under the plain words of the Evidence Code the victim has a right to prevent the disclosure of her psychiatric record.
The dissent argues that if the legislature has created exceptions to the psychiatrist-patient privilege then it follows that the privilege is somehow a qualified, or limited, one which may be invaded under a balancing test. That is not so.
The Evidence Code itself describes the scope of the privilege which has been created. If the communication fits within the privilege, then the patient may refuse, and may insist that others refuse, to disclose the communication.
When the legislature desires to create a qualified privilege, it knows how to do so. When the legislature created the journalist‘s privilege, the legislature said in plain words that it is “a qualified privilege not to be a witness concerning ... information... that the professional journalist has obtained while actively gathering news.”
The psychotherapist-patient privilege contains no “qualified privilege” language. The psychotherapist-patient privilege does not contain any authority for invading the privileged communication nor any legal standard for doing so.
Arguing for judicially created exceptions to Evidence Code privileges, the dissent
The dissent makes reference to the State‘s limited privilege to withhold the identity of a confidential informant. However, that analogy does not apply here. The privilege regarding the confidential informant is purely a creature of case law, and case law defines its scope. In the present case we deal with a testimonial privilege which has been codified in the Evidence Code. Once codified, the words of the statute control.
The defendant relies on Katlein v. State, 731 So.2d 87 (Fla. 4th DCA 1999), but that case involved mental health treatment records covered by sections
The defendant argues that disclosure is authorized in this case by section
90.510. Privileged communication necessary to adverse party.
In any civil case or proceeding in which a party claims a privilege as to a communication necessary to an adverse party, the court, upon motion, may dismiss the claim for relief or the affirmative defense to which the privileged testimony would relate. In making its determination, the court may engage in an in camera inquiry into the privilege.
(Emphasis added).
By its terms, section
IV.
The foregoing interpretation of the Evidence Code is also sound policy. Writing in the context of federal evidentiary rules, the United States Supreme Court considered a case in which the Seventh Circuit had held that the psychotherapist-patient privilege could be overcome if “in the interests of justice, the evidentiary need for the disclosure of the contents of a patient‘s counseling sessions outweighs that patient‘s privacy interests.” Jaffee v. Redmond, 518 U.S. 1, 7 (1996) (citation and internal quotation marks omitted).
The Supreme Court said:
We part company with the Court of Appeals on a separate point. We reject the balancing component of the privilege implemented by that court and a small number of States. Making the promise of confidentiality contingent upon a trial judge‘s later evaluation of the relative importance of the patient‘s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. As we explained in Upjohn [v. United States, 449 U.S. 383 (1981)], if the purpose of the privilege is to be served, the participants in the confidential conversation “must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain
privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” 449 U.S. at 393.
Jaffee, 518 U.S. at 17-18 (emphasis added).
That analysis is on point here. The Evidence Code sets forth what communications will be held confidential precisely so that citizens know in advance what the ground rules are.
The dissent focuses on footnote 19 of Jaffee, in which the Court said:
Although it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.
Id. at 18 n. 19.6 The dissent suggests that in footnote 19 the Court has adopted the very same balancing test that the Court rejected in the text of the Jaffee opinion. Respectfully, that is not so.
In the federal system, unlike Florida, evidentiary privileges are established by case law.
V.
The next question is whether the psychotherapist-patient privilege may be invaded under federal constitutional principles. Again, we conclude that the answer is no.
The Fourth District Court of Appeal has held that under the due process clause, a defendant in a criminal case may obtain access to the victim‘s privileged communications with a sexual assault counselor. State v. Pinder, 678 So.2d 410 (Fla. 4th DCA 1996). Those records would otherwise be immune from disclosure under section
To obtain in camera review of confidential communications or records under section 90.5035, a defendant must first establish a reasonable probability that the privileged matters contain material information necessary to his defense. Only then may a trial court conduct an in camera hearing to determine if, in fact, the privileged communications contain such information.
678 So.2d at 417 (citation omitted); see also Katlein, 731 So.2d at 90.
When the present case was pending in the trial court, the parties and the court proceeded on the assumption that Pinder correctly stated the applicable law. After the trial court granted the request for an in camera inspection, the State petitioned
On its own motion, this court directed the parties to address the question whether Pinder correctly states the applicable law. It is our conclusion that Pinder is wrongly decided.
It is of course true that a constitutional provision can override a state evidentiary code. But such an invasion is not called for under the circumstances present here.
For its analysis the Pinder court relied heavily on Pennsylvania v. Ritchie, 480 U.S. 39 (1987). The Ritchie case, however, did not involve a testimonial privilege. Instead, the Ritchie case involved a Pennsylvania statute which provided that case files of the state Children and Youth Services agency (“CYS“) were not public records and must be held confidential. 480 U.S. at 43-44. The state statute contained numerous exceptions, including an exception which allowed disclosure “to a `court of competent jurisdiction pursuant to a court order.\‘” Id. at 44 (citation omitted).
The Supreme Court noted that “[t]his is not a case where a state statute grants CYS the absolute authority to shield its files from all eyes.” Id. at 58 (citation and footnote omitted). The Court ruled that the defendant was “entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial.” Id. The Court expressly left open the question “whether the result in this case would have been different if the statute had protected the CYS files from disclosure to anyone, including law-enforcement and judicial personnel.” Id. at 58 n. 14 (emphasis in original).
In the present case we deal with a generally-accepted testimonial privilege,7 not a statute protecting a public agency‘s case files, and in the present case there is no statutory provision which authorizes disclosure. Neither Ritchie nor an earlier similar case, Davis v. Alaska, 415 U.S. 308 (1974), constitute authority that the due process clause authorizes the invasion of a generally-recognized testimonial privilege. Indeed, the more recent decision of the United States Supreme Court in Jaffee rejects the idea of applying a balancing test to the psychotherapist-patient privilege. 518 U.S. at 17-18. See also John W. Strong, McCormick on Evidence § 74.2 (5th ed.1999).
The Pinder court concluded that the Florida Supreme Court has adopted such a due process balancing test in Mills v. State, 476 So.2d 172 (Fla.1985), but that reads too much into the Mills decision. In Mills, defense counsel on cross-examination of a state witness asked questions which drew an objection (by the state and by the witness’ own counsel) on grounds of attorney-client privilege. 476 So.2d at 175. The Florida Supreme Court held that the objections were properly sustained and that the defendant‘s cross-examination and confrontation rights did not outweigh the assertion of privilege. Id. at 176. The Mills decision upholding a claim of privilege is not properly viewed as authority for invading the privilege.
In sum, the due process clause does not authorize the invasion of a generally-accepted
VI.
We conclude that there is neither an Evidence Code provision, nor an applicable constitutional principle, which allows the invasion of the victim‘s privileged communications with her psychotherapist. Accordingly we quash the trial court‘s order. We certify direct conflict with Pinder.
As this case illustrates, reasonable people can disagree over whether evidentiary privileges have value, and under what circumstances (if any) privileged communications may be invaded. The policy determinations in this case have been made by the legislature in the Evidence Code, and if the evidentiary privileges are to be modified, then the legislature is the appropriate body to address it.9
JORGENSON, GERSTEN, GODERICH, and GREEN, JJ., concur.
RAMIREZ, J., concurs with opinion.
RAMIREZ, J. (concurring).
I concur with the result in Judge Cope‘s majority opinion and with the certification of conflict with State v. Pinder, 678 So.2d 410 (Fla. 4th DCA 1996), which requires that “a defendant must first establish a reasonable probability that the privileged matters contain material information necessary to his defense.” Id. at 416. In my view, that test is too permissive. However, I cannot agree with Judge Cope that the privilege is absolute; simply that under the facts of this case, I cannot conceive of anything that Famiglietti could possibly allege upon remand that would be sufficient to overcome the privilege. As Chief Judge Schwartz wrote in his specially concurring opinion, the basis for invading the victim‘s privilege here is “entirely fanciful.” At best, the testimony of the psychiatrist would only be used for impeachment. There may be situations in the future where the privilege should yield, but not in this case.
SCHWARTZ, Chief Judge (specially concurring in part and dissenting in part).
I agree with granting certiorari and quashing the order under review, but I would do so without reaching the contentious issues and sub-issues surrounding the extent and nature of the psychotherapist privilege and the validity of the Pinder decision.
The sole basis for the defendant‘s attempt to invade the secrecy of the victim‘s communications with her psychotherapist is the entirely fanciful suggestion that, because, for a good reason she fully explained, the victim had attempted to protect the defendant by claiming that someone else had committed an earlier assault upon her,
Consistent with this position, I would, as a member of the panel, amend the original opinion by removing the dicta as to these questions and, since that dicta is the sole basis of en banc consideration, dissolve the en banc court. It follows also that I disagree with the appropriateness of certifying conflict with Pinder.
JORGENSON and LEVY, JJ., concur.
SORONDO, J. (dissenting).
I begin by noting that neither the state nor the defendant has sought rehearing or rehearing en banc of the panel opinion. The state‘s original petition did not argue that the privilege in question is impenetrable or that State v. Pinder, 678 So.2d 410 (Fla. 4th DCA 1996), was wrongly decided.10 The state‘s sole objection was that defendant‘s motion was legally insufficient to require the requested in camera inspection. At oral argument, defendant acknowledged that his motion was insufficient and requested only an opportunity to submit a new one. Nevertheless, having been prompted by this Court‘s questions, the state now takes the diametrically contrary position that the privilege in question is impenetrable and that Pinder was wrongly decided.
For the reasons set forth in part II of the majority opinion, I agree that the state has standing to raise the issue of the alleged victim‘s psychotherapist-patient privilege.
The panel opinion addresses the arguments made by the majority in parts III and VI of its opinion. These sections seek to explain the majority‘s reading of the statute in question, and its disagreement with Pinder, Katlein v. State, 731 So.2d 87 (Fla. 4th DCA 1999), and the reasoning upon which they were decided. Suffice it to say that for the reasons set forth in the panel opinion, Pinder, and Katlein, I disagree with the majority.11
I turn now to the majority‘s discussion of the United States Supreme Court‘s decision in Jaffee v. Redmond, 518 U.S. 1 (1996). The majority accurately quotes a section of Jaffee that rejects the Seventh Circuit Court of Appeals’ balancing of interests approach:
We reject the balancing component of the privilege implemented by that court and a small number of States. Making the promise of confidentiality contingent upon a trial judge‘s later evaluation of the relative importance of the patient‘s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.
Id. at 17-18. As the majority suggests, this language seems clear. The Supreme Court, however, does not stop there. It goes on to say:
Because this is the first case in which we have recognized a psychotherapist privilege, it is neither necessary nor feasible to delineate its full contours in a way that would `govern all conceivable future questions in this area.\’
Id. at 18 (quoting Upjohn Co. v. United States, 449 U.S. 383 (1981)). In a footnote to this statement the Court states:
Although it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.
Jaffee, 518 U.S. at 18, n. 19 (emphasis added). Accordingly, although the Court appears to say that the privilege
In In Re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71 (1st Cir.1999), the First Circuit Court of Appeal held that the crime-fraud exception, which is applicable to the attorney-client privilege, is also applicable to the psychotherapist-patient privilege. In doing so the court observed:
The Jaffee Court did not envision the psychotherapist-patient privilege as absolute or immutable. Rather, the Court suggested the possibility of exceptions to the operation of the privilege and prophesied that the details would emerge on a case by case basis.
Id. at 74; see also United States v. Alperin, 128 F.Supp.2d 1251 (N.D.Cal.2001)(”Jaffee does not discuss how the privilege is to be applied when a criminal defendant‘s constitutional rights are implicated.“); 3 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN‘S FEDERAL EVIDENCE, § 504.07[9], at 504-24 (2d ed. 2000)(“[T]he discussion of balancing in Jaffee was general in nature and did not advert to the special concerns that apply when a litigant has a constitutional right to disclosure of otherwise confidential information.“).
In United States v. Hansen, 955 F.Supp. 1225 (D.Mont.1997), the defendant moved for a subpoena duces tecum ordering the alleged murder victim‘s psychiatrist to produce the victim‘s records. The district court first determined that the privilege survived the alleged victim‘s death and that the psychiatrist had standing to challenge the subpoena. The court then engaged in the balancing process Judge Cope suggests is contrary to Jaffee:
In Jaffee, the Court found that the important public and private interests underlying the privilege outweighed the “modest” evidentiary benefit that would likely result from denial of the privilege. Here, in contrast, the likely evidentiary benefit is great: The defendant is charged with homicide and faces a possible loss of liberty. The mental and emotional condition of the deceased is a central element of her claim of self-defense. The holder of the privilege has little private interest in preventing disclosure, because he is dead. The public does have an interest in preventing disclosure since persons in need of therapy may be less likely to seek help if they fear their most personal thoughts will be revealed, even after their death. However, I find that the defendant‘s need for the privileged material outweighs this interest.
Id. at 1226 (citations omitted).
In 1992, the Second Circuit Court of Appeal decided the case of Doe v. Diamond, 964 F.2d 1325 (2d Cir.1992). For reasons similar to those explained by the United States Supreme Court in Jaffee, the Second Circuit recognized the psychotherapist-patient privilege. In Diamond, the court held a witness in contempt for refusing to answer questions regarding his psychiatric history. The witness was a key government witness against the defendant in a case charging extortion.
Having recognized the existence of the privilege, the court proceeded to balance the witnesses’ privacy interest against the defendant‘s need for the information. The court held as follows:
Although [the witness‘s] psychiatric files do contain material that squarely implicates his privacy interests, the balance in this case weighs overwhelmingly in favor of allowing an inquiry into his history of mental illness. [The witness] is not only the person who initiated the criminal investigation against Diamond but also a witness whose credibility will be the central issue at trial. He has a long history of emotional illness, and there is expert psychiatric opinion in the record that this history is relevant to his credibility. That opinion includes the observation that appellant‘s `interpretation of reality’ might have been affected during times in which he was undergoing psychiatric treatment, as he was at the time of the events about which he is to testify. We agree with [the trial judge] that a preclusion of any inquiry into [the witness‘s] psychiatric history would violate the Confrontation Clause and vitiate any resulting conviction of Diamond.
Id. at 1329. Although the case was decided before Jaffee, it is clear that the Second Circuit, sharing the privacy concerns the Supreme Court would express four years later, realized that a balancing test was necessary in order to comply with the constitutional guarantees that inhere in criminal cases.
Although there are several scenarios that concern me, there are two that I find particularly disturbing. The first, is the crime-fraud scenario discussed in In re Grand Jury Proceedings. Consider a case where the alleged victim of a crime tells her psychotherapist that she has fallen in love with a co-worker, and that in order to facilitate a favorable financial settlement in a divorce from her husband she has manufactured charges of domestic violence against him. She further states that in addition to the false testimony she intends to offer at her husband‘s criminal trial, she has purchased the perjured testimony of two of her friends who will corroborate fictional instances of physical abuse by her husband. Such statements, preserved in the notes of the therapist or elicited from the therapist by way of deposition and at trial are exculpatory and should be made available to the defendant.12
In this case, as concerns the collateral crime evidence, the alleged victim has voluntarily admitted telling her psychiatrist that someone other than defendant perpetrated the alleged violent act.14 If the psychiatric records reflect that she made a similar representation concerning the present charges, defendant is entitled to know it and should be allowed to present such evidence to the jury.
I am not blind to the potential for abuse in this area. For this reason, the panel opinion adopts the reasoning of Pinder, and clarifies the “stringent test to justify in camera disclosure.” 678 So.2d at 417. Although the majority criticizes the panel‘s use of the confidential informant privilege in its analysis, this analogy is used only to define the strong showing required prior to entitlement to even an in camera inspection of the records in question, and how that showing is to be accomplished.
The panel opinion does not allow a wholesale fishing trip through the alleged victim‘s private psychiatric records. Rather, subject to a preliminary and specific showing of need, it directs the trial judge to conduct a review only of those records that are temporally relevant to the events at issue. The judge would then look for those matters defendant alleges to be necessary to his defense. If production of some parts of the records is appropriate, only those relevant portions, in context, should be produced. The trial judge is free to issue a concomitant protective order forbidding publication of the material except at trial, if the case gets that far.
In United States v. Nixon, 418 U.S. 683 (1974), the United States Supreme Court addressed the issue of evidentiary privileges within the context of a criminal case:
Whatever their origins, these exceptions to the demand for every man‘s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.
Id. at 710. The Court evaluated President Nixon‘s claim of executive privilege against a subpoena duces tecum issued by the United States District Court and stated:
[T]his presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that `the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer.\’ We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.
Id. at 708-09 (citation omitted) (emphasis added). I agree.
As repugnant as it may be, a civilized society can survive the acquittal of a guilty person. The wrongful conviction and sentence of an innocent person is intolerable, and I am unwilling to sacrifice such a person on the altar of the psychotherapist-patient privilege.
I respectfully dissent.
FLETCHER and SHEVIN, JJ., concur.
Notes
The Evidence Code provides:
(4) There is no privilege under this section:
(a) For communications relevant to an issue in proceedings to compel hospitalization of a patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has reasonable cause to believe the patient is in need of hospitalization.
(b) For communications made in the course of a court-ordered examination of the mental or emotional condition of the patient.
(c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient‘s death, in any proceeding in which any party relies upon the condition as an element of the party‘s claim or defense. Id.
The statute provides:
A party seeking to overcome this privilege must make a clear and specific showing that:
(a) The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought;
(b) The information cannot be obtained from alternative sources; and
(c) A compelling interest exists for requiring disclosure of the information.
The other well-known qualified privilege is the work product immunity which is now codified in
Several states have addressed this concern and have passed laws to deal with the problem. The more limited solution is to include a crime-fraud exception in every privilege. In Florida, only the attorney-client privilege and the accountant-client privilege contain crime-fraud exceptions.
The more expansive, and I suggest the better, solution is to provide for a general exception to the privilege when necessary to the best interest of justice. For example,
I respectfully suggest that the Florida Legislature consider amending those sections of the Florida Evidence Code that define Florida‘s evidentiary privileges to include language such as that set forth above. At the very least, the Legislature should consider adding a crime-fraud exception to all privileges provided by the Florida Evidence Code.