STATE OF MARYLAND v. JONATHAN JOHNSON
No. 3, Sept. Term, 2014
Court of Appeals of Maryland
Oct. 22, 2014
102 A.3d 295
Julia C. Schiller, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Respondent.
Victor D. Stone, Esquire, Russell P. Butler, Esquire, Upper Marlboro, MD, for amicus curiae brief of Maryland Crime Victims’ Resource Center, Inc.
Argued before: BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, MCDONALD and WATTS, JJ.
GREENE, J.
Respondent, Jonathan Johnson, was convicted of sexual abuse of a minor and second-degree sexual offense. Leading up to trial, Respondent sought, by means of a trial subpoena, access to the minor victim‘s
FACTUAL AND PROCEDURAL HISTORY
The facts surrounding Respondent‘s history with the minor victim, J.C.,1 are set forth in Petitioner‘s brief, pursuant to the parties’ agreed Statement of Facts,2 as follows:
Between April 2007 and April 2008, Respondent lived in an apartment in Baltimore City with his girlfriend, who was also the mother of Respondent‘s infant children, and with J.C. (Respondent‘s girlfriend‘s nine/ten year old son), and J.C.‘s older sister (Respondent‘s girlfriend‘s oldest daughter). Because J.C.‘s mother worked, Respondent oftentimes was the only adult home when J.C. returned from school, which was about an hour earlier than his oldest sister.
On one occasion, Respondent entered J.C.‘s room after J.C. returned home from school and was changing clothes. Respondent, who was riled up at the time, ordered J.C. to turn over in a mean tone. He then pushed J.C. around onto J.C.‘s bed and, after pulling J.C.‘s shorts down, Respondent put on a condom and forced his penis “in and out” of J.C.‘s “butt.” J.C., who cried at the time, threatened to kill Respondent when Respondent finished. J.C. did not tell his mother or another adult because he did not trust a lot of people and did not feel comfortable talking to someone about the assault.
J.C. began to live with his maternal grandfather in March 2009 and ceased all contact with Respondent at that time. While J.C. was living with his grandfather, one evening they dined at a Chinese restaurant. During dinner, J.C. and his grandfather spoke about the trouble that J.C. had been having at school. His grandfather encouraged him to talk about his problems with “somebody,” or with his “therapist,” or with other “people.” After learning from his grandfather that his grandfather
had been molested as a child, J.C. reported Respondent‘s sexual assault to his grandfather. Upon returning home from the restaurant, J.C.‘s grandfather called the police. At trial, Respondent stated that he was never alone with J.C. and denied that he had ever sexually assaulted J.C. According to Respondent, J.C.‘s grandfather and Respondent had a sexual encounter about twenty years earlier and then, more recently, introduced Respondent to J.C.‘s mother. (Citations to the record omitted.)
Based on J.C.‘s allegations, Respondent was charged, in the Circuit Court for Baltimore City, with sexual abuse of a minor and other related offenses. According to the record, J.C. became a patient at National Pike Health Center, Inc. (“National Pike“), a full service medical facility with a staff that includes both psychiatrists and licensed clinical social workers. Prior to trial, Respondent filed a subpoena duces tecum to require National Pike to produce records pertaining to J.C. National Pike filed a Motion for Protective Order, effectively seeking to quash the subpoena.
On November 9, 2011, the morning of trial, the trial judge held a hearing with regard to National Pike‘s Motion for Protective Order. National Pike explained that the records sought by Respondent are privileged and confidential because they contain communications by J.C. to mental health providers, and include notes from psychiatrists and a licensed clinical social worker. The trial judge asked defense counsel to explain the reason for requesting the records, to which defense counsel responded:
DEFENSE COUNSEL: ... I‘d like to see the records, one, to know what is this young man‘s mental health diagnosis. Is he, is he bipolar? Is he paranoid schizophrenic? Is he delusional? Does he have hallucinations, Your Honor?
THE COURT: And the reason for that?
DEFENSE COUNSEL: Your Honor, if he, if he‘s delusional, and if [he] has hallucinations, I believe that‘s, leads to exculpatory, that‘s exculpatory for Mr. Jonathan Johnson‘s case....
THE COURT: Well, I assume you‘re, you‘re saying you want to see these records generally because these records may disclose information that could affect his credibility or his ability to perceive; is that what you‘re talking about?
DEFENSE COUNSEL: Yes, Your Honor.
THE COURT: Okay. So just, just like the—maybe they do. I mean, maybe there‘s something in there or not. But you don‘t, you don‘t know that for a fact, correct?
DEFENSE COUNSEL: Correct, Your Honor.
THE COURT: Any other reasons?
DEFENSE COUNSEL: No, Your Honor. I‘m just trying to get an idea of anything exculpatory about this young man, why he‘s in treatment. If he‘s in treat—if there‘s allegations that he‘s in treatment for disciplinary issues, if he‘s in treatment for, if he‘s seeing a counselor because he‘s a habitual liar.
THE COURT: Okay. Why isn‘t this just a fishing expedition? I mean, you could say that—I assume, and I‘m, and I, I—again, in these cases I‘m sympathetic to the defense because in a sense you obviously don‘t have the records, so you can‘t tell me what exactly they contain. But I guess part of my concern is just merely a proffer that, in fact, it may affect his credibility or it may [ ] provide you some information you can use for cross-examination. Is there anything more specific beyond that?
DEFENSE COUNSEL: Not without even having a slightest idea of what may be in the records, Your Honor, not without even knowing his diagnosis, no. So, it, it‘s—if you wish to call it a fishing expedition, it may be because I have no idea what these records may contain. We have a State‘s witness who has mental health issues, obviously has mental health issues that may lead to his credibility, may affect his credibility, may affect his ability to perceive, to understand....
Relying on Goldsmith v. State, 337 Md. 112, 651 A.2d 866 (1995), and Fisher v. State, 128 Md.App. 79, 736 A.2d 1125 (1999), discussed infra, the trial court concluded that defense counsel‘s proffer to the court was insufficient to permit disclosure of the victim‘s privileged mental health records. Therefore, the trial judge granted National Pike‘s motion, but ordered that the records sought by defendant be sealed. On November 14, 2011, after a three day jury trial, Respondent was convicted of sexual abuse of a minor and second-degree sexual offense. On February 10, 2012, Respondent was sentenced to fifteen years incarceration.
Respondent noted an appeal, arguing that the trial court committed reversible error by granting National Pike‘s motion. In an unreported opinion, one judge dissenting,3 the Court of Special Appeals panel reversed, concluding that “[Respondent] sufficiently established the likelihood that the records sought would provide exculpatory information.” Noting the need to “strike a balance between the competing interests of a witness‘s privilege and a defendant‘s constitutional rights to obtain and present information necessary to his defense,” the court stated further, “[w]hile we cannot expect counsel to have precise information as to the content of the records, he did suggest that it would be appropriate to know of [J.C.‘s] propensity for veracity.” In the court‘s view, “[t]hose suggestions alone were sufficient, at the very least, to call for an in camera review of the records to determine their relevance, vis a vis [Respondent]‘s constitutional rights, before ruling on [National Pike‘s motion].” On the State‘s petition, we granted certiorari, 435 Md. 501, 79 A.3d 947 (2013), to answer the following question:
Is a “suggestion” by the defendant that the victim‘s mental health records may contain information that is either exculpatory or relating to the victim‘s “propensity for veracity” insufficient, under Goldsmith v. State, 337 Md. 112, 651 A.2d 866 (1995), to “call for an in camera review” of those records?
For the following reasons, we reverse the judgment of the Court of Special Appeals.
DISCUSSION
Petitioner would have us create a bright line rule and hold that a victim‘s mental health records are subject to an absolute privilege; therefore, a defendant would not be entitled to the disclosure of such records under any circumstances. At the very least, Petitioner argues, in order to access privileged records the defendant should be required to demonstrate a sufficient factual basis supporting his or her proffer that the records sought likely contain exculpatory information. Specifically, Petitioner asserts that a defendant must satisfy a high threshold test, and present credible evidence that would otherwise be
Respondent argues that a criminal defendant‘s constitutional rights at trial must trump a victim‘s privilege in mental health records, and an in camera review of the records is an appropriate method to both protect the victim‘s privacy interest in his or her records and ensure a criminal defendant‘s constitutional rights and access to exculpatory evidence. Respondent contends that the burden on the defendant to warrant an in camera review cannot be as high as Petitioner suggests, however. Instead, Respondent urges this Court to follow the standard set forth by the United States Supreme Court in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), that is, where the defendant cannot possibly know exactly what the records contain, he or she need only “make some plausible showing” that the information in the records would be “both material and favorable to his [or her] defense.” Ritchie, 480 U.S. at 58 n. 15, 107 S.Ct. at 1002 n. 15, 94 L.Ed.2d at 58 n. 15 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193, 1202 (1982)).
In undertaking our review of Goldsmith and other relevant precedent, we shall first discuss the threshold question of whether a criminal defendant‘s trial rights may prevail over a victim‘s right to assert a privilege in his or her mental health records. Because we answer that question in the affirmative, we shall next address when a criminal defendant will be entitled to an in camera review4 of the privileged records.
I. May the defendant‘s trial rights trump the victim‘s privilege?
A patient‘s privilege to preclude the disclosure of his or her communications to a licensed psychiatrist and communications to a licensed clinical social worker, respectively, are governed by
(b) Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient‘s authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing:
(1) Communications relating to diagnosis or treatment of the patient; or
(2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment.
Similarly,
(b) Unless otherwise provided, in all judicial or administrative proceedings, a client has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications made while the client was receiving counseling or any information that by its nature would show that such counseling occurred.
Nothing in the relevant statutes purports to make the privileges absolute. Indeed,
In this case, Respondent sought the minor victim‘s records held by a private counseling center. There is no dispute that the records sought are privileged mental health records6 and that the victim at no time waived the privilege. As phrased by Petitioner, this case involves a “tug of war” between the right of the victim to assert his or her privilege to prevent disclosure of confidential mental health records and the right of a criminal defendant to present a fair defense at trial. See
Goldsmith v. State
In Goldsmith, the defendant was charged with and convicted of sexual child abuse, and other related offenses, of his stepdaughter. 337 Md. at 115, 651 A.2d at 868. During pre-trial discovery, the defendant sought access to the minor victim‘s psychotherapy records, asserting “(1) that the complainant [had] been in treatment with [her] psychologist[] for over four years, and (2) that a police detective related that it took years of counseling for the complainant to summon the courage to bring these charges against her stepfather.” 337 Md. at 116, 651 A.2d at 868. The trial judge denied Goldsmith‘s motion on the basis of the victim‘s asserted privilege. 337 Md. at 119, 651 A.2d at 869. Notably, “the motions judge precluded the pre-trial discovery review of [the therapist‘s] records[, but] [t]he defense was not precluded from calling [the therapist] when the case actually went to trial.” Id. (emphasis in original). The therapist, however, was never called to testify at trial. Id.
On appeal, this Court affirmed the denial of pre-trial discovery of the victim‘s privileged mental health records under
The Court‘s discussion in Goldsmith did not end there, however. We distinguished between three scenarios: (1) pre-trial discovery of privileged information; (2) disclosure of merely confidential (rather than privileged) information; and (3) disclosure of privileged information for use at trial. As we have seen, a victim‘s privilege is an absolute bar to disclosure of privileged mental health records during pre-trial discovery. The other two categories, the Court said, are not barred absolutely, but may be available to the criminal defendant, if the defendant makes the requisite showing of need.8
With regard to the disclosure of privileged information at trial, although the issue was not presented by the facts in Goldsmith, we “distinguish[ed] between a defendant‘s right of access to information during pre-trial discovery as opposed to the defendant‘s constitutionally based right at trial to fairly present a defense” and “recognize[d] that the defendant‘s constitutional rights at trial may outweigh the victim‘s right to assert a privilege.” 337 Md. at 129, 651 A.2d at 874 (emphasis in original). Without further analysis, we noted that the partic-ular constitutional rights at issue are the rights to confrontation and compulsory process.9
In distinguishing a defendant‘s limited right to pre-trial discovery from the defendant‘s use of privileged information at trial, we also reasoned that the trial judge would be in a better position to protect the interests of both parties (the defendant and the victim/witness) when evaluating a trial subpoena as opposed to a pre-trial discovery request. “The balancing of the defendant‘s need for exculpatory information against the need to protect the victim‘s psychotherapist-patient privilege will be a much more informed decision at trial.” Goldsmith, 337 Md. at 131, 651 A.2d at 875. Similarly, because at that point the trial judge knows that the case is actually going to trial, “the trial judge will be in a better position to determine what the contested
Jaffee v. Redmond
Petitioner contends that Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), decided one year after Goldsmith, casts doubt on this Court‘s analysis in Goldsmith.10 Jaffee involved a civil lawsuit against a police officer by the survivors of a man shot and killed by the police officer. 518 U.S. at 4, 116 S.Ct. at 1925, 135 L.Ed.2d at 341. Upon learning that the officer had participated in numerous counseling sessions with a licensed clinical social worker, the family members sought access to the social worker‘s records of those sessions for use in cross-examination. Jaffee, 518 U.S. at 5, 116 S.Ct. at 1926, 135 L.Ed.2d at 342. The police officer and the social worker refused to produce those documents, or answer questions about them in depositions and trial, on the basis that they were protected by a psychotherapist-patient privilege. Id. The trial judge rejected the notion that the counseling records were privileged, and therefore instructed the jury that they could “presume that the contents of the notes would have been favorable to [the family members].” Jaffee, 518 U.S. at 5-6, 116 S.Ct. at 1926, 135 L.Ed.2d at 342. The United States Court of Appeals for the Seventh Circuit reversed, holding that a psychotherapist-patient privilege protected the confidential communications between the police officer and the social worker, unless, in the interests of justice, the need for disclosure “outweighs that patient‘s privacy interests.” Jaffee, 518 U.S. at 6-7, 116 S.Ct. at 1926, 135 L.Ed.2d at 342-43.
The United States Supreme Court affirmed, recognizing for the first time a “psychotherapist-patient privilege” that extends to a patient‘s confidential communications made to both licensed psychiatrists/psychologists and licensed social workers “in the course of psychotherapy.” Jaffee, 518 U.S. at 15, 116 S.Ct. at 1931, 135 L.Ed.2d at 348.11 The Supreme Court rejected, however, the application of a balancing test, which, as proposed by the Seventh Circuit, would weigh the need for the evidence against the protection of the privilege. Jaffee, 518 U.S. at 17-18, 116 S.Ct. at 1932, 135 L.Ed.2d at 349-50 (“Making the promise of confidentiality
We disagree with Petitioner that Jaffee is inconsistent with Goldsmith. First, Jaffee is a civil case; the Supreme Court was not faced with the significant constitutional rights at play in a criminal trial.13 Second, we find Footnote 19 instructive, as it specifically leaves the door open for situations where the privilege could yield to some greater interest. In arguing that Jaffee is inconsistent with Goldsmith, Petitioner asserts that “[n]otably, the [Supreme] Court did not include the circumstance present here—it did not suggest that a criminal defendant‘s constitutional rights of confrontation or compulsory process would merit abrogation of the privilege.” The exclusion of this situation in the Court‘s analysis does not suggest that the Supreme Court meant to foreclose that possibility (or any other possible scenario where a privilege might yield to some greater interest). Certainly, the issue of a criminal defendant‘s constitutional rights was not relevant to or at issue in that civil case and, therefore, the Supreme Court had no occasion to consider it. For the same reason, we also conclude that the fact that the Supreme Court rejected the use of a balancing test in the context of that case does not mean that a balancing test may never be appropriate. Moreover, the Supreme Court made it very clear that “[a] rule that authorizes the recognition of new privileges on a case-by-case basis makes it appropriate to define the details of new privileges in a like manner.” Jaffee, 518 U.S. at 18, 116 S.Ct. at 1932, 135 L.Ed.2d at 349. The Jaffee majority further explained, “[b]ecause 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
Although in the dissenting opinion Justice Scalia cautioned that “[f]or the rule proposed [by the Jaffee majority], the victim is more likely to be some individual who is prevented from proving a valid claim—or (worse still) prevented from establishing a valid defense[,]” Jaffee, 518 U.S. at 19, 116 S.Ct. at 1932-33, 135 L.Ed.2d at 350 (Scalia, J., dissenting), it appears that the lower federal courts are split as to whether a criminal defendant‘s right to present a “valid defense” under the Sixth Amendment will trump the psychotherapist-patient privilege. See, e.g., United States v. Shrader, 716 F.Supp.2d 464, 471-72 (S.D.W.Va.2010) (noting that “[s]ince Jaffee, courts have differed on whether the Sixth Amendment can trump the psychotherapist-patient privilege” but “find[ing] that the psychotherapist-patient privilege is not subordinate to the Sixth Amendment rights of [d]efendant” in that case); United States v. Mazzola, 217 F.R.D. 84, 88 (D.Mass.2003) (“Unlike the circumstance at issue in Jaffee, this case is a criminal prosecution involving the medical records of a key government witness. The evidentiary benefit of allowing access to such medical records to defense counsel in order to effectively prepare and cross examine [the witness] is great.“); United States v. Hansen, 955 F.Supp. 1225, 1226 (D.Mont.1997) (holding that in the context of a criminal case, the defendant‘s demonstrated need for the records outweighed the witness‘s privilege, and noting that this was “consistent with the Jaffee Court‘s intent that the precise contours of the privilege be developed in specific cases“).
Moreover, the Supreme Court‘s holding in Jaffee established a testimonial privilege under the federal rules of evidence based on “reason and experience.” Jaffee, 518 U.S. at 10, 116 S.Ct. at 1928, 135 L.Ed.2d at 344. By contrast, as the Supreme Court noted, all of our sister states have codified “some form of psychotherapist privilege” by statute. Jaffee, 518 U.S. at 12, 116 S.Ct. at 1929, 135 L.Ed.2d at 346. Of those that have reached the issue, the majority of state courts (and at least one legislature)14 agree that a victim‘s privilege may be subordinate to a criminal defendant‘s constitutional rights at trial.15 See State v. Slimskey, 257 Conn. 842, 779 A.2d 723 (2001); Burns v. State, 968 A.2d 1012 (Del.2009); State v. Peseti, 101 Hawaiʻi 172, 65 P.3d 119 (2003); State v. Neiderbach, 837 N.W.2d 180 (Iowa 2013); Com. v. Dwyer, 448 Mass. 122, 859 N.E.2d 400 (2006); Com. v. Barroso, 122 S.W.3d 554 (Ky.2003); People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557 (1994); State v. Hummel, 483 N.W.2d 68 (Minn.1992); State v. King, 162 N.H. 629, 34 A.3d 655 (2011); State v. L.J.P., 270 N.J.Super. 429, 637 A.2d 532 (Ct.App.Div.1994); State v. Blake, 63 P.3d 56 (Utah 2002); State v. Green, 253 Wis.2d 356, 646 N.W.2d 298 (2002). But see People v. Turner, 109 P.3d 639 (Colo.2005); State v. Famiglietti, 817 So.2d 901 (Fla.App.2002); In re Subpoena to Crisis Connection, Inc., 949 N.E.2d 789 (Ind.2011); Com. v. Wilson, 529 Pa. 268, 602 A.2d 1290 (1992).
Although we disagree with Petitioner that Jaffee obligates this Court to hold that the psychotherapist-patient privilege is an absolute bar to disclosure, we certainly do not disagree with the Supreme Court‘s evaluation of the societal value of the psychotherapist-patient privilege. See Jaffee, 518 U.S. at 10-11, 116 S.Ct. at 1928-29, 135 L.Ed.2d at 344-45 (“The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.“). Indeed, it is because of the importance of the privilege that we iterated a balancing test in Goldsmith, and held that defendant must meet a heavy burden to access privileged informa-tion, which we discuss next. Accordingly, we hold that a victim‘s right to assert a privilege in his or her mental health records may yield to the criminal defendant‘s constitutional rights at trial.
II. When is the defendant entitled to a review of the privileged records?
Just as the victim does not have an absolute privilege against disclosure of psychotherapy records, nor does a defendant have an absolute right to obtain those records for use at trial. Our stated purpose in Goldsmith was “to strike a balance between the competing interests of a witness‘s privilege and a defendant‘s federal and state constitutional rights to obtain and present evidence necessary to the defense.” 337 Md. at 121, 651 A.2d at 870. To achieve this goal, we held that a defendant must meet a minimum threshold to be entitled to an in camera review of the evidence. See Goldsmith, 337 Md. at 132, 651 A.2d at 876. We reiterate that a balancing test followed by an in camera review is the appropriate method to protect both the defendant‘s constitutional rights and the victim‘s privacy rights in his or her mental health records.
Preliminary Showing (“Proffer“)
Before a victim‘s privilege will bend to the defendant‘s need, a defendant must make a preliminary showing, which in turn must meet the threshold established in Goldsmith. If the defendant is able to make a sufficient proffer, then the trial judge is required to conduct an in camera review of the privileged records to determine whether the records actually contain exculpatory material.
As previously discussed, the Goldsmith court outlined three scenarios: (1) pre-trial discovery of privileged information; (2) pre-trial discovery of merely confidential (rather than privileged) information; and (3) disclosure of privileged information at trial. Goldsmith dealt conclusively with the first scenario—holding that a victim‘s privilege in psychotherapy records is an absolute bar to a criminal defendant‘s pre-trial discovery request for those documents. With regard to the other two scenarios, Goldsmith set out a standard for obtaining review of the requested information. Although the information sought in this case was privileged, we point out for purposes of clarity that to obtain access to confidential information, not subject to a statutory or common law privilege, Goldsmith provides that a defendant must “show a likelihood of obtaining
With regard to the disclosure of privileged records at trial, however, the Goldsmith court stated in no uncertain terms that “in order to abrogate a privilege such as to require disclosure at trial of privileged records, a defendant must establish a reasonable likelihood that the privileged records contain exculpatory information necessary for a proper defense.” 337 Md. at 133-34, 651 A.2d at 877 (footnote omitted). Moreover, “the required showing must be more than the fact that the records ‘may contain evidence useful for impeachment on cross-examination.‘” Goldsmith, 337 Md. at 133, 651 A.2d at 876 (citing People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557, 576 (1994)). At the hearing on Goldsmith‘s request for the privileged mental health records, defense counsel proffered that “[w]here the facts are that you have an adult bringing charges that go back over ten years ... there [was] a question about the complainant‘s emotional state, and I think that‘s tied into the credibility. I mean, I simply don‘t know what her emotional state is.” Goldsmith, 337 Md. at 118, 651 A.2d at 869. That proffer, which we dubbed a “speculative assertion that the records might be relevant for impeachment[,]” did not cut it. Goldsmith, 337 Md. at 135, 651 A.2d at 877.
The Court of Special Appeals addressed this issue in a subsequent case, Fisher v. State, 128 Md.App. 79, 736 A.2d 1125 (1999). In Fisher, three defendants were convicted of second-degree murder, child abuse, and conspiracy to commit child abuse related to defendants’ treatment of two minor children, one of whom had died as a result of abuse and neglect. 128 Md.App. at 87-88, 736 A.2d at 1129-30. Leading up to trial, the defendants sought access to the psychotherapy records of the still living child, which the trial court denied. Fisher, 128 Md.App. at 114-17, 736 A.2d at 1148-50. On appeal, the Court of Special Appeals affirmed, concluding that defense counsel‘s proffer, namely the assertion that “[w]e have no way of knowing, without having access to those records, whether there is exculpatory material or not,” “does not do it.” Fisher, 128 Md.App. at 128, 736 A.2d at 1151. Relying on this Court‘s opinion in Goldsmith and its own earlier opinion in Reynolds v. State, 98 Md.App. 348, 633 A.2d 455 (1993), the intermediate appellate court explained, “there is a threshold that must be crossed before it is even appropriate for the trial judge to review such records in camera [,] [and] it is the defendant who bears that burden of showing the necessity for a review.... Absent such a showing, not even the judge himself should review the privileged material[.]” Fisher, 128 Md.App. at 124-25, 736 A.2d at 1149 (citations and quotations to Reynolds omitted).
In Reynolds, which was decided prior to Goldsmith, the Court of Special Appeals considered precisely when a trial judge should conduct an in camera review of privileged records.16 There, the court
In neither Goldsmith nor Fisher did the defendant present a sufficient proffer. In Goldsmith, defense counsel asserted that “there [was] a question about the complainant‘s emotional state, and I think that‘s tied into the credibility. I mean, I simply don‘t know what her emotional state is.” Goldsmith, 337 Md. at 118, 651 A.2d at 869. Similarly, in Fisher, defense counsel stated “[w]e have no way of knowing, without having access to those records, whether there is exculpatory material or not.” Fisher, 128 Md.App. at 128, 736 A.2d at 1151. In the words of the Court of Special Appeals, these proffers “do[ ] not do it.” Id.
In the instant case, defense counsel proffered that:
“I‘d like to see the records, one, to know what is this young man‘s mental health diagnosis. Is he, is he bipolar? Is he paranoid schizophrenic? Is he delusional? Does he have hallucinations ... if he‘s delusional, and if [he] has hallucinations, I believe ... that‘s exculpatory for [Respondent‘s] case.”
The trial judge concluded that this “fishing expedition”18 was not enough to pierce the victim‘s
We disagree. A “fishing expedition,” without more, does not satisfy the Goldsmith standard. The mere generalized suggestion “that it would be appropriate to know of [J.C.‘s] propensity for veracity” is not enough to overcome the victim‘s privilege in his or her mental health records. As stated in Goldsmith, a “speculative assertion that the records might be relevant for impeachment” will not cut it. 337 Md. at 135, 651 A.2d at 877. Moreover, under the intermediate appellate court‘s rationale in this case, it is arguable that any defendant would be able to pierce the victim‘s privilege, because it would always be “appropriate to know [the victim‘s] propensity for veracity.” We stated as much in Goldsmith: “We cannot permit a privilege to be abrogated even at the trial stage by the mere assertion that privileged records may contain information relevant to credibility. To do so would virtually destroy the psychotherapist-patient privilege of crime victims.” 337 Md. at 133, 651 A.2d at 876 (emphasis in original).
We recognize how unlikely it may be that a defendant or defense counsel will know in advance what information is in a patient‘s privileged mental health or psychotherapy records. Nonetheless, in order to gain access to any information in those records, the defendant may (and must) be able to point to some fact outside those records that makes it reasonably likely that the records contain exculpatory information.19 We look to our sister states for examples of facts that could20 reveal a likelihood that the privileged records contain exculpatory evidence. One such example is evidence of prior inconsistent statements. In State v. Peseti, the victim‘s sister testified that the victim had on one occasion “admitted that the incident ‘didn‘t happen.‘” 101 Hawaiʻi 172, 65 P.3d 119, 129. Similarly, in Brooks v. State, 33 So.3d 1262, 1269 (Ala.Crim.App.2007), other records produced by the State during discovery included an inconsistent statement by the victim. Another example is strange behavior by the victim surrounding the counseling sessions, such as Burns v. State, 968 A.2d 1012 (Del.2009), where the victim destroyed notes about alleged abuses after an interview with her psychiatrist. People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557 (1994), a case cited by this Court in Goldsmith, also provides a useful example of a defendant pointing to actual facts to support a proffer that the mental health records likely contained exculpatory evidence. In that case, the defense‘s theory was “that the claimant is a troubled, maladjusted child whose past trauma has caused her to make a false accusation.” In support of a request to review the claimant‘s mental health records, the defendant pointed to prior abuse of claimant by her
Respondent in this case offered no such factual predicate to show a likelihood that the victim‘s psychotherapy records contained exculpatory information. On the contrary, defense counsel merely proffered that “if he‘s delusional, and if [he] has hallucinations, I believe ... that‘s exculpatory for [Respondent‘s] case.” In effect, all defense counsel proposed were hypotheticals—in other words, too many “ifs.” The Court of Special Appeals concluded that the “suggest[ion] that it would be appropriate to know of [J.C.‘s] propensity for veracity ... [was] sufficient, at the very least, to call for an in camera review of the records to determine their relevance, vis a vis [Respondent‘s] constitutional rights, before ruling on [National Pike‘s motion].” Although we do not disagree that it would be “appropriate to know of [J.C.‘s] propensity for veracity,” that alone is not enough to outweigh a victim‘s right to assert the privilege in the victim‘s mental health records. See Goldsmith, 337 Md. at 128 n. 5, 651 A.2d at 874 n. 5 (“Merely stating ‘suppose’ the victim did this or said that is not a proffer sufficient to establish a need for the records.“). As we have repeated, we must weigh the defendant‘s need for the evidence with the victim‘s privacy right in privileged records.21 Based on this record, Respondent‘s proffer did not meet the required threshold and he is therefore not entitled to review J.C.‘s counseling records for evidence regarding J.C.‘s propensity for veracity. Accordingly, the Court of Special Appeals‘s conclusion was in error and there was no abuse of discretion on the part of the trial judge in refusing to conduct an in camera review of the records.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY. RESPONDENT TO PAY COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS.