The charges against defendant arose after onе of defendant’s friends observed interactions between defendant and E, and was told things about their relationship, that caused the friend to be concerned that the relationship between defendant and E was sexual. After failed attempts tо discuss those concerns with defendant, the friend met with E’s school principal to discuss his concerns. After the meeting, the principal reported the suspected abuse to DHS, which led to a police investigation. During the course of that investigation, Officer Manning interviewed the friend, E, and defendant. Manning then arrested defendant.
After defendant’s arrest, E went to the Amani Center, a child abuse assessment center, where a forensic interview was conducted. During that interview, E described touсhing that happened while E was asleep, or in a dreamlike state. E also stated she did not “think” that sex had ever happened to her, but did describe her breast and vagina being touched. E also recounted a time that she had told a friend about her concerns that defendant would get into trouble if defendant had “actually [done] this stuff to [her].” After her interview at the Amani Center, E began receiving counseling at Columbia County Mental Health (CCMH).
During trial, defendant subpoenaed E’s CCMH records. The state and E opposed the subpoena. The trial court ordered that the records be delivered to the court, but deferred deciding whether to conduct an in camera review of those records. E moved to quash the subpoena, arguing that the rеcords were privileged and that defendant had not identified an exception that would permit disclosure of the records. Citing relevant cases on the point, E noted further that, to be entitled to an in camera review of the records, defendant would have to show that the inspection might yield relevant evidence to which an exception to the privilege would apply.
Following E’s submission of her motion, the court heard additional arguments regarding whether to conduct an in camera review of the records. Pointing to State v. Reed,
“I do want to at least tell the court that as the court saw when the Amani Center person, Miss Kauffman, interviewed [E], that [E] said sometimes, ‘If he did it.’ That, I believe is something—gives us an indication that there is doubt in her mind that may well be reflected in her statements to hеr therapist, and so I would like to know whether or not in fact her doubts have been expressed again in a clinical setting.”
On appeal, defendant argues that the trial court erred by not conducting an in camera review of E’s CCMH records. Pointing to Reed, and State v. Hansen,
As the Supreme Court explained in Hansen, that statute authorizes the disclosure of both exculpatory and inculpatory evidence of child abuse, notwithstanding the fact that the evidence otherwise would be covered by the psychotherapist-patient privilege.
The state, in response, argues that defendant failed to preserve his argument that ORS 419B.040(1) would authorize the disclosure of evidence contained in E’s CCMH counseling records, notwithstanding the fact that those records are otherwise protected by the psychotherapist-patient privilege. Alternatively, the state argues that the trial court correctly concluded that defendant had failed to make the required threshоld showing necessary to be entitled to an in camera review.
As to preservation, we disagree with the state that defendant failed to preserve his argument on appeal. Although the state is correct that defendant did not specifically cite to ÓRS 419B.040(1) in his arguments to the trial court, the parties framed their arguments to the trial court in terms of Reed, which explains what standard a defendant in a child abuse case must satisfy to obtain an in camera review of the counseling records of a child abuse victim.
As to the trial court’s determination regarding the sufficiency of defendant’s threshold showing of entitlement to an in camera review of the CCMH counseling records, we review that determination for legal error.
Under Reed, defendant was entitled to an in camera review of E’s counseling records if defendant demonstrated that such a review “might yield” evidence subject to disclosure, notwithstanding the fact that those records were рrotected by the psychotherapist-patient privilege.
He did so here. First, defendant demonstrated that E started counseling soon after defendant’s arrest and E’s interview with the Amani Center. That makes it reasonable to think that E discussed the abuse in her counseling sessions, and that her statements might be contained in her counseling records. Second, defendant demonstrated that during the Amani Center interview E had made equivocal statements about whether the abuse had, in fact, occurred. That makes it reasonable to think that her counseling records might contain evidence of similar equivocal—and thus exculpatory—statements regarding the abuse. As a result, defendant demonstrated that an in camera inspection might yield evidence subject to disclosure under Hansen and ORS 419B.040. Thе trial court erred in concluding otherwise.
That leaves the question of remedy, a question that is answered largely by Cartwright,
Vacated and remanded.
Notes
ORS 419B.040(1) provides:
“In the case of abuse of a child, the privileges created in ORS 40.230 to 40.255, including the psychotherapist-patient privilege, the physician-patient privilege, the privileges extended to nurses, to staff members of schools and to regulated social workers and the spousal privilege, shall not be a ground for excluding evidence regarding a child’s abuse, or the cause thereof, in any judicial proceeding resulting from a report made pursuant to ORS 419B.010 to 419B.050.”
The state argues that we review that determination for an abuse of discretion. In particular, as the state elaborated at oral argument, the state contends that, because the Supreme Cоurt looked to United States v. Zolin,