ORDER
Bеfore the Court is Defendant’s Objection to Magistrate Judge’s Decision Denying, in Part, Defendant’s Motion for Issuance of Subpoenas (#63). Plaintiff filed a response in opposition (#73).
Defendant is charged with one count of Sexual Contact with a Child under 12, pursuant to ■ 18 U.S.C. §§ 1153(a), 2244(a)(5), 2244(c), 2246(3). The facts surrounding this case are straight forward. On December 2, 2013, Mr. Chee visited his sister, Juanita Bark, at her residence. Ms. Bark has two minor daughters,--S.B. -and M.B. Ms. Bark sent her daughters to bed while Mr. Chee was there. At some point during the visit, Mr. Chee stated he would go to the restroom. Ms. Bark went to check to see if Mr. Chee was in the restroom but did not find him there. When Ms. Bark opened the door to her daughters’ bedroom, she alleges Mr. Chee was lying down on the floor next to S.B.’s bed and that his hand was under S.B.’s blanket. Ms. Bark alleges that Mr. Ghee was touching S.B.’s vaginal area. Ms. Bark also alleges when she opened the door , to her daughters’ bedroom M.B. was watching Mr. Chee and S.B.
According tо Defendant’s belief, Ms. Bark’s ex-husband, the biological father of S.B. and M.B., allegedly molested her daughters. Ms. Bark reported this incident to the authorities, prompting law enforcement to investigate the father for sexual abuse months before the incident at issue in this case took place. Defendant also believes Ms. Bark has been molested. Defendant believes that Ms. Bark has had psychological problems and that she has had psycholоgical breakdowns in the past that resulted in her leaving her house for weeks at a time. As a result, Defendant intends to focus his defense on how the combination of these factors calls into question whether Ms. Bark truly saw what she claims to have seen, or whether the combination of the factors outlined above made Ms. Bark extremely suggestible to perceiving something that did not take place.
Accordingly, Defendant filed a motion (#51) requesting thаt the Magistrate Judge issue subpoenas to Ms. Bark’s identified medical treatment providers instructing them to provide defense counsel with Ms. Bark’s medical and mental health-records. Plaintiff responded (#57), arguing the motion should be denied because the records are privileged, and Defendant has not shown the relevancy, admissibility, and specificity of the documents sought.
In reply (#59), Defendant explained Ms. Bark’s medical and mental health records arе relevant to showing whether it is more likely than not that Ms. Bark perceived what she claims to have perceived on December 2, 2013. Defendant further explained the records are admissible as impeachment information relating directly to Ms. Bark’s credibility, and, to ameliorate the specificity concerns in the original subpoena request, Defendant limited the time frame to December 2011 to present in an additional request (#59).
The Magistrate Judge held a hearing on the motion ( #60) on November 30, 2015. At the hearing, defense counsel clarified the medical and mental health records sought would be those reflecting any diagnosis or treatment indicating Ms. Bark’s ability to perceive was impaired. Defense counsel emphasized Ms. Bark’s medical treatment records were integral to Defendant’s case because Ms. Bark is the only witness accusing Defendant of touching S.B. inapproрriately, and thus the only witness at trial that will offer any testimony that he committed the act for which he is charged. Thus, any medical issue Ms. Bark was diagnosed with or medication she was taking that would interfere with her ability to perceive the incident in this case could bear on her credibility. The Magistrate Judge held that the records were privileged, and denied Mr. Chee’s subpoena request.-(#60). '■ '■
Standard of review
The trial court reviews a motion to reconsider a magistrate judge’s ruling under the “clearly erroneous or contrary to law” standard set forth in 28 U.S.C. § 636(b)(1)(A). A factual finding is “clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. Hinkson,
Analysis
The Sixth Amendment provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him [and to] have compulsory process for obtaining witnesses in his favor.” U.S. Const. Amend, VI.
With respect to eyidentiary privileges, “the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience,” except as otherwise provided. Fed.R.Evid. 501. Although the Supreme Court created a federal psychotherapist-patient privilege that covers confidential communications made to licensed psychiatrists, psychologists, and social workers, the Ninth Circuit has not ruled on whether psychotherapist records should be disclosed when a defendant’s right to a fair trial, including the right to confrontation, is implicated.
Various courts have dealt with this issue and have held that the defendant should be entitled to these privileged records when the records are integral to the defendant’s ability tо prepare and present a defense. Other courts have held the opposite.
A. The Psychotherapist-Patient Privilege
The psychotherapist-patient privilege is first recognized in Jaffee v. Redmond,
In Pennsylvania v. Ritchie, a criminal case predating Jaffe, the defendant was convicted on various counts related to his molestation of his daughter. Prior to his trial, the, defendant subpoenaed Children and Youth Services (“CYS”), a protective service agency established by Pennsylvania to investigate cases of suspected child mistreatment and neglect, for certain records relevant to his case. He argued that the records might contain the names of favorable witnesses and other, unspecified, exculpatory evidence. CYS rеfused to comply with the subpoena, stating that the records were privileged under a state law which provided that all CYS records were confidential, with specified exception. One of the exceptions was that CYS may disclose reports to a court of competent jurisdiction pursuant' to a court order. The Supreme Court made two findings applicable to the instant case. First, the court held that since the legislature cоntemplated some use of CYS records in court, there was no reason to believe that relevant information could not be disclosed when the appropriate court determined that the information was “material” to the defendant’s defense. Therefore, it held that the defendant was entitled to have the CYS file reviewed by the trial court to determine whether it contained information that could have changed the outcome of his trial. Ritchie,
The right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.... The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in сontradicting unfavorable testimony. Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses_In short, the Confrontation Clause only guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.
Id. at 52-53,
Since Jaffee, eourts have differed on whether the Sixth Amendment can trump the psychotherapist-patient privilege. In United States v. Doyle, the defendant argued that his Sixth Amendment right to a compulsory process trumped the victim’s right to confidentiality. The Government sought an upward sentencing departure due to the victim’s extreme psychological injury, and the defendant argued that her psychotherapy records could perhaps dispel her testimony. The court disagreed. It noted that other privileged communications are not subordinate to the Sixth Amendment, and stated that Jaffe made clear that balancing tests are inappropriate. Moreover, the court declined to conduct an in camera review of the records,
Other cases have reached similar results. See, e.g., Johnson v. Norris,
However, other courts have reached a contrary conclusion on this issue. See e.g., Bassine v. Hill,
Jaffee does not discuss how the privilege is to be applied when a criminal defendant’s constitutional rights are implicated. United States v. Alperin,
B. Balancing Test
Defendant correctly notes that the disparate treatment of these types of cases amongst federal courts necessitates a case-by-case, balancing of the asserted privilege against the accused’s constitutional rights.: In Society of Independent Gasoline Marketers,
If the report contains only material impeaching the witness, disclosure is required only when there is a reasonable likelihood of affecting the trier of the fact. Whether there is such a likelihood depends upon a number of factors such as the importance of the witness to the government’s case, the extent to which the witness has already been impeachеd, and the significance of the new impeaching material on the witness’ credibility.624 F.2d at 469 (quoting United States v. Figurski545 F.2d 389 , 391-92 (4th Cir. 1976)).
More specifically, according to the court in Lora v. Board of Educ.,
[ (1) ] Is the identification of the individuals required for effective use of the data?
[ (2) ] Is the invasion of privacy and risk of psychological harm being limited to the narrowest possible extent?
[ (3) ] Will the data be supplied only to qualified personnel under strict controls over confidentiality?
[(4)] Is the data necessary or simply . desirable?
The Lora court did not explain ' how it developed these four questions, however, the court’s analysis provides a formal framework for the balancing methods used by other federal courts to determine the scope of the psychоtherapist-patient privilege.
For example, in United States v. Brown,
By prohibiting disclosure of all of the requested information, the court did not have to consider how much information was necessary for (1) effective use of the data. The court limited (2) the invasion of privacy and risk of psychological harm to the narrowest possible extent by holding in camera hearings and by sealing the transcripts of the proceedings. Alsо, (3) only the courfi the witness, and the witness’ attorney examined the psychiatric records, thus establishing that the requested infor
C. Exceptions to the Psychotherapist Patient Privilege
In addition to considering the balancing criteria that define the scope of the psychotherapist-patient privilege" in each case, a court must examine three specific exceptions -to the privilege: (1) communications that the patient made with the expectation that they would be disclosed to third parties; ,(2) communications made pursuant to a judge-ordered mental, examination of the patient; and (3) communications concerning a mental сondition that the patient raises in court as an element of the patient’s defense. See, e.g., In re Zuniga,
No exceptions to the privilege are present in this case. While Fed.R.Crim.P. 17(c) governs all trial subpoenas duces tecum, the Ninth Circuit instructs that a “Rule 17(c) subpoena is not intended to serve as a discovery tool.” U.S. v. MacKey,
Since no exceptions to the physician-patient privilege are present in this case, the Court balances defendant’s interest in receiving a fair trial, including the opportunity to conduct a full cross-examination and to impeach Ms. Bark, against the need to spare Ms. Bark from “unnecessary invasion of privacy as well as to spare her from harassment, annoyance or humiliation.” United States v. Brown, 479
Conclusion
Accordingly, IT IS SO ORDERED that Defendant’s Objections to Magistrate Judge’s Decision Denying in Part Defendant’s Motion for Issuance of Subpoenas (#63) is DENIED as Moot..
Dated this 10th day of June 2016.