Exception to Psychotherapist-Patient Privilege in Criminal Proceedings

Lawrence John Schloss; Melvin Guyer

Utah Supreme Court Holds That the Psychotherapist-Patient Privilege Is Abrogated if Hatred as a Motivation to Lie Is an Emotional State of the Complainant and Thus Is an Element of a Criminal Defense

In State v. Worthen, 222 P.3d 1144 (Utah 2009), the Utah Supreme Court considered the state's interlocutory appeal of a trial judge's granting of Leroy Worthen's pretrial motion for an in camera review of his adopted daughter B.W.'s mental health records. He sought her psychotherapy records for the purpose of showing that B.W. directed extreme anger and hatred toward him, creating her motivation to make false allegations of abuse.

The issue before the court was whether the medical records sought by Mr. Worthen qualified as an exception to the psychotherapist-patient privilege under Utah Rule of Evidence 506 (d)(1) (1994), which allows for abrogation of the privilege if the emotional or mental condition of the complainant “is an element of any claim or defense.”

Facts of the Case

In July 2005, Mr. Worthen's adopted daughter, B.W., attempted suicide following an argument with Mrs. Worthen. She was subsequently hospitalized for 19 days at the University of Utah Neuropsychiatric Institute [UNI] where she received individual, group, and family therapy. The discharge summary stated that B.W. “was highly skeptical that her family could care for her or love her [,]…looked for ways to interpret statements and behavior in a way to mesh with her negative thinking[,]…[and] was very prone to major misinterpretations” (Worthen, p 1147).

Also at this time, B.W. was journaling her hatred and anger toward her adoptive parents and her wishes to be with a different family. Excerpts from her journal include:

My mom has pissed me off for the last time…. I feel as if I want to run out the door to [B.W.'s friend's house] and stay there 4-ever. Next time my mom gets me as pissed off as I am not [sic], I will KILL her, and that's a promise, I don't care what happens to me I just want her to die in her bed all alone in her own pain and blood! I will kill her if she gets me as pissed off as I am now…. I swear I'll kill the both of them! No matter what it takes [Worthen, p 1147].

Following her discharge from UNI, B.W. initiated outpatient therapy with Dr. Carolyn Henry. In October 2005, she disclosed to Dr. Henry allegations of sexual abuse by Mr. Worthen. Her allegations resulted in Mr. Worthen's being charged with 10 counts of aggravated sexual abuse. At his preliminary hearing, B.W.'s testimony and her journal entries were found to have some inconsistencies. In a pretrial motion, Mr. Worthen sought B.W.'s medical records for in camera review to discover information related to her possible denial of abuse, “cognitive and major misinterpretation problems,” and a motive to fabricate the allegations deriving from the hatred of her parents.

Mr. Worthen based his motion on Utah R. Evid. 506 (d)(1), which allows for an exception to the psychotherapist-patient privilege found in rule 506 (b) of the Utah Rules of Evidence. Mr. Worthen argued that Rule 506(d)(1) superseded this privilege. It states that no privilege exists under this rule if the patient's “physical, mental, or emotional condition” is relevant “in any proceeding in which that condition is an element of any claim or defense” (Utah R. Evid. 506(d)(1)). The rule 506(d)(1) exception is also limited by the requirement that the petitioner for an in camera review must “show, with reasonable certainty, that the sought-after records actually contain ‘exculpatory evidence … which would be favorable to his [or her] defense'” (State v. Blake, 63 P.3d 56 (Utah 2002), p 61, quoting State v. Cardall, 982 P.2d 79, (Utah 1999)).

Ruling and Reasoning

The district court granted Mr. Worthen's discovery request, but circumscribed the in camera review “to discover any statements concerning the complainant's feelings toward her parents.” The state then filed an interlocutory appeal to the order. The court of appeals affirmed the trial court's ruling, first by holding that the trial court “sufficiently addressed whether Defendant's request fell within an exception” to the privilege “before addressing the reasonable certainty test” (State v. Worthen, 177 P.3d 664 (Utah Ct. App. 2008)). The state also contended that Mr. Worthen's inquiry was merely impeachment evidence. The court of appeals rejected this argument holding that the defendant in a criminal case bears no burden of persuasion, relying on State v. Spillers, 152 P.3d 315 (Utah 2007).

The court of appeals further held that specific impeachment evidence, or evidence that is “directed toward revealing possible biases, prejudices, or ulterior motives of the witness” would satisfy the requirements of rule 506 (d)(1). Finally, the court of appeals concluded that B.W's records were authentic and likely contained exculpatory evidence, thereby ruling that Mr. Worthen's claim passed the reasonable-certainty test.

The state and guardian ad litem petitioned the Utah Supreme Court for certiorari review. Review was granted, and the supreme court found that the court of appeals had failed to conclude whether B.W.'s feelings or emotions toward her parents constituted a physical, mental, or emotional condition under rule 506(d)(1), and if so, whether that condition was an element of Mr. Worthen's defense. It then expounded on those matters.

The state argued that only a formal medical diagnosis would qualify as “a condition” under the rule. Rejecting this, the supreme court held that a mental or emotional condition under rule 506(d)(1) is not limited to diagnosable disorders, yet it noted too that mere transitory circumstances of emotion or mental processes are not sufficient to qualify as a “condition” under the rule 506(d)(1). In reference to the state's argument that Mr. Worthen's request was merely for the purposes of impeachment evidence, the court held that impeachment evidence may qualify as an element of a claim or defense because specific impeachment related to B.W.'s emotional or mental condition was a central element to Mr. Worthen's defense. Next, the court ruled that Mr. Worthen showed, with reasonable certainty, that the requested records would have exculpatory evidence as he had provided 13 journal entries outlining B.W.'s anger and hatred directed toward him, along with related information in her discharge summaries from UNI and a calendar of her therapy appointments.

Discussion

The most fundamental and applicable question that was given to the court in State v. Worthen was whether B.W.'s feelings and emotions toward her parents were a mental or emotional condition under rule 506(d)(1). The term “condition” as used in the rule can have a broad and indistinct interpretation. The state argued for a more narrowly defined analysis, that a condition could be defined only within the bounds of a medical diagnosis. The question of what constitutes a mental condition was dissected by the court, which gave it a more expansive interpretation. The court primarily followed the paradigm of temporality, explaining that while an instance of emotion is transitory, on the contrary, a persisting, chronic emotional condition “is a state that persists over time and significantly affects a person's perceptions, behavior, or decision making …” (Worthen, p 1151). In this regard, the court found that the journal entries and the discharge documentation supported Mr. Worthen's claim that B.W. harbored extreme and persistent hatred toward him and this condition was an element of his defense in that it might be a motive for her to fabricate the allegations against him. While the court broadened the scope of what constitutes a condition beyond that of a diagnosable disorder or diagnosis, the boundaries of the term were not so broad as to include momentary states of mind. Such broad interpretation could have the potential to undermine the doctor-patient or psychotherapist-patient privilege.

The psychotherapist-patient privilege in Utah enjoys further protection in the relatively high standard of “reasonable certainty” that must be met by the party requesting an exception under rule 506(d)(1). Other states, such as Michigan (see State v. Stanaway, 521 N.W.2d 557 (Mich. 1994)), have met the competing interests of discovery as against privilege in different ways (for example by calibrating the standard of proof required to obtain evidence from privileged records of the complainant). In factual circumstances not unlike Worthen, the Michigan Supreme Court in Stanaway held that therapy records would be subject to in camera review if “the defendant has a good-faith belief, grounded on some demonstrable tact [sic], that there is a reasonable probability that the records are likely to contain material information necessary to the defense” (Stanaway, p 574). The Michigan standard of proof is thus more liberal, an amalgam of good faith and probable cause.

Society has placed considerable value on the psychotherapist-patient privilege. It does so on several grounds, including the belief that therapy will be compromised or ineffective if the patient cannot be assured of the confidentiality of the communications with a trusted other. Our legal system also places great value on fairness and due process, especially in criminal proceedings. The right to confront witnesses is embodied in the Sixth Amendment. When possible exculpatory evidence may lie in medical records sought by a criminal defendant, due process and claims of privilege collide. Different jurisdictions resolve this collision of values in different ways. For example in Jaffee v. Redmond, 518 U.S. 1 (1996), the psychotherapist-patient privilege found protection in federal civil proceedings under Federal Rule of Evidence 501.

The Utah Supreme Court in Worthen balanced the high burden of proof it places on defendants who seek discovery, by liberalizing the definition of “mental conditions” of the patient that can count as elements of the defense. This allows at least for in camera review. Should the liberalization go even farther? Theoretically, a complainant in a situation similar to that of B.W. could experience feelings that have no longitudinal trajectory, that are merely fleeting, temporary emotions but that could still engender an abuse accusation. Such allegations, which might deprive a defendant of his liberty, argue for a constitutional right of a defendant to request deep discovery of evidence even if the stringent “reasonable certainty” test were not met. In considering the value of maintaining confidentiality versus the due process rights of defendants we must not be neglectful of the discovery process, as it too provides a measure of balance in the competing interests of a complainant's privacy and the defendant's rights of discovery of exculpatory evidence. Namely, in camera viewing of any records that are considered to be privileged should be confined to the trial judge who limits disclosure to the relevant, exculpatory communications.