A Victim's Right to Privacy Versus the Defendant's Right to a Fair Trial

Facts of the Case

On April 18, 2007, the state charged Ross Cashen with his third offense of domestic assault and willful injury, Class D felonies, against his former girlfriend, Chastity Schulmeister. Mr. Cashen filed a notice of self-defense, asking the court to allow an expert to review, interpret, and testify to the victim's “propensity of violence” based on her mental health records. This motion was denied pending a decision on admissibility.

Mr. Cashen deposed the victim, during which she admitted to past abusive relationships and being diagnosed with posttraumatic stress disorder, anxiety, and depression, for which she had been in therapy since age 15. She reported a history of impulsivity and reactive behaviors and difficulty with frustration tolerance with regard to Mr. Cashen. During the deposition, Ms. Schulmeister admitted to taking antidepressants currently and during her relationship with Mr. Cashen because of her anxiety about his “safety and welfare” in the armed forces and her belief that he was violent.

Mr. Cashen filed a motion to obtain the victim's mental health records, which was denied. He then hired a private investigator to obtain them. Having learned of this, the state filed a motion to suppress the records and exclude any previous mental health records. The district court denied the state's motion, stating that the victim's “propensities for violence and explosive behavior [were] relevant to Cashen's defense of self-defense” (Cashen, p 404). The records would also speak to the victim's credibility to recall events with accuracy, possibly impeaching her at trial. The court also allowed Mr. Cashen to obtain an expert to review the records and testify to the victim's violent tendencies and her credibility as a witness.

Based on the court's ruling, Mr. Cashen filed two separate motions: one to resume the victim's deposition, and the other to obtain her mental health records. The court granted the motion requiring Ms. Schulmeister to sign a patient waiver form, allowing the defense to obtain her mental health records. Upon review of the records, the deposition was reconvened to discuss the content of the mental health records. As a response to Mr. Cashen's motions, the state filed an application for discretionary review of the records. The Iowa Supreme Court granted the review and transferred the case to the court of appeals. On appeal, Mr. Cashen was found to have presented compelling evidence that the victim's records would help in his defense, affirming the district court's decision to disclose the records. The appellate court also determined that the district court did not have the authority to obtain the records by way of a patient waiver form, but did not “address the procedure for the production of the records” (Cashen, p 405). The Iowa Supreme Court addressed how to procure the mental health records.

Ruling and Reasoning

The Iowa Supreme Court set forth a protocol for requesting privileged mental health records of the victim. It implements rules that are careful and cautious, allowing for “limited disclosure of privileged information,” satisfying the defendant's due process rights to present potentially exculpatory evidence.

The court first referred to its ruling in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006) where the defendant, charged with first-degree murder, was permitted to obtain the victim's medical records to assist in his defense. The court noted, “Regardless of the charge or penalty, all defendants have a right to a fair trial” (Cashen, p 405), but reserved that this sensitive information should be released on “a limited basis.” The court stipulated that a certain protocol must be followed to obtain such information, limiting the amount of information disclosed.

The court developed a “proper protocol” to follow when defense counsel requests the victim's mental health records by examining prior case law. The protocol was based on the previous “balancing test” determined in Chidester v. Needles, 353 N.W.2d 849 (Iowa 1984). In Chidester, the Iowa Supreme Court allowed the county attorney to “review the confidential medical records of a nonparty” in an investigation of medical fraud. It was determined that only medical testimony is protected from being subpoenaed, not the medical record. The court “recognized the patient's right to privacy of their medical records but acknowledged that this privilege was not absolute” (Cashen, p 406). Based on this ruling, a balancing test was implemented that weighed the privacy interests of privilege against public interest in “a fair and effective administration of criminal justice.” Should the balancing test favor public interest, “it may override the privacy interest.”

Previous case law provided a basis for the “proper protocol” used in Cashen, which “strikes the proper balance between the victim's right to privacy in his or her mental health records and a defendant's right to produce evidence that is relevant to his or her innocence” (Cashen, p 408). The protocol provides five procedural instructions for obtaining mental health records while minimizing the invasion of privacy of the victim.

First, the defendant is not allowed to go on a “fishing expedition when seeking the victim's mental health records” (Cashen, p 408). The defense must reasonably demonstrate that the victim's records contain exculpatory evidence. Second, the victim is to be notified of the request for records and is asked to sign an affidavit of consent to disclose them. Should the victim oppose disclosure, the court will hold a hearing to determine if there is a “reasonable probability” that the records contain exculpatory evidence. Third, once the records are obtained, the defense attorney can review the records at the courthouse. An in camera review is not sufficient because the judge does not have the “complete information” necessary to make a decision about which records are of importance to the defendant. Fourth, once this information is identified, the defense attorney notifies the court of the specific information in the records that will be used. The county attorney is then permitted to review the records at the courthouse. Fifth, a closed hearing is held to determine if the records contain exculpatory evidence. If the court rules in favor of the defense, copies of the records with the nonexculpatory information redacted are provided to the defense and county attorneys. The court emphasized that this protocol does not automatically mean that the victim's mental health records are admissible at trial; that is a separate determination.

The court allowed Mr. Cashen to use specific parts of the record in his defense and agreed with the district court's ruling that Ms. Schulmeister's testimony at the deposition fulfilled the requirement of “reasonable probability.” It was determined that the victim's records contained evidence in favor of the defense. The case was remanded to the district court, and all parties were directed to adhere to the newly established protocol.

Dissent

Justice Cady reasoned that the protocol gives too much power to the defendant to protect the right to a fair trial while compromising the victim's treatment. This balancing test, he said, may prevent victims of domestic violence from reporting abuse or seeking help, as their records may be used against them in court.