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In DV Case, May Defendant Get Victim’s Psych Records?
Our clients often are eager to expose the victim’s psychologist or psychiatrist records to the judge, jury or the district attorney as a way of impeaching the victim’s credibility and by doing so, improving his or her own credibility. The victim may have a manic-depressive condition and our client believes this would explain the highly emotional nature of victim in the incident. The victim may also have been the victim of a prior domestic violence case (or even a defendant) and so she or he may be engaging in gamesmanship of the legal system.
About This Article Briefly: It is very rare, if not impossible and as attorneys who represent criminal defendants we must say unfortunate, for defendant to get access to a victim’s mental health records despite the Sixth Amendment right to confront and cross-examine one’s accuser, as the following article explains.
We tell the client, reluctantly, that generally, use of psychiatric testimony to impeach a witness is generally not allowed. People v. Anderson (2001) 25 Cal. 4th 543, 601, 106 Cal. Rptr. 2d 575; People v. Marshall (1996) 13 Cal. 4th 799, 835, 55 Cal. Rptr. 2d 347. Furthermore, Penal Code § 1112 prohibits a judge from requiring a psychiatric examination for purposes of evaluating a witness’ or a victim’s credibility in a sexual assault case.
There are certainly exceptions to this. For example, in People v. Reber (1986) 177 Cal. App. 3d 523, 233 Cal. Rptr. 139, defendants were charged with multiple sexual and other assaults on two victims. Defendants sought pretrial disclosure of the victims’ psychotherapy records, asserting that the records would reveal that the victims had histories of paranoid schizophrenia and periods of delusion and hallucination. 177 Cal. App. 3d at 528-529.
Based on the Sixth Amendment right to confrontation and cross-examination of witnesses, and its interpretation of Davis v. Alaska (1974) 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347, the appellate court concluded that the statutory privilege of confidentiality must give way to pretrial access, when adhering to the privilege would deprive a defendant of the constitutional right of confrontation and cross-examination. 177 Cal. App. 3d at 529-531. Accordingly, the appellate court found that the records were discoverable insofar as defendants had made a good cause showing that they contained evidence of psychotic or hallucinatory behavior relevant to the victim’s credibility. 177 Cal. App. 3d at 531-532.
Torrance CourthouseNevertheless, the appellate court found that the trial court had failed to: (1) obtain and examine in camera all the materials under subpoena; (2) weigh defendant’s constitutionally based claim of need against the statutory privilege invoked by the prosecution; (3) determine which privileged matters, if any, are essential to vindicate defendant’s rights of confrontation; and (4) create a record adequate to permit review of its ruling. 177 Cal. App. 3d at 532.
In 1997, in People v. Hammon (1997) 15 Cal. 4th 1117, 1123, 65 Cal. Rptr. 2d 1, however, the California Supreme Court disapproved Reber to the extent that it held that the confrontation clause, as interpreted by Davis v. Alaska, requires pretrial disclosure of privileged information when a defendant’s need for information outweighs the patient’s interest in confidentiality. The court clarified that under Davis, a criminal defendant has a Sixth Amendment right at trial to cross-examine a crucial prosecution witness for bias, even when the questions call for information that is confidential under state law. 15 Cal. 4th at 1124; Davis v. Alaska, supra, 415 U.S. at 315-320.
The Sixth Amendment confrontation clause, however, does not extend to requiring court review in camera before trial of privileged records from the victim’s psychologists to determine whether the records should be disclosed in discovery. People v. Hammon, supra, 15 Cal. 4th at 1127.
Thus, pretrial disclosure creates a serious risk that privileged material will be disclosed unnecessarily. People v. Hammon, supra, 15 Cal. 4th at 1127. Accordingly, now, such privileged psychiatric material is generally undiscoverable before trial. People v. Gurule (2002) 28 Cal. 4th 557, 593, 123 Cal. Rptr. 2d 345 (defendant sought pretrial discovery of co-defendant’s psychotherapy records).
There is also the psychotherapist-patient privilege (Evidence Code § 916) that may protect disclosure of such records. See People v. Pack (1988) 201 Cal. App. 3d 679, at 685, 248 Cal. Rptr. 240 (good cause shown by defendant may overcome this privilege).
For more information about evidence compromising to a victim’s credibility, please click on the following articles:
