1. 116 S. Ct. 1923, 1927 (1996). Certiorari was granted at 116 S. Ct. 334 (1995). Return to Text

2. 116 S. Ct. at 1925. Return to Text

3. Id. Return to Text

4. Id. Return to Text

5. Id. Return to Text

6. Id. at 1925-26. Return to Text

7. Id. at 1926. Return to Text

8. Id. Also at issue was whether Redmond drew her gun before exiting her squad car. Id. Return to Text

9. Id. Redmond participated in approximately fifty counseling sessions with Beyer. Id. Return to Text

10. Id. Return to Text

11. Id. Return to Text

12. Id. This refusal was demonstrated both during depositions and on the witness stand during trial. Id. Return to Text

13. Id. Return to Text

14. Id. The jury awarded $45,000 on the federal claim and $500,000 on the state claim. Id. Return to Text

15. Id. (quoting Jaffee v. Redmond, 51 F.3d 1346, 1355 (7th Cir. 1995)). "The Court of Appeals qualified its recognition of the privilege by stating that it would not apply if `in the interests of justice, the evidentiary need for the disclosure of the contents of a patient's counseling sessions outweighs that patient's privacy interest.'" Id. at 1926 (quoting 51 F.3d at 1357). Return to Text

16. Id. at 1931. Return to Text

17. Id. at 1928 n.7. The Federal Rules of Evidence were drafted by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and the Supreme Court in 1972 to be presented to Congress. Id. Return to Text

18. Id. The rule as enacted provides as follows:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, 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. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

Fed. R. Evid. 501. Return to Text

19. S. Rep. No. 1277, 93d Cong., 2d Sess. 13 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7059. The Judicial Committee received a considerable volume of correspondence from the psychiatric profession demonstrating a general concern over the deletion of the specific privilege. Id. The Senate Committee responded:

It should be clearly understood that, in approving this general rule as to privileges, the action of Congress should not be understood as disapproving any recognition of a psychiatrist-patient . . . privilege[] . . . [but] should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship and other privileges should be determined on a case-by-case basis.

Id. Return to Text

20. 531 F.2d 752 (5th Cir.), cert. denied, 429 U.S. 853 (1976). Return to Text

21. 531 F.2d at 752. Return to Text

22. Id. at 753. Defendant participated in the research program between December and July 1971, and between May and September 1973. The bank robbery occurred in October 1973. Id. Return to Text

23. Id. Return to Text

24. Id. Return to Text

25. Id. The court conceded that the Proposed Rules were not accepted by Congress. However, had they been adopted in original form, the defendant in a criminal trial claiming insanity as a defense could not avail himself of such a privilege. Id. Return to Text

26. 714 F.2d 632 (6th Cir.), cert. denied, 464 U.S. 983 (1983). Return to Text

27. 705 F.2d 261 (7th Cir. 1983). Return to Text

28. 698 F.2d 1154 (11th Cir. 1983). Return to Text

29. 714 F.2d at 634-35. Return to Text

30. Id. at 636. Return to Text

31. Id. at 636-37. Return to Text

32. S. Rep. No. 1277, supra note 19. Return to Text

33. 714 F.2d at 637 (quoting Trammel v. United States, 445 U.S. 40, 48 (1980)). Trammel is a landmark Supreme Court case wherein the Court modified the spousal privilege to apply only to the witness-spouse and not to the accused. 445 U.S. at 53. The rule, as modified, provides that "the witness may be neither compelled to testify nor foreclosed from testifying." Id. Return to Text

34. 714 F.2d at 637. Return to Text

35. Id. at 639. The court determined that a balancing of interests was required based on language from Trammel in which the Supreme Court determined the proper analysis was "whether the privilege . . . promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice." Id. (quoting Trammel, 445 U.S. at 52). Return to Text

36. Id. Return to Text

37. Id. However, because the particular information sought would reveal only the fact and time of treatment, it was not within the scope of the privilege and therefore, the psychiatrists' noncompliance was unjustified. Id. at 642. Return to Text

38. 705 F.2d at 262. Return to Text

39. 698 F.2d at 1167 (quoting United States v. Society of Indep. Gasoline Marketers of Am., 624 F.2d 461, 469 (4th Cir. 1979), cert. denied sub nom., Kayo Oil Co. v. United States, 449 U.S. 1078 (1981)). Return to Text

40. 849 F.2d 562 (11th Cir. 1988), cert. denied, 489 U.S. 1084 (1989). Return to Text

41. 849 F.2d at 566. Even though Corona acknowledged that no physician-patient privilege existed in that circuit, he urged the court to distinguish between a psychotherapist-patient relationship and the more general physician-patient relationship, and to follow the Sixth Circuit's reasoning enunciated in In re Zuniga in adopting the privilege. Id. at 566-67. Return to Text

42. Id. at 567. Return to Text

43. Id. (quoting United States v. Nixon, 418 U.S. 683, 710 (1974)). Return to Text

44. 867 F.2d 562 (9th Cir.), cert. denied, 493 U.S. 906 (1989). Return to Text

45. 867 F.2d at 565. The court reiterated that "if such a privilege is to be recognized in federal criminal proceedings, it is up to Congress to define it, not this court." Id. Return to Text

46. 964 F.2d 1325 (2d Cir. 1992). Return to Text

47. Id. at 1326. Return to Text

48. Id. Return to Text

49. Id. Return to Text

50. Id. at 1328-29 (citing In re Zuniga, 714 F.2d 632 (1983)). Return to Text

51. Id. at 1328 (citing Lora v. Board of Educ. of New York, 74 F.R.D. 565, 575 (E.D.N.Y. 1977); United States v. Friedman, 636 F. Supp. 462, 463 (S.D.N.Y. 1986)). Return to Text

52. Id. (citing In re Grand Jury Proceedings, 867 F.2d at 562; United States v. Corona, 849 F.2d at 562; United States v. Lindstrom, 698 F.2d at 1154; United States v. Meagher, 531 F.2d at 752). Return to Text

53. Id. Return to Text

54. Id. (quoting Trammel, 445 U.S. at 47). Return to Text

55. Id. The court determined that because 49 states recognize such a privilege, experience has been favorable. Id. Return to Text

56. Id. The court narrowed this holding by emphasizing that the privilege only requires that a court consider the privacy interests of a witness as an important factor in the determination of admissibility. Id. at 1329. The court concluded that because appellant was not only the person who initiated the extortion investigation, but also a key witness whose credibility would be a deciding factor in the trial, "the balance . . . weigh[ed] overwhelmingly in favor of allowing an inquiry into his history of mental illness." Id. Return to Text

57. United States v. Burtrum, 17 F.3d 1299, 1301-02 (10th Cir.), cert. denied, 115 S. Ct. 176 (1994). Return to Text

58. 17 F.3d at 1302. The court found that "[c]riminal child sexual abuse cases illustrate well the policy reasons behind the presumption against testimonial privileges in criminal cases." Id. Because this crime victimizes a vulnerable segment of society often intimidated by the legal system, the detection and prosecution of such a crime is difficult even absent a testimonial privilege. Id. Return to Text

59. 116 S. Ct. 334 (1995). Return to Text

60. 116 S. Ct. 1923 (1996). Return to Text

61. ntury Schoolbook">61.Id. at 1925, 1931. Return to Text

62. Id. at 1927 (quoting Fed. R. Evid. 501). Return to Text

63. Id. "Rules" refers to the Federal Rules of Evidence. "Rule 501 `should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship . . . should be determined on a case-by-case basis.'" Id. (quoting S. Rep. No. 1277, supra note 19). Return to Text

64. Id. at 1928 (quoting Trammel, 445 U.S. at 47). Return to Text

65. Id. Return to Text

66. Id. The "`fundamental maxim [is] that the public . . . has a right to every man's evidence.'" Id. (quoting United States v. Bryan, 339 U.S. 323, 331 (1950) (citations omitted)). Return to Text

67. Id. (citing Trammel, 445 U.S. at 50) (citations omitted). Return to Text

68. Id. (quoting Trammel, 445 U.S. at 51). Return to Text

69. Id. at 1928. As a result, even a possibility of disclosure by the therapist may impede development of the trust-based relationship vital for successful treatment of the patient. Id. Return to Text

70. Id. at 1929. Return to Text

71. Id. Return to Text

72. Id. at 1929 n.10. Return to Text

73. Id. Return to Text

74. Id. at 1929. Return to Text

75. Id. Return to Text

76. Id. at 1930. Return to Text

77. Id. Return to Text

78. Id. Return to Text

79. Id. This was deemed important because the Court previously refused to recognize a state legislative privilege, reasoning that no such privilege was included in the Advisory Committee's draft. Id. (citing United States v. Gillock, 445 U.S. 360, 367-68 (1980)). Return to Text

80. Id. at 1931 n.14. Return to Text

81. Id. at 1931. Return to Text

82. Id. Return to Text

83. Id. Return to Text

84. Id. at 1931-32 (citing Jaffee, 51 F.3d at 1358 n.19). The Court noted that while only 12 states regulated social workers at the time the Advisory Committee prepared the Proposed Rules in 1972, all 50 states so regulate today. Id. at 1932 n.16. Return to Text

85. Id. at 1932. If the policy underlying the privilege is to be furthered, the patient, and more importantly, the therapist, "`must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.'" Id. (quoting Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)). Return to Text

86. Id. (quoting Upjohn, 449 U.S. at 386). Return to Text

87. Id. at 1932 n.19. Return to Text

88. Id. at 1932. Return to Text

89. Id. at 1928-29. Return to Text

90. Id. at 1929. Return to Text

91. Id. at 1932 (Scalia, J., dissenting). "That is the cost of every rule which excludes reliable and probative evidence--or at least every one categorical enough to achieve its announced policy objective." Id. Return to Text

92. For example, what would happen if the social worker was in fact licensed, but failed to pay dues for a specific period and the license lapsed? Is the social worker "licensed" for purposes of the privilege? Or, what if the communications took place in Georgia, the social worker was licensed only in Florida, and Georgia's licensing standards were far more stringent than those of Florida? Is this social worker "licensed" for purposes of the privilege? Situations such as these remain unresolved. Return to Text

93. 116 S. Ct. at 1926. Return to Text

94. Id. at 1931. Return to Text

95. Id. at 1938 (Scalia, J., dissenting). Return to Text

96. Id. at 1937-38. Return to Text

97. Id. at 1933-34. Return to Text

98. Id. at 1934 (quoting Proposed Rule of Evidence 504). Return to Text

99. Id. at 1930 n.13, 1939-40. Return to Text

100. Id. at 1935 (Scalia, J., dissenting). Justice Scalia noted that if deference to states and "furtherance of state policies is the name of the game, rules of privilege in federal courts should vary from State to State, a la Erie." Id. Return to Text

101. Van Domelen v. Menominee County, No. 2:95-CV-064, 1996 WL 495574, at *2 (W.D. Mich. June 25, 1996). Return to Text

102. 116 S. Ct. at 1932 n.19. Does this mean that a future crimes exception exists under this privilege or only a future bodily harm exception? Return to Text

103. See, e.g., Developments in the Law--Privileged Communications, 98 Harv. L. Rev. 1530 (1985); Jeffrey A. Klotz, Limiting the Psychotherapist-Patient Privilege: The Therapeutic Potential, 27 Crim. L. Bull. 416 (1991); Catherine M. Baytion, Note & Comment, Toward Uniform Application of a Federal Psychotherapist-Patient Privilege, 70 Wash. L. Rev. 153 (1995); Bruce J. Winick, The Psychotherapist-Patient Privilege: A Therapeutic Jurisprudence View, 50 U. Miami L. Rev. 249 (1996). Return to Text

104. Daniel J. Capra, The Federal Law of Privileges, 16 A.B.A. Sec. Litigation, Fall 1989, at 32, 36. Return to Text

105. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 333 (3d ed. 1980). An example of such a situation is where a patient refuses to comply with medical treatment. Return to Text

106. Anne D. Lamkin, Evidentiary Privileges: Should Psychotherapist-Patient Privilege Be Recognized?, 18 Am. J. Trial Advoc. 721 (1995). Return to Text

107. Jaffee, 116 S. Ct. at 1928. Return to Text

108. A recent study indicates that "of the more than fifty-two million Americans who suffer from mental illness each year, only 28.5 percent get help." Winick, supra note 103, at 253 (citing Darrel A. Regier et al., The De Facto U.S. Mental and Addictive Disorders Service System, 50 Archives Gen. Psychiatry 85, 90 (1993)). Return to Text

109. 116 S. Ct. at 1929. Return to Text