No. 95-266
In The
Supreme Court of the United States
October Term, 1995
Carrie JAFFEE,
Petitioner,
v.
Marylu REDMOND and VILLAGE OF HOFFMAN ESTATES,
Respondents.


On Writ of Certiorari to the
United States Court of Appeals
for the Seventh Circuit


BRIEF AMICUS CURIAE OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION
IN SUPPORT OF RESPONDENTS


PAUL M. SMITH [Counsel of Record]
ROBERT M. PORTMAN
JENNER & BLOCK
601 Thirteenth Street,
N.W. Washington, D.C. 20005
(202) 639-6000

JAMES L. MCHUGH, JR.,
   General Counsel
AMERICAN PSYCHOLOGICAL
   ASSOCIATION
750 First Street, N.E.
Washington, D.C. 20002
(202) 336-5500
Counsel for Amicus


TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS

STATEMENT

ARGUMENT

I. FEDERAL RULE OF EVIDENCE 501 AUTHORIZES THE FEDERAL COURTS TO RECOGNIZE A PSYCHOTHERAPIST-PATIENT PRIVILEGE

II. COMMON-LAW PRINCIPLES, APPLIED IN THE LIGHT OF REASON AND EXPERIENCE, STRONGLY SUPPORT RECOGNITION OF A PSYCHOTHERAPIST-PATIENT PRIVILEGE

A. Psychotherapeutic Clients Have a Strong Expectation of Confidentiality

B. Confidentiality Is Essential to the Success of Psychotherapy

C. Society Has a Strong Interest in Fostering the Psychotherapeutic Relationship and in Protecting Client Privacy

D. The Benefits of the Psychotherapist-Patient Privilege Outweigh Its Costs

III. APPLYING THE PSYCHOTHERAPIST-PATIENT PRIVILEGE USING A CASE-BY-CASE BALANCING APPROACH WOULD SUBSTANTIALLY UNDERMINE THE VALUE OF THE PRIVILEGE

CONCLUSION


INTEREST OF AMICUS

The American Psychological Association (APA), a scientific and professional organization founded in 1892, is the major association of psychologists in the United States. It has more than 135,000 members and affiliates, including the vast majority of psychologists holding doctoral degrees from accredited universities in the United States.

The APA is filing this brief to give the Court the benefit of the first-hand experience of its members who provide psychotherapy services on a daily basis. Those members understand that confidentiality is an essential part of the process of psychotherapy. Maintaining the confidentiality of client communications is thus both an ethical duty and a practical necessity for this profession. Psychologists cannot effectively treat mental and emotional disorders if their clients fear that their innermost thoughts and feelings will not be kept confidential. Amicus submits that this reality should weigh heavily in the Court's decision about whether to recognize a federal psychotherapist-patient privilege. Compelled testimonial disclosure, like any other breach of confidentiality, disrupts the psychotherapist-client relationship and can fatally impair the therapeutic process. Recognizing this intrusive effect, all fifty states have adopted some form of privilege for confidential communications to psychotherapists. They have concluded that the social benefits of the psychotherapist-patient privilege outweigh its limited costs to the justice system. This Court should weigh the same considerations and reach the same conclusion.

STATEMENT

Respondent Marylu Redmond is a police officer who shot and killed a man while in the line of duty. After the incident, Officer Redmond voluntarily sought counseling from a licensed clinical social worker. The victim's estate then sued Officer Redmond for wrongful death and deprivation of civil rights in federal court. Prior to and during the trial, petitioner sought to elicit testimony from Redmond and the social worker concerning what Redmond said about the circumstances of the shooting during her psychotherapy sessions. Redmond moved to quash this discovery, asserting the psychotherapist-patient privilege. The district court initially ordered disclosure of these communications, holding that a federal psychotherapist-patient privilege exists but that it does not apply to social workers. When Redmond and the social worker resisted the order, the court instructed the jury that it could infer that the information withheld would have supported petitioner's version of the events. The jury found for petitioner and awarded a total of $545,000 in damages.

On appeal, the Seventh Circuit held (1) that there is a psychotherapist- patient privilege in federal court, and (2) that this privilege covers confidential communications made to social workers, including those at issue here. The court determined that it had the discretion to recognize such a privilege under Rule 501 of the Federal Rules of Evidence, which calls on federal courts to determine privilege issues by applying the "principles of the common law as they may be interpreted ... in the light of reason and experience." Pet. App. 15-16. It then reasoned that recognition of a psychotherapist/patient privilege can only serve to encourage troubled individuals, as well as those who witness, participate in, and are intimately affected by acts of violence in today's stressful, crime ridden, homicidal environment, to seek the necessary professional counseling and to assist mental health professionals to succeed in their endeavors.

Pet. App. 18. Citing this practical concern and the concomitant privacy interests of psychotherapeutic clients, the court of appeals decided to follow the lead of the fifty states, all of which have recognized some form of psychotherapist-patient privilege. Pet. App. 19-21. It held that the balance of competing interests favored the application of the privilege in this case and therefore shielded from disclosure the communications at issue. Pet. App. 22- 23.

SUMMARY OF ARGUMENT

1. Federal Rule of Evidence 501 authorizes the federal courts to establish new evidentiary privileges not recognized at common law, based on "the principles of the common law as they may be interpreted ... in the light of reason and experience." This rule, which calls on courts to apply the principles of the common law rather than its specific existing rules, was intended by Congress to give the courts the flexibility to recognize new privileges.

2. The common law has long protected from disclosure confidential communications made within a relationship of trust. This principle, interpreted in the light of reason and experience, strongly supports the recognition of a psychotherapist-patient privilege in federal court. Psychotherapeutic clients have strong expectations of confidentiality, and therapists have an ethical duty to maintain confidentiality. Confidentiality is essential to the psychotherapist-patient relationship because the effectiveness of psychotherapy depends on the client's willingness and ability to talk freely and candidly about his or her most intimate thoughts and feelings. The absence of confidentiality is likely to deter people from seeking therapy and to cause clients already in therapy to withhold information or to terminate the relationship prematurely. The privilege benefits society as a whole because people who are mentally and emotionally healthy are more likely to be productive members of society and are less likely to pose a danger to the community. All fifty states have enacted some form of psychotherapist-patient privilege, concluding that this public benefit outweighs the interest in assuring that all evidence is available to assist in the administration of justice. There is no reason for the federal courts to strike the balance any differently.

3. If recognized, the privilege should not be applied on an ad hoc, case-by- case basis, for an unpredictable privilege is little better than no privilege at all. Rather, the privilege should be broad, and any exceptions to the privilege should be narrow, predictable, and categorical.

ARGUMENT

Congress, in Federal Rule of Evidence 501, expressly authorized the evolution of the federal common law of privileges, including the recognition of new types of privileges. Recognizing this fact, and given the importance of confidentiality to the effective treatment of mental and emotional disorders, the Seventh Circuit correctly decided to adopt and apply a psychotherapist-patient privilege in this case.

I. FEDERAL RULE OF EVIDENCE 501 AUTHORIZES THE FEDERAL COURTS TO RECOGNIZE A PSYCHOTHERAPIST-PATIENT PRIVILEGE.

There is no question that the federal courts have the authority to recognize a psychotherapist-patient privilege under Rule 501. [FN1] Although it is true that such a privilege did not exist "at common law," Congress never intended that the courts be restricted to the application of the privileges that existed at a particular point of common-law evolution. Rather, it intended to give the courts the flexibility to recognize new privileges and, indeed, specifically anticipated that the courts would use their best judgment about the psychotherapist-patient privilege issue.

Rule 501 provides, in relevant part, that in cases governed by federal law, "the privilege of a witness ... 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." This language, on its face, rebuts the notion that Congress simply wanted to incorporate the common law as it stood on a given date. The rule calls on courts to apply the principles of the common law (not just the existing "rules" or "privileges") as they may be interpreted (not as they "have been" or "were" interpreted) in the light of reason and experience. Thus, the intent of Congress in enacting this rule was "not to freeze the law of privilege" but to " 'provide the courts with the flexibility to develop rules of privilege on a case-by-case basis' ... and to leave the door open to change." Trammel v. United States, 445 U.S. 40, 47 (1980) (quoting 120 Cong. Rec. 40891 (1974) (statement of Rep. Hungate)). See In re Doe, 964 F.2d 1325, 1327-28 (2d Cir. 1992); In re Zuniga, 714 F.2d 632, 637 (6th Cir.), cert. denied, 464 U.S. 983 (1983). This conclusion is reinforced by the sequence of events that led to the adoption of Rule 501. The Federal Rules of Evidence, as originally proposed by the Judicial Conference Advisory Committee and adopted by this Court, contained nine specific evidentiary privileges, including a psychotherapist-patient privilege in Proposed Rule 504. See Proposed Fed. R. Evid. 502-510, 56 F.R.D. 183, 234-56 (1973). These specific privileges were intended to be the sole privileges available in federal court except as otherwise required by the Constitution or acts of Congress. See Proposed Fed. R. Evid. 501, 56 F.R.D. at 230. But Congress declined to adopt the nine fixed privileges in the Proposed Rules, and opted instead for the general, more malleable mandate of Rule 501. It did so in order "to provide the courts with greater flexibility in developing rules of privilege on a case-by-case basis." United States v. Gillock, 445 U.S. 360, 367 (1980) (emphasis added).

The legislative history confirms that the move from specific privileges to the new Rule 501 should not be interpreted as barring, or even disfavoring, the recognition of the protections for confidential communications to psychiatrists and psychologists that were provided in the proposed Rule 504:

The committee has received a considerable volume of correspondence from psychiatric organizations and psychiatrists concerning the deletion of rule 504 of the rule[s] submitted by the Supreme Court. 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, or husband-wife, or any other of the enumerated privileges contained in the Supreme Court rules. Rather, our action 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. [FN2] S. Rep. No. 93-1277, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7059.
To read Rule 501 as precluding judicial recognition of the psychotherapist- patient privilege solely because the privilege did not exist at common law would be particularly unwarranted in light of the actual evolution of the privilege under state law. Psychotherapy itself was relatively rare until after the Second World War. By that time, the majority of the states had already established a doctor-patient privilege by statute. [FN3] That privilege covered most of the therapeutic relationships then in existence, since they primarily involved physicians (i.e., psychiatrists). Nevertheless, in the 1950s, the courts began to show an interest in recognizing a separate psychotherapist-patient privilege. See Proposed Fed. R. Evid. 504 advisory committee's note, 56 F.R.D. at 242 ("While the common law recognized no general physician-patient privilege, it had indicated a disposition to recognize a psychotherapist-patient privilege ... when legislatures began moving into the field."); Note, Confidential Communications to a Psychotherapist: A New Testimonial Privilege, 47 Nw. U.L. Rev. 384 (1952); Binder v. Ruvell, Civil Docket No. 52C2535, Circuit Ct., Cook Co., Ill., reported in 15 Am. Med. Ass'n. J. 1241 (1952) (refusing to allow the disclosure of a patient's communications during psychiatric treatment in a civil action despite the absence of a statutory privilege). See also State v. Evans, 454 P.2d 976 (Ariz. 1969) (holding that a criminal defendant's communications to a court-appointed psychiatrist were subject to a limited privilege despite the absence of an applicable statutory privilege).

By 1975, when Rule 501 was enacted, many states had separate psychotherapist- patient privilege statutes. See Proposed Fed. R. Evid. 504 advisory committee's note, 56 F.R.D. at 242 (citing examples). [FN4] At that time, there was general acceptance of the need for a privilege applicable to the psychotherapeutic relationship, even though the doctor-patient privilege as applied to other branches of medicine was under substantial attack. See Taylor v. United States, 222 F.2d 398, 401 (D.C. Cir. 1955); David W. Louisell & Kent Sinclair, Jr., Foreword: Reflections on the Law of Privileged Communications--The Psychotherapist-Patient Privilege in Perspective, 59 Cal. L. Rev. 30, 51-53 (1971); Ralph Slovenko, Psychiatry and a Second Look at the Medical Privilege, 6 Wayne L. Rev. 175, 184 (1960).

Recognizing the widespread support for the protection of the confidentiality of the psychotherapeutic relationship, the Advisory Committee included a psychotherapist-patient privilege among the nine specifically proposed privileges in the original version of the Federal Rules of Evidence approved by this Court, even though a more general physician-patient privilege was not included. See Proposed Fed. R. Evid. 504 advisory committee's note, 56 F.R.D. at 242; Proposed Fed. R. Evid. 504(a)(1), id. at 240 (covering communications to physicians only while they are engaged in "diagnosis or treatment of a mental or emotional condition"). Thus, by the time Rule 501 was enacted, the psychotherapist-patient privilege had already become a well- recognized and accepted feature of American law. It would be inappropriate to conclude that Rule 501, with its open-ended invitation to develop the common law in the light of "reason and experience," somehow precluded the federal courts from bringing federal practice into line with the rule then being applied in the majority of the states.

II. COMMON-LAW PRINCIPLES, APPLIED IN THE LIGHT OF REASON AND EXPERIENCE, STRONGLY SUPPORT RECOGNITION OF A PSYCHOTHERAPIST-PATIENT PRIVILEGE.

At common law, certain communications were protected from disclosure in order to encourage relationships that were considered extremely important to society and that required full and open communication among the participants. The "principles" applied at common law in making this determination have been distilled by Wigmore as follows:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

8 John H. Wigmore, Wigmore on Evidence 2285, at 527 (McNaughton rev. 1961) (emphasis omitted); see Allred v. State, 554 P.2d at 417 (referring to these principles in deciding to recognize a common-law psychotherapist-patient privilege). Applied in the light of reason and experience, these principles strongly support recognition of a psychotherapist-patient privilege in federal court.

A. Psychotherapeutic Clients Have a Strong Expectation of Confidentiality.
There is no doubt that communications made in the course of psychotherapy sessions are made with the expectation that they will be held in confidence. See John M. McGuire et al., The Adult Client's Conception of Confidentiality in the Therapeutic Relationship, 16 Prof. Psychol.: Res. & Prac. 375, 380 (1985) (survey results demonstrate that mental health "clients not only value confidentiality in the therapy relationship but that they also expect it"); David J. Miller & Mark H. Thelen, Knowledge and Beliefs About Confidentiality in Psychotherapy, 17 Prof. Psychol.: Res. & Prac. 15, 18 (1986) (noting that the majority of clients view confidentiality "as an all-encompassing, superordinate mandate for the profession of psychology"); Donald Schmid et al., Confidentiality in Psychiatry: A Study of the Patient's View, 34 Hosp. & Community Psychiatry 353, 354 (1983) ("The patients in our sample clearly believed that confidentiality was an important concomitant of their care."). Clients' expectations of confidentiality are based in part on psychologists' ethical duty to maintain confidentiality. See Daniel W. Shuman & Myron S. Weiner, The Privilege Study: An Empirical Examination of the Psychotherapist-Patient Privilege, 60 N.C. L. Rev. 893, 920 (1982) (patients rely on psychotherapists' ethical duty to maintain confidentiality); cf. Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp. 793, 797 (N.D. Ohio 1965) (patients have a right to rely on physicians' ethical duty to maintain confidentiality). The APA ethical code dictates that psychologists "have a primary obligation and take reasonable precautions to respect the confidentiality rights of those with whom they work or consult." American Psychological Association, Ethical Principles of Psychologists and Code of Conduct, 5.02 (1992). In addition, psychologists are ethically bound to reveal to their clients the limitations on the confidentiality of their communications and the foreseeable uses of the information generated through their services at the outset of the relationship and as new circumstances may warrant. See id. 5.01.

Clients' expectations of confidentiality are reinforced by the state laws throughout the country that provide a psychotherapist-patient privilege. See Anne D. Lamkin, Should Psychotherapist-Patient Privilege Be Recognized? 18 Am. J. Trial Advoc. 721, 723-25 (1995) (all fifty states and the District of Columbia have recognized the psychotherapist-patient privilege in some form). State laws that ensure the privacy of medical records, provide causes of action for wrongful disclosure of confidential information, or otherwise protect the privacy of the psychotherapist-client relationship further bolster clients' expectations of confidentiality. See Jill S. Talbot, Note, The Conflict Between a Doctor's Duty to Warn a Patient's Sexual Partner That the Patient Has AIDS and a Doctor's Duty to Maintain Patient Confidentiality, 45 Wash. & Lee L. Rev. 355, 360-61 (1988) (every state, to some extent, protects the confidentiality of medical records by statute, and in most jurisdictions, a patient may recover from a physician for wrongful disclosure of confidential information).

B. Confidentiality Is Essential to the Success of Psychotherapy.
It is equally true that "[t]he concept of confidentiality of client-therapist communications is at the core of the psychotherapeutic relationship." Ryan D. Jagim et al., Mental Health Professionals' Attitudes Toward Confidentiality, Privilege, and Third-Party Disclosure, 9 Prof. Psychol. 458, 458-59 (1978). The establishment of a relationship of trust between client and therapist "has been deemed so essential by some that it has been argued that psychotherapy is rendered worthless in its absence." Mark B. DeKraai & Bruce D. Sales, Privileged Communications of Psychologists, 13 Prof. Psychol. 372, 372 (1982). [FN5]

The common law, of course, has long recognized that a promise of confidentiality is essential if clients are to be able to confide freely in their attorneys. This Court has also recognized "the imperative need for confidence and trust" in the physician-patient relationship, noting that "the physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment." Trammel v. United States, 445 U.S. at 51. The need for confidentiality is even greater in psychotherapy:

"Among physicians, the psychiatrist has a special need to maintain confidentiality. His capacity to help his patients is completely dependent upon their willingness and ability to talk freely. This makes it difficult if not impossible for him to function without being able to assure his patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule ..., there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment. The relationship may well be likened to that of the priest-penitent or the lawyer- client. Psychiatrists not only explore the very depths of their patients' conscious, but their unconscious feelings and attitudes as well. Therapeutic effectiveness necessitates going beyond a patient's awareness and, in order to do this, it must be possible to communicate freely. A threat to secrecy blocks successful treatment." Proposed Fed. R. Evid. 504 advisory committee's note, 56 F.R.D. at 242 (quoting Report No. 45, Group for the Advancement of Psychiatry 92 (1960)).

Unlike a patient with a broken leg who consults a physician, a client who seeks psychotherapy must expose his most intimate thoughts, feelings, and fantasies. Because "[t]he very essence of psychotherapy is confidential personal revelations about matters which the patient is and should be normally reluctant to discuss," it is vital that the psychotherapist be able to create an atmosphere in which clients can reveal sensitive and potentially embarrassing confidences without fear that they will be disclosed to others. Slovenko, supra, at 184-85. Indeed, "[t]he psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition.... It would be too much to expect them to do so if they knew that all they say--and all that the psychiatrist learns from what they say--may be revealed to the whole world from a witness stand." Taylor v. United States, 222 F.2d at 401 (quoting Guttmacher and Weihofen, Psychiatry and the Law 272 (1952)).

If clients do not perceive that the confidentiality of their communications will be adequately protected, the trust vital to the psychotherapeutic relationship is likely to be significantly impaired or destroyed. This conclusion is based on both the practical experience of APA members and empirical evidence. See Miller & Thelen, supra, at 18 (majority of subjects would react negatively (i.e. finding it difficult to talk to the therapist or discontinuing therapy) to being told before the first session that certain information was not confidential); Schmid et al., supra, at 354 (sixty- seven percent of patients would be upset or angry if their confidences were revealed without permission); Paul S. Appelbaum et al., Confidentiality: An Empirical Test of the Utilitarian Perspective, 12 Bull. Am. Acad. Psychiatry & L. 109, 114 (1984) (fifty-seven percent of patients said therapists' revelation of information without their permission would adversely affect the therapeutic relationship). Thus, studies show that when clients are told that their therapist might be required to disclose their communications in court, their willingness to discuss sensitive topics declines markedly. See Daniel W. Shuman et al., The Privilege Study (Part III): Psychotherapist-Patient Communications in Canada, 9 Int'l J. of L. and Psychiatry 393, 407, 410, 416, 420 Table I (1986); Shuman & Weiner, supra, at 919-20, 926, 929 Appendix Table I; Comment, Functional Overlap Between the Lawyer and Other Professionals: Its Implications for the Privileged Communications Doctrine, 71 Yale L.J. 1226, 1255 (1962) (seventy- one percent of people questioned by the author would be less likely to make full disclosure to a psychotherapist if the therapist had a legal obligation to disclose confidential information if asked to do so by a lawyer or judge). See also Note, Where the Public Peril Begins: A Survey of Psychotherapists to Determine the Effects of Tarasoff, 31 Stan. L. Rev. 165, 183 (1978) (majority of therapists surveyed by the author "thought that patients will withhold information important to treatment if they believe the therapist may breach confidentiality"). [FN6]

Researchers have also found that fear of disclosure may cause some clients to terminate prematurely the psychotherapeutic relationship. See id. at 177 n.67 (one quarter of therapists surveyed reported that they had lost a client because he or she feared a breach of confidentiality); Miller & Thelen, supra, at 18; Shuman & Weiner, supra, at 926; Schmid et al., supra, at 354 (seventeen percent of patients would leave treatment if verbal information were disclosed without their consent).

The threat of public disclosure may also deter persons with mental or emotional problems from seeking needed treatment in the first place. See Jacob J. Lindenthal & Claudewell S. Thomas, Psychiatrists, the Public and Confidentiality, 170 J. Nervous & Mental Disease 319, 321 (1982) (thirty-three percent of nonpatients in survey said that the possibility that a psychiatrist might divulge confidential information would deter them from seeking therapy; twenty-two percent of patients said they had held back from seeking psychotherapy because of a fear of disclosure); Louisell & Sinclair, supra, at 52. "Unlike the patient with physical ailments or complaints, who will likely consult a physician regardless of whether confidentiality is guaranteed, a neurotic or psychotic individual may seek help only if he is assured that his confidences will not be divulged, even in a courtroom." Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence 504[03] at 504-18; see also In re Doe, 964 F.2d at 1328 (recognizing that communications from a patient to a psychotherapist typically involve more personal information than communications to other kinds of doctors); Lora v. Board of Educ., 74 F.R.D. 565, 571 (E.D.N.Y. 1977) (same).

Petitioner cites a trilogy of studies for the proposition that the existence of a privilege has no effect on communications between clients and therapists. Pet. Br. at 28. The researchers who conducted these studies, however, in fact concluded that some form of psychotherapist-patient privilege should be recognized. See Shuman et al., supra, at 417-18. These studies do demonstrate that clients ordinarily assume that their communications with their psychotherapists will be held in confidence. See Appelbaum et al., supra, at 113-15; Thomas V. Merluzzi & Cheryl S. Brischetto, Breach of Confidentiality and Perceived Trustworthiness of Counselors, 30 J. of Counseling Psychol. 245, 250 (1983). [FN7] Therefore, it is not surprising that these studies found no effect when clients were told that a statutory privilege does in fact exist. Given the prevalent assumptions made by clients, the relevant inquiry is not whether knowledge of a privilege encourages communications but whether knowledge of its absence would deter or impede communications. See Developments in the Law--Privileged Communications: Part II. Modes of Analysis: The Theories and Justifications of Privileged Communications, 98 Harv. L. Rev. 1471, 1475 (1985) [hereinafter Developments--Part II]. Examining that question, the studies found that when clients were informed that their psychotherapist could be forced to disclose their communications in court, the degree of disclosure by clients about sensitive subjects dropped markedly. [FN8] See Shuman et al., supra, at 407, 410, 416, 420 Table I; Shuman & Weiner, supra, at 919-20, 926, 929 Appendix Table I. See also Kathryn M. Woods & J. Regis McNamara, Confidentiality: Its Effect on Interviewee Behavior, 11 Prof. Psychol. 714, 719 (1980) (interviewees who were told that their communications might not be strictly confidential were less open in their disclosures than those interviewees who were given either confidential instructions or no special expectations regarding confidentiality).

C. Society Has a Strong Interest in Fostering the Psychotherapeutic Relationship and in Protecting Client Privacy.

There is likewise no dispute that the psychotherapist-patient relationship is "one that society considers worthy of being fostered." In re Doe, 711 F.2d 1187, 1193 (2d Cir. 1983). Countless people seek professional help to cope with daily stress, family turbulence, and severe emotional trauma, and research has shown that psychotherapy can be highly effective in addressing these problems. See Mary L. Smith et al., The Benefits of Psychotherapy 124 (1980) (the results of a comprehensive statistical analysis "of the research literature as a whole ... show unequivocally that psychotherapy is effective"). It is surely in the interest of society as a whole to nurture the emotional health of its members, and mentally healthy people are more likely to be productive members of society. See, e.g., Fla. Stat. ch. 490.002 (1993) ("The Legislature finds that as society becomes increasingly complex, emotional survival is equal in importance to physical survival."). In addition to the benefit reaped by society from its members' emotional well- being, psychotherapy has other benefits. For those mentally ill people who have a potential to be dangerous, an effective psychotherapeutic relationship can play a key role in minimizing violent or self-destructive behavior. See In re Zuniga, 714 F.2d at 639; In re Grand Jury Subpoena, 710 F. Supp. 999, 1010 (D.N.J. 1989).

A final consideration, separate and apart from the societal interest in fostering the psychotherapeutic relationship, is the individual client's interest in keeping his intimate thoughts and feelings private. The damage resulting from compelled disclosure is more than the detrimental effect it may have on the therapeutic relationship; the invasion of privacy caused by forced breach of an entrusted confidence and the revelation of a client's confidential communications is a significant harm in and of itself. See Developments--Part II, supra, at 1481.

D. The Benefits of the Psychotherapist-Patient Privilege Outweigh Its Costs.

The important considerations underlying the adoption of a psychotherapist- patient privilege must, of course, be weighed against the interest in assuring that relevant evidence is available to assist in the fair and efficient disposition of legal claims. See Trammel v. United States, 445 U.S. at 51 (the standard used for determining whether to recognize a privilege is whether it "promotes sufficiently important interests to outweigh the need for probative evidence in the administration of ... justice"). The balance strongly favors the recognition of the privilege. This Court has previously "taken note of state privilege laws in determining whether to retain them in the federal system," United States v. Gillock, 445 U.S. at 368 n.8. In this case, all fifty states (and the District of Columbia) have adopted the psychotherapist-patient privilege in some form, concluding that the benefits of the privilege in protecting the psychotherapist-patient relationship far outweigh the limited costs to the administration of justice. See Lamkin, supra, at 723-25. [FN9] There is no reason for the federal courts to strike the balance any differently. [FN10] Thus, in adopting Proposed Rule 504, the Judicial Conference Advisory Committee similarly concluded that the need to protect the confidentiality of the psychotherapist-patient relationship outweighed the need for relevant evidence in the administration of justice. See Proposed Fed. R. Evid. 504 advisory committee's note, 56 F.R.D. at 242 ("The conclusion is reached that Wigmore's four conditions needed to justify the existence of a privilege are amply satisfied."). In addition, the psychotherapist-patient privilege is advocated by many commentators. See Developments in the Law--Privileged Communications: Part IV. Medical and Counseling Privileges, 98 Harv. L. Rev. 1530, 1539 (1985) ("the psychotherapist-patient privilege has won consistent approval from courts and commentators").

The adverse effect on the search for truth would likely be minimal. Testimony about a prior communication is not the best evidence of the underlying facts asserted in that communication. See Developments--Part II, supra, at 1479. Communications to psychotherapists are especially suspect because they often represent the way the client subjectively experienced an event--his feelings and interpretations--rather than a detached and objective account of the event. See Robert M. Fisher, The Psychotherapeutic Professions and the Law of Privileged Communications, 10 Wayne L. Rev. 609, 631 (1964). Thus, the evidence to be gained by forced disclosure of such communications often will have little probative weight to offset the great prejudice inflicted upon the psychotherapist-patient relationship. See id.; Slovenko, supra, at 194 ("By and large, the data is of no value in the realism of the court.").

In sum, although privileges generally "are not lightly created nor expansively construed, for they are in derogation of the search for truth," United States v. Nixon, 418 U.S. 683, 710 (1974), reason and experience dictate that the psychotherapist-patient privilege should be recognized under Rule 501. Reason indicates that the privilege is necessary to protect the confidentiality essential to the success of the psychotherapeutic relationship, a relationship of great value to society. See Allred v. State, 554 P.2d at 418. And the recognition of the privilege by all fifty states, the adoption of the privilege by the Judicial Conference Advisory Committee, and the support given the privilege by various commentators is evidence that "experience with it has been favorable." In re Doe, 964 F.2d at 1328.

III. APPLYING THE PSYCHOTHERAPIST-PATIENT PRIVILEGE USING A CASE-BY-CASE BALANCING APPROACH WOULD SUBSTANTIALLY UNDERMINE THE VALUE OF THE PRIVILEGE.

If the Court decides to recognize a psychotherapist-patient privilege, the next question will be how that privilege should be applied in this and other cases. The Court cannot, of course, establish all of the parameters of the privilege in a single common-law ruling. See Upjohn Co. v. United States, 449 U.S. 383, 396-97 (1981). But it can establish the approach that courts should use. [FN11]

Petitioner seems to ask the Court to sanction a case-by-case balancing of interests, taking into account the importance of the legal claim, the centrality of the evidence at issue, and all of the other particular facts and circumstances of each case. See Pet. Br. at 40-42. Such an approach, however, would be inconsistent with the very policies that justify recognition of the privilege in the first place. [FN12] The purpose of the psychotherapist-patient privilege is to assure clients that they may reveal their most intimate thoughts and feelings without the fear of disclosure. That purpose will not be served if clients know that the confidentiality of their statements may be forfeited if and when some court, applying an ad hoc balancing test, decides that these communications should be revealed. As this Court has recognized, "[a]n 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." Upjohn Co. v. United States, 449 U.S. at 393.

This is not to say that a psychotherapist-patient privilege must be absolute. Rather, it means that any exceptions should be (1) limited, (2) clear and categorical, and (3) in most instances, triggered by the psychotherapeutic client's own conduct. Such exceptions are far preferable to ad hoc, case-by- case balancing because they allow clients to anticipate and/or control the extent of any forfeiture of confidentiality. See id. (if the purposes of a privilege are to be served, the communicators must be able to predict whether a particular communication will be protected). The state privilege laws provide some examples of categorical exceptions that are potentially defensible. Typically, they provide that the privilege will not apply where the client himself has either testified about the privileged communications or put his psychological condition at issue in litigation. See, e.g., Bond v. District Court, 682 P.2d 33 (Colo. 1984); State v. Cole, 295 N.W.2d 29, 35-36 (Iowa 1980). Often, the privilege is treated as waived where the client has revealed an immediate intent to harm third parties. See, e.g., Alaska Stat. 08.86.200(3) (1981 & Supp. 1992); Mass. Gen. Laws Ann. ch. 233 20B (Law. Co-op. Supp. 1995). A few states limit the application of the privilege in criminal proceedings involving violent crimes. See, e.g., D.C. Code Ann. 14-307(b)(1) (1989) (criminal proceedings involving death or physical injury); Ill. Compiled Stat. Ann. ch. 735, 5/8-802 (Smith-Hurd 1993) (homicide). Other laws exempt commitment or child custody proceedings where a person's psychological condition is a necessary factor at issue. See, e.g., Ill. Compiled Stat. Ann. ch. 740, 110/10 (Smith-Hurd 1993); Harbin v. Harbin, 495 So. 2d 72 (Ala. Civ. App. 1986).

Every such exception will, to a greater or lesser extent, undermine the value of the privilege. A person going through a divorce, for example, might feel constrained to withhold some sensitive material from a therapist in anticipation of an upcoming custody battle. But the impact of such rules will be far less severe than a regime of general balancing, which would create uncertainty in every case.

Here, for example, it would make no sense to adopt petitioner's suggestion that the privilege should not apply because the testimony of the psychotherapist constituted "crucial evidence bearing on respondent Redmond's credibility," Pet. Br. at 21, or because important civil rights were at stake, id. at 38. The privilege would have little value if it could be abrogated whenever information from therapy sessions might have a significant impact on the outcome of the case. Moreover, it is hard to see any principled basis for erecting a hierarchy of importance of federal cases in order to limit the application of the privilege to less important matters.

CONCLUSION
The judgment of the Seventh Circuit Court of Appeals should be affirmed.


TABLE OF AUTHORITIES

CASES

Allred v. State, 554 P.2d 411 (Alaska 1976)

Binder v. Ruvell, Civil Docket No. 52C2535, reported in 15 Am. Med. Ass'n J. 1241 (1952)

Bond v. District Court, 682 P.2d 33 (Colo. 1984)

Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp. 793 (N.D. Ohio 1965)

Harbin v. Harbin, 495 So. 2d 72 (Ala. Civ. App. 1986)

In re "B", 394 A.2d 419 (Pa. 1978)

In re Doe, 711 F.2d 1187 (2d Cir. 1983)

In re Doe, 964 F.2d 1325 (2d Cir. 1992)

In re Grand Jury Proceedings, 867 F.2d 562 (9th Cir.), cert. denied, 493 U.S. 906 (1989)

In re Grand Jury Subpoena, 710 F. Supp. 999 (D.N.J. 1989)

In re Zuniga, 714 F.2d 632 (6th Cir.), cert. denied, 464 U.S. 983 (1983)

Lora v. Board of Educ., 74 F.R.D. 565 (E.D.N.Y. 1977)

State v. Cole, 295 N.W.2d 29 (Iowa 1980)

State v. Evans, 454 P.2d 976 (Ariz. 1969)

Taylor v. United States, 222 F.2d 398 (D.C. Cir. 1955)

Trammel v. United States, 445 U.S. 40 (1980)

United States v. Corona, 849 F.2d 562 (11th Cir. 1988), cert. denied, 489 U.S. 1084 (1989)

United States v. Gillock, 445 U.S. 360 (1980)

United States v. Meagher, 531 F.2d 752 (5th Cir.), cert. denied, 429 U.S. 853 (1976)

United States v. Nixon, 418 U.S. 683 (1974)

Upjohn Co. v. United States, 449 U.S. 383 (1981)

LEGISLATIVE MATERIALS

Alaska Stat. 08.86.200(3) (1981 & Supp. 1992)

D.C. Code Ann. 14-307(b)(1) (1989)

Fed. R. Evid. 501

Fla. Stat. ch. 490.002 (1993)

Ill. Compiled Stat. Ann. ch. 735, 5/8-802 (Smith-Hurd 1993)

Ill. Compiled Stat. Ann. ch. 740, 110/10 (Smith-Hurd 1993)

Mass. Gen. Laws Ann. ch. 233 20B (Law. Co-op. Supp. 1995)

Proposed Fed. R. Evid. 501, 56 F.R.D. 230 (1973)

Proposed Fed. R. Evid. 502-510, 56 F.R.D. 234-56 (1973)

Proposed Fed. R. Evid. 504, 56 F.R.D. 242 (1973)

S. Rep. No. 93-1277, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 7051

MISCELLANEOUS

American Psychological Association, Ethical Principles of Psychologists and Code of Conduct (1992)

Paul S. Appelbaum et al., Confidentiality: An Empirical Test of the Utilitarian Perspective, 12 Bull. Am. Acad. Psychiatry & L. 109 (1984) 14, 16

Zechariah Chafee, Jr., Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand? 52 Yale L.J. 607 (1943)

Mark B. DeKraai & Bruce D. Sales, Privileged Communications of Psychologists, 13 Prof. Psychol. 372 (1982)

Comment, Functional Overlap Between the Lawyer and Other Professionals: Its Implications for the Privileged Communications Doctrine, 71 Yale L.J. 1226 (1962)

Developments in the Law--Privileged Communications: Part II. Modes of Analysis: The Theories and Justifications of Privileged Communications, 98 Harv. L. Rev. 1471 (1985)

Developments in the Law--Privileged Communications: Part IV. Medical and Counseling Privileges, 98 Harv. L. Rev. 1530 (1985)

Robert M. Fisher, The Psychotherapeutic Professions and the Law of Privileged Communications, 10 Wayne L. Rev. 609 (1964)

Ryan D. Jagim et al., Mental Health Professionals' Attitudes Toward Confidentiality, Privilege, and Third-Party Disclosure, 9 Prof. Psychol. 458 (1978)

Anne D. Lamkin, Should Psychotherapist-Patient Privilege Be Recognized? 18 Am. J. Trial Advoc. 721 (1995)

Jacob J. Lindenthal & Claudewell S. Thomas, Psychiatrists, the Public and Confidentiality, 170 J. Nervous & Mental Disease 319 (1982)

David W. Louisell & Kent Sinclair, Jr., Foreword: Reflections on the Law of Privileged Communications--The Psychotherapist-Patient Privilege in Perspective, 59 Cal. L. Rev. 30 (1971)

John M. McGuire et al., The Adult Client's Conception of Confidentiality in the Therapeutic Relationship, 16 Prof. Psychol.: Res. & Prac. 375 (1985)

Thomas V. Merluzzi & Cheryl S. Brischetto, Breach of Confidentiality and Perceived Trustworthiness of Counselors, 30 J. of Counseling Psychol. 245 (1983)

David J. Miller & Mark H. Thelen, Knowledge and Beliefs About Confidentiality in Psychotherapy, 17 Prof. Psychol.: Res. & Prac. 15 (1986)

Note, Confidential Communications to a Psychotherapist: A New Testimonial Privilege, 47 Nw. U. L. Rev. 384 (1952)

Note, Where the Public Peril Begins: A Survey of Psychotherapists to Determine the Effects of Tarasoff, 31 Stan. L. Rev. 165 (1978)

Donald Schmid et al., Confidentiality in Psychiatry: A Study of the Patient's View, 34 Hosp. & Community Psychiatry 353 (1983)

Daniel W. Shuman et al., The Privilege Study (Part III): Psychotherapist- Patient Communications in Canada, 9 Int'l J. of L. and Psychiatry 393 (1986)

Daniel W. Shuman & Myron S. Weiner, The Privilege Study: An Empirical Examination of the Psychotherapist-Patient Privilege, 60 N.C. L. Rev. 893 (1982)

Ralph Slovenko, Psychiatry and a Second Look at the Medical Privilege, 6 Wayne L. Rev. 175 (1960)

Mary L. Smith et al., The Benefits of Psychotherapy (1980)

Jill S. Talbot, Note, The Conflict Between a Doctor's Duty to Warn a Patient's Sexual Partner That the Patient Has AIDS and a Doctor's Duty to Maintain Patient Confidentiality, 45 Wash. & Lee L. Rev. 355 (1988)

Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence

John H. Wigmore, Wigmore on Evidence 2285 (McNaughton rev. 1961)

Kathryn M. Woods & J. Regis McNamara, Confidentiality: Its Effect on Interviewee Behavior, 11 Prof. Psychol. 714 (1980)
























Note 1. We do not understand petitioner to be challenging the Seventh Circuit's authority to recognize the privilege. See Pet. Br. at 11 ("Federal courts have the authority under Rule 501 light of reason and experience.' "); Pet. for Cert. at 7 (Rule 501 "permits the federal courts to look to 'reason and experience' in considering claims of privilege not recognized at common law"). Some courts, however, have seemingly taken this view. See In re Grand Jury Proceedings, 867 F.2d 562, 565 (9th Cir.), cert. denied, 493 U.S. 906 (1989) (with three Justices dissenting from denial of certiorari); United States v. Corona, 849 F.2d 562, 567 (11th Cir. 1988), cert. denied, 489 U.S. 1084 (1989); United States v. Meagher, 531 F.2d 752, 753 (5th Cir.), cert. denied, 429 U.S. 853 (1976).

Note 2. Although privileges must be recognized on a case-by-case basis, they should not be applied on a case-by-case basis. See note 12, infra.

Note 3. See Zechariah Chafee, Jr., Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand? 52 Yale L.J. 607, 607 (1943) (New York passed the first physician- patient privilege in 1828 and all but seventeen states recognized a doctor- patient privilege in 1943).

Note 4. In the 1970s, in some of those states where statutes had not yet been enacted, the courts recognized a psychotherapist-patient privilege on their own. See Allred v. State, 554 P.2d 411 (Alaska 1976); In re "B", 394 A.2d 419 (Pa. 1978) (recognizing a broad psychotherapist-patient privilege separate and apart from the state's statutory doctor-patient privilege).

Note 5. See also Allred v. State, 554 P.2d at 417 ("Without the patient's confidence a psychiatrist's efforts are worthless.").

Note 6. See Allred v. State, 554 P.2d at 417 ("Without foreknowledge that confidentiality will attach, the patient will be extremely reluctant to reveal to his therapist the details of his past life and his introspective thoughts and feelings.").

Note 7. That clients often erroneously assume confidentiality in the absence of a statutory privilege does not render a privilege unnecessary. A pronouncement by this Court that there is no privilege in federal court would negate this assumption and alert clients and their therapists, who have an ethical duty to inform their clients of the limits of confidentiality, that their communications could be disclosed without their consent.

Note 8. The argument that the absence of a federal privilege will have little effect on the psychotherapeutic relationship because of the low probability that disclosure will be demanded by a federal court is refuted by these data; clients would have taken into account the probability that disclosure would be sought by a court when reporting that in the absence of a privilege, they would be less likely to communicate freely. See Developments--Part II, supra, at 1476.

Note 9. Although the statutes differ in their details, the vast majority of them apply to communications made to a psychotherapist, including a psychologist, for the purpose of diagnosis or treatment. See Lamkin, supra, at 723-25. The exceptions to the privilege allowed by the majority of the states, although not uniform, are generally narrow. See id. (twenty states follow proposed Rule 504, eleven states accord the privilege the same status as the attorney-client privilege, and ten states recognize the privilege subject to no or only minor limitations).

Note 10. Moreover, the absence of a federal privilege may interfere with the accomplishment of state policies. Despite the existence of a state privilege, it is likely that a psychotherapeutic client who learns that his communications may be disclosed in federal court will believe the confidentiality of his communications to be inadequately protected, and he may consequently withhold information or terminate the relationship. In such a case, the state policy of protecting the confidentiality of the psychotherapeutic relationship is undermined by the absence of a federal privilege. See pp. 14-15, supra.

Note 11. One issue that will arise in this case is whether the privilege should extend beyond psychiatrists and psychologists to include licensed clinical social workers. While there may be some limits on the types of therapy or counseling warranting legal protection, amicus submits that the privilege should at least apply to all professionals licensed or certified by a given state to provide psychotherapy. That standard is met here.

Note 12. That Rule 501 was intended to "provide the courts with greater flexibility in developing rules of privilege on a case-by-case basis," United States v. Gillock, 445 U.S. at 367 (emphasis added), does not mean that the rules of privilege must be applied on a case-by-case basis. Thus, the courts do not determine the applicability of the attorney-client privilege on an ad hoc basis by weighing the need for the evidence in the particular case against the public benefit of protecting confidential communications to attorneys.