Carrie Jaffee, Special Administrator for Ricky Allen, Sr., Deceased Petitioner,


Marylu Redmond, et al. No. 95-266 Monday, February 26, 1996 Washington, D.C.

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:02 a.m.


KENNETH N. FLAXMAN ESQ, Chicago, Ill.; on behalf of the Petitioner.

GREGORY E. ROGUS, ESQ, Chicago, Ill.; on behalf of the Respondents.

JAMES A. FELDMAN, ESQ, Assistant to the Solicitor General, Department of justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Respondents.


Chief Justice William H. Rehnquist: We'll hear argument first this morning in No. 95-266, Carrie Jaffee v. Marylu Redmond Mr. Flaxman.



MR. FLAXMAN: Mr. Chief Justice, and may it please the court:

In Rule 501 of the Federal Rules of Evidence Congress delegated to this Court the power to recognize new evidentiary privileges consistent with the principles of the common law as interpreted in the light of reason and experience. Even before Rule 501, when this Court had full common law power to recognize privileges, the Court was very parsimonious in the privileges that it would recognize. The Court recognized a common law privilege for trade secrets, a common law privilege for informants, a common law privilege for military secrets. The Court rejected a news gatherer's privilege, and an accountant's privilege.

Following the adoption of the Federal Rules of Evidence, the Court has continued to be very reluctant to establish new privileges. The Court rejected an editorialist privilege, a state legislator's privilege, an accountant's work product privilege, and an academic peer review privilege.

JUSTICE REHNQUIST: When were the Federal Rules of Evidence adopted, Mr. Flaxman?

MR. FLAXMAN: 1973, 1 believe.


MR. FLAXMAN: And the Court limited spousal privileges. The respondents in this case ask the Court to fashion a new, broad privilege that would apply to any mental health professional engaged in psychotherapy or counseling. The number of persons engaged in these professions is countless, and the number of conversations that would be protected by this new privilege are countless.

JUSTICE ANTHONY M. KENNEDY: Well, it's not countless if they're licensed and we confine the privilege to those who are licensed. I assume you could go to every state and count how many licenses there are.

MR. FLAXMAN: Well, except the states are each day creating new counselor status positions. I think that in California, somebody after two years of an associate's degree can becomes a certified alcoholic counselor.

JUSTICE KENNEDY: But are they licensed, or do they have some state certification, or is there some document?

MR. FLAXMAN: Yes. They receive a state license, and they're

Q. Well then, I assume they could be counted.

MR. FLAXMAN: They can be counted, but it would be a very large number.

JUSTICE RUTH BADER GINSBURG: And Mr. Flaxman, they would be counted in a diversity case, is that not right?

MR. FLAXMAN: That's absolutely correct. In a diversity case, the Rules of Evidence require the federal courts to apply state law in determining privileges. This case was not a diversity case. There was a federal civil rights claim.

JUSTICE GINSBURG: Wasn't there one state claim? In addition, there was a wrongful death claim under state law?

MR. FLAXMAN: There was a supplemental claim brought under state law. The principle that was applied by the district court that was not questioned by the district court is that when there is a state law claim and a federal claim, that for the federal claim, there being no federal privilege, the rule would be to admit the evidence.

JUSTICE GINSBURG: Is there precedent that holds that the state

MR. FLAXMAN: That principle is recognized, I think uniformly within the circuits. It's consistent with the legislative history. I don't think it's been ruled on by this Court. It was not challenged by the respondents in the court of appeals, and I don't believe it's within the questions that are presented in the petition for certiorari. I think the question here is that the agreed question is whether there should be a federal privilege for this kind of evidence, and this kind of evidence that we're focusing on is not confidential communications about dreams or feelings.

JUSTICE DA117D H. SOUTER: Well, is it different in kind from the kind of evidence that would be privileged-under a privilege for clinical psychologists? Does the social worker here learn something different in sort of standard counseling


JUSTICE SOUTER: From what a clinical psychologist learns and hears?

MR. FLAXMAN: Well, we don't know, on this record, what kind of therapy was actually being administered. As a general rule, I think a legislature could make a rational distinction between social workers and clinical psychologists and psychiatrists.


MR. FLAXMAN: Because they'd be different kinds of therapy.

JUSTICE SOUTER: Well, what is the difference?

MR. FLAXMAN: Well, I think as a rational distinction a legislature could say that a psychiatrist and a clinical psychologist axe going to be more concerned with psychic reality, and a social worker would be more concerned with helping somebody deal with problems that they're facing.

JUSTICE SOUTER: I mean, that sounds very sensible just based on the language we're using. As a matter of positive knowledge, is that correct?


JUSTICE SOUTER: It sounds like a reasonable answer, but is it true, I guess is what I'm saying.


MR. FLAXMAN: Unlike the number of people who are licensed, that's a question that can't really be ascertained. It can be debated by scholars. It can be debated by interest groups.

JUSTICE SOUTER: Can we say that there simply are no clear, standard cases on which we can answer that question? In other words, psychiatric social workers do all sorts of things. Who knows what they're doing, is that sort of what you're saying?

MR. FLAXMAN: That's correct. Our approach.

JUSTICE KENNEDY The brief of the American Psychiatric Association I take it, correct me if I'm wrong, supports the Respondent here, and they don't ask that we draw the line that you're suggesting in this colloquy with Justice Souter.

MR. FLAXMAN: That brief

JUSTICE KENNEDY Or am I incorrect?

MR. FLAXMAN: No, I think you're absolutely correct, but I think they're incorrect in reading the record in this case. The record in this case doesn't support the claim that there was psychoanalytic counseling going on with the social worker and respondent Redmond. The record in this case doesn't reflect anything about the type of therapy

JUSTICE KENNEDY Well, but I infer from their position that formal psychiatric or psychoanalytic sessions are not necessarily different in their objectives than clinical counseling in the more ordinary sense, assuming there's an aura of confidentiality about it, where the confidentiality is expected on both sides.

MR. FLAXMAN: No, perhaps I'm misreading their brief, but I think they make a distinction between psychoanalysis and counseling. Psychoanalysis is dealing with psychic truth. Not with what really happened, but with a person's feelings and emotions and dreams about what happened, and about someone's childhood.

JUSTICE SANDRA DAY O'CONNOR: Well, Mr. Flaxman, I take it you would not extend in a federal case a privilege to a psychiatrist.

MR. FLAXMAN: That's correct. Our primary position is that there should not be any privilege.


MR. FLAXMAN: That when there are confidential interests, and we

JUSTICE O'CONNOR: Regardless of what differences there might be?


JUSTICE O'CONNOR: In the therapy or the nature of the questions?

MR. FLAXMAN: That's our primary position, that the confidential interest-and we concede that there are confidential interests in counseling and therapy.

JUSTICE O'CONNOR: And yet all 50 states recognize some form of privilege in this area.

MR. FLAXMAN: Well, some of them--they recognize some form of privilege. Some of those privileges amount to nothing more than the balancing test, the district judge's, the trial judge's discretion that we're seeking in this case, and the states have made different exceptions, and many states

JUSTICE O'CONNOR: Now, the court below didn't adopt a clear rule of privilege and that's that. It went on to balance the need for the evidence?

MR. FLAXMAN: Well, the court below adopted a very unconventional definition of cumulative. It said, I think, that because there were four witnesses who were family members of the deceased, and one police officer on the other side in the civil rights case, our learning what the police officer told the social worker, our learning that the police officer had had memory problems, would be cumulative.

JUSTICE O'CONNOR: In the area of privileged communications do federal courts typically engage in a balancing whether to apply the privilege or not?

MR. FLAXMAN: The one circuit that has expressly adopted a balancing test, and describes the privilege that it was adopting as nothing more than a requirement that the district judge balance the privacy interest with the opponent's need to know.

CHIEF JUSTICE REHNQUIST Well, that's really not much of a privilege, is it, if everything is going to be balanced at the time the evidence is sought to be admitted. The time the privilege is supposed to work is when the person either feels free or does not feel free to confide to the professional therapist.

MR. FLAXMAN: Well, we're not seeking disclosures about confidences about feelings or about dreams. We want to know what the client-what the respondent told the social worker about the incident. The district judge said that's all we can get.

CHIEF JUSTICE REHNQUIST. Well, but that may be a very difficult line to draw. You say you don't want the person's mental reflections and that sort of thing, but it's not always easy to separate those from an account of what happened.

MR. FLAXMAN: Well, the district judge and the magistrate judge who supervised the deposition of the respondent didn't have any trouble dealing with that. It was very clear that we could ask, what did you say about the incident, and when we tried

JUSTICE GINSBURG: Mr. Flaxman, correct me if I'm wrong about this, but I thought that part of what you were asking did involve mental impressions to the extent that you were asking for the notes of the social worker.

MR. FLAXMAN: The notes of the social worker only came up after the respondent testified that she could not recall any of her conversations with the social worker.

JUSTICE GINSBURG: Are you now conceding that mental impressions of the social worker, mental impressions reflected in her notes, are things to which you do not have access?

MR. FLAXMAN: As a matter of relevancy, that's correct, and the district judge said that we could not get her notes when he was ruling on the relevancy question. The district judge said we could get notes that relate to conversations about the incident. It was after

JUSTICE GINSBURG: But the conversations, the notes, mix in, as lawyer's notes do, the social worker's own mental impressions with things that the patient or client said about what happened.

MR. FLAXMAN: Well, we were given three pages of heavily redacted notes which made clear the things that the client had said about the incident.

JUSTICE GINSBURG: But I -- please just straighten me out on what your position is. I thought you were objecting to the reactions.


JUSTICE GINSBURG: I thought you were saying, we want her notes, without the editing.

MR. FLAXMAN: We objected to that. The district judge ruled against us, and we're not challenging the district judge's ruling on that, and we've never challenged the district judge's ruling on the reactions. The district judge held a hearing to inquire about these. I don't recall that came from respondent Redmond when she was asked about the contents of conversations with the social worker.

After hearing and observing the character and demeanor of the witness, the district judge said these denials are wholly incredible, and the only way to refresh her recollection is to review all of the notes, and the review just for counsel's eyes only. That order about production of the notes wasn't about a privilege or about confidentiality, it was to help us cross-examine her. It was sanctioned for this meeting.

JUSTICE KENNEDY The propriety of that particular resolution I'm not sure is before us, or seems to me very odd. It's standard for you to ask a witness, have you talked to your attorney, and the unprepared witnesses will say, oh, no. Well, everybody knows that that's incredible, but if the witness responds in that incredible way, that isn't an open door to then inquire about all the conversations with the attorney.

MR. FLAXMAN: That's correct. The attorney-client-

JUSTICE KENNEDY And it seems to me that if this is any kind of a privilege, that the same rule should apply here. If she makes a statement that's incredible that she didn't go to a social worker or that she didn't discuss the event, I don't think that necessarily opens the door under the trial judge's ruling to explore everything that was said under any conventional privilege. Now, if you want to have some different

sort of privilege here, I suppose that's something altogether separate,

MR. FLAXMAN: Well, there's a vast difference between conferring with an attorney who is an officer of the court, who is interested in following the law and not helping somebody change their recollections of an incident, to going into therapy.

CHIEF JUSTICE REHNQUIST You say an attorney isn't always interested in changing someone's recollections of an incident?


MR. FLAXMAN: An attorney should not be helping somebody change their recollections and commit perjury, and if an attorney does that, then the attorney is subject to sanctions.

If a therapist does that, and helps somebody sleep at night after they did a horrible thing, then the therapist has succeeded. The goals of therapy are quite different than the goals of an attorney. An attorney is ultimately answerable to the court as an officer.

JUSTICE ANTONIN SCALIA: Mr. Flaxman, you said earlier that the privilege recognized by some states, which amounts to a balancing of the importance of the information versus the--I guess, what, the confidentiality of it, that that isn't much different from what would be applied anyway in the absence of a privilege.

MR. FLAXMAN: In some states there is a judicial override. There's a privilege, there are exceptions to the privilege, then there's a final exception that provided, however, the trial court may in the exercise of its discretion

JUSTICE SCALIA: Allow it in.

MR. FLAXMAN: Or allow it to be disclosed.

JUSTICE SCALIA: Yes, but that still is a privilege of sorts, isn't it?

MR. FLAXMAN: It's a privilege

JUSTICE SCALIA: I mean, it's different from the rule which would be applied otherwise.

MR. FLAXMAN: 'that's correct. It's like the Second Circuit's privilege that's just a balancing test.

JUSTICE SCALIA: Now, of these privileges that exist in the states, has any of them been adopted judicially, as a matter of common law? Are they all legislated?

MR. FLAXMAN: The Alaska Supreme Court adopted it, and also the Arizona Supreme Court. Other than that, all of the privileges have been adopted by legislative action.

JUSTICE SCALIA: What is the nature of the Alaska and the Arizona privilege ?

MR. FLAXMAN: The Alaska privilege applied to psychologists and psychiatrists and did not extend to social workers, and the Arizona


MR. FLAXMAN: That's correct.

JUSTICE SCALIA: It's an absolute privilege?

MR. FLAXMAN: No. Well, I think all of the privileges have been limited with the duty to disclose that someone is dangerous, or that there's a child abuse admission. There are no absolute privileges in psychotherapy in any state in this

JUSTICE SCALIA: And that includes Alaska and Arizona?

MR. FLAXMAN: That's correct. There are always instances where a therapist is required by law to make disclosures, and so there can't be this guarantee of absolute privilege which the American Psychiatric Association would urge and would seek.

JUSTICE SCALIA: You asked us to recognize a line between statements about fact and statements about feeling, and I confess that I'm skeptical that we could do that. What if somebody says to the social worker or the psychologist, "I feel bad about killing somebody." Is that on one side of the line or the other?

MR. FLAXMAN: I think that's on the side that we don't get. I feel bad is

JUSTICE SOUTER: Even though there's an implicit admission in it?

MR. FLAXMAN: That's right. I think that invades the

JUSTICE SCALIA: Why is "feeling about killing somebody" fact?

MR. FLAXMAN: Because the district judge could say that kind of response is the response that anybody would feel, even if it was justifiable, and the probative value of that statement that I feel bad

JUSTICE SCALIA: What if he says, "I didn't do it"?

MR. FLAXMAN: The statement, "I didn't

JUSTICE SCALIA: "I didn't kill anybody." That's his defense. "I did not kill anybody."

MR. FLAXMAN: "I didn't kill anybody" is a statement about the incident. That should be disclosed.

JUSTICE SCALIA: No, I'm saying that's his legal position, "I did not kill the decedent whom I am accused of killing." Go back to our statement, "I feel bad about killing somebody." Is it subject to the privilege? Would it be subject to a privilege or not?

MR. FLAXMAN: I would say that a district judge would require that that denial would have to be disclosed, that it wouldn't be privileged, it should not be hidden from the Government in a criminal case, or from a plaintiff in a civil case.

JUSTICE SOUTER: So there's no analytical distinction then between the fact and the feeling.

MR. FLAXMAN: That's why we believe this should be a question for the district judge, who can balance all of these factors. In your hypothetical

JUSTICE SOUTER: Yes, but even on your balancing theory I thought the judge was supposed to draw a line between fact and feeling. Maybe I misunderstood you.


JUSTICE SOUTER: Balancing the appropriateness of admitting the fact as against other interests?

MR. FLAXMAN: I think that's one of the things that the trial judge could be balancing, whether it's fact or feeling, but also the need for the evidence.

JUSTICE SCALIA: I don't understand that, "the need for the evidence"? You come here saying there is no privilege, but you're going to let the court balance the need for the evidence?

MR. FLAXMAN: With the confidentiality interests that are involved in therapy.

JUSTICE SCALIA: Oh, okay, so you're not denying there ought to be a privilege?


JUSTICE SCALIA: We're just arguing about what the scope of it ought to be.

MR. FLAXMAN: No, I am denying there should be--if there's a privilege, then-

JUSTICE SCALIA: You see, I thought you were arguing on the basis of relevance before. I thought you were saying, the facts come in because they're relevant, the feelings don't come in because they're not, because they aren't relevant.


JUSTICE SCALIA: There's no balancing there at all. There's a determination of what's fact and what's feeling.


JUSTICE SCALIA: But now you say there is a balancing, so you're willing to acknowledge that some stuff doesn't get in because it's subject to

MR. FLAXMAN: No, what I'm willing to say is that in an appropriate case the district judge could say that these feelings have so little probative value, even if they are relevant they should not come in.

If there was a case where there are five police officers who each say that the officer who shot did so because the man had a knife and was about to plunge it into the back of another man, the therapy admissions or therapy statements of that fifth police officer who did the shooting would have so little probative value that the confidentiality should not be invaded.

CHIEF JUSTICE REHNQUIST That really isn't much of a privilege at all.

MR. FLAXMAN: We are saying that there should not be a privilege, that the district judge should consider relevancy, should consider the confidential interests, should consider the impact of disclosure on the person who's in therapy


MR. FLAXMAN: Because there are confidential interests involved in therapy.


MR. FLAXMAN: Not privilege, just

JUSTICE SCAM: No, not a privilege, just confidential interests. You want us just to call it a confidential interest instead of a privilege, is that it?

MR. FLAXMAN: If there is a privilege, then the burden shifts to one who has to pierce the privilege.

In this case, what happened is that the respondent came forward and said, I don't have to demonstrate that it was psychotherapy. I don't have to demonstrate that there was a promise of confidentiality. I don't have to demonstrate that disclosure would interfere with the counseling relationship. All I have to do is to say, I saw a social worker and discussed things with her.

JUSTICE STEPHEN BREYER: If you wouldn't have to say that, why, in fact, are you saying that there should not be a privilege? I'm not interested in the semantics. I'm interested in this--If a woman goes to a doctor and has a physical problem, there is a privilege for confidential communications between the patient and her doctor made for the purposes of diagnosis or treatment if the doctor is licensed by the state to perform that diagnosis or treatment. Why should there not be precisely the same privilege where the doctor is engaged in diagnosis or treatment of a mental or emotional condition? Why should there be a distinction


JUSTICE BREYER: Why a distinction between a doctor who diagnoses or treats a mental or emotional condition and a doctor who treats a physical condition, provided that the state licenses the individual to engage in that diagnostic or treatment profession?

MR. FLAXMAN: The lower federal courts, and this Court has never reached the question

JUSTICE BREYER: I'm not saying what the lower


JUSTICE BREYER: I'm saying what reason is there


JUSTICE BREYER: Why in logic or policy make that distinction?

MR. FLAXMAN: There is no reason for a physician-patient privilege and that privilege is not recognized in the federal courts.

JUSTICE BREYER: No, look, I'm asking why is it any different where, instead of seeing the doctor for purposes of diagnosis or treatment of your itch, or cancer, or worse, you see that doctor or psychologist or social worker licensed to engage in psychotherapy because you have a very serious, or less serious, mental or emotional problem? Why in reason or logic or policy should one try to make such a distinction?

MR. FLAXMAN: Well, there are many distinctions that can be made, but the fundamental reason why there's no need to make that distinction is because there is no privilege for when you go to a doctor and say "I've a broken foot."

JUSTICE BREYER: I'll I try once more. I'm not saying what there is. I'm asking what there should be.


JUSTICE BREYER: And what I'm asking is-it's only me who's interested, perhaps, but I am interested-is there any reason in logic or policy, is there any reason, other than what the courts have held? I'm not interested, for this question, what courts have held in the past. I'm interested in whether there is a reason in logic or policy for drawing the line that I just referred to.

MR. FLAXMAN: There's no reason for drawing the line. If the respondent had gone to a physician and in the course of getting treatment for a broken finger said, "I can't remember pulling the trigger," that statement should be admissible in the Federal

JUSTICE BREYER: Am I not being clear? I'm saying, what is the difference whether you go to a physician to diagnose your cancer, skin disease or whatever, or if you go to a licensed psychologist or psychotherapist or psychiatrist for diagnosis or treatment of a mental or emotional condition? That's the line I'm talking about. What's the reason for drawing that line?

MR. FLAXMAN: If the Court is willing to recognize a privilege for physician patient communications, then the Court should recognize a psychotherapist privilege. The Court has never recognized the doctor-patient privilege, and the Court should not recognize the psychotherapist-client privilege. In Upjohn v. United States 1449 U.S. 383 (1981)], the Chief Justice, then Justice, wrote that the Court doesn't lay down broad rules but decides only the case before it.

JUSTICE SCALIA: I suppose if we did recognize a doctor's privilege, which we haven't, it would be a lot less expensive, wouldn't it? Very few people go to a doctor in order to get treatment and say, "I just killed somebody," whereas a lot of people go to psychiatrists and say, "I just killed somebody. I feel really bad about it."

MR. FLAXMAN: I don't think that

JUSTICE SCALIA: I mean, don't you think the cost of the psychiatrist privilege would be a lot higher than the cost of the medical doctor's privilege?

MR. FLAXMAN: Oh, it would be specially in a case like this, where we've had the disclosures made in November 1991, which is five or six months after the incident, that respondent Redmond was unable to recall pulling the trigger. That kind of information, which is relevant to her believability and her ability to come into court and recall and recount what happened, is the kind of information that would be shielded from us by the broad privilege that's sought in this case.

JUSTICE BREYER: How many states have a physician's privilege, by the way?

MR. FLAXMAN: Virtually all states.

JUSTICE BREYER: Virtually all of them, and yet we don't in federal courts?

MR. FLAXMAN: That's correct.

JUSTICE BREYER: Has this Court affirmatively disavowed a medical doctor's privilege, or has it just never passed on it?

MR. FLAXMAN: The Court has never passed on it, and

JUSTICE BREYER: And how about the circuits?

MR. FLAXMAN: The circuits have uniformly rejected a physician privilege. The circuits have generally recognized a clergyperson privilege, and this Court has in dicta suggested that there should be such a privilege, and that privilege is quite different than the privilege with the therapist. If somebody goes to a clergyperson and talks about having done a horrible thing, the clergyperson probably will not engage in 50 or 75 therapy sessions to help the memory.

JUSTICE KENNEDY Suppose the clergyperson is also a licensed social worker?

MR. FLAXMAN: The question then is whether the sessions were clerical in nature or counseling in nature. MY understanding of clerical

JUSTICE KENNEDY Suppose the answer is both?

MR. FLAXMAN: That would be a difficult question for the district judge to balance.


MR. FLAXMAN: If the clergyperson was doing therapy and was helping somebody recall memories, or get a sharper recollection of what happened, then it would not be what the organized religion probably would recognize as clerical-penitent counseling, and I think that it's more likely that a clerical person who's confronted with someone who's confessing to a horrible thing would encourage that person to go turn him- or herself in rather than helping them process it in their mind so they remember it differently. I'd like to reserve the rest of my time.




MR. ROGUS. Mr. Chief Justice, and may it please the Court:

In enacting Rule 501, Congress declared that the federal courts are to look to reason and experience in determining evidentiary privileges. The intent behind the rule as evidenced both in the legislative history and as acknowledged by this Court in the Trammel v. United States 1445 U.S. 40 (1980)] was not to freeze the law of privilege as it existed but to allow the courts flexibility to develop rules of privilege, once again in line with reason and experience.

Now, it is true, as Mr. Flaxman has mentioned, that decisions of this Court have counseled caution in terms of the recognition of privilege. However, this Court has also stated that when a privilege promotes sufficiently important interests to outweigh the need for probative evidence, recognition and implementation of a privilege is proper.

Now, in this case the Seventh Circuit acted consistent with its authority under Rule 501 and consistent with this Court's directive in Trammel, and determined that reason and experience justified a recognition

JUSTICE O'CONNOR: Mr. Rogus, did the court also balance need for the evidence with its notion of the privilege?

MR. ROGUS: The court did engage in balancing.

JUSTICE O'CONNOR: Is that the way that federal courts normally approach the exercise of a privilege?

MR. ROGUS. That is a technique and approach that was mentioned by the Second Circuit in the Doe case [In re Doe, 964 F.2d 1325 (1992)]. In actuality, what's at work here

JUSTICE O'CONNOR: Do you defend that as an appropriate approach?

MR. ROGUS: The need for balancing is appropriate particularly with respect to determining when an exception to a privilege should come into play.

JUSTICE O'CONNOR: Well, would that be the approach in the case of an attorney-client privilege, for example? You balance the need?

MR. ROGUS: Well, I think that has been done in the sense of the recognition of the privilege, for example, in the crime or fraud exception. While the attorney-client privilege is recognized, there are no exceptions that come to mind immediately. The crime fraud exception

JUSTICE KENNEDY But that's not balancing. That's a boundary to the privilege. It prevents the abuse of the privilege. It has nothing to do with the requirements or the exigencies of, and the necessities of producing the information in a particular case, and I'm quite surprised that you support the balancing idea. I should have thought you would say the privilege either should be granted or it shouldn't.

MR. ROGUS: Well, the underlying privilege should be granted. The balancing that we refer to is the balancing of the important interests that are served by recognition of the privilege against the need for probative

CHIEF JUSTICE REHNQUIST Is that a case-by-case balancing?

MR. ROGUS. No, not a case-by-case balancing. It's a balancing at the policy level weighing the interests, the important interests against the need for probative evidence.

CHIEF JUSTICE REHNQUIST Well, is it possible

JUSTICE SCALIA: You mean, it wouldn't matter if it's the only source of this evidence available in this particular case? I had thought that some of the state courts that do balancing would consider that this thing couldn't be obtained from any other source, it's crucial to the defense or the plaintiffs

MR. ROGUS. If it were the only evidence available on a material element of the cause of action, that would certainly affect the balancing.

JUSTICE SCALIA: Well, I'd consider that case-by-case, myself.

CHIEF JUSTICE REHNQUIST If you subscribe to what justice Scalia just said, the purpose of the privilege is to enable the attorney or the doctor, whoever, to tell a person, I suppose, that what you say here is confidential, and if instead he has to say, what you say here may be confidential, depending on how some future court may balance the need for your testimony, that's much less disposed to get people to confide.

MR. ROGUS: Well, in this instance, psychotherapists do need to tell their patients that their communications are confidential.

JUSTICE SCALIA: So you're in effect starting with a presumption of confidentiality subject to case-by-case balancing on the issue of exception?

MR. ROGUS: A presumption of confidentiality, yes.


MR. ROGUS. In this

CHIEF JUSTICE REHNQUIST That's a much weaker sense of privilege, then, than the sort of classic privileges.

MR. ROGUS. We did not and we are not asking for recognition of an absolute privilege.


JUSTICE BREYER: Well, how does it stack up with the doctor? I'm thinking now about the other side. They're saying, well, it should be the same as the doctor who is diagnosing you for cancer and so forth.

JUSTICE BREYER: Are you asking for a psychiatric privilege where the doctor with the physical injury wouldn't have one? Are you saying treat both alike? What is the relationship?

MR. ROGUS. I'm saying if anything the psychotherapist-patient privilege should be recognized more readily than the doctor-patient because of, once again, the nature of the privacy interests involved, the types of things that people go to see psychotherapists for, the types of things that people discuss with psychotherapists that touch upon very--not always, but very frequently very highly private personal concerns, so if anything there's more reason to recognize the psychotherapist

JUSTICE O'CONNOR: And you think that the doctor doesn't receive communications of a very private nature from a patient?

MR. ROGUS: I am not saying that a doctor does not.

JUSTICE O'CONNOR: Do you concede that there is no doctor-patient privilege recognized in the federal courts?

MR. ROGUS: I believe that it has not been recognized, but that is not

JUSTICE O'CONNOR: And that that is the general rule in the courts, in the circuits?

MR. ROGUS: I believe that is correct.

JUSTICE BREYER: So what are we supposed to do about that? That's what I mean. Are we supposed to say that just a psychiatrist and psychoanalyst have it? What are we supposed to do about doctors in general?

MR. ROGUS. Psychotherapists should have the privilege. We are looking at a function-psychotherapy-which has not always coincided with medical practice. There is some overlap, but it does not always coincide. We are zeroing in on the function of psychotherapy, the treatment and diagnosis of mental and emotional conditions and disorders.

JUSTICE SOUTER: You keep speaking of the function, and if you speak in terms of the function, then there's never any question as to whether, if a privilege for psychotherapy is recognized, it would cover social workers, as in this case. Let's assume that I agree that there ought to be a privilege so far as communications back and forth between the patient and a psychiatrist are concerned and the patient and a clinical psychologist are concerned. Is there a difference between what the clinical psychologist does in the kind of standard case and what the psychiatric social worker does?

MR. ROGUS: My understanding, based upon what was developed in the record, and the research, and the information provided by the amici, is that the training, the education, and the functioning of clinical social workers approaches if not equates to what clinical psychologists do in terms of performing the psycho-therapeutic function, of doing psychotherapy.

JUSTICE SOUTER: But they don't have the advanced only clearly standardized difference.

MR. ROGUS. Well, I wouldn't say that one degree is more advanced than another. There are a lot of Ph.D.'s, for example, in the clinical social work field, just as there are Ph.D. advanced degrees in psychology. Much of the training, the clinical experience, as I believe was developed in the record with respect to Ms. Beyer, the clinical social worker who was involved in this particular case, demonstrates the amount of experience, the quality, the type of experience she had, much of which overlapped with that which a clinical psychologist

JUSTICE KENNEDY: I take it, in line with Justice Source's questioning, that most states license clinical social workers and they pass some sort of an examination.

MR. ROGUS: It is our understanding that of the 50 states that recognize privileges, 44 of them do, in fact, extend that privilege to clinical social workers.

JUSTICE KENNEDY: And do those persons who hold that privilege have a duty of confidentiality under their own professional ethical standards?

MR. ROGUS: Yes, they do. That's set forth

JUSTICE KENNEDY: But you're saying that the courts should not recognize what is generally understood as a duty of confidentiality, even in degree. That's the patient-doctor relation, much less this.

MR. ROGUS. If that is what my previous remarks sounded like, that is not what I meant to say. They should recognize privilege.

JUSTICE SCALIA: I suppose I have a duty of confidentiality. If somebody comes up to me and, let's say, my nephew comes up to and says, you know, Unc, I want to tell you something in strictest confidence, and I say yes, you tell me that, I promise you I won't tell this to anybody. Is that enough that I've undertaken a duty of confidentiality to justify the creation of a privilege?

MR. ROGUS: But you are not engaging, under the facts as you've laid them out, in a psychotherapeutic situation.

JUSTICE SCALIA: No, I understand that, but I just don't see the relevance of the fact that there is a duty of confidentiality here. There are duties of confidentiality in a lot of situations which we've simply, utterly ignored. Parent-child, there's no parent-child privilege, for Pete's sake. That's certainly a very confidential relationship.

MR. ROGUS: This arises in the setting of a professional approach to psychotherapy and the importance and value that society puts in


MR. ROGUS: Having and maintaining such a profession for the purpose of aiding members of society, and in this particular

JUSTICE SCALIA: That allows us

JUSTICE KENNEDY: The fact that a client expects that his communications to an attorney are going to be confidential is relevant in our creation of the privilege, is it not?

MR. ROGUS: It certainly is, an expectation of confidentiality, and there is an expectation of confidentiality and the protection of private communications when a patient engages in a psycho-therapeutic -

JUSTICE SOUTER: Okay, so we can draw the line simply by saying the line's got to be drawn somewhere, and we're going to draw it at the point at which the person receiving the communication is licensed by the state. But in principle, apart from that line-drawing methodology, there's no reason to draw it there, is there? I have had law clerks tell me things in confidence, and I presume they felt better after telling me. (Laughter.) I assume there was some value to it, but you would not recognize the privilege in that case, but there's no reason in principle why you shouldn't, is there?

MR. ROGUS: Once again, we are talking about a particular function here.

JUSTICE SOUTER: Well, the function is feeling better, and I don't denigrate that, by telling somebody something, and so the function is being performed--talk about poor man's psychiatrist, but the function is being performed when they tell me, and so it seems to me there's no reason in principle why I shouldn't be able to claim the privilege. And your-I think your answer is, well, we've got to draw the line somewhere, judge.

MR. ROGUS: And the difference would be, once again, not only what--how the person feels when they have talked to you, brought to you whatever is on their mind, what they're feeling, et cetera, but what you, in turn, can tell them and help them.

JUSTICE SOUTER: What can the psychiatrist tell--even the full-dress psychiatrist, if we grant the sort of privilege that you want us to grant? What can he tell the patient?

MR. ROGUS. Well, my

JUSTICE SCALIA: What you tell me will, what, probably, most likely, be held in confidence?

MR. ROGUS: What you will tell me will be held in confidence.

JUSTICE SCALIA: He can't say that. You acknowledge exceptions.

MR. ROGUS: There are some exceptions that have been noted by the courts based on

JUSTICE SCALIA: Is there any state that has no exceptions?

MR. ROGUS: No. I believe they all have at least one exception.

JUSTICE SCALIA: And some have very broad exceptions. If it's important enough, you can get it in, right?

MR. ROGUS: That would be correct.

JUSTICE SCALIA: Well, what could a psychiatrist possibly comfort his patient with, what kind of assurance could he possibly comfort his patient with in that kind of state?

MR. ROGUS: Because the exception should be

JUSTICE SCALIA: Very little.

MR. ROGUS: Very narrowly and--there should be very few exceptions, and they should be very narrowly drawn to fit only certain categorical situations. For


MR. ROGUS: For example, I think one of the instances that was referred to during Mr. Flaxman's argument was if something should be mentioned in terms of a definite threat of harm to a specifically identified individual, if a person goes in, talks to their therapist and says, "I'm going to kill Joe Smith," and there is no reason for the clinician to doubt that that person is in fact capable of and will, and would carry out that specific threat to Joe Smith. In that instance, most of the states I believe have recognized a very narrowly drawn privilege, once again, arising out of the fact that that very specific threat to that one very specific individual is there.

JUSTICE SOUTER: But I take it even on your scheme if Smith is dead, and an admission has been made to a psychiatric social worker and to no one else, and a case cannot be proven without that beyond a reasonable doubt, without that admission, you would let the admission in, wouldn't you?

MR. ROGUS: Under the-if it were the only evidence

JUSTICE SOUTER: Right. My hypo. My hypo.


JUSTICE SOUTER: You'd let it in.

MR. ROGUS: There have been cases that allow that testimony in under

JUSTICE SOUTER: So whatever the value of being able to assure the patient of confidentiality may be, on your theory that value would be absent, because the social worker, the psychiatrist, the psychologist could not say, "What you tell me is in confidence." All he could say is, "What you tell me will be kept confidential unless they need it badly enough."

MR. ROGUS: Yes, in a sense.


MR. ROGUS: Based on

JUSTICE SOUTER: Now, what about a case like this, in which there is a claim that memory enhancement may be involved? Given the possibility that the memory enhancement in fact is memory change, I would suppose that that kind of evidence could be just as crucial as the unique evidence of guilt. Why shouldn't an exception be recognized for cases in which there is a colorable claim that memory enhancement went on?

MR. ROGUS: Several points in response to that. First of all, the record does not give any indication whatsoever that there was such enhancement. Secondly, as the Court

JUSTICE SOUTER: But there are grounds for some suspicion.

JUSTICE O'CONNOR: Would state law in this case have allowed an exception for this evidence to come in?

MR. ROGUS.:Whether under the law of the state it would have been privileged?

JUSTICE O'CONNOR: And you don't rely, apparently, in giving your responses, on what state law allows or doesn't allow? You're going to have us decide it on the basis of whether it would be needed or not?

MR. ROGUS. As the Court indicated in Trammel we certainly, in terms of formulating the federal rule, can look to state law for guidance, but inasmuch as there was a federal question involved in this case, and under the language of 501, we can look to state law for guidance, but state law as state law would not control the question.

JUSTICE O'CONNOR: All right. Well, what does 501 tell us? It tells us that 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. Now, what do you think the common law provides?

MR. ROGUS: At the common law prior to the early seventies there was no vast body of case law indicating one way or the other whether there was a psychotherapist-patient privilege or not There were courts that were starting to entertain the notion of a psychotherapist-patient privilege. Based on the analysis provided by many of the commentators, it was at about that same time that many of the courts were getting involved in addressing that issue that many of the legislatures simultaneously also began to take action in terms of not only looking at, for example, the social work profession and stepping up the amount of state regulation of the profession itself, but also enacting provisions providing for privilege.

JUSTICE O'CONNOR: What do we look to for determining what the principles of the common law are here?

MR. ROGUS: Basically we would look to the development of the law through cases and court decisions, that is correct, and as of the time was enacted.

JUSTICE JOHN PAUL STEVENS: Mr. Rogus, do you know if there are any states that recognize a psychotherapist privilege and do not recognize a doctor-patient privilege?

MR. ROGUS: Off-hand I do not know the answer to that question.

JUSTICE GINSBURG: Mr. Rogus, Mr. Flaxman said there were two states that had this privilege by virtue of court decisions. You've just explained that the legislatures were responding with kind of a dialogue. Do you know--in how many states the privilege notion began in the courts, that there was first a court declaration and then there was legislative codification?

MR. ROGUS: I do not know specifically how many. It was very few. Very few. My understanding is, just a handful of states where that is the case.

JUSTICE SCALIA: Why shouldn't we do the same? I mean, I have no doubt we have the power to pronounce a common law rule, but the variety of rules in the states is so diverse.

MR. ROGUS: And in that-

JUSTICE SCALIA: I wouldn't know which common law rule to adopt. Why shouldn't we say, you know, it looks like pretty much a policy call that different states have gone different ways, and I don't know why we should pick one of these infinite varieties of laws and impose them on the federal courts.

MR. ROGUS: But the basic thrust of what has been going on in the states is to recognize the privilege and, given once again that

JUSTICE SCALIA: It doesn't get you anywhere. You don't even know what privilege means. I mean, as you've described to us, in some states it means very little. It means only, we'll think about whether it's important enough, and if it is, you can't if it isn't important enough, you can't get it. It-I don't view this as a solid basis for saying yes, the common law has developed in a certain way.

MR. ROGUS: Thank you.





MR. FELDMAN: Mr. CHIEF JUSTICE and may it please the Court:

Rule 501 provides that the privilege of a witness shall be governed by the principles--not the specific privileges, but the principles of the common law as interpreted by the courts of the United States in the light of reason and experience. In our view, the most significant feature to look to in determining what reason and experience tells us here is the fact that all 50 states have recognized the privilege in one form or

JUSTICE SOUTER: Well, they recognize something. I mean, your brother was just saying, I think, that what we should recognize is a presumption of confidentiality subject to exception by weighing. If we go no further than to do that, is it even worth the trouble?


JUSTICE SOUTER: Why bother? Of the kind of presumption that he was arguing for, is that worth the trouble?

MR. FELDMAN: I think it would have some incremental value in increasing the confidence of patients that their communications would be confidential, but I don't think it would have the kind of value that the states generally have recognized when they've adopted

JUSTICE SOUTER: If that's all we did, should we do it at all?

MR. FELDMAN. Yes. I think that that would be something useful to do. It's not our position that that's what the courts ought to do. I think under Rule 501, the federal courts ought to take a cautious view towards the recognition of privileges. It ought to be sure to recognize the general policy of the Federal Rules in favor of the admissibility of evidence, but where a privilege is justified, and especially where the 50 states have at least uniformly recognized the important interests that are at stake in a case like this, I think the federal courts should do likewise. The fact that all 50 states have recognized it I think shows that they recognize the importance of psychotherapy in the relief of mental and psychological distress for people. I think they've recognized the need for confidentiality, the very strong need for confidentiality.

JUSTICE GINSBURG: Mr. Feldman, how could you justify a psychologist-social worker privilege without recognizing a medical doctor privilege?

MR. FELDMAN: In our view the case for medical doctor privilege has not yet been compellingly enough made, and I'll tell you why. First, there are fewer states that recognize it. Second, if you look at the way the states recognize it, it generally has even more exceptions, and there's less of it than with respect to a psychotherapist-patient privilege.

As the Advisory Committee on the proposed rules in 1973, or around there, recognized, if you look at their commentary on the psychotherapist-patient privilege, which was in those proposed rules, and the doctor-patient privilege was not, they noted that confidential communications are even more important for the successful practice of psychotherapy than for the successful practice of medicine.

JUSTICE BREYER: Well, what can I read to find out about this? I mean, I'm used to, as many of us, having diversity cases, where, of course, there is the privilege you're arguing for and also a medical doctor privilege. That's the normal case. I don't know how you distinguish between a patient who comes in with a gunshot wound, and the doctor's got to find out what happened, and a psychiatric social worker who says, I'd like you to tell me what your problem was in this case, or some other. How can you do the one without the other? And what were the objections to the doctor privilege? Why wasn't a rule written on that? What do I read to find out about this It didn't seem to me very fully developed in the briefs.

MR. FELDMAN: In the Advisory Committee notes on proposed Rule 504, they do specifically go into that question, and they cite a previous paper that was issued by the Group for the Advancement of Psychology [Psychiatry] that explored the subject more fully. There's also been a number of other things that are cited throughout the amicus briefs about it. But the general point, and the general reason why the states have seen fit to recognize one to a greater extent than the other is that, although confidentiality is no doubt important for the practice of medicine, it's important for the practice of many things. It's probably important for accountants. It's generally an important value, but the extraordinary level of confidentiality that a privilege involves, that step should only be taken where it's clearly justified.

JUSTICE SCALIA: Mr. Feldman, let's assume that the consultation occurs in a state that has under state law, the very negligible privilege that you said it's worth adopting, but it won't do a whole lot of good, so all that that person can tell the client is, you know, under state law, you have very little assurance of confidentiality.

Why should a federal court accord to that social worker or psychiatrist a greater degree of confidentiality than the state itself? Shouldn't the maximum federal protection be, where the consultation has occurred in State X, whatever confidentiality the courts of State X accord? I can't see any federal justification for going further than that, or any use, for that matter.

MR. FELDMAN: It would certainly be a possible rule to set the federal ceiling at the state floor.

JUSTICE SCALIA: Well, wonderful, but can we do that under the federal rule? It seems to me the federal rule has to be uniform, so isn't this eminently an area that we should leave to legislation?

MR. FELDMAN: I've two answers. First of all, I think Congress has made it quite clear and the Court has said in its opinions that this is something that the courts have to grapple with one way or the other. A decision not to recognize a privilege in a state that has a very strong privilege, for example, is going to do some damage to that state's policies, and what that state has recognized as necessary for the advancement of

JUSTICE KENNEDY: Well, it's not just that state's policy. It's according to the licensing system of the state, more dignity than the state itself gives...


JUSTICE KENNEDY : and I have the same trouble as justice Scalia does. I'm not sure how to handle that.

MR. FELDMAN: I wanted to get to the second point, which was that in our brief we suggest that the key question is whether a confidential relationship is formed. On that question, since states are the primary level of government that governs the relationships of psychotherapists and patients, as with most other professions, the question of whether a confidential relationship, a highly confidential, an extraordinarily confidential relationship is formed, I think it's reasonable to look to state law for that.

JUSTICE KENNEDY. So you look to licensing, plus the extent of privilege, state by state?

MR. FELDMAN: I think you'd look to the question of whether the privilege extends to this kind of a relationship. As far as the specific narrow exceptions to the state...

JUSTICE KENNEDY Under the rubric of whether or not there's a reasonable justification to believe that the communication is confidential?

MR. FELDMAN: A necessity for the application of any privilege is that a confidential relationship is formed. In attorney-client privilege, the state gets to determine who's a member of the bar. If you're not a member of the bar, there's no question that you don't have a privilege in federal court, and similarly with the marital privilege and other kinds of privilege. In the same way, it's up to the state to determine whether a confidential relationship has been formed, and that's a prerequisite for the application of the federal privilege. Once you have that, I think the exceptions in the states follow enough of a pattern that...

JUSTICE STEVENS: Mr. Feldman, in this case would Illinois have recognized a privilege for what's at issue here?

MR. FELDMAN: Yes, the Seventh Circuit so held, in fact.

JUSTICE STEVENS: I was unclear on your answer a moment ago. Are you still arguing for a uniform federal rule on privilege?


JUSTICE SOUTER: So you're not arguing for a rule that would vary from state to state.

MR. FELDMAN: It would--no more

JUSTICE SOUTER: Okay. But let me tell you why I ask the question. Part of the premise of your argument is, the value of recognizing the privilege depends upon the value of the confidentiality in the relationship. Now, we can't tell what the value of the confidentiality in the relationship is unless we go state-by-state and find out which states have strong privileges, which states have just weak privileges.

And so I guess what we would have to do is to say, well, if a majority of the states have really strong privileges, that would probably justify our recognition of the strong privilege, but if a majority of the states have a weak privilege, it wouldn't do any good for us, at least in those states, to recognize a strong privilege because it would have no effect on the relationship.

The social worker would have to say, I can't guarantee much. Is that what we should do, is sort of do a nose count and find out whether we're going to get much for our privilege or a little for our privilege?

MR. FELDMAN: I think not quite. What the federal court should do is look to see whether the state recognizes, for instance, a relationship between a psychiatric social worker and a client as being one that's entitled to a very high confidentiality protection and accords it a privilege. If in that state the state has said, social workers in this state--you can go to see a social worker, but we're not going to accord it any privilege at all, it's just not that confidential a relationship. It would be like going to see somebody about a legal problem who's not a lawyer. You can do it, I suppose, but-it's not going to be privileged.

JUSTICE SOUTER: Yes, but on your understanding, if there were 45 states that recognized a social worker's privilege and five that didn't, you would say we ought to recognize it, right?

MR. FELDMAN: I think

JUSTICE SOUTER: As a uniform federal rule?

MR. FELDMAN: No. I think


MR. FELDMAN: The federal rule should be that where the state recognizes a confidential relationship, recognizes a privilege with respect to a given category of provider, that in those cases I think there is enough uniformity in the states to say that a federal privilege is also warranted.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Feldman, Mr. Flaxman, you have three minutes remaining.



MR. FLAXMAN: Thank you. I have always been tantalized by the idea that if you tell someone, you tell this to me I'll keep it a secret, that that could be a privilege, that the court should enforce that kind of promise, and as a matter of fact, that used to be the law. It used to be called the gentleman's privilege. I think in about the 17th century to 18th century, courts stopped enforcing that privilege. In Branzburg v. Hayes 1408 U.S. 665 (1972)], this Court explicitly recognized that that used to be the law and it is no longer the law.

The question of whether the confidential communication should be protected by a privilege or protected by case-by-case balancing I think should be answered in favor of case-by-case balancing.

JUSTICE BREYER: Could I ask a question about state law? I assume that even in Illinois, the Illinois psychiatrist or social worker could not give assurance that even a state law action would not require it. And it would depend upon where the action came up. I assume that an Indiana court would apply Indiana's rules; isn't that right? So that if the lawsuit were in Indiana, the Illinois social worker, by reason of being an Illinois social worker, wouldn't have a special privilege in Indiana.

MR. FLAXMAN: That's what I believe the Court should do. The question about

JUSTICE BREYER No, I'm not saying what it should do, but isn't that the way things work? These are forum rules, so that Illinois can only assure that an Illinois social worker will not be compelled to testify in an Illinois forum.

MR. FLAXMAN: That's correct, but Illinois can't even make that assurance, because the common law trend of courts has not been to create privileges, it's been to create exceptions to broad statutory privileges. We've seen that in Illinois, where there aren't exceptions, or evidence that might be relevant in a criminal case, where courts have created an exception.

JUSTICE BREYER: Do you agree that this communication would be privileged in the Illinois courts? You don't, do you?

MR. FLAXMAN: I agree that we don't know, and we wouldn't know unless we litigated it in the Illinois courts. There was just a recent amendment to the Illinois statute which says that the social worker could reveal confidential communications to her employer, and if this was in state court we would argue that this exception and all the other exceptions require the courts, when the evidence is crucial, to fashion yet another exception.

JUSTICE BREYER: And is it true that the rule they apply is governed by the law in the state where the conversation occurred, rather than where the case is being tried?

MR. FLAXMAN: I think it's where the case is being tried, rather than where the conversation occurred, But these questions have not arisen

JUSTICE BREYER: Why has it never arisen, in 1983 [Civil Rights Act, 42 U.S.C. 19831 cases. Has no one ever tried to subpoena medical records from a hospital or a medical doctor's private records? Why have we never had to face the problem of the gunshot wound or the medical doctor who's dealing with physical problems?

MR. FLAXMAN: We don't face that problem because the district judges uniformly say there's no privilege. If it's relevant

JUSTICE BREYER: But wouldn't you think some doctor somewhere or a hospital somewhere would have faced a subpoena for some confidential patient records and would have asked us?

MR. FLAXMAN: That hasn't happened, it's just routinely accepted.

CHIEF JUSTICE REHNQUIST The case is submitted. Thank you, Mr. Flaxman. (Whereupon, at 11:02 a.m. the case was submitted.)