Kenney

Cite as: 35 GALR 345
[Georgia Law Review Fall, 2000]

Note

ROLE OF JAFFEE V. REDMOND’S “COURSE OF DIAGNOSIS OR TREATMENT” CONDITION IN PREVENTING ABUSE OF THE PSYCHOTHERAPIST-PATIENT PRIVILEGE

Lynda Womack Kenney

Copyright © 2000 Georgia Law Review Association, Inc.; Lynda Womack Kenney

1. Introduction

A mob boss discloses secrets of his criminal organization to his psychotherapist and a drug kingpin identifies his cohorts in a therapy session. [1] Are their statements evidence of criminal activity? Yes. [2] Is the evidence admissible in a federal court? Not necessarily. [3] The Supreme Court shields confidential psychotherapist-patient communications from forced disclosure in federal courts, provided that the communications were made “in the course of diagnosis or treatment.” [4] The mob boss and drug kingpin may claim that their statements to the psychotherapists are “privileged communications.” [5] The Supreme Court provided a privilege for psychotherapist-patient communications made in the course of diagnosis or treatment in order to promote a societal benefit that transcends the harm caused by occasional loss of relevant evidence in federal courts. [6]

The Court reasoned in Jaffee v. Redmond [7] that shielding psychotherapist-patient communications fosters confidence and trust between psychotherapist and patient, [8] that the mutual confidence and trust facilitates effective psychotherapy, [9] and that effective psychotherapy, in turn, promotes the mental health of the citizenry. [10] Improving the mental health of the citizenry creates a net benefit to society and thereby justifies the occasional loss of probative evidence. [11]

Where the net benefit to society disappears, however, the psychotherapist- patient privilege rationale also vanishes or is markedly diminished. [12] The United States Court of Appeals for the First Circuit determined in In re Grand Jury Proceedings (Gregory P. Violette) [13] that an individual’s criminal or fraudulent purpose in communicating with a psychotherapist extinguishes the psychotherapist-patient privilege rationale. [14] In Violette, the target of a grand jury investigation used his communications with two psychiatrists in a fraudulent attempt to obtain disability insurance and loans from insurance underwriters. [15] The First Circuit recognized a crime-fraud exception to the psychotherapist-patient privilege and refused to shield the target’s communications from disclosure. [16]

This Note focuses on the Supreme Court’s requirement in Jaffee that privileged psychotherapist-patient communications must have taken place “in the course of diagnosis or treatment” (“Jaffee treatmentcondition”). This Note contends that the Violette opinion unnecessarily discounts the sufficiency of the Jaffee treatment condition to support the psychotherapist- patient privilege rationale and to prevent abusive application of the privilege. With respect to supporting the rationale underlying the privilege, this Note contends that all confidential communications made within an established course of psychotherapeutic diagnosis or treatment should be presumed to have a valid psychotherapeutic purpose and should not be subject to judicial scrutiny for “proper purpose.” With respect to protecting the privilege from abusive or inappropriate application, this Note contends that where an individual fails to establish a genuine course of diagnosis or treatment, all communications between the individual and the psychotherapist should be presumed discoverable for failure to satisfy the Jaffee treatment condition. In the first instance, where a patient subsequently manifests a criminal or fraudulent purpose within the established course of diagnosis or treatment, the court should apply the crime-fraud exception to remove particular communications from privilege protection. In the second instance, the absence of an established course of diagnosis or treatment should render the purpose of the communications irrelevant to judicial deliberation regarding application of the privilege.

Part II discusses the nature and purpose of federal testimonial privileges. The discussion encompasses the role of privileges as exceptions to the general admissibility of relevant evidence in federal courts, [17] the rationale and parameters of the federal psychotherapist-patient privilege, [18] and the purpose and scope of the crime-fraud exception as applied in the attorney- client and psychotherapist-patient contexts. [19] Part III examines the Jaffee treatment condition. The examination includes two possible uses of a patient’s criminal or fraudulent purpose to deny application of the psychotherapist-patient

privilege, [20] suggestions of appropriate judicial procedure in considering application of the crime-fraud exception to deny the psychotherapist-patient privilege, [21] exploration of the relationship between the Jaffee treatment condition and the privilege rationale, [22] and discussion of appropriate contours for the privilege. [23]

1. Background

Congress provided in the Federal Rules of Evidence (“Federal Rules”) that evidentiary relevance, [24] provisions to assure judicial efficiency and fair results, [25] and recognition of testimonial privileges [26] govern the admissibility of evidence in federal courts. [27] While generally providing that all relevant evidence is admissible, [28] the Federal Rules also adopted exceptions to the general admissibility standard. [29] Most of the exceptions were included in accordance with the stated purpose of the Federal Rules to assure that litigation results in efficient, truthful determinations. [30] The provision allowing development of testimonial privileges, [31] however, was adopted to promote extrinsic social policy [32] at the expense of efficient, truthful determinations. [33]

1. federal testimonial privileges

Federal courts, empowered by statute to develop the rules of privilege. [34] Recognition of privileges derogates the search for truth, [35] thereby raising the possibility that “the particular value the courts are distinctly charged with-justice-is severely harmed.” [36] Accordingly, federal courts neither “lightly create[d] nor expansively construe[d]” testimonial privileges [37] and often narrow the scope of existing privileges. [38]

The Supreme Court recognizes a testimonial privilege only where the privilege facilitates a private good “rooted in the imperative need for confidence and trust” [39] which in turn promotes a public good that transcends “the normally predominant principle of utilizing all rational means for ascertaining truth.” [40] This section identifies the parameters of two established federal privileges-the attorney-client privilege and the priest- penitent privilege.

The federal attorney-client privilege is “the oldest of the privileges for confidential communications known to the common law.” [41] The privilege encompasses communications between attorney [42] and client [43] which are confidential and are intended to remain confidential, [44] which are incident to the professional attorney-client relationship, [45] and which take place for the purpose of obtaining legal advice. [46] By applying the attorney-client privilege, federal courts implicitly acknowledge that the value of the attorney-client privilege to society outweighs the potential harm caused by loss of relevant evidence in the courts. [47] Important public and private social policies justify recognition of the privilege. The private benefit is the knowledgeable legal assistance gained by clients. [48] The public benefit is the preservation of the adversary system. [49]

Like the attorney-client privilege, the priest-penitent privilege [50] is “rooted in the imperative need for confidence and trust” [51] and is widely accepted in federal courts. [52] The Supreme Court acknowledges that “[t]he priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.” [53] Federal courts limit the protection of the priest-penitent privilege to confidences made between priest [54] and penitent [55] for spiritual purposes. [56]

1. psychotherapist-patient privilege

After awareness of twentieth-century advances in psychotherapy and the “wide agreement that confidentiality is a sine qua non for successful psychiatric treatment” [57] led to statutory recognition of a psychotherapist-patient privilege in all fifty states and the District of Columbia, [58] Congress and the federal courts considered recognizing a federal psychotherapist-patient privilege. This section discusses congressional and judicial decisions which led to the recognition of the federal psychotherapist-patient privilege by the Supreme Court and then identifies parameters of the psychotherapist-patient privilege as defined by the Court.

1. Congressional and JudicialTreatment of the Psychotherapist-Patient Privilege. The Judicial Conference Advisory Committee on Rules of Evidence recommended that Congress statutorily adopt a “psychiatrist-patient” privilege. [59]In lieu of codifying specific privileges in the Federal Rules, [60]however, Congress adopted a single rule which left privilege recognition and development to the federal courts. [61] Legislative history indicated that Congress’s decision to adopt the general privilege rule [62] “should not be understood as disapproving any recognition of a psychiatrist-patient . . . privilege[ ],” but “should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship . . . should be determined on a case-by-case basis.” [63]

The definitions contained in the proposed “psychiatrist-patient” privilege rule [64] and case law that developed subsequent to the promulgation of the Federal Rules determined the scope of the psychotherapist-patient privilege in the federal circuits that recognized the privilege. A patient was identified as “a person who consults or is examined or interviewed by a psychotherapist.” [65] A psychotherapist was identified as an authorized medical practitioner “engaged in the diagnosis or treatment of a [patient’s] mental or emotional condition.” [66] A confidential communication was identified as a communication “not intended to be disclosed to third persons other than those present to further the interest of the patient . . . under the direction of the psychotherapist.” [67]

Federal appellate opinions reflected divergent applications of the general privilege rule. Some appellate courts, referring to a Senate Judiciary Committee caveat indicating Congress’s desire that the development of privileges continue within the common-law framework, recognized the psychotherapist-patient privilege. [68] Other appellate courts, stating that the psychotherapist-patient privilege traditionally did not exist at common law, rejected the privilege. [69] The Supreme Court resolved the conflict in 1996 by recognizing the psychotherapist-patient privilege in Jaffee v. Redmond. [70]

2. Scope and Rationale of the Psychotherapist-Patient Privilege. The Jaffee Court justified its recognition of the psychotherapist-patient privilege in two steps. First, noting that Congress authorized federal courts to recognize and define new privileges by “interpreting ‘common law principles . . . in the light of reason and experience,’ ” [71]the Court found the requisite reason and experience in the unanimous approval of the psychotherapist-patient privilege by legislatures of the fifty states and the District of Columbia. [72]

Second, the Court determined that recognition of the privilege would promote important private and public interests. [73] Stating that “[e]ffective psychotherapy . . . depends upon an atmosphere of confidence and trust,” [74] the Court opined that the mere possibility that courts would allow public disclosure of confidential communications between patient and psychotherapist at trial would limit or prevent the success of the patient’s psychotherapy. [75] The Court also stated that recognizing the psychotherapist-patient privilege promotes “[t]he mental health of our citizenry, . . . a public good of transcendent importance.” [76] The Court’s determination that the improved mental health of the citizenry is a public good that outweighs the harm caused by occasional loss of probative evidence in federal courts sealed the Court’s decision to recognize the psychotherapist-patient privilege. [77]

The Jaffee Court defined the scope of the psychotherapist-patient privilege in three ways. First, the Court included psychiatrists, psychologists, and licensed social workers within the definition of “psychotherapist.” [78] Second, the Court stated that the privilege was not subject to a test balancing the harm to the judicial process against the patient’s interest in confidential counseling sessions. [79] Third, the Court set forth conditions for applying the privilege. [80] Under Jaffee, the privilege proponent must prove that the communication between counselor and patient was confidential [81] the counselor was a licensed psychotherapist [82] and the communication took place “in the course of diagnosis or treatment.” [83]

The Court declined to define additional contours of the psychotherapist- patient privilege. [84] The Court stated that in light of the federal rule authorizing the case-by-case recognition of new privileges, [85] “[i]t [was] neither necessary nor feasible to delineate [the] full contours” of the privilege. [86] Acknowledging that the privilege should give way in some situations, [87] the Court left the governing of questions regarding privilege contours to future caselaw development. [88]

1. the crime-fraud exception

The crime-fraud exception nullifies a recognizable testimonial privilege under the rationale that although society has an interest in protecting the confidentiality of communications that promote transcendent social policies, “there is no such interest when the communications . . . are intended to further the commission of a crime or fraud.” [89] This section examines the long recognized crime-fraud exception to the federal attorney- client privilege and addresses the recently recognized crime-fraud exception to the federal psychotherapist-patient privilege.

1. Crime-Fraud Exception to the Attorney-Client Privilege. Federal courts recognize a crime-fraud exception to the attorney-client privilege. [90]The rationale underlying the exception involves a balancing of societal interests:

The benefits of full and frank communication between clients and attorneys generally have been deemed to outweigh the costs of probative evidence foregone. The balance shifts, however, when a client communicates for the purpose of advancing a criminal or fraudulent enterprise. Because such communications do not create a net benefit to the system, the rationale that underpins the privilege vanishes or . . . diminishes markedly . . . . [91]

When the balance shifts, the societal good no longer outweighs the cost of losing probative evidence in judicial proceedings. [92] Therefore, the “seal of secrecy” between attorney and client does not extend to advice sought for the purpose of furthering a criminal or fraudulent purpose. [93]

Federal courts recognize substantive parameters for applying the crime-fraud exception to the attorney-client privilege. First, advice concerning past wrong acts does not fall within the exception; instead, the communications must take place either in furtherance of present crime or fraud or in contemplation of future crime or fraud. [94] In addition, the crime or fraud need not actually have

occurred, but “need only have been the objective of the client’s communication.” [95]

2. Crime-Fraud Exception to the Psychotherapist-Patient Privilege. The United States Court of Appeals for the First Circuit recognized in In re Grand Jury Proceedings (Gregory P. Violette) [96]the crime-fraud exception to the federal psychotherapist-patient privilege. [97]In Violette, the target of a grand jury investigation communicated “trumped up” disabilities to two psychiatrists and then caused the disability information to be transmitted from the psychiatrists to credit disability underwriters for the purpose of extracting fraudulent payments from the underwriters. [98] In the subsequent investigation, the psychiatrists claimed on behalf of the target individual that the psychotherapist-patient privilege should shield communications between the psychiatrist and the target from forced disclosure. [99] The First Circuit noted the district court’s findings that the communications “were not made in the course of diagnosis or treatment, and that a crime-fraud exception applied” [100] under the implicit rationale that “because the communications were made in furtherance of fraud, they could not have served a bona fide therapeutic purpose.” [101] The Violette court could have denied the application of the psychotherapist-patient privilege based on either the failure of a Jaffee condition or on the recognition of a crime-fraud exception. [102] The court opted to recognize the crime-fraud exception and applied the exception to the facts in Violette. [103]

III. Analysis

1. alternative crime-fraud applications in the context of the psychotherapist- patient privilege

Because the First Circuit doubted the sufficiency of the Jaffee treatment condition to prevent unnecessary loss of probative evidence, [104] this section discusses two uses of an individual’s criminal or fraudulent purpose to deny application of the federal psychotherapist-patient privilege: (1) crime-fraud purpose as spoiler of the Jaffee treatment condition [105] and (2) crime-fraud purpose as exception.

As a threshold matter, this Note infers that the “course of diagnosis or treatment” required by Jaffee [106] is a psychotherapeutic course that addresses the patient’s underlying mental or emotional problems. [107] A course of psychotherapeutic diagnosis or treatment cannot proceed successfully merely on the basis of objective information. [108] The Jaffee Court identified the differences between diagnosis and treatment in psychotherapy and diagnosis and treatment for physical ailments:

Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is

willing to make a frank and complete disclosure of facts, emotions, memories, and fears. [109]

Thus, the Court’s purpose for recognizing the psychotherapist-patient privilege was to facilitate “frank and complete disclosure” between patient and psychotherapist. [110] The discussion below rests on the assumption that Jaffee’s “course of diagnosis or treatment” requirement is restricted to psychotherapeutic diagnosis or treatment.

1. Timing Considerations. A court should begin its inquiry into the appropriate effect of a criminal or fraudulent purpose by determining the point in time at which the crime-fraud purpose arose. Comparing the wording of the Jaffee treatment condition, “in the course of diagnosis or treatment,” [111]with the language of Proposed Rule 504, “for the purposes of diagnosis or treatment,” [112]the Violette court opines that the Jaffee treatment condition “may require an exception that the narrower version contained in the proposed rules did not [require].” [113] This section contends, however, that the wording of the Jaffee treatment condition does not indicate a more expansive meaning, but a meaning with a different focus-the intent of the patient at the commencement of psychotherapy. [114]

The construction of the Jaffee treatment condition strengthens one standard for applying the psychotherapist-patient privilege and relaxes another standard for privilege application. On one hand, Jaffee implicitly constructs at the outset of the professional relationship between psychotherapist and patient a threshold requirement that requires proof of the patient’s commitment and desire to improve. [115] The Jaffee rule conditions protection of psychotherapist-patient communications upon the existence of a “course of diagnosis or treatment.” [116] An individual’s initial purpose in establishing or renewing a professional relationship with a psychotherapist should determine whether she entered into a genuine course of psychotherapy or whether she pursued another end. Where an individual’s criminal or fraudulent purpose indicates the lack of a primary psychotherapeutic intent, the privilege proponent cannot satisfy the Jaffee treatment condition.

Notably, federal courts do not recognize a crime-fraud exception in the priest-penitent arena. It appears that the lack of a crime-fraud exception is due to the perceived competency of the spiritual-purpose requirement to exclude from protection communications made for criminal or fraudulent purposes. In United States v. Dube, [117] for example, the Court of Appeals for the Seventh Circuit found that an individual’s criminal purpose in communicating with a clergyperson, which consisted of “efforts to relieve himself from the necessity of paying income taxes,” [118] directly conflicted with the priest-penitent privilege’s spiritual-purpose requirement. [119] Failure to establish the Jaffee treatment condition should be similarly effective in blocking the prima facie validity of the psychotherapist-patient privilege.

On the other hand, after the patient establishes a course of psychotherapeutic diagnosis or treatment, thereby evidencing psychotherapeutic intent, a court should not continue to inquire into the patient’s intentions. Jaffee does not require continual affirmative justification of the psychotherapeutic nature of the confidential communications during the course of diagnosis or treatment. [120] On the contrary, Jaffee’s omission of a “purpose condition” [121] implies a continuous presumption of protection for communications throughout the course of diagnosis or treatment. [122] The implication of continuous protection without regard to proper purpose follows not only from the Court’s omission of proper purpose as a condition for protection of specific communications, but also from the Court’s omission of any discussion of proper purpose whatsoever. [123] Without the limits imposed by proper-purpose scrutiny, the specific subject matter of the confidential communications between psychotherapist and patient is unrestricted for the duration of the course of diagnosis or treatment. More importantly, proper-purpose inquiries are irrelevant to prima facie application of the psychotherapist-patient privilege.

Therefore, the timing of an individual’s alleged criminal or fradulent purpose is an important consideration. Whether the crime-fraud purpose existed prior to the patient’s initiation of a professional relationship with a psychotherapist or arose during an established course of diagnosis or treatment with the psychotherapist should determine which crime-fraud application is appropriate spoiler of the Jaffee treatment condition or the crime-fraud exception.

2. Applying a Crime-Fraud Purpose to Prevent Satisfaction of the Jaffee Treatment Condition. A trial court should acknowledge prima facie validity of the psychotherapist-patient privilege only if the Jaffee conditions for privilege application are satisfied. [124]This section posits that the Jaffee treatment condition encompasses implications that communications within the course of psychotherapy are intended to further the patient’s mental-health purposes and are incident to the professional relationship between psychotherapist and patient.
3. Implication of Patient’s Intent. Definitions of “psychotherapy,” “psychotherapy patient,” and “course” indicate that a patient’s psychotherapeutic purpose in establishing a professional relationship with a psychotherapist is implicit in the Jaffee treatment condition. “Psychotherapy” employs “means [that are] addressed to the mental state of the patient, without (or sometimes in conjunction with) the administration of drugs or other physical remedies.” [125]A “psychotherapy patient” is “a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his mental or emotional condition.” [126]A “course” is “the continuous process (of time) [or] succession (of events)” which indicates “progress onward or through successive stages” or through a “prescribed series of actions or proceedings.” [127]

The foregoing definitions are useful in parsing the Jaffee holding: Where an individual, “for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his mental or emotional condition,” [128] communicates in confidence with his psychotherapist as he progresses through “a planned or prescribed series of actions or proceedings” [129] which address the mental state of the individual without relying solely on physical remedies, the psychotherapist-patient privilege should protect the communications from forced courtroom disclosure. Because an individual’s intent to improve his mental health should be implicit within his act of establishing a course of psychotherapeutic diagnosis or treatment, [130] evidence of an incompatible intent should belie the existence of a genuine course of psychotherapy.

The circumstances in In re Doe [131] and Violette exemplified factual situations which should preclude satisfaction of the Jaffee treatment condition. The Doe court found that a clinic’s procedure, which merely required prospective psychiatric patients to pay cash, deny having a drug abuse problem, and claim to have difficulty sleeping, was proof that the clinic was operating an “assembly-line” narcotics-distribution center rather than a psychiatric service center. [132] The marginal participation of a single psychiatrist who signed prescriptions, the clinic’s negligible diagnostic procedure, and the “patient’s” interest in procuring narcotics evidenced that neither the “patient” nor the clinic psychiatrist intended to establish a course of genuine psychotherapy. [133] Similarly, in Violette, the fraudulent purpose of the target of a grand jury investigation for engaging the services of two psychiatrists [134] conflicted with the psychotherapeutic intent inherent in a genuine “patient” pursuing a genuine “course of diagnosis or treatment.” [135]

1. Insufficiency of Necessary Professional Relationship. In the attorney-client and priest-penitent arenas, privilege protection attaches only to confidential communications made incident to the respective professional relationships. [136]In the psychotherapist- patient context, establishing a “course of [psychotherapeutic] [137]diagnosis or treatment” readily incorporates the incident-to-the-relationship requirement. Moreover, satisfying the Jaffee treatment condition implies that the confidential communications are an integral part of, and not merely incident to, the professional relationship between psychotherapist and patient. [138] However, the fact that communications are made incident to the professional relationship is not sufficient to prove the existence of a Jaffee- required course of diagnosis or treatment. If an individual initiates a professional relationship with a psychotherapist solely or primarily for a purpose incident to the professional relationship, such as to substantiate claimed psychiatric disabilities, [139] yet does not cross the higher threshold into a “course of diagnosis or treatment,” [140] the communications between the therapist and the individual should not fall within the protected communications valued by society and sanctioned by the Supreme Court.

In sum, the psychotherapist-patient privilege is applicable where a patient exchanges confidential communications within a professional therapeutic relationship pursuant to the patient’s initial intent to improve her mental health. The privilege proponent must prove the existence of the course of diagnosis or treatment. [141] Evidence of an individual’s lack of intent to pursue genuine diagnosis or treatment, such as the crime-fraud intent of the Violette target to extort disability insurance payments, [142] should prevent satisfaction of the Jaffee treatment condition.

3. Applying a Crime-Fraud Purpose as Exception. A court should apply the crime-fraud exception only if the psychotherapist-patient privilege is applicable under the facts of the case at bar. This section applies the label “true exception” to a crime-fraud purpose that is competent to be applied solely as a circumstance invalidating a recognizable psychotherapy privilege. To illuminate the analytical difference between a true exception and a condition spoiler, [143]this section examines two true exceptions: a potential “dangerous-patient exception” to the psychotherapist-patient privilege and the existing crime-fraud exception to the attorney-client privilege.

The Jaffee opinion alludes to a “dangerous-patient” situation as a possible acceptable contour of the psychotherapist-patient privilege. [144] If recognized, the dangerous-patient exception would function as a true exception. The Court acknowledges that “there are situations in which the [psychotherapist-patient] privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.” [145] A patient’s threat to harm someone neither supports nor prevents satisfaction of the Jaffee treatment condition or the other Jaffee conditions. [146] The adoption of a dangerous-patient exception would indicate, instead, that society and the courts place the dangerous-patient rationale-“the public interest in safety from violent assault” [147]-above the psychotherapy rationale. [148] A dangerous- patient exception, if adopted in federal courts, would cancel the psychotherapist-patient privilege despite satisfaction of the Jaffee conditions. Therefore, the dangerous-patient exception would qualify as a true exception.

The crime-fraud exception to the attorney-client privilege also functions as a true exception. Courts recognize the attorney-client privilege where certain conditions are satisfied: (1) the communication must take place between attorney and client; [149] (2) the client must intend the communication to be confidential and to remain confidential; [150] (3) the communication is incident to the nature of the attorney-client professional relationship; [151] and (4) the communication is for the purpose of obtaining legal advice. [152] Because courts recognize the prima facie attorney-client privilege upon fulfillment of these conditions and because a client’s crime-fraud purpose does not militate against satisfaction of these conditions, the crime-fraud exception is the only crime-fraud vehicle for denying application of the attorney-client privilege. [153] Therefore, the attorney-client crime-fraud exception is a true exception.

Unlike the crime-fraud exception as applied in the dangerous-patient and attorney-client contexts, the crime-fraud exception as applied in Violette was not a true exception. The Violette court relied heavily on Jaffee’s assessment of the “striking” parallels between the respective privilege rationales [154] to justify equating the rationales for recognizing the respective crime-fraud exceptions. [155] The Court thus imported the reasoning applied in the attorney-client context without noting the inherent differences in conditions for application of the attorney-client and psychotherapist-patient privileges:

In the attorney-client context, we exclude from the privilege communications made in furtherance of crime or fraud because the costs to truth-seeking outweigh the justice-enhancing effects of complete and candid attorney-client conversations. In the psychotherapist-patient context, we likewise should exclude from the privilege communications made in furtherance of crime or fraud because the mental health benefits, if any, of protecting such communications pale in comparison to “the normally predominant principle of utilizing all rational means for ascertaining truth.” [156]

The Violette opinion fails to note the differences in protection afforded the two privileges by their respective conditions for application. The attorney-client privilege protects confidential communications between a lawyer and client made for purposes of obtaining legal advice. [157] The fact that a client seeks legal advice for a criminal or fraudulent purpose does not change the legal nature and purpose of the advice. The legal-advice requirement therefore fails to provide adequate support for the attorney- client privilege rationale. [158] The psychotherapist-patient privilege, however, requires the establishment of a course of psychotherapeutic diagnosis or treatment. The Jaffee treatment condition precludes application of the psychotherapist-patient privilege to an individual who consults a psychotherapist in order to extort fraudulent disability payments. [159] Therefore, because the privilege proponent’s crime-fraud purpose could have functioned as spoiler of the Jaffee treatment condition, the crime-fraud exception as applied in Violette is not a true exception. [160]

1. procedural contours

In determining the effect of a patient’s crime-fraud purpose on the psychotherapist-patient privilege, a trial court should import, in substantial part, a procedure from the Supreme Court’s rule in the attorney-client crime- fraudcontext. This section examines the procedure for considering crime-fraud exception application in the attorney-client context and proposes a similar procedure for considering application of the crime-fraud exception in the psychotherapist-patient context.

1. Procedure Within the Attorney-Client Context. In United States v. Zolin [161]the Supreme Court clarified the procedure that a trial judge must follow in deciding when to apply the crime-fraud exception to the attorney-client privilege. [162]The Court first addressed difficulties in applying federal evidentiary rules. A literal combined reading of two rules [163] appeared to preclude application of the crime-fraud exception by forbidding the in camera viewing of materials claimed to be privileged, even though the privilege opponent presented evidence that a crime-fraud purpose was present. [164] Refusing to be constrained by the reading because it led to an “absurd result,” [165] the Court held: [I]n camera review may be used to determine whether allegedly privileged attorney-client communications

fall within the crime-fraud exception . . . . [B]efore a district court may engage in in camera review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception’s applicability . . . . [T]he threshold showing to obtain in camera review may be met by using any relevant evidence, lawfully obtained, that has not been adjudicated to be privileged. [166]

2. Procedure Within the Psychotherapist-Patient Context. Federal courts should import the Zolin rule into the psychotherapist-patient privilege setting. At the same time, the courts should be cognizant of the broader range of confidential communications permitted within the psychotherapy context and the reasons for permitting the broad range.

First, courts should require privilege proponents to show by a preponderance of the available evidence [167] that the Jaffee conditions were satisfied. [168] A court should not consider the alleged subject matter of the communications, but should determine only whether the evidence indicates that a course of diagnosis or treatment was established.

If the privilege proponent offers relevant evidence that the Jaffee conditions were fulfilled and the proponent’s evidence is not successfully countered by the privilege opponent, the trial judge should apply the psychotherapist- patient privilege. If the privilege proponent is unable to offer non-privileged evidence sufficient to fulfill the Jaffee conditions, the proponent may, in harmony with accepted practice in federal courts, submit the privileged communications to the court for in camera examination. [169] The court should weigh its evaluation of the allegedly privileged material against the opponent’s non-privileged evidence [170] and decide whether the proponent has met the burden imposed by the Jaffee conditions. [171] If the court finds that a course of psychotherapeutic diagnosis or treatment has not been established, the court should deny application of the privilege. As a result, all relevant communications between psychotherapist and patient should be presumed discoverable. [172]

Alternatively, if non-privileged evidence indicates that a crime-fraud purpose arose at a certain point within the course of diagnosis or treatment, the court should turn to crime-fraud exception analysis. Because the construction of the Jaffee treatment condition implies that proper-purpose examination is not relevant to the establishment of a course of psychotherapeutic diagnosis or treatment [173] and because the Jaffee treatment condition further implies that examination for proper purpose within the course of psychotherapy would fail to support the psychotherapist- patient privilege rationale, [174] the crime-fraud exception would be needed to remove from protection specific crime-fraud communications made within an established course of psychotherapeutic diagnosis or treatment. Accordingly, the privilege opponent should offer proof that a crime-fraud purpose prompted certain communications made in the course of diagnosis or treatment.

While a ruling on the crime-fraud exception is pending, the court should protect the confidentiality of the communications. In the psychotherapy setting, the trial court should evaluate the suspected crime-fraud purpose of specific communications which occurred during the course of diagnosis or treatment. The confidential communications themselves would be the likely focus of judicial scrutiny because the communications between patient and psychotherapist may appear to reveal a future criminal or fraudulent intent. [175] The judge may find such indications in a psychotherapist’s record of the patient’s diagnosis or treatment difficult to evaluate. The wording of the Jaffee treatment condition, “in the course of diagnosis or treatment,” [176] combined with the omission in Jaffee of a proper-purpose condition, indicates that the psychotherapist-patient privilege encompasses a broad range of protected communications and subject matter. [177] A communication appearing to be criminal or fraudulent in nature could be explained as part of the course-of-psychotherapy package. [178] Because of the difficulty in assessing the true nature of the communications within a course of psychotherapy, the judge should consult the psychotherapist for assistance in evaluating the nature of the communications. In this type of in camera evaluation of psychotherapeutic communications, where the communications themselves would be the primary focus of the judge’s inquiry, shielding the communications in a hearing with both sides present would be virtually impossible. Accordingly, the judge and psychotherapist should confer in private.

In sum, where a court finds what appears on its face to be evidence of a patient’s crime-fraud purpose, the judge should evaluate the virtually unique circumstances of the patient’s diagnosis and treatment by privately questioning the psychotherapist to discover whether a therapy-related explanation can justify the ostensibly criminal or fraudulent purpose. After conferring with the psychotherapist, the judge should decide whether the crime-fraud exception applies.

1. supporting the psychotherapist-patient privilege rationale

The recognition of a testimonial privilege harms the judicial process. [179] In considering recognition of privileges, courts balance the harm of losing probative evidence against the societal good promoted by shielding certain communications from disclosure. [180] After weighing the evidentiary harm against the societal benefit, [181] a court may recognize a privilege if the proposed privilege is likely to foster “a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” [182]

The transcendent good then becomes the basis for the rationale which underlies the recognized privilege. [183]

The Jaffee opinion justified recognition of the psychotherapist-patient privilege by identifying the public and private societal good that transcends the harm caused by loss of probative evidence in federal courts. [184] This section examines the psychotherapist-privilege rationale, the competency of the Jaffee treatment condition to support the rationale, and the necessity of keeping the respective burdens of proof on the appropriate parties in order to uphold the rationale.

1. The Psychotherapist-Patient Privilege Rationale. The Jaffee Court balanced the harm and good [185]before identifying the rationale that underlies the psychotherapist-patient privilege. The Court noted that fostering the improved mental health of the citizenry by facilitating confidence and trust between psychotherapists and their patients promoted significant public and private interests. [186]In comparison, the Court conjectured that only modest evidentiary benefit would accrue from forcing disclosure of the confidential communications. [187] By finding that the societal good outweighed the societal harm and by then protecting confidential communications within psychotherapy, the Court established the rationale for the psychotherapist-patient privilege-to foster free exchange of communications between psychotherapists and their patients in the interests of promoting effective psychotherapy. [188]
2. Comparison of the Jaffee Treatment Condition and the Proper- Purpose Limitation in Facilitating Effective Psychotherapy. The Violette opinion, comparing the constructions of the Jaffee treatment condition [189]and Proposed Rule 504, [190]expresses doubt that the Jaffee construction is competent to uphold the psychotherapist-patient privilege rationale. [191] This section contends, however, that the Jaffee treatment condition is superior to the Proposed Rule 504 treatment condition in fostering effective psychotherapy. Effective psychotherapy requires both the patient’s intent to pursue genuine psychotherapeutic diagnosis or treatment [192] and an atmosphere of confidence and trust between psychotherapist and patient. [193] This section posits that the proper-purpose requirement of Proposed Rule 504 would not have effectively facilitated either requirement, but that the Jaffee treatment condition, in contrast, facilitates both requirements.
3. Deficiencies of a Proper-Purpose Requirement. Requiring a proper- purpose examination of communications between an individual and a psychotherapist without requiring an established course of diagnosis or treatment would not necessarily foster effective psychotherapy. A proper- purpose inquiry would, in some circumstances, fail to facilitate effective psychotherapy by offering too little protection and, in other circumstances, fail to facilitate effective psychotherapy by offering too much protection.

The threat of proper-purpose scrutiny of communications between psychotherapist and patient is not conducive to psychotherapeutic progress. [194] Confessions, criminal plans, and names of criminal associates revealed during a course of therapeutic diagnosis or treatment could appear criminal or fraudulent in nature, even if they are, in fact, a desired result of psychotherapy. [195] Subjecting a patient’s communications to proper-purpose scrutiny would undermine the patient’s confidence and trust in the psychotherapy. [196] The patient would then be less inclined to “lay [ ] bare his entire self, his dreams, his fantasies, his sins, and his shame,” [197] which patients realize is expected of them in psychotherapy. [198] As a result, the psychotherapy would be less effective. [199] A proper-purpose requirement in this situation would likely provide too little protection for the communications.

On the other hand, an individual who consults a psychotherapist outside an established course of diagnosis or treatment for the purpose of obtaining psychotherapeutic advice, perhaps during a single casual encounter or a series of sporadic encounters, is less likely to benefit from the exchange of communications in a way that provides the transcendent benefit to society that justified Jaffee’s recognition of the psychotherapist-patient privilege. [200] A proper-purpose requirement in this situation would likely provide too much protection.

1. Sufficiency of the Jaffee Treatment Condition. Unlike the proper-purpose requirement in Proposed Rule 504, Jaffee’s threshold for prima facie recognition of the psychotherapist-patient privilege [201]promotes and facilitates effective psychotherapy. Unencumbered by a proper-purpose restriction, the patient may speak freely without fear of disclosure, and the psychotherapist and patient are free to explore the patient’s innermost thoughts. Moreover, by establishing a course of psychotherapeutic diagnosis or treatment, both patient and psychotherapist commit to the goal of improving the patient’s mental health, thereby increasing the likelihood of achieving positive therapeutic results.

Therefore, Jaffee’s treatment condition is better suited to the psychotherapy situation and more in harmony with the rationale underlying the psychotherapist-patient privilege than is a requirement necessitating ongoing scrutiny of every communication.

3. Effects of Jaffee Treatment Condition Implications on Burdens of Proof. Courts should support the rationale of the psychotherapist-patient privilege by identifying and explaining two implications of the Jaffee treatment condition. First, because the Jaffee treatment condition requires a “course of diagnosis or treatment” but does not address proper-purpose considerations, confidential communications exchanged in an established course of psychotherapeutic diagnosis or treatment should have a presumption of valid psychotherapeutic purpose. Second, the Jaffee treatment condition implies that where a course of psychotherapeutic diagnosis or treatment has not been proved, the presence or absence of proper purpose of specific communications is irrelevant to judicial consideration of psychotherapist-patient privilege application.

These implications affect the burdens of proof surrounding the psychotherapist-patient privilege. The privilege proponent, in order to establish the prima facie privilege under Jaffee, should bear the burden of proving that a course of diagnosis or treatment existed when the confidential communications were made; [202] however, the privilege proponent should not have to prove that the communications had a proper purpose. [203] The privilege opponent, on the other hand, should bear the burden of proving that communications made within a course of diagnosis or treatment had a criminal or fraudulent purpose. [204] Under Jaffee this showing should not be necessary if a course of diagnosis or treatment was not in place when the communications were made.

Keeping the respective burdens of proof on the appropriate parties promotes the psychotherapist-patient privilege rationale. This section explains the relationship between the privilege rationale and the placement of burdens of proof.

1. Relationship Between Psychotherapist-Patient Privilege Rationale and Privilege Proponent’s Burden of Proof. Applied correctly, the Jaffee treatment condition ensures that the psychotherapist-patient privilege attaches only under conditions consistent with the privilege rationale. Without a course of diagnosis or treatment to maximize the likelihood of effective psychotherapy, the good to society fails to transcend the harm caused by the loss of evidence. [205]Jaffee’s treatment condition, promotes effective psychotherapy by protecting only communications made within a proven course of psychotherapeutic diagnosis or treatment. [206]

Establishing a professional relationship that does not constitute a course of psychotherapeutic diagnosis or treatment does not sufficiently promote effective psychotherapy. [207] Therefore, absent a prima facie case for recognizing the psychotherapist-patient privilege, all communications born of the professional relationship should be subject to discovery.

Because of the incongruity between an individual’s crime-fraud purpose and the rationale underlying the psychotherapist-patient privilege, a trial court should employ the most efficient mechanism to deny the privilege to an individual who manifests a criminal or fraudulent purpose for communicating with a psychotherapist. The Jaffee decision removes the possibility of justifying denial of the psychotherapist-patient privilege by balancing the need for confidentiality against the likely evidentiary harm caused by shielding the particular communications from disclosure in court; [208] therefore, only the Jaffee conditions and recognition of exceptions are available to support the privilege rationale.

Preventing application of the privilege is more efficiently accomplished at the “conditions” stage than at the “exception” stage. For example, in light of evidence that a patient’s initial crime-fraud intent in consulting a psychotherapist was to defraud an insurance company, [209] the privilege proponent would be unable to meet the burden of proving that a genuine course of psychotherapeutic diagnosis or treatment had been established.

Similarly, where a patient’s initial intent was to obtain drugs in an assembly-line clinic operation, [210] the privilege proponent should fail to satisfy the treatment condition, regardless of whether the patient’s intent was criminal or fraudulent. Initiating a relationship with a psychotherapist for such purposes fails to foster effective psychotherapy and does not establish a course of psychotherapeutic diagnosis or treatment.

1. Relationship Between Psychotherapist-Patient Privilege Rationale and Privilege Opponent’s Burden of Proof. The patient’s freedom to disclose sensitive facts and feelings to his psychotherapist is a necessary component of effective psychotherapy. [211]Jaffee’s treatment condition protects the psychotherapeutic process from proper-purpose scrutiny. [212]A rebuttable presumption of therapeutic purpose should be implied to all communications within an established course of diagnosis or treatment. [213]

If the privilege proponent satisfies the Jaffee treatment condition, the privilege opponent should bear the burden of proving that an exception should apply to the implied ban on proper-purpose scrutiny [214] of communications made within a course of diagnosis or treatment. [215] The task for the opponent of the privilege may be difficult. First, before the trial judge may examine the material or communications in camera, the privilege opponent should present non-privileged evidence that a crime-fraud purpose prompted communications within the course of diagnosis or treatment. [216] Additionally, proving crime-fraud as exception to the prima-facie privilege should proceed on a session-by-session or communication-by- communication basis. Before agreeing to in camera inspection, some courts could even require non-privileged evidence to show that exception is warranted for each unit of communication sought to be discovered. [217] The Zolin Court explains the reason for requiring a showing of non-privileged evidence:

There is no reason to permit opponents of the privilege to engage in groundless fishing expeditions, with the district courts as their unwitting (and perhaps unwilling) agents. . . . [I]n camera review is available to evaluate claims of crime or fraud only when justified . . . . [A] district court would be mistaken if it reviewed documents in camera . . . with no reason to suspect crime or fraud. [218]

Given the broad range of communications necessary within an effective course of psychotherapy, [219] the Court’s preclusion of groundless fishing expeditions is even more appropriate within the psychotherapist-patient context than within the attorney-client context. The privilege opponent carries a heavier burden because non-privileged evidence must be proffered before the trial judge may examine the communications in camera and because the court could require evidence for each unit of communication sought to be discovered. [220]

The heavier burden supports the psychotherapist-privilege rationale. The presumption of psychotherapeutic purpose within an established course of diagnosis or treatment fosters confidence and trust. A sense of confidence and trust, in turn, promotes effective psychotherapy, and effective psychotherapy fosters the mental health of the citizenry. [221]

Therefore, the Jaffee treatment condition supports the rationale underlying the psychotherapist- patient privilege.

In sum, federal courts should place the burden of proof where it belongs. The privilege proponent should bear the initial burden. Until the patient proves that a course of diagnosis or treatment was established, the psychotherapist- patient privilege is not applicable and all communications between psychotherapist and patient should be discoverable. After the patient proves that a course of diagnosis or treatment was established, the privilege opponent should bear the burden of proving that specific communications made within the course of diagnosis or treatment were made for a criminal or fraudulent purpose. Keeping the burden where it belongs supports the psychotherapist- patient rationale by promoting effective psychotherapy while limiting the loss of probative evidence.

1. substantive contours

The Supreme Court recognizes a testimonial privilege only where a societal benefit transcends the societal harm caused by loss of relevant evidence in federal courts. [222] Balancing harm and good [223] within the testimonial privilege arena is appropriate in two primary situations: where a court considers recognition of a new privilege [224] and where a court considers recognition of a new exception to an existing privilege. [225] Additionally, a limited balancing of harm and good is appropriate when a court considers contouring a condition required to apply the privilege. [226]

1. Violette’s Crime-Fraud Contour. The Jaffee opinion cautions that “[m]aking the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the [psychotherapist-patient] privilege.” [227]This section posits that the Violette court, constrained by the Jaffee Court’s admonition against balancing the privilege claimant’s need for privacy against society’s interest in justice, [228]manufactured the opportunity to address the crime-fraud exception by “assum[ing] (without deciding) that [the communications at issue] can be said to have been made presumptively in the course of diagnosis or treatment.” [229]

The Violette court accepted the lower court’s finding that the plaintiff had employed two psychiatrists for the purpose of furthering a fraudulent scheme. [230] The court further noted that the facts “afford[ed] a basis not only for concluding that the communications were made outside the course of genuine diagnosis or treatment” but also for extending the crime-fraud exception to the facts. [231] The court nevertheless overlooked the possible effect of the Jaffee treatment condition when the court disregarded the lower court’s “implicit rationale . . . that because the communications were made in furtherance of fraud, they could not have served a bona fide therapeutic purpose.” [232] Because the privilege opponent offered “only the crime-fraud rationale,” [233] the court assigned only one possible function to the plaintiff’s criminal or fraudulent purpose-justification for applying the crime-fraud exception. [234]

Having avoided the Jaffee balancing-component constraints by establishing “the essential elements of the [psychotherapist-patient] privilege” on the basis of an assumption, [235] the Violette court balanced the harm and good in considering recognition of the crime-fraud exception. [236] The court, speaking in general terms rather than in the situation-specific terms forbidden by Jaffee, [237] stated that communications made in furtherance of crime or fraud should be excluded from the protection of the psychotherapist-patient privilege. [238] The court opined that the balance of harm and good indicated that the mental health benefits of protecting fraudulent communications “pale[d] in comparison to ‘the normally predominant principle of utilizing all rational means for ascertaining truth.’ ” [239] Accordingly, the court recognized the crime-fraud exception [240] and applied the exception to deny psychotherapist-patient privilege protection to the communications in Violette. [241]

2. Appropriate Contours. Future courts should clarify the scope of the Jaffee conditions. [242]Courts should emphasize the Jaffee Court’s ruling that the psychotherapist-patient privilege is not subject to a facts-and- circumstances balancing test. “Absoluteness” of the psychotherapist-patient privilege [243]should connect to the importance of strict adherence to the Jaffee conditions for applying the privilege.

Further, courts should emphasize the importance of the Jaffee treatment condition and parse its meaning. At a minimum, courts should expressly define a “course of diagnosis or treatment” as a “course of psychotherapeutic diagnosis or treatment.” An express definition would dispel confusion, achieving a result superior to that offered by the implied definition proposed in this Note.

Second, courts should refine the Jaffee definition of “patient.” Courts should identify a psychotherapy patient as an individual who evidences an intent to pursue mental or emotional health improvement. [244] The narrowing of the “patient” definition may be justified by balancing the harm and good in support of the psychotherapist-patient privilege rationale and by explaining the connection between the Jaffee “patient” requirement and the Jaffee treatment condition. [245] Along this line, courts should also discuss how the timing of an alleged crime-fraud purpose affects satisfaction of the Jaffee treatment condition. [246]

Third, courts should explain that the Supreme Court’s balancing of the harm and good in Jaffee is implicitly incorporated into the Jaffee conditions and that the Jaffee treatment condition supports the rationale underlying the psychotherapist-patient privilege. [247]

Fourth, courts should adhere to the traditional reason for applying an exception to deny a testimonial privilege: where all conditions are met and yet the psychotherapist-patient privilege rationale is not upheld, an exception should be adopted, [248] provided that “reason and experience” dictate its recognition. [249]

Finally, in considering the impact of an individual’s crime-fraud purpose, a court should place the burden of proof where it belongs: on the privilege proponent to prove that the Jaffee conditions were met, and on the privilege opponent to prove that the crime-fraud exception should attach to deny application of the psychotherapist-patient privilege. [250]

1. Conclusion

Fulfillment of the conditions set forth in Jaffee protects communications between psychotherapist and patient from forced disclosure in judicial proceedings. [251] The satisfaction of the Jaffee treatment condition [252] is a factual determination to be made by the trial court.

The proponent of the psychotherapy privilege bears the burden of proving that the treatment condition was fulfilled. The privilege opponent may present non- privileged evidence indicating that a course of psychotherapeutic diagnosis or therapy was not established. If the privilege opponent prevents the privilege proponent from carrying the burden of proof, the privilege should not be recognized and communications should be subject to compelled disclosure. Alternatively, if the privilege proponent meets the burden of proof, a prima facie case for applying the privilege is established and all communications within the course of diagnosis or treatment should be presumptively protected.

If a prima facie case is established, the privilege opponent may attempt to prove that the crime-fraud exception should apply. The privilege opponent may present non-privileged evidence that allows the court to find reasonable cause to inspect the communications in camera. The court should question the psychotherapist concerning ostensible crime-fraud communications discovered in camera to become informed of a possible psychotherapeutic justification for the content of the communications. The court should decide, in accordance with Federal Rule 104(a), [253] whether the privilege should be excluded via the crime-fraud exception.

The Violette court failed to keep the burden of proof on the proponent of the privilege to establish the existence of the requisite course of diagnosis or treatment. Because the Violette court unnecessarily adopted and applied the crime-fraud exception, the precedential impact of the

Violette decision created the possibility of an unnecessary shift of the burden of proof to theprivilege opponent. Even more significantly, moving prematurely to a discussion of crime-fraud exception was distracting. The Jaffee treatment condition required more than absence of a “bad reason” such as a crime-fraud purpose. The Jaffee treatment condition required either affirmative proof that a course of psychotherapeutic diagnosis or treatment was established or the absence of proof of an intent contrary to establishing a genuine course of psychotherapy.

The construction of the Jaffee treatment condition both supports the psychotherapist-patient privilege rationale and limits loss of probative evidence. Adherence to the Jaffee treatment condition assures that patients’ confidences are protected from disclosure so that effective psychotherapy is fostered. The Jaffee treatment condition is not satisfied unless the claimed privileged communications took place within an established psychotherapeutic course of diagnosis or treatment. Neither lesser treatments, such as drug therapy without mental and emotional exploration or informal contacts with a psychotherapist, nor lesser motives, such as intentions to pursue ends other than psychotherapy, should satisfy Jaffee’s “course of diagnosis or treatment” condition. Federal courts should insist that privilege proponents comply with the Jaffee treatment condition to seize the societal good that transcends the harm caused by occasional loss of relevant evidence in judicial proceedings.

The Supreme Court, aware of the broad range of communications necessary for successful psychotherapy, does not restrict the content of protectible communications within the psychotherapy setting. Psychotherapy patients need not prove their communications were elegant, or productive, or even true. They must prove, however, that their communications were made pursuant to their pursuit of mental health as evidenced by establishing a course of psychotherapeutic diagnosis or treatment.

FOOTNOTES:

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Note 1. See In re Grand Jury Subpoena (Psychological Treatment Records), 710 F. Supp. 999, 1010 (D.N.J. 1989) (hypothesizing similar facts).

Note 2. Id. (noting usefulness of such statements in criminal investigations).

Note 3. See id. (noting that such statements are shielded from forced disclosure in court if made in context of furthering psychotherapeutic treatment).

Note 4. Jaffee v. Redmond, 518 U.S. 1, 15 (1996).

Note 5. See Black’s Law Dictionary 1198 (6th ed. 1990) (defining “privileged communications”: “statements made . . . within a protected relationship . . . which the law protects from forced disclosure on the witness stand . . . .”).

Note 6. See Jaffee, 518 U.S. at 11-12 (concluding that societal benefits of psychotherapist-patient privilege outweigh possible evidentiary harm). The Court states: The psychotherapist[-patient] privilege . . . facilitates the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry . . . is a public good of transcendent importance. In contrast . . ., the likely evidentiary benefit that would result from the denial of the privilege is modest. . . . Without a privilege, much of the desirable evidence to which litigants . . . seek access . . . is unlikely to come into being. This unspoken “evidence” will therefore serve no greater truth-seeking function than if it had been spoken and privileged. Id.

Note 7. Id. at 1.

Note 8. See id. at 10 (noting sensitive nature of problems addressed in psychotherapy and need for confidentiality).

Note 9. Id. at 10-11.

Note 10. Id. at 11.

Note 11. See id. at 11-12, 15 (implying that transcendent societal good served by psychotherapist-patient privilege justifies loss of evidence); In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 76 (1st Cir. 1999) (“[The courts] customarily respect the confidentiality of communications made in the course of [psychotherapist-patient] relationships because, on balance, doing so serves the public weal.”).

Note 12. Violette, 183 F.3d at 76.

Note 13. Id. at 71.

Note 14. Id. at 76-77.

Note 15. Id. at 72.

Note 16. Id. at 76-78.

Note 17. See discussion infra Part II.a.

Note 18. See discussion infra Part II.b.

Note 19. See discussion infra Part II.c.

Note 20. See discussion infra Part III.a.

Note 21. See discussion infra Part III.b.

Note 22. See discussion infra Part III.c.

Note 23. See discussion infra Part III.d.

Note 24. See Fed. R. Evid. 401 (stating that evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”).

Note 25. See id. 102 (stating that purpose of Federal Rules is to justly ascertain truth); id. 403 (listing concerns that justify exclusion of relevant evidence: “danger of unfair prejudice, confusion of the issues, or misleading the jury” and “considerations of undue delay, waste of time, or needless presentation of cumulative evidence”); id. 404 (generally precluding admissibility of character evidence or evidence of other specific wrong acts to “prov[e] action in conformity therewith”); id. 802 (generally precluding admissibility of hearsay evidence); id. 901, 902 (setting forth requirements of authentication or identification for admission of evidence).

Note 26. See id. 501 (providing for exclusion of privileged “evidence”).

Note 27. See generally Ronald L. Carlson et. al., Evidence: Teaching Materials for an Age of Science and Statutes 295-357 (4th ed. 1997) (discussing evidentiary concerns).

Note 28. Fed. R. Evid. 402.

Note 29. See supra note 25 (identifying exception provisions in Federal Rules).

Note 30. See Fed. R. Evid. 102 (stating that purpose of Federal Rules is to justly ascertain truth).

Note 31. Fed. R. Evid. 501.

Note 32. Carlson, supra note 27, at 661; see also In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 76 (1st Cir. 1999) (noting that social policy, not logic, underlies attorney-client privilege recognition and that psychotherapist-patient privilege is similarly justified).

Note 33. See, e.g., United States v. Nixon, 418 U.S. 683, 710 (1974) (stating that testimonial privileges are recognized “in derogation of the search for truth”).

Note 34. See Fed. R. Evid. 501 (providing that recognition and development of testimonial privileges “shall be governed by the principles of the common law as they may be interpreted by the courts of the United States”).

Note 35. Nixon, 418 U.S. at 710. Because of the substantial hostility to the obstructive effect of recognizing privileges in court proceedings, Carlson, supra note 27, at 661, federal courts have declined on numerous occasions to recognize specific testimonial privileges, see, e.g., Rubin v. United States, 525 U.S. 990, 990 (1998) (denying certiorari to consider existence of Secret Service privilege); University of Pa. v. EEOC, 493 U.S. 182, 201-02 (1990) (declining to recognize academic peer review privilege); United States v. Gillock, 445 U.S. 360, 373 (1980) (declining to recognize state privilege for state legislators in federal court); Couch v. United States, 409 U.S. 322, 335-36 (1973) (refusing to recognize accountant-client privilege in context of tax returns related to criminal investigation); In re Grand Jury, 103 F.3d 1140, 1157 (3d Cir. 1997) (declining to recognize parent-child privilege).

Note 36. Jaffee v. Redmond, 518 U.S. 1, 19 (1996) (Scalia, J., dissenting); see also Nixon, 418 U.S. at 712 (“[T]o withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.”).

Note 37. Nixon, 418 U.S. at 710.

Note 38. Carlson, supra note 27, at 661. Professor Carlson cites Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980), as an example of a court narrowing the scope of an existing privilege. Id. The Miller court held that a reporter’s privilege to refuse to disclose the identities of confidential informants must yield in libel cases. Id. at 725-27.

Note 39. Jaffee, 518 U.S. at 10 (quoting Trammel v. United States, 445 U.S. 40, 51 (1980)).

Note 40. Id. at 15 (quoting Trammel v. United States, 445 U.S. 40, 51 (1980) (quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting))).

Note 41. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

Note 42. See Black’s Law Dictionary 124 (7th ed. 1999) (equating “attorney” with “lawyer”); Kay v. Ehrler, 499 U.S. 432, 436 n.6 (1991) (setting out dictionary definitions of “attorney”: “legal agent qualified to act for suitors and defendants in legal proceedings” (quoting Webster’s New Collegiate Dictionary 73 (1975)); “one appointed and authorized to act in the place . . . of another” (quoting Black’s Law Dictionary, supra note 5, at 128)); Rules of Evidence for United States Courts and Magistrates [hereinafter “Proposed Rules”] 503(a)(2), 56 F.R.D. 183, 236 (1972) (defining “lawyer” as “person authorized . . . to practice law in any state or nation”). The attorney-client privilege also extends to communications between a client and a person who enhances or explains communications between attorney and client. See United States v. Ackert, 169 F.3d 136, 139 (2d Cir. 1999) (“If a client and attorney speak different languages, an interpreter could help the attorney understand the client’s communications without destroying the [attorney-client] privilege.”); United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961) (finding that communications between client and accountant or between accountant and client’s attorney may be protected if accountant’s role is to clarify communications between attorney and client).

Note 43. See Proposed Rules 503(a)(1), 56 F.R.D. at 235 (defining “client” as person who consults lawyer “with a view to obtaining professional legal services” or person to whom lawyer renders professional legal services).

Note 44. See, e.g., United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (stating that where assertor of attorney-client privilege did not communicate in confidence or did not intend communications to remain confidential, communications are not “cloaked with the attorney-client privilege”); In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982) (stating that client’s voluntary disclosure waives confidentiality and cancels attorney- client privilege). Procedural devices reflect courts’ realization of the need for attorney-client confidence and trust. See United States v. Zolin, 491 U.S. 554, 569 (1989) (listing appellate decisions from Sixth, Seventh, Ninth, and Tenth Circuits as examples of federal courts approving in camera inspection of communications claimed to be privileged); United States v. Reynolds, 345 U.S. 1, 8 (1953) (“Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses.”), quoted in Zolin, 491 U.S. at 570-71.

Note 45. See Carlson, supra note 27, at 675 (stating that attorney-client privilege applies “only when the client is consulting the attorney . . . in the [attorney’s] unique capacity as a lawyer”).

Note 46. Proposed Rules 503(b), 56 F.R.D. at 236; see also, e.g., Fisher v. United States, 425 U.S. 391, 405 (1976) (stating that documents not discoverable from client are not obtainable from attorney to whom client transferred same documents “for the purpose of obtaining legal advice”); In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 806 (Fed. Cir. 2000) (finding that invention record prepared “primarily for the purpose of obtaining legal advice on patentability” was “privileged in its entirety”); Kovel, 296 F.2d at 922 (stating that legal-advice limitation is “vital” to attorney-client privilege).

Note 47. See Carlson, supra note 27, at 663 (noting that fundamental condition for establishing privilege is that injury inuring to relation by disclosure of confidential communications is greater than benefit gained for correct disposal of litigation (citing 8 John Henry Wigmore, Evidence in Trials at Common Law § 2285 (McNaughton rev. 1961))).

Note 48. See Zolin, 491 U.S. at 562 (stating that clients should be free to tell their attorneys of past wrongdoings so that clients may obtain aid of persons skilled in practice of law) (citations omitted).

Note 49. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (noting that facilitating full and free communication between attorneys and their clients encourages “broader public interests in the observance of law and administration of justice”).

Note 50. Federal courts also refer to the priest-penitent privilege as “clergymen-penitent, communications to clergymen, and clergy-communicant privilege.” In re Grand Jury Investigation, 918 F.2d 374, 377 n.2 (3d Cir. 1990).

Note 51. Trammel v. United States, 445 U.S. 40, 51 (1980).

Note 52. See Grand Jury Investigation, 918 F.2d at 381 (“The history of the Proposed Rules of Evidence reflects that the clergy-communicant rule was one of the least controversial of the enumerated privileges, merely defining a long-recognized principle of American law.”). In Trammel, the Supreme Court alluded to the legitimate need for the priest-penitent privilege. See 445 U.S. at 51 (noting human need to confess and receive consolation and guidance). After Trammel, several federal appellate courts acknowledged the priest- penitent privilege. See, e.g., Mockaitis v. Harcleroad, 104 F.3d 1522, 1532 (9th Cir. 1997) (noting that priest-penitent issue is rarely litigated); Grand Jury Investigation, 918 F.2d at 377 (holding that clergy-communicant privilege exists); United States v. Dube, 820 F.2d 886, 889 (7th Cir. 1987) (acknowledging existence of “clergy-penitent” privilege).

Note 53. Trammel, 445 U.S. at 51. The priest-penitent privilege is accepted because it is among “[t]he well-accepted privileges embraced by our society and endorsed by the courts” which are “rooted in goals in which our society places special values.” Marian Blank Horn, A Trial Judge’s Perspective-Promoting Justice and Fairness While Protecting Privilege, 26 Fordham Urb. L.J. 1429, 1439 (1999) (including priest-penitent privilege).

Note 54. See Proposed Rules 506(a), 56 F.R.D. 183, 247 (1972) (equating “priest” with “clergyman,” “minister,” “rabbi,” and “functionary of a religious organization”); Dube, 820 F.2d at 889 n.9 (including Christian Science practitioners within privilege); Eckmann v. Board of Educ., 106 F.R.D. 70, 72 (E.D. Mo. 1985) (holding that Catholic nun, as spiritual advisor, may invoke privilege).

Note 55. Federal courts refer to “communicant” or “communicating person” as penitent. See, e.g., Proposed Rules 506(c) advisory committee’s note, 56 F.R.D. at 249 (noting that privilege belongs to “communicating person”); Mockaitis, 104 F.3d at 1532 (referring to “Lutheran communicant”); Grand Jury Investigation, 918 F.2d passim (referring to “clergy-communicant” privilege).

Note 56. See Dube, 820 F.2d at 889 (limiting privilege to spiritual communications and finding that individual who seeks out clergy only to avoid paying income tax is not “a penitent seeking spiritual relief from his sins”); United States v. Gordon, 655 F.2d 478, 486 (2d Cir. 1981) (holding that conversations relating to “business relationships, not spiritual matters,” were not privileged); United States v. Wells, 446 F.2d 2, 4 (2d Cir. 1971) (noting that federal priest-penitent privilege is restricted to spiritual confessional or spiritual rehabilitational confidences); Free United Mission Mother Church v. United States, No. EP-85-CA-76, 1985 WL 5283, at *2 (W.D. Tex. Oct. 24, 1985) (“If there is such a thing as a priest-penitent privilege recognized in federal court, it applies only to communications of a spiritual nature . . . .”).

Note 57. Proposed Rules 504 advisory committee’s notes, 56 F.R.D. at 242 (quoting psychiatric authorities), quoted in Jaffee v. Redmond, 518 U.S. 1, 10 (1996).

Note 58. Jaffee, 518 U.S. at 12; see also id. at 12 n.11 (listing statutes).

Note 59. Proposed Rules 504, 56 F.R.D. at 240-44 (setting out text of proposed rule, exceptions to proposed rule, and advisory committee’s note).

Note 60. See H.R. Conf. Rep. No. 93-1597, at 7 (1974), reprinted in 1974 U.S.C.C.A.N. 7098, 7100-01 (discussing Senate and House proposals regarding privileges for inclusion in Federal Rules).

Note 61. See Fed. R. Evid. 501 (“[T]he 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.”).

Note 62. Id.

Note 63. S. Rep. No. 93-1277, at 13 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7059.

Note 64. Proposed Rules 504, 56 F.R.D. at 240-41.

Note 65. In re Zuniga, 714 F.2d 632, 636 (6th Cir. 1983) (quoting Proposed Rules 504, 56 F.R.D. at 240).

Note 66. In re Grand Jury Subpoena (Psychological Treatment Records), 710 F. Supp. 999, 1005 (D.N.J. 1989) (quoting Proposed Rules 504, 56 F.R.D. at 240).

Note 67. Zuniga, 714 F.2d at 636-37 (quoting Proposed Rules 504, 56 F.R.D. at 241).

Note 68. See Jaffee v. Redmond, 51 F.3d 1346, 1355 (7th Cir. 1995) (“[R] eason and experience compel the recognition of a psychotherapist/patient privilege.”), aff’d, 518 U.S. 1 (1996); In re Doe, 964 F.2d 1325, 1328 (2d Cir. 1992) (opining that “limit[ing] the development of privileges to those recognized by the common law” is “contrary to the teaching of Trammel ‘not to freeze the law of privilege.’ ” (quoting Trammel v. United States, 445 U.S. 40, 47 (1980))); Zuniga, 714 F.2d at 637 (noting that Congress authorized federal courts to recognize privileges on case-by-case basis).

Note 69. See United States v. Burtrum, 17 F.3d 1299, 1302 (10th Cir. 1994) (“Congress preserved privilege law as it then existed in federal court rather than incorporating state law privileges in criminal and other federal question cases.”); In re Grand Jury Proceedings, 867 F.2d 562, 565 (9th Cir.

1989) (opining that Congress limited federal courts to development of privileges with “common law foundations” and that psychotherapist-patient privilege existed by virtue of state statutes, not common law); United States v. Corona, 849 F.2d 562, 567 (11th Cir. 1988) (“[N]o physician (including psychotherapist)-patient privilege exists in federal criminal trials.”); United States v. Meagher, 531 F.2d 752, 753 (5th Cir. 1976) (“At common law, no physician-patient privilege existed and, therefore, we recognize no such privilege [between psychiatrist and patient] in federal criminal trials today.”).

Note 70. 518 U.S. 1, 15 (1996). Jaffee involved a compelling factual situation-the shooting death of a suspect by a female police officer and the officer’s subsequent threatening confrontation with an irate crowd. Id. at 4-5. In the ensuing civil action, the plaintiff sought access to the notes of a licensed clinical social worker who had counseled the police officer following the incident. Id. at 5. The defendant and her social worker, claiming that their confidential communications were protected by a psychotherapist-patient privilege, refused to disclose the content of their communications. Id. The district court, refusing to recognize the privilege, id., instructed the jury that they could “presume that the contents of the notes would have been unfavorable to [the defendant],” id. at 5-6. The jury awarded damages to the plaintiff. Id. at 6. The Court of Appeals for the Seventh Circuit reversed and remanded, ruling that a psychotherapist-patient privilege exists in the federal courts. Jaffee v. Redmond, 51 F.3d at 1358.

Note 71. Jaffee, 518 U.S. at 8 (quoting Fed. R. Evid. 501 and noting that Rule 501 borrowed quoted phrase from Wolfle v. United States, 291 U.S. 7, 12 (1934)).

Note 72. See id. at 12-13 (“[T]he policy decisions of the States bear on the question whether federal courts should recognize a new privilege . . . . Because state legislatures are fully aware of the need to protect the integrity of the factfinding functions of their courts, . . . a consensus among the States indicates that ‘reason and experience’ support recognition of the privilege.” (citations omitted)); see also id. at 12 n.11 (listing statutes).

Note 73. Id. at 10-11.

Note 74. Id. at 10.

Note 75. Id.

Note 76. Id. at 11. The Court highlighted Jaffee’s facts as an example of the importance of psychotherapeutic counseling to the community: “This case amply demonstrates the importance of allowing individuals to receive confidential counseling. . . . The entire community may suffer if police officers are not able to receive effective counseling and treatment after traumatic incidents . . . .” Id. at 11 n.10.

Note 77. See id. at 9-10 (“[T]he question we address today is whether a privilege protecting confidential communications between a psychotherapist and her patient ‘promotes sufficiently important interests to outweigh the need for probative evidence . . . .’ Both ‘reason and experience’ persuade us that it does.” (quoting Trammel v. United States, 445 U.S. 40, 51 (1980))).

Note 78. See id. at 15-17 (explaining why scope of “psychotherapist” should include licensed social workers in addition to psychiatrists and psychologists). The Court stated: [C]lients [of social workers] often include the poor and those of modest means who could not afford the assistance of a psychiatrist or psychologist, but whose counseling sessions serve the same public goals. . . . “[D]rawing a distinction between the counseling provided by costly psychotherapists and the counseling provided by more readily accessible social workers serves no discernible public purpose.” Id. at 16-17 (quoting Jaffee v. Redmond, 51 F.3d 1346, 1358 n.19 (7th Cir. 1995), aff’d, 518 U.S. 1 (1996)). Justice Scalia, joined by Chief Justice Rehnquist, dissented to the inclusion of licensed social workers within the scope of “psychotherapist.” See id. at 27-36 (Scalia, J., dissenting) (noting greater expertise and training of licensed psychiatrists and psychologists as compared with lesser expertise of licensed social workers).

Note 79. Id. at 17-18 (“Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the privilege.”). The Court of Appeals for the Seventh Circuit had stated that the psychotherapist-patient privilege “requires an assessment of whether . . . the evidentiary need for the disclosure of the contents of a patient’s counseling sessions outweighs that patient’s privacy interests.” Jaffee, 51 F.3d at 1357 (citing In re Doe, 964 F.2d 1325, 1328 (2d Cir. 1992)). Accordingly, the Seventh Circuit confined its analysis to situations “where the balance of the competing interests tips sharply in favor of the [psychotherapist-patient] privilege.” Id.

Note 80. See Jaffee, 518 U.S. at 15 (holding that “confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure”).

Note 81. Id. The Court also noted that “[l]ike other testimonial privileges, the patient may of course waive the [confidentiality] protection.” Id. at 15 n.14.

Note 82. Id. at 15; see also id. at 15-17 (including psychiatrists, psychologists, and licensed social workers within the scope of “psychotherapist”).

Note 83. Id. at 15.

Note 84. Id. at 18.

Note 85. See Fed. R. Evid. 501 advisory committee’s note (providing for development of privileges by federal courts “by the principles of the common law” as interpreted by federal courts “in the light of reason and experience”); see also Jaffee, 518 U.S. at 8-9 (“[Federal Rule 501] did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history, but rather directed federal courts to ‘continue the evolutionary development of testimonial privileges.’ ” (quoting Trammel v. United States, 445 U.S. 40, 47 (1980))).

Note 86. Jaffee, 518 U.S. at 18.

Note 87. Id. at 18 n.19.

Note 88. See id. (“[I]t would be premature to speculate about most future developments in the federal psychotherapist privilege.”); see also id. at 18 (stating that Federal Rule 501, which “acknowledges the recognition of new privileges on a case-by-case basis[,] makes it appropriate to define the details of new privileges in a like manner”).

Note 89. In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995); see also United States v. Zolin, 491 U.S. 554, 562-63 (1989) (stating that reason for attorney-client privilege no longer operates where communications are intended to advance crime or fraud).

Note 90. See, e.g., United States v. Jacobs, 117 F.3d 82, 87-89 (2d Cir. 1997) (denying attorney-client privilege to client who used letters from attorney to persuade victims to invest in fraudulent scheme); United States v. Inigo, 925 F.2d 641, 657 (3d Cir. 1991) (denying attorney-client privilege to defendant who consulted attorney to further extortion attempt); United States v. Zolin, 905 F.2d 1344, 1345-46 (9th Cir. 1990) (removing from attorney-client privilege protection taped admissions by client made during attempt to defraud government), aff’d, 491 U.S. 554 (1989); In re John Doe Corp., 675 F.2d 482, 484, 488 (2d Cir. 1982) (stating that attorney-client privilege was not applicable partially because communications furthered ongoing bribery scheme).

Note 91. In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 76 (1st Cir. 1991).

Note 92. Id.

Note 93. Jacobs, 117 F.3d at 87 (citing Zolin, 491 U.S. at 563).

Note 94. E.g., id.; Richard Roe, 68 F.3d at 40-41 (refusing application of crime-fraud exception because communication, although relevant, was not made in furtherance of future or ongoing crime or fraud); United States v. Hodge & Zweig, 548 F.2d 1347, 1355 (9th Cir. 1977) (denying attorney-client privilege because attorneys were retained in furtherance of conspiracy). The factual situation in United States v. Jacobs, 117 F.3d at 82, merited traditional application of the crime-fraud exception within the attorney-client context. The Jacobs defendant published a summary of two letters from his lawyer in a manner that “inverted the [lawyer’s] analysis and conclusion” for the purpose of convincing potential investors that the defendant’s enterprise was legal. Id. at 89 & 90-91 n.6. The full content of the letters, however, revealed the attorney’s emphatic pronouncement that the enterprise was illegal. See id. at 91 n.6 (“[T]he criminal liability could be horrendous . . . . [L] et me reiterate my overall recommendation to you: Don’t do it!”). The United States Court of Appeals for the Second Circuit found that the client’s criminal intent in seeking advice from his attorney nullified the attorney-client privilege. See id. at 99 (affirming lower court’s application of crime-fraud exception to attorney-client privilege with regard to attorney’s letters to his client).

Note 95. In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1039 (2d Cir. 1984).

Note 96. 183 F.3d at 71.

Note 97. Id. at 72.

Note 98. Id.

Note 99. Id. at 73.

Note 100. Id. at 73-74 (emphasis added).

Note 101. Id. at 74.

Note 102. See id. (acknowledging choices for denying privilege: either “the communications in question do not satisfy the requirements of the privilege or . . . the communications satisfy the requirements of both the privilege and an exception thereto”).

Note 103. Id. at 79.

Note 104. See id. at 77-78 n.4 (implying that Jaffee treatment condition is too broadly worded to exclude crime-fraud communications from privilege protection).

Note 105. Reference to “spoiler of condition” in this section indicates a fact or circumstance which prevents satisfaction of a Jaffee condition.

Note 106. See Jaffee v. Redmond, 518 U.S. 1, 15 (1996) (conditioning application of psychotherapist-patient privilege on confidential communications taking place “in the course of diagnosis or treatment”).

Note 107. See id. at 10 (noting sensitive nature of problems addressed in psychotherapy and need for patient’s free disclosure of thoughts and emotions to psychotherapist).

Note 108. See id. (implying that psychotherapy requires more than objective information provided by patient and diagnostic tests needed for diagnosis and treatment of physical ailments).

Note 109. Id.

Note 110. Id.

Note 111. Id. at 15 (emphasis added).

Note 112. Proposed Rules 504, 56 F.R.D. 183, 241 (1972) (emphasis added).

Note 113. In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 77-78 n.4 (1st Cir. 1999).

Note 114. Cf. Recent Case, Evidence-Evidentiary Privilege-First Circuit Recognizes Crime-Fraud Exception to Psychotherapist-Patient Privilege-In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71 (1st Cir. 1999), 113 Harv. L. Rev. 1539, 1543 (2000) (“[W]hen the [psychotherapist-patient] relationship is in fact non-therapeutic, any communication will fail the initial Jaffee test, having not been made ‘in the course of diagnosis or treatment.’ ” (emphasis added)). For a comparison of the respective competencies of the Jaffee and Proposed Rule 504 treatment conditions to protect the psychotherapist-patient privilege rationale, see discussion infra Part III.c.2.

Note 115. See discussion infra Part III.a.2.a (arguing that becoming psychotherapy “patient” implies individual’s intent to improve his mental or emotional health).

Note 116. Jaffee, 518 U.S. at 15.

Note 117. 820 F.2d 886 (7th Cir. 1987).

Note 118. Id. at 890.

Note 119. See id. (finding that tax-debate communications were not spiritual in nature).

Note 120. See Jaffee, 518 U.S. at 15 (omitting proper-purpose considerations from express conditions for application of privilege).

Note 121. For language supporting the use of the “purpose condition” label, see the construction of the psychiatrist-patient privilege rule proposed by the Judicial Conference Advisory Committee on Rules of Evidence for inclusion in the Federal Rules, which would have protected only confidential communications made “for the purposes of diagnosis or treatment.” Proposed Rules 504, 56 F.R.D. 183, 241 (1972).

Note 122. The implied relaxed standard for privileged communications between psychotherapist and patient contrasts with the subject-matter limitations to which the priest-penitent and attorney-client privileges are subject. The protection of the priest-penitent privilege is limited to communications involving spiritual subject matter, see supra note 56 (listing cases supporting spiritual subject-matter limitation on priest-penitent communications), and the protection of the attorney-client privilege is limited to communications involving legal advice, see supra note 46 (listing cases specifying legal- advice limitation on protection for attorney-client communications).

Note 123. See Jaffee, 518 U.S. at 1-15 (omitting proper purpose considerations from discussion and analysis); id. at 15-18 (omitting proper purpose considerations from discussion of privilege scope).

Note 124. For a discussion of connections between burden-of-proof considerations and the rationale underlying the psychotherapist-patient privilege, see discussion infra Part III.c.3.

Note 125. Black’s Law Dictionary, supra note 5, at 1227.

Note 126. Cal. Evid. Code § 1011 (West 1999).

Note 127. 3 The Oxford English Dictionary 1054 (2d ed. 1989).

Note 128. § 1011.

Note 129. 3 The Oxford English Dictionary, supra note 127, at 1054.

Note 130. See supra Part III.a.1 (arguing that patient’s psychotherapeutic intent is implied by establishing psychotherapeutic course of diagnosis or treatment).

Note 131. 711 F.2d 1187 (2d Cir. 1983).

Note 132. Id. at 1190.

Note 133. See id. at 1193-94. The court stated: [I]t appears that [the psychiatrist] did not even recognize his “patient” of two weeks earlier. The 70 patient per day assembly-line technique involving only a brief interview is scarcely a psychiatrically nurturing event for a patient . . . . . . . [T]here is substantial evidence indicating that no real psychotherapist-patient relationship existed between [the psychiatrist] and the persons whose identities appear in the files. Id.; see also supra note 125 and accompanying text (defining “psychotherapy” as method of treating disease of mind or nervous system without relying solely on drug therapy or other physical remedies).

Note 134. For a summary of the Violette facts, see supra notes 98-101 and accompanying text.

Note 135. But see Analyze This (Warner Bros. Studios 1999) (humorously depicting circumstances wherein mobster sought assistance from psychologist to regain mobster’s former criminal ruthlessness in dealing with enemies).

Note 136. See Carlson, supra note 27, at 675-76 (discussing importance of imposing requirement that privileged communications must be made for purposes within unique professional capacity of person from whom advice is sought).

Note 137. See supra notes 106-110 and accompanying text (explaining why Jaffee’s “course” implies “psychotherapeutic course” of diagnosis or treatment).

Note 138. See Jaffee v. Redmond, 518 U.S. 1, 10 (1996) (noting that free exchange between psychotherapist and patient is essential to effective psychotherapy).

Note 139. See In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 72-73 (1st Cir. 1999) (setting out similar reason for privilege claim).

Note 140. See supra Part III.a.1 (arguing that establishing genuine course of psychotherapeutic diagnosis or treatment implies patient’s psychotherapeutic intent).

Note 141. See Violette, 183 F.3d at 73 (stating that party asserting privilege bears burden of showing that privilege applies); see also infra Part III.c.3.b (discussing relationship of privilege opponent’s burden of proof to psychotherapist-patient privilege rationale).

Note 142. See supra notes 98-101 (setting out Violette facts).

Note 143. See supra note 105 (explaining meaning of spoiler of condition).

Note 144. Jaffee v. Redmond, 518 U.S. 1, 18 n.19 (stating that “privilege must give way” in situations where “a serious threat to the patent or to others can be averted only by means of a disclosure by the therapist”).

Note 145. Id. Whether the Court intended to comment on an evidentiary exception to the psychotherapy privilege or only to point out a confidentiality exception with respect to a psychotherapist’s disclosure of a patient’s confidence to prevent harm outside the evidentiary setting has not been conclusively determined. Compare United States v. Hayes, 2000 WL 1289028, at *5 (6th Cir. Sept. 14, 2000) (stating that state’s “duty to protect” requirement is not pertinent to psychotherapist-patient privilege applicability in criminal proceedings), with United States v. Glass, 133 F.3d 1356, 1359 (10th Cir. 1998) (stating that psychotherapist-patient privilege applies unless there is basis to discern whether serious threat of harm “could only be averted by disclosure”); see also George C. Harris, The Dangerous Patient Exception to the Psychotherapist-Patient Privilege: The Tarasoff Duty and the Jaffee Footnote, 74 Wash. L. Rev. 33, 33, 67 (1999) (arguing that “exception to the evidentiary privilege should be evaluated separately from the exception to confidentiality” and that dangerous-patient exception should apply “only where psychotherapists’ testimony is necessary to prevent future harm to patients or identified potential victims”).

Note 146. See Jaffee, 518 U.S. at 15 (setting forth conditions for applying psychotherapist-patient privilege).

Note 147. State v. Agacki, 595 N.W.2d 31, 36 (Wis. 1999) (quoting Schuster v. Altenberg, 424 N.W.2d 159, 170 (Wis. 1988)).

Note 148. See Clark v. United States, 289 U.S. 1, 13 (1933) (“The social policy that will prevail in many situations may run foul in others of a different social policy, competing for supremacy. It is then the function of a court to mediate between them . . . .”), quoted in In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 74-75 (1st Cir. 1999). Several state courts have required that psychotherapists reveal confidential information in dangerous-patient situations. See Estates of Morgan v. Fairfield Family Counseling Ctr., 673 N.E.2d 1311, 1324 (Ohio 1997) (“The mental health community . . . has a broadly based responsibility to protect the community against danger associated with mental illness.”); Schuster v. Altenberg, 424 N.W.2d 159, 171 (Wis. 1988) (noting psychiatric principles and survey results that support breach of confidence in certain instances); Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 345 (Cal. 1976) (“[O]nce a therapist . . . determine[s] . . . that a patient poses a serious danger of violence to others, [the therapist] bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.”).

Note 149. See supra notes 42-43 (defining “attorney” and “client”).

Note 150. See supra note 44 (listing federal cases discussing attorney-client confidentiality requirement).

Note 151. Carlson, supra note 27, at 672-675.

Note 152. See supra note 46 (listing decisions applying legal-advice criterion to attorney-client privilege).

Note 153. Cf. United States v. Zolin, 491 U.S. 554, 563 (1989) (noting purpose of crime-fraud exception to assure that legal advice obtained for crime-fraud purposes is not shielded by attorney-client privilege).

Note 154. See In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 76 (1st Cir. 1999) (noting that both attorney-client and psychotherapist- patient privileges “foster the confidence and trust required for effective counseling relationships,” and that although neither privilege is justified solely by private interests, “on balance, [recognizing both privileges] serves the public weal”).

Note 155. See id. (“Th[e] sense of parity [between attorney-client and psychotherapist-patient rationales] carries over to the crime-fraud exception.”). The court explained: [W]hen a client communicates for the purpose of advancing a criminal or fraudulent enterprise . . . . the rationale that underpins the [attorney- client] privilege vanishes (or at least diminishes markedly in force). . . . It surely can be argued that if the veil of secrecy were totally opaque, lawyers might have more opportunities to discourage illegal behavior. But the crime-fraud exception reflects a policy judgment that this potential discouragement does not justify the costs of shielding highly probative evidence of antisocial conduct from the factfinders’ eyes.

Id.

Note 156. Id. at 76-77 (quoting Trammel v. United States, 445 U.S. 40, 50 (1980) (quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting))).

Note 157. See supra note 46 and accompanying text (discussing legal-advice requirement for attorney-client privilege application).

Note 158. See supra note 94 (setting out factual situation in which client seeks legal advice but uses advice to further fraudulent scheme).

Note 159. See Violette, 183 F.3d at 74 (acknowledging that facts in Violette afforded basis “for concluding that the communications were made outside the course of genuine diagnosis or treatment”).

Note 160. For a discussion of the competence of the Jaffee treatment condition to protect the psychotherapist-privilege rationale without using the crime-fraud exception, see infra Part III.c.2.

Note 161. 491 U.S. 554 (1989).

Note 162. See id. at 556-57, 562-75 (rejecting notion that only independent evidence may be examined in camera; addressing whether applicability of crime-fraud exception must be established “without reference to the content of the contested communications[ ], or . . . whether the applicability of that exception can be resolved by an in camera inspection of the allegedly privileged material”; holding that in camera review requires threshold showing by non-privileged evidence that crime-fraud exception is warranted).

Note 163. See Fed. R. Evid. 104(a) (“Preliminary questions concerning . . . the existence of a privilege . . . shall be determined by the court . . . . In making its determination [the court] is not bound by the rules of evidence except those with respect to privileges.” (emphasis added)); id. 1101(c) (“The rule with respect to privileges applies at all stages of all actions, cases, and proceedings.” (emphasis added)).

Note 164. See Zolin, 491 U.S. at 566 (acknowledging ostensible logic of argument).

Note 165. See id. at 566. The Court reasoned: At first blush, [Rules 104(a) and 1101(c)] would appear to be relevant. . . . Taken together, these Rules might be read to establish that . . . attorney-client communications cannot be considered by the district court in making its crime-fraud ruling: to do otherwise, under this view, would be to make the crime-fraud determination without due regard to the existence of the privilege. Id. at 565-66. The Court stated that this reading would lead to the “absurd result” that crime-fraud and other exceptions could never be proved. Id. at 566. The Court compared Federal Rule 104(a) with a similarly focused provision in the California Rules of Evidence which agreed with the literal reading that the Court was trying to avoid. See id. (stating that literal reading would be “Draconian”). The California rule provided that “the presiding officer may not require disclosure of information claimed to be privileged . . . in order to rule on the claim of privilege.” Id. (emphasis added) (quoting Cal. Evid. Code § 915(a) (West 1989)). The Court stated that the precise terminology of the California rule mandated an absurd result, id., but that the federal rule, lacking the California rule’s degree of specificity, left some room for interpretation, see id. at 567 (“There is no reason to read [Federal] Rule 104(a) as if its text were identical to that of the California rule.”).

Note 166. id. at 574-75.

Note 167. See Bourjaily v. United States, 483 U.S. 171, 175 (1987) (explaining application of preponderance standard to Federal Rule 104(a) questions). The Court stated: [P]reliminary questions of fact . . . , under Rule 104, must be resolved by the court. The Federal Rules, however, nowhere define the standard of proof the court must observe in resolving these questions. . . . We have traditionally required that these matters be established by a preponderance of proof. Evidence is placed before the jury when it satisfies the technical requirements of the evidentiary Rules, which embody certain legal and policy determinations. . . . The preponderance standard ensures that before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration. Id.

Note 168. See Fed. R. Evid. 104(a) advisory committee’s note (noting trial judge’s responsibility to determine applicability of conditions to evidence rules). The note states: The applicability of a particular rule of evidence often depends upon the existence of a condition. . . . [T]he admissibility of evidence will turn upon the answer to the question of the existence of the condition. Accepted practice, incorporated in the rule, places on the judge the responsibility for these determinations. To the extent that these inquiries are factual, the judge acts as a trier of fact. . . . . . . . If the question is factual in nature, the judge will of necessity receive evidence pro and con on the issue. Id.

Note 169. See Zolin, 491 U.S. at 568-69 (noting federal practice of allowing privilege proponents to submit communications for in camera review when necessary to establish that privilege should apply).

Note 170. Id. at 574. The non-privileged evidence need not be independent of the alleged privileged communications. Id. at 574 n.12. Further, the non- privileged evidence “may be used not only in the pursuit of in camera review, but also may provide the evidentiary basis for the ultimate showing that the crime-fraud exception applies.” Id.

Note 171. See Jaffee v. Redmond, 518 U.S. 1, 15 (1996) (conditioning application of psychotherapist-patient privilege on confidentiality of communications between psychotherapist and patient and on existence of course of diagnosis or treatment).

Note 172. See supra Part III.a.2 (discussing effect of crime-fraud purpose on Jaffee treatment condition).

Note 173. See Jaffee, 518 U.S. at 15 (omitting proper-purpose requirement from conditions).

Note 174. See infra Part III.c.2 (arguing that Jaffee’s treatment condition is superior to Proposed Rule 504’s proper-purpose condition in supporting psychotherapist-patient rationale).

Note 175. Cf. Menendez v. Superior Court, 834 P.2d 786, 791-92 (Cal. 1992) (scrutinizing psychotherapist-patient communications on session-by- session and tape-by-tape basis to search for evidence that dangerous-patient exception was justified).

Note 176. Jaffee, 518 U.S. at 15.

Note 177. See id. at 10 (noting that “effective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears,” even though complete disclosure “may cause embarrassment or disgrace”); see also In re Grand Jury Subpoena (Psychological Treatment Records), 710 F. Supp. 999, 1006-07 (D.N.J. 1989) (stating that therapists “not only explore the very depths of their patients’ conscious, but their unconscious feelings and attitudes as well”), aff’d, 879 F.2d 857 (3d Cir. 1989).

Note 178. See Psychological Treatment Records, 710 F. Supp. at 1010 (noting that, “so long as the communications were made to a psychotherapist confidentially in the interests of furthering treatment of the patient,” even disclosures of criminal activity is not discoverable).

Note 179. See Trammel v. United States, 445 U.S. 40, 50 (1980) ( “Testimonial . . . privileges contravene the fundamental principle that ‘the public . . . has a right to every man’s evidence.’ ” (quoting United States v. Bryan, 339 U.S. 323, 331 (1950) (citations omitted))).

Note 180. See id. at 51 (stating that before recognizing privilege, court must decide whether privilege “promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice”).

Note 181. This Note hereinafter refers to the evidentiary harm as “harm,” the societal benefit as “good,” and the weighing of evidentiary harm against societal benefit as “balancing harm and good.”

Note 182. Id. at 50 (quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting)).

Note 183. See United States v. Glass, 133 F.3d 1356, 1357 (10th Cir. 1998) (alluding to “Jaffee’s rationale” for psychotherapist-patient privilege: “fostering an atmosphere of confidence and trust when a person seeks to disclose his thoughts”).

Note 184. Jaffee v. Redmond, 518 U.S. 1, 10-11 (1996).

Note 185. See supra note 181 and accompanying text (explaining meaning of “balancing harm and good”).

Note 186. See Jaffee, 518 U.S. at 10-11.

Note 187. Id. at 11-12. Because the chilling effect of forced disclosure on the psychotherapist-patient communications would mean that “much of the desirable evidence to which litigants seek access . . . is unlikely to come into being,” the “unspoken evidence [would] therefore serve no greater truth- seeking function than if it had been spoken and privileged.” Id. at 12.

Note 188. See id. at 10 (“Effective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.”).

Note 189. See id. at 15 (stating that communications must be “in the course of diagnosis or treatment”).

Note 190. See Proposed Rules 504, 56 F.R.D. 183, 241 (1972) (proposing protection for confidential psychotherapist-patient communications made “for the purposes of diagnosis or treatment of [the patient’s] mental or emotional condition”).

Note 191. In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 77 & 77-78 n.4 (noting that “[t]he broader Jaffee privilege may require an exception that the narrower version contained in the proposed rules did not [require]”).

Note 192. See supra Part III.a.2.a (arguing that satisfaction of Jaffee treatment condition should imply patient’s intent to pursue genuine psychotherapy).

Note 193. Jaffee, 518 U.S. at 10.

Note 194. See id. (stating that possibility of disclosure of patient’s sensitive communications may impede development of confidential psychotherapist-patient relationship upon which effective psychotherapy depends).

Note 195. See In re Grand Jury Subpoena (Psychological Treatment Records), 710 F. Supp. 999, 1010 (D.N.J. 1989) (“The psychotherapist-patient privilege would, generally, keep such information [as mob secrets and names of criminal cohorts] from grand juries despite its obvious usefulness in investigations of federal crime, so long as the communications were made to a psychotherapist confidentially in the interests of furthering treatment of the patient.”).

Note 196. See Jaffee, 518 U.S. at 13 & n.12 (stating that denying psychotherapist-patient privilege recognition would frustrate states’ efforts to foster psychotherapy because therapist has ethical duty to disclose relevant confidentiality limits to patients).

Note 197. Taylor v. United States, 222 F.2d 398, 401 (D.C. Cir. 1955), quoted in In re Zuniga, 714 F.2d 632, 638 (6th Cir. 1983), quoted in Jaffee v. Redmond, 51 F.3d 1346, 1356 (7th Cir. 1995), aff’d, 518 U.S. 1 Copr. (C) West 2001 No Claim to Orig. U.S. Govt. Works

Note 198. Taylor, 222 F.2d at 401.

Note 199. See Jaffee, 518 U.S. at 10 (noting importance to psychotherapy of patients’ willingness to communicate without reservation); Zuniga, 714 F.2d at 640 (“The essential element of the psychotherapist-patient privilege is its assurance to the patient that his innermost thoughts may be revealed [to the therapist] without fear of disclosure.” (emphasis added)), quoted in Jaffee, 51 F.3d 1346, 1356, aff’d, 518 U.S. at 1.

Note 200. See Jaffee, 518 U.S. at 11 (noting transcendent public benefit served by recognition of psychotherapist-patient privilege).

Note 201. See supra notes 115-119 and accompanying text (arguing that courts should infer higher threshold for applying psychotherapist-patient privilege from Jaffee’s treatment condition than from Proposed Rule 504’s proper-purpose treatment condition).

Note 202. See In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 73 (1st Cir. 1999) (noting that privilege proponent bears burden to show that privilege applies).

Note 203. See Jaffee, 518 U.S. at 15 (omitting proper purpose considerations from conditions for psychotherapist-patient privilege application).

Note 204. See In re Grand Jury Subpoenas, 144 F.3d 653, 660 (10th Cir. 1998) (stating that opponent of attorney-client privilege “must present prima facie evidence that the allegation of attorney participation in the crime or fraud has some foundation in fact”). The trial judge should decide by a preponderance of the available evidence whether a testimonial privilege should apply. See Fed. R. Evid. 104(a) (“Preliminary questions concerning the . . . existence of a privilege . . . shall be determined by the court.”); Bourjaily v. United States, 483 U.S. 171, 175 (1987) (stating that when considering preliminary question of fact, preponderance-of-proof standard traditionally applies). If the privilege opponent believes that in camera examination of the communications will prove that the crime-fraud exception should apply, the privilege opponent must produce lawfully obtained, relevant non-privileged evidence “sufficient to support a reasonable belief that in camera review may yield evidence that establishes the [crime-fraud] exceptions’s applicability.” United States v. Zolin, 491 U.S. 554, 574-75 (1989).

Note 205. Cf. Trammel v. United States, 445 U.S. 40, 50 (1980) (stating that testimonial privileges “must be strictly construed and accepted ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth’ ” (quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting))).

Note 206. See supra Part III.c.1 (discussing rationale underlying psychotherapist-patient privilege).

Note 207. See supra Part III.c.2 (discussing superiority of course of diagnosis or treatment to promote effective psychotherapy over mere informal or sporadic encounters with psychotherapist).

Note 208. See Jaffee, 518 U.S. at 17-18. The Court states: We reject the balancing component of the privilege implemented by [some federal and state jurisdictions]. Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. . . . “An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” Id. (quoting Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)).

Note 209. See In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 72 (1st Cir. 1999) (setting out identical facts).

Note 210. See In re Doe, 711 F.2d 1187, 1190 (2d Cir. 1983) (setting out identical facts).

Note 211. Jaffee, 518 U.S. at 10 (noting that patients’ freedom to communicate freely is essential to successful treatment).

Note 212. See supra Part III.c.2.a (arguing that requiring proper-purpose scrutiny of communications within course of diagnosis or treatment is not conducive to effective psychotherapy).

Note 213. See supra notes 120-123 and accompanying text (arguing that all communications made within course of diagnosis or treatment are presumptively therapeutic in purpose).

Note 214. See supra Part III.b.2 (proposing procedure for applying crime- fraud exception to certain communications in course of diagnosis or treatment).

Note 215. See In re Grand Jury Subpoenas, 144 F.3d 653, 660 (10th Cir. 1998) (“To invoke the crime-fraud exception [to deny the attorney-client privilege], the party opposing the privilege must present prima facie evidence that the allegation of attorney participation in the crime or fraud has some foundation in fact.”). The Supreme Court declined to specify the quantum of proof necessary to establish the crime-fraud exception to the attorney-client privilege, United States v. Zolin, 491 U.S. 554, 563 n.7 (1989), but the Court dictated “a higher standard of proof for public disclosure than for in camera review,” In re General Motors Corp., 153 F.3d 714, 716 (8th Cir. 1998) (“Until it is established that the crime/fraud exception applies, the district court may not compel disclosure of allegedly privileged communications to the party opposing the privilege.”); see also Grand Jury Subpoenas, 144 F.3d at 660 (listing various standards applied by federal appellate courts). The Grand Jury Subpoenas court identified the following standards: (1) evidence showing probable cause to believe crime or fraud was committed (citing In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995)); (2) evidence sufficient to support finding that crime- fraud exception elements were met (citing Haines v. Liggett Group, Inc., 975 F.2d 81, 95-96 (3d Cir. 1992)); (3) evidence that will suffice until overcome by other evidence (citing In re International Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1242 (5th Cir. 1982)); (4) evidence sufficient to require privilege assertor to come forward with separate evidence to support application of privilege (citing United States v. Davis, 1 F.3d 606, 609 (7th Cir. 1993)); (5) reasonable cause to believe that attorney’s advice was used in furtherance of scheme (citing In re Grand Jury Proceedings (Appeal of Corporation), 87 F.3d 377, 381 (9th Cir. 1996)); (6) evidence that would establish elements of ongoing or imminent crime, fraud or violation (citing In re Sealed Case, 107 F.3d 46, 50 (D.C. Cir. 1997)). Id. at 660.

Note 216. See Zolin, 491 U.S. at 572 (mandating showing of non-privileged evidence in attorney-client context before in camera review); see also supra Part III.b.2 (proposing similar procedure in psychotherapist-patient context).

Note 217. For an example of the session-by-session approach, see Menendez v. Superior Court, 834 P.2d 786, 791 (Cal. 1992) (examining units of communication within established course of psychotherapy and finding that two sessions contained communications falling within jurisdictionally recognized dangerous-patient exception and two others did not).

Note 218. Zolin, 491 U.S. at 571 (citations omitted).

Note 219. See Jaffee v. Redmond, 518 U.S. 1, 10 (1996) (noting psychotherapeutic necessity of “complete disclosure of facts, emotions, memories, and fears,” even though complete disclosure “may cause embarrassment or disgrace”).

Note 220. See supra note 217 (noting case in which state court examined communications on session-by-session basis).

Note 221. See Jaffee, 518 U.S. at 11-12 (setting out rationale underlying psychotherapist-patient privilege).

Note 222. See id. at 11 (stating that asserted privilege must serve transcendent public ends promoted by facilitation of private ends).

Note 223. See supra note 181 (explaining meaning of “balancing harm and good”).

Note 224. See Jaffee, 518 U.S. at 11 (balancing harm and good before recognizing psychotherapist-patient privilege: “In contrast to the significant public and private interests supporting recognition of the privilege, the likely evidentiary benefit that would result from the denial of the [psychotherapist-patient] privilege is modest.”).

Note 225. See In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 74 (1st Cir. 1999) (“When a court is called upon to consider modifying a privilege or adopting a new exception to it, the appropriate inquiry is whether protecting a particular class of confidential communications ‘promotes sufficiently important interests to outweigh the need for probative evidence.’ ” (quoting Trammel v. United States, 445 U.S. 40, 51 (1980))).

Note 226. Cf. id. at 74 (stating that “[c]ommon sense suggests, and the Evidence Rules make explicit” that judgment to modify privilege “must be made in the light of ‘reason and experience’ ” (quoting Federal Rule 501)).

Note 227. Jaffee, 518 U.S. at 18. Although the patient’s privacy interests were part of the calculus, see id. at 10 (noting that success of patient’s psychotherapy depends in part on “atmosphere of confidence and trust”), the privilege would not have been recognized without the transcendent public benefit of improved mental health, see id. at 11 (stating that asserted privilege must serve public ends).

Note 228. See id. at 17-18 (stating that psychotherapist-patient privilege is not subject to balancing test).

Note 229. Violette, 183 F.3d at 73-74.

Note 230. Id.

Note 231. Id. at 74.

Note 232. Id.

Note 233. See id. (implying that crime-fraud purpose is useful only if applied to exception analysis).

Note 234. See id. (refusing to “dwell unduly on this largely epistemological conundrum” of choice between applying facts to cause failure of Jaffee treatment condition or to address only crime-fraud exception).

Note 235. Id. (expressly assuming that target’s communications were made in course of diagnosis or treatment).

Note 236. See supra notes 222-226 and accompanying text (identifying circumstances where balancing harm and good is appropriate).

Note 237. See Violette, 183 F.3d at 77. Note the court’s carefully chosen words: “[T]he [privilege opponent’s] version of the facts in the case at hand vividly illustrates the potential for abuse should [the court] recognize the privilege but not the concomitant exception.” Id. (emphasis added).

Note 238. Id.

Note 239. Id. (quoting Trammel v. United States, 445 U.S. 40, 50 (1980) (quoting Elkins v. United States, 364 U.S. 206, 234 (Frankfurter, J., dissenting))). The court identified the respective harms caused by recognizing versus not recognizing the crime-fraud exception: Only when communications are intended directly to advance a particular criminal or fraudulent endeavor will their privileged status be forfeited by operation of this exception. Consequently, the slit [the Court] cut [s] . . . in the shroud of psychotherapist-patient secrecy will be slight and will not chill much, if any, clinically relevant speech. . . . On the other side of the balance, . . . the potential for abuse of the psychotherapist-patient privilege, absent the engrafting of a crime-fraud exception, is a matter of substantial concern. Id.

Note 240. Id. at 74.

Note 241. Id. at 78.

Note 242. The Jaffee Court anticipated that future courts would define the contours of the psychotherapist-patient privilege on a case-by-case basis. See Jaffee v. Redmond, 518 U.S. 1, 18 (1996) (stating that “[a] rule that authorizes the recognition of new privileges on a case-by-case basis makes it appropriate to define the details of new privileges in a like manner,” thus indicating that “delineat[ing] [the privilege’s] full contours” should be left to future courts).

Note 243. See id. at 17-18 (stating that psychotherapist-patient is not subject to balancing of patient’s interests against society’s interests because ” ‘[a]n uncertain privilege . . . is little better than no privilege at all’ “) (quoting Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)).

Note 244. See supra Part III.a.2.a (arguing that entering course of diagnosis or treatment implies individual’s intent to become psychotherapy patient and that becoming psychotherapy “patient” implies individual’s intent to pursue genuine psychotherapy).

Note 245. See supra Part III.a.2.a (arguing that entering course of diagnosis or treatment implies individual’s intent to become psychotherapy patient and that becoming psychotherapy “patient” implies individual’s intent to pursue genuine psychotherapy).

Note 246. See supra Part III.a.1 (contending that timing of crime-fraud purpose determines whether Jaffee treatment condition is satisfied).

Note 247. See supra Part III.c. (discussing Jaffee treatment condition implications and support of psychotherapist-patient privilege rationale).

Note 248. See supra Part III.a.3 (discussing appropriate application of crime-fraud exception).

Note 249. See Fed. R. Evid. 501 (providing that courts shall interpret common law privileges “in the light of reason and experience”).

Note 250. See supra Part III.C.3 (discussing importance of keeping burdens of proof on appropriate parties when seeking respective applications of privilege and crime-fraud exception).

Note 251. Jaffee v. Redmond, 518 U.S. 1, 15 (1996) (setting forth conditions for application of psychotherapist-patient privilege: communications were confidential, were between licensed psychotherapist and patient, and took place in the course of diagnosis or treatment).

Note 252. See id. (requiring existence of “course of diagnosis or treatment”).

Note 253. Fed. R. Evid. 104(a) (“Preliminary questions concerning the . . . existence of a privilege . . . shall be determined by the court.”).