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  1. 116 S. Ct. 1923, 1927 (1996). Certiorari was granted at 116 S. Ct. 334 (1995). Return to Text
  2. 116 S. Ct. at 1925. Return to Text
  3. Id.Return to Text
  4. Id.Return to Text
  5. Id.Return to Text
  6. Id.at 1925-26. Return to Text
  7. Id.at 1926. Return to Text
  8. Id.Also at issue was whether Redmond drew her gun before exiting her squad car. Id. Return to Text
  9. Id.Redmond participated in approximately fifty counseling sessions with Beyer. Id. Return to Text
  10. Id.Return to Text
  11. Id.Return to Text
  12. Id.This refusal was demonstrated both during depositions and on the witness stand during trial. Id. Return to Text
  13. Id.Return to Text
  14. Id.The jury awarded $45,000 on the federal claim and $500,000 on the state claim. Id. Return to Text
  15. Id.(quoting Jaffee v. Redmond, 51 F.3d 1346, 1355 (7th Cir. 1995)). “The Court of Appeals qualified its recognition of the privilege by stating that it would not apply if `in the interests of justice, the evidentiary need for the disclosure of the contents of a patient’s counseling sessions outweighs that patient’s privacy interest.'” Id. at 1926 (quoting 51 F.3d at 1357). Return to Text
  16. Id.at 1931. Return to Text
  17. Id.at 1928 n.7. The Federal Rules of Evidence were drafted by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and the Supreme Court in 1972 to be presented to Congress. Id. Return to Text
  18. Id.The rule as enacted provides as follows:

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

Fed. R. Evid. 501. Return to Text

  1. S. Rep. No. 1277, 93d Cong., 2d Sess. 13 (1974), reprinted in1974 U.S.C.C.A.N. 7051, 7059. The Judicial Committee received a considerable volume of correspondence from the psychiatric profession demonstrating a general concern over the deletion of the specific privilege. Id. The Senate Committee responded:

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

Id. Return to Text

  1. 531 F.2d 752 (5th Cir.), cert. denied, 429 U.S. 853 (1976). Return to Text
  2. 531 F.2d at 752. Return to Text
  3. Id.at 753. Defendant participated in the research program between December and July 1971, and between May and September 1973. The bank robbery occurred in October 1973. Id. Return to Text
  4. Id.Return to Text
  5. Id.Return to Text
  6. Id.The court conceded that the Proposed Rules were not accepted by Congress. However, had they been adopted in original form, the defendant in a criminal trial claiming insanity as a defense could not avail himself of such a privilege. Id. Return to Text
  7. 714 F.2d 632 (6th Cir.), cert. denied, 464 U.S. 983 (1983). Return to Text
  8. 705 F.2d 261 (7th Cir. 1983). Return to Text
  9. 698 F.2d 1154 (11th Cir. 1983). Return to Text
  10. 714 F.2d at 634-35. Return to Text
  11. Id.at 636. Return to Text
  12. Id.at 636-37. Return to Text
  13. S. Rep. No. 1277, supranote 19. Return to Text
  14. 714 F.2d at 637 (quoting Trammel v. United States, 445 U.S. 40, 48 (1980)). Trammelis a landmark Supreme Court case wherein the Court modified the spousal privilege to apply only to the witness-spouse and not to the accused. 445 U.S. at 53. The rule, as modified, provides that “the witness may be neither compelled to testify nor foreclosed from testifying.” Id. Return to Text
  15. 714 F.2d at 637. Return to Text
  16. Id.at 639. The court determined that a balancing of interests was required based on language from Trammel in which the Supreme Court determined the proper analysis was “whether the privilege . . . promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice.” Id. (quoting Trammel, 445 U.S. at 52). Return to Text
  17. Id.Return to Text
  18. Id.However, because the particular information sought would reveal only the fact and time of treatment, it was not within the scope of the privilege and therefore, the psychiatrists’ noncompliance was unjustified. Id. at 642. Return to Text
  19. 705 F.2d at 262. Return to Text
  20. 698 F.2d at 1167 (quoting United States v. Society of Indep. Gasoline Marketers of Am., 624 F.2d 461, 469 (4th Cir. 1979), cert. denied sub nom., Kayo Oil Co. v. United States, 449 U.S. 1078 (1981)). Return to Text
  21. 849 F.2d 562 (11th Cir. 1988), cert. denied, 489 U.S. 1084 (1989). Return to Text
  22. 849 F.2d at 566. Even though Corona acknowledged that no physician-patient privilege existed in that circuit, he urged the court to distinguish between a psychotherapist-patient relationship and the more general physician-patient relationship, and to follow the Sixth Circuit’s reasoning enunciated in In re Zunigain adopting the privilege. Id. at 566-67. Return to Text
  23. Id.at 567. Return to Text
  24. Id.(quoting United States v. Nixon, 418 U.S. 683, 710 (1974)). Return to Text
  25. 867 F.2d 562 (9th Cir.), cert. denied, 493 U.S. 906 (1989). Return to Text
  26. 867 F.2d at 565. The court reiterated that “if such a privilege is to be recognized in federal criminal proceedings, it is up to Congress to define it, not this court.” Id.Return to Text
  27. 964 F.2d 1325 (2d Cir. 1992). Return to Text
  28. Id.at 1326. Return to Text
  29. Id.Return to Text
  30. Id.Return to Text
  31. Id.at 1328-29 (citing In re Zuniga, 714 F.2d 632 (1983)). Return to Text
  32. Id.at 1328 (citing Lora v. Board of Educ. of New York, 74 F.R.D. 565, 575 (E.D.N.Y. 1977); United States v. Friedman, 636 F. Supp. 462, 463 (S.D.N.Y. 1986)). Return to Text
  33. Id.(citing In re Grand Jury Proceedings, 867 F.2d at 562; United States v. Corona, 849 F.2d at 562; United States v. Lindstrom, 698 F.2d at 1154; United States v. Meagher, 531 F.2d at 752). Return to Text
  34. Id.Return to Text
  35. Id.(quoting Trammel, 445 U.S. at 47). Return to Text
  36. Id.The court determined that because 49 states recognize such a privilege, experience has been favorable. Id. Return to Text
  37. Id.The court narrowed this holding by emphasizing that the privilege only requires that a court consider the privacy interests of a witness as an important factor in the determination of admissibility. Id. at 1329. The court concluded that because appellant was not only the person who initiated the extortion investigation, but also a key witness whose credibility would be a deciding factor in the trial, “the balance . . . weigh[ed] overwhelmingly in favor of allowing an inquiry into his history of mental illness.” Id. Return to Text
  38. United States v. Burtrum, 17 F.3d 1299, 1301-02 (10th Cir.), cert. denied, 115 S. Ct. 176 (1994). Return to Text
  39. 17 F.3d at 1302. The court found that “[c]riminal child sexual abuse cases illustrate well the policy reasons behind the presumption against testimonial privileges in criminal cases.” Id.Because this crime victimizes a vulnerable segment of society often intimidated by the legal system, the detection and prosecution of such a crime is difficult even absent a testimonial privilege. Id. Return to Text
  40. 116 S. Ct. 334 (1995). Return to Text
  41. 116 S. Ct. 1923 (1996). Return to Text
  42. ntury Schoolbook”>61.Id.at 1925, 1931. Return to Text
  43. Id.at 1927 (quoting Fed. R. Evid. 501). Return to Text
  44. Id.“Rules” refers to the Federal Rules of Evidence. “Rule 501 `should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship . . . should be determined on a case-by-case basis.'” Id. (quoting S. Rep. No. 1277, supra note 19). Return to Text
  45. Id.at 1928 (quoting Trammel, 445 U.S. at 47). Return to Text
  46. Id.Return to Text
  47. Id.The “`fundamental maxim [is] that the public . . . has a right to every man’s evidence.'” Id. (quoting United States v. Bryan, 339 U.S. 323, 331 (1950) (citations omitted)). Return to Text
  48. Id.(citing Trammel, 445 U.S. at 50) (citations omitted). Return to Text
  49. Id.(quoting Trammel, 445 U.S. at 51). Return to Text
  50. Id.at 1928. As a result, even a possibility of disclosure by the therapist may impede development of the trust-based relationship vital for successful treatment of the patient. Id. Return to Text
  51. Id.at 1929. Return to Text
  52. Id.Return to Text
  53. Id.at 1929 n.10. Return to Text
  54. Id.Return to Text
  55. Id.at 1929. Return to Text
  56. Id.Return to Text
  57. Id.at 1930. Return to Text
  58. Id.Return to Text
  59. Id.Return to Text
  60. Id.This was deemed important because the Court previously refused to recognize a state legislative privilege, reasoning that no such privilege was included in the Advisory Committee’s draft. Id. (citing United States v. Gillock, 445 U.S. 360, 367-68 (1980)). Return to Text
  61. Id.at 1931 n.14. Return to Text
  62. Id.at 1931. Return to Text
  63. Id.Return to Text
  64. Id.Return to Text
  65. Id.at 1931-32 (citing Jaffee, 51 F.3d at 1358 n.19). The Court noted that while only 12 states regulated social workers at the time the Advisory Committee prepared the Proposed Rules in 1972, all 50 states so regulate today. Id. at 1932 n.16. Return to Text
  66. Id.at 1932. If the policy underlying the privilege is to be furthered, the patient, and more importantly, the therapist, “`must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.'” Id. (quoting Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)). Return to Text
  67. Id.(quoting Upjohn, 449 U.S. at 386). Return to Text
  68. Id.at 1932 n.19. Return to Text
  69. Id.at 1932. Return to Text
  70. Id.at 1928-29. Return to Text
  71. Id.at 1929. Return to Text
  72. Id.at 1932 (Scalia, J., dissenting). “That is the cost of every rule which excludes reliable and probative evidence–or at least every one categorical enough to achieve its announced policy objective.” Id. Return to Text
  73. For example, what would happen if the social worker was in fact licensed, but failed to pay dues for a specific period and the license lapsed? Is the social worker “licensed” for purposes of the privilege? Or, what if the communications took place in Georgia, the social worker was licensed only in Florida, and Georgia’s licensing standards were far more stringent than those of Florida? Is this social worker “licensed” for purposes of the privilege? Situations such as these remain unresolved. Return to Text
  74. 116 S. Ct. at 1926. Return to Text
  75. Id.at 1931. Return to Text
  76. Id.at 1938 (Scalia, J., dissenting). Return to Text
  77. Id.at 1937-38. Return to Text
  78. Id.at 1933-34. Return to Text
  79. Id.at 1934 (quoting Proposed Rule of Evidence 504). Return to Text
  80. Id.at 1930 n.13, 1939-40. Return to Text
  81. Id.at 1935 (Scalia, J., dissenting). Justice Scalia noted that if deference to states and “furtherance of state policies is the name of the game, rules of privilege in federal courts should vary from State to State, a la Erie.” Id. Return to Text
  82. Van Domelen v. Menominee County, No. 2:95-CV-064, 1996 WL 495574, at *2 (W.D. Mich. June 25, 1996). Return to Text
  83. 116 S. Ct. at 1932 n.19. Does this mean that a future crimes exception exists under this privilege or only a future bodily harm exception? Return to Text
  84. See, e.g.,Developments in the Law–Privileged Communications, 98 Harv. L. Rev. 1530 (1985); Jeffrey A. Klotz, Limiting the Psychotherapist-Patient Privilege: The Therapeutic Potential, 27 Crim. L. Bull. 416 (1991); Catherine M. Baytion, Note & Comment, Toward Uniform Application of a Federal Psychotherapist-Patient Privilege, 70 Wash. L. Rev. 153 (1995); Bruce J. Winick, The Psychotherapist-Patient Privilege: A Therapeutic Jurisprudence View, 50 U. Miami L. Rev. 249 (1996). Return to Text
  85. Daniel J. Capra, The Federal Law of Privileges, 16 A.B.A. Sec. Litigation, Fall 1989, at 32, 36. Return to Text
  86. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 333 (3d ed. 1980). An example of such a situation is where a patient refuses to comply with medical treatment. Return to Text
  87. Anne D. Lamkin, Evidentiary Privileges: Should Psychotherapist-Patient Privilege Be Recognized?, 18 Am. J. Trial Advoc. 721 (1995). Return to Text
  88. Jaffee, 116 S. Ct. at 1928. Return to Text
  89. A recent study indicates that “of the more than fifty-two million Americans who suffer from mental illness each year, only 28.5 percent get help.” Winick, supranote 103, at 253 (citing Darrel A. Regier et al., The De Facto U.S. Mental and Addictive Disorders Service System, 50 Archives Gen. Psychiatry 85, 90 (1993)). Return to Text
  90. 116 S. Ct. at 1929. Return to Text

 

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