From Trusted Confidant to Witness for the Prosecution: The Case Against the Recognition of a Dangerous-Patient Exception to the Psychotherapist-Patient Privilege

[Excerpt] “In 1996, in Jaffee v. Redmond, the U.S. Supreme Court, pursuant to the authority set forth in Federal Rule of Evidence 501, recognized a psychotherapist-patient privilege in the federal courts. In doing so, the Court acknowledged the essential role that confidentiality plays in a therapist-patient relationship and also recognized the important role that psychotherapy plays in the mental health of the American citizenry. However, in dicta set out in a footnote near the conclusion of the opinion (footnote 19 of the opinion), the Court suggested that the privilege might not be absolute, that it might need to “give way [in situations where] . . . a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.” In the years since this decision, the lower federal courts have wrestled with how to determine the contours of the psychotherapist-patient privilege, particularly in light of the Supreme Court’s comments contained within footnote 19. Currently, the federal circuit courts are split over whether the Court intended to establish a dangerous-patient exception to the psychotherapist-patient privilege and the situations in which this exception would be appropriate. A year and a half after Jaffee was decided, the Tenth Circuit, in United States v. Glass, crafted a dangerous-patient exception to the privilege, which was fashioned after the criteria set forth by the Jaffee Court in footnote 19. However, the Sixth and Ninth Circuits have refused to recognize the exception on the grounds that the footnote is dicta and that a dangerous-patient exception contravenes the rationale and the holding of the Jaffee opinion. This article addresses the dangerous-patient exception to the psychotherapist-patient privilege and argues against the recognition of this exception. Parts I and II of this article present a discussion of the history of privileges and the development of the psychotherapist patient privilege, culminating with an in-depth discussion of the Supreme Court’s opinion in Jaffee. This section also includes a brief discussion of the two distinct rationales supporting privileges: the deontological rationale and the utilitarian rationale espoused by Dean John Henry Wigmore and adopted by the U.S. Supreme Court. Part III of this article presents the opinions of the federal circuit courts that have grappled with the question of whether to recognize the dangerous-patient exception to the psychotherapist-patient privilege. In Part IV, this article sets forth reasons why the Glass court and the other courts that have adopted the Glass test are wrong. It explains that the comments set forth in the Jaffee footnote are mere obiter dicta and, thus, have negligible value. It also demonstrates that interpreting this footnote as authorizing a dangerous-patient exception is wholly inconsistent with the Jaffee opinion and the Supreme Court’s sanctioning of the legislative history of Federal Rule of Evidence 501, particularly the proposed but rejected rules related to privileges. Part IV also argues that the Part IV also argues that the Glass court erred in crafting the test by failing to conduct the proper legal analysis in light of the privileges that the Supreme Court set forth in Jaffee and, two years later, in Swidler & Berlin v. United States. Part IV also addresses the “reason and experience” requirement of Federal Rule of Evidence 501, which provides that privileges are to be governed by the principles of the common law “as they may be interpreted by the [federal] courts . . . in light of reason and experience.” This section presents the reasons why “reason and experience” do not support the recognition of the dangerous-patient exception to the privilege. It shows not only that there is no clear consensus among the states with respect to a therapist’s duty to protect third parties, but also that there is much confusion among the laws of the states with respect to the dangerous-patient exception. Finally, this section examines the “reason and experience” requirement of Rule 501 in light of the commonly recognized exceptions to the other federal communication privileges. It concludes that because neither the attorney-client privilege, the spousal privilege, nor the clergy-penitent privilege are subject to a “dangerous-person” exception, “reason and experience” do not support the recognition of this type of exception to the psychotherapist-patient privilege. Part V of this article discusses the limited situations in which a therapist might be compelled to testify about a patient’s confidential communications. This article concludes with a discussion of, and recommendation for, procedures that courts should follow when presented with challenges to the psychotherapist-patient privilege. It recommends that courts conduct in camera review of the evidence proffered in support of exceptions to the privilege and require that the proponent of the exception prove the necessary elements by a preponderance of the evidence. These procedures will provide protection against the needless public disclosure of confidential patient information and serve to protect the confidentiality of the therapist-patient relationship, which the Jaffee Court recognized is a “sine qua non for successful psychiatric treatment.”

Testimonial Statements, Reliability, and the Sole or Decisive Evidence Rule: A Comparative Look at the Right of Confrontation in the United States, Canada, and Europe

Criminal trials in the United States are meant to ascertain the truth. But other societal values, such as fairness to the parties and public confidence in the integrity of the process, are at stake as well. Among the cornerstone rights to protect a defendant’s right to a fair trial is the right to confrontation. The right to confrontation enables a criminal defendant to exclude hearsay evidence from a trial when the defendant did not have an opportunity to cross-examine the witness. This right has undergone substantial changes and revisions over the last decade, both in the United States and abroad. In Canada and Europe, criminal courts take a different approach to hearsay evidence. In Canada, the courts look at whether the hearsay evidence is necessary and reliable. In Europe, the courts look at whether it is the sole or decisive evidence against a defendant, and whether sufficient counterbalancing factors exist to justify its admission. Each approach has its strengths and weaknesses. But there are important lessons that the U.S. Supreme Court can learn from the Canadian and European hearsay doctrines. This Article examines the systems in Canada and Europe and compares them to U.S. doctrines. Ultimately, this Article suggests that the Supreme Court should modify its current hearsay doctrine by adopting a modified European approach in order to protect a defendant’s right to a fair trial while also serving important, competing societal values

Testimonial Statements, Reliability, and the Sole or Decisive Evidence Rule: A Comparative Look at the Right of Confrontation in the United States, Canada, and Europe

Criminal trials in the United States are meant to ascertain the truth. But other societal values, such as fairness to the parties and public confidence in the integrity of the process, are at stake as well. Among the cornerstone rights to protect a defendant’s right to a fair trial is the right to confrontation. The right to confrontation enables a criminal defendant to exclude hearsay evidence from a trial when the defendant did not have an opportunity to cross-examine the witness. This right has undergone substantial changes and revisions over the last decade, both in the United States and abroad. In Canada and Europe, criminal courts take a different approach to hearsay evidence. In Canada, the courts look at whether the hearsay evidence is necessary and reliable. In Europe, the courts look at whether it is the sole or decisive evidence against a defendant, and whether sufficient counterbalancing factors exist to justify its admission. Each approach has its strengths and weaknesses. But there are important lessons that the U.S. Supreme Court can learn from the Canadian and European hearsay doctrines. This Article examines the systems in Canada and Europe and compares them to U.S. doctrines. Ultimately, this Article suggests that the Supreme Court should modify its current hearsay doctrine by adopting a modified European approach in order to protect a defendant’s right to a fair trial while also serving important, competing societal values

The Psychotherapist-Patient Privilege in the Family Court: An Exemplar of Disharmony Between Social Policy Goals, Professional Ethics, and the Current State of the Law

The mental health community recognizes the importance of confidentiality in the psycho-therapeutic relationship and the resultant impact on the effectiveness of treatment. This is embodied in professional ethical standards that prescribe confidentiality of information obtained in treatment. A psychotherapist-patient testimonial privilege is recognized by common law in federal courts, and by statute in all fifty states. However, state laws provide uncertain protection of this privilege in child custody disputes and virtually none in child abuse and neglect cases. In such cases, mental health professionals are commonly required to provide courts with confidential information obtained in psychotherapy sessions- often against their patients' interests. This abrogation of the psychotherapist-patient privilege is widely believed to be necessary for the protection of children. This article examines whether evidence in this manner is reliable, meaningful, or necessary to fulfill the courts' obligation to protect children. It demonstrates that abrogation of the psychotherapist-patient privilege significantly reduces the likelihood of successful therapy and only contributes a minor evidentiary benefit. It considers the U.S. Supreme Court's seminal decision in Jaffee v. Redmond, which recognized the privilege in federal courts. It also considers the results of an important series of empirical studies that support the need for confidentiality in the therapeutic relationship and a sample of Michigan Court of Appeals opinions that demonstrate the minimal value of evidence derived from therapists' compelled testimony. The article concludes that policy objectives, professional ethical requirements, and legal constraints are at odds with each other in cases involving the welfare of children. In such cases, the psychotherapist-patient privilege is abrogated by the courts, but with little or no resulting protection for children due to the minimal evidentiary benefit derived from the compelled disclosure. Finally, the author endorses an alternative to these current practices, which synchronizes the need to protect children with a procedure that guards the confidentiality of the therapeutic relationship