Wednesday, December 5, 2007
Doctor, Doctor, Give Me the News: Utah Court Finds Motive Defense Leads to Potential Waiver Of Physician-Privilege
In 2005, B.W., the adoped daughter of Leroy Worthen and his wife, attempted suicide and was admitted to the University of Utah Neuropsychiatric Institute. During a mental health examination, B.W. claimed that there had been a lot of family strife recently and that she had been getting in frequent fights with her mother. She claimed that she had been abused by her biological granparents but denied any other abuse. She also claimed that prior to her suicide attempt, she got into a heated argument with her mother.
B.W. later received inpatient and outpatient therapy and counseling, during which she wrote journal entries describing angry feelings toward her mother. A few weeks after writing her last journal entry, B.W. disclosed to her therapist that Leroy had sexually abused her. Specifically, she claimed that he committed numerous acts of abuse against her over the course of several years. Based upon these allegations, Leroy was charged with ten counts of aggravated sexual abuse of a child.
At a preliminary hearing in Leroy's case, his attorney sought to question B.W. about her journal entries. Upon the prosecution's objection that these entries were covered by Utah's physician and mental health therapist-patient privilege, Leroy's attorney contended that the entries went to motive and were admissible for impeachment purposes. Defense counsel claimed that his theory of the case was that B.W. hated her adoptive parents and thus fabricated the allegations in order to be removed from their house; the journal entries helped prove this motive.
The court thus had to determine whether it should review the evidence Leroy sought in camera because it was potentially admissible or whether no such review was necessary because it was inadmissible under Utah's physician and mental health therapist-patient privilege. That privilege, contained in Utah Rule of Evidence 506, states that if information is communicated in confidence and for the purpose of diagnosing or treating a patient, the patient has the privilege, during the course of the patient's life, to refuse to disclose and to prevent any other person from disclosing the information transmitted, the diagnosis/treatment, etc.
The privilege, however, has a few exceptions, such as 506(d)(1), which states that no privilege exists under Rule 506 when the patient's condition is an element of a claim or defense. Thus, for instance, if the plaintiff is claiming severe neck injuries after a car crash with the defendant, the plaintiff's statements to her doctor about the extent of her neck pain and the doctor's diagnosis would not be privileged because the defendant would be entitled to show that the plaintiff was exaggerating or making up her neck injury.
The prosecution, however, claimed that (1) because motive is not an element of any crime, it cannot be an element of any defense, and (2) that previous Utah cases had found, sub silentio, that impeachment evidence cannot constitute an element of a defense under any circumstances. The court rejected these arguments and held that it would review the evidence in camera.
In rejecting the prosecution's first argument, the court found that elements of a criminal offense do not necessarily correlate with the elements of a criminal defense. This makes sense to me. Clearly, for instance, insanity and diminished capacity are not elements of any criminal offense, but they are both clearly criminal defenses that defendants can raise.
In rejecting the prosecution's second argument, the court found that the previous cases cited by the prosecution found that evidence which generally impeaches the credibility of a witness cannot constitute an element of a defense; they did not find that evidence which indicates that a witness has a specific reason to lie in the case at hand cannot constitute an element of a criminal defense.
This distinction also makes sense to me because it is consistent with how courts treat these different types of impeachment evidence in other cases. Under Federal Rule of Evidence 608 and state counterparts, extrinsic evidence is inadmissible when a witness is being impeached generally, but extrinsic evidence is admissible when a witness is being shown to have a specific reason, such as bias against the defendant, to lie in the case at hand.