EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, December 13, 2008

Mississippi Confidential: Supreme Court Of Mississippi Finds Patient's Threats To Judges Not Covered By Psychotherapist-Patient Privilege

As was noted by the Supreme Court of Mississippi in its recent opinion in Hearn v. State, 2008 WL 5173879 (Miss. 2008), for the psychotherapist-patient privilege to apply, it must have been the patient's intent that his statements to his psychotherapist be kept confidential. 

In Hearn, Michael Henry Hearn was convicted on two counts of intimidating a judge.  And the judges whom he allegedly intimidated were Judge Larry E. Roberts, who was the judge in an aggravated assault trial against Hearn and who also disposed of drug-related charges against him, and Judge Robert Bailey, who substituted for Judge Roberts at a plea hearing on those drug-related charges against Hearn.   

Around the same time that Hearn filed for post-conviction relief in connection with his aggravated assault conviction, he began sending to the judges a string of letters that "were mostly incoherent, and laden with obscene language and biblical references."  Neither judge gave these letters much consideration until Judge Roberts received a disturbing letter from Dr. Tom Moore, a psychologist at East Mississippi Correctional Facility (where Hearn was housed), which stated that:

     "I was instructed to evaluate [Hearn's] mental status following repeated threats to harm (kill) [Judge Roberts and Judge Bailey]....His release date is 12/26/05, after which he asserts that he plans to carry out his threats to harm.

     I met with [Hearn] on 7/29/04 for approximately one hour. During that initial session he reported that he would carry out his threats to harm the two judges whom he feels unjustly incarcerated him for 'the stabbing incident...where I was just trying to defend myself.' The inmate perceives that he is '..justified, 'out of love..,' [sic] to correct the injustice. He is willing (“eager”) to risk incarceration again to complete his goal. On 8/13/04 the inmate approached the undersigned in the hall to question whether this letter was sent to the two judges. He again verbalized vehemently his intentions to do harm.

     The medical and mental health personnel have mixed judgments regarding whether the inmate is serious about following through with his intentions to harm. There is a consensus, however, that he is more than capable of causing harm.

     There is enough evidence based upon diagnosis and presenting behaviors that the inmate presents a threat to the judges in question...."

This letter was then essential to Hearn's conviction on two counts of intimidating a judge and played a large role in his appeal.  According to Hearn, his statements to Dr. Moore were covered by Mississippi Rule of Evidence 503(b), its psychotherapist-patient privilege, which states in relevant part that

     "[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing...confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition...."

The Supreme Court of Mississippi, however, first found that Dr. Moore could disclose Hearn's statements to him pursuant to Mississippi Code Annotated Section 41-21- 97, which states in relevant part that

     "[H]ospital records of and information pertaining to patients at treatment facilities or patients being treated by...psychologists...shall be released...when the patient has communicated to the treating... psychologist...an actual threat of physical violence against a clearly identified or reasonably identifiable potential victim or victims, and then the treating...psychologist...may communicate the threat only to the potential victim or victims, a law enforcement agency, or the parent or guardian of a minor who is identified as a potential victim."

The Court, however, further found that it did not even need to rely upon this Section because Mississippi Rule of Evidence 503(b)

     "protects only confidential communications which are not intended to be disclosed to third parties....Hearn asked Dr. Moore in the hallway whether the two judges had been warned. When Dr. Moore said that he had done so, Hearn approved. By intending to disclose his communications to a third party, Hearn waived any and all rights under the psychotherapist-patient privilege."

This seems like the correct conclusion to me.  It appears clear that Hearn wanted Dr. Moore to communicate his threats to the judges, meaning that Hearn did not intend for the threats to be confidential and thus that they were not protected by the psychotherapist-patient privilege,



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