EvidenceProf Blog

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

Sunday, January 8, 2012

Double Secret Probation Edition: D. Conn. Limits Deposition Of Probation Officer At Plaintiff's Request

A plaintiff brings a civil action against a university. After being deposed, the plaintiff realizes that defense counsel has asked to depose his probation officer. The plaintiff argues that the deposition will have an in terrorem effect on his pursuit of his case, given that disclosure to the probation officer of certain facts of the case could subject him to criminal prosecution for violation of his probation. Is there a way for the plaintiff to prevent or at least limit the deposition of the probation officer? According to the recent opinion of the United States District Court for the District of Connecticut in Doe v. University of Connecticut, 2012 WL 12745 (D.Conn. 2012), the answer is "yes."

Doe involed a Title VII action by John Doe against the University of Connecticut and was

the culmination of a series of highly troubling events between John Doe and his former friend and supervisor John Smith. Plaintiff and Smith knew have known other since 1986. With Smith's assistance, plaintiff, born in Afghanistan and a freedom fighter against the Soviet Union, was granted political asylum in 1986. In 1998, plaintiff began working at the University of Connecticut as a part time Special Payroll Administrator, and in 2002 plaintiff became a full time program aide under the immediate supervision of John Smith. Plaintiff and Smith lived in the same multi-family home with their respective families. In May 2006, Smith accused Doe of assault and Doe was arrested and suspended from employment at UConn. In June 2006, Doe filed an internal complaint against Smith, alleging that Smith subjected him to sexual harassment from 2002–2006. In July 2006, Smith filed criminal charges against Doe, alleging that Doe had sexually molested Smith's minor daughter. In 2008, Smith's employment was terminated as a result of UConn's internal investigation of plaintiff's allegations of harassment. 


Doe was charged with sexually molesting Smith's minor daughter. On January 18, 2008, plaintiff pleaded guilty, under the Alford doctrine, to risk of injury to a child...and was sentenced by the Honorable Antonio C. Robaina to 7 years in jail, which execution was suspended, and 10 years probation. At the time of sentencing, a condition of probation was that plaintiff undergo sexual offender evaluation and treatment. Judge Robaina specifically explained to plaintiff that, "Part of the [sexual offender] treatment may require you to admit outside of the context of the Alford Doctrine the behavior that the allegations here state that you engaged in."...Judge Robaina further canvassed the plaintiff, inquiring, "And you understand that if you don't comply with that treatment, it can give rise to a violation of your probation. Do you understand that, sir?", to which plaintiff responded, "yes".

As noted, after being deposed in his civil action against UConn, Doe contended that the deposition will have an in terrorem effect on his pursuit of his case, given that disclosure to the probation officer of certain facts of the case could subject him to criminal prosecution for violation of his probation. Specifically, he was

concerned that his deposition denials of engaging in the criminal conduct, if known to the probation officer, could lead to a probation violation charge. In an effort to avoid the deposition, plaintiff offer[ed] to stipulate (1) to the authenticity of the probation records and (2) that there [wa]s a discrepancy between the statements plaintiff...made as a part of his sexual offender treatment and the statements made under oath in this case.

In addressing this argument, the United States District Court for the District of Connecticut found that

The relationship between a probation officer and probationers is a unique one, requiring a significant degree of trust between the offender and his or her officer, in order to successfully accomplish the goals of the probation. So much so, that some jurisdictions recognize a privilege between probation officers and probationers. Michigan recognizes a limited privilege which attaches to all communications made within the scope of the probation officer's duties....Similarly Wyoming and South Carolina protect as privileged all information and data obtained in the discharge of official duties by probation and parole agents....South Carolina's privilege, as interpreted by the state's highest court, goes as far as prohibiting a probationer's statements as admissions in court for any purpose, including impeachment.

The court then acknowledged that "[n]either Connecticut nor the federal rules of evidence recognize a privilege between probation officer and probationer." That said, the court then found that "this court has the power to prevent disclosure of information and 'make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including...that the disclosure or discovery not be had.'" And the court both found that an extended deposition of the probation officer would place a serious burden on the time-strapped officer and have the chilling effect on the plaintiff's case conveyed by plaintiff's counsel. Therefore, the court reached the following conclusion:

Balancing the liberal rules of discovery against the undue burden to the probation officer and potential oppressive consequences to plaintiff, the Court will allow a deposition of no more than 2 hours, limited to statements made by the plaintiff to the probation officer regarding emotional distress suffered by plaintiff as a result of his probation, reasons for leaving UConn, or other topics related to his treatment, probation, family life, work life, health and economic situation, which were either memorialized in probation documents or which the probation officer recollects. Given the cumulative nature of any potential testimony from the probation officer regarding plaintiff's inconsistencies at the deposition and the potential harm to plaintiff, the defendant will not be permitted to show or reveal to the probation officer plaintiff's deposition statements in any way. Defendant may show the probation officer the amended complaint, as it is a public document. Plaintiff shall stipulate in writing to the authenticity of the probation records and to the inconsistencies in his deposition testimony.



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