The Volokh Conspiracy
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An interesting opinion from a Pennsylvania appellate court, handed down last month but just noted on the Westlaw Bulletin, Commonwealth v. T.J.W. (nonprecedential):
[C.W.], C.W., appeals from the order directing her counsel to provide certain mental health treatment records for in camera inspection by the trial court to determine if the materials at issue are privileged. [C.W.] argues that the court erred because the records are protected from release by 42 Pa.C.S.A. § 5944, confidential communications to psychiatrists or licensed psychologists. [The statute reads, "No psychiatrist … shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client." -EV] …
[The allegations in the criminal case:] T.J.W. … is charged with rape by forcible compulsion, involuntary deviate sexual intercourse, aggravated indecent assault and related charges…. [C.W.], the complainant, is his natural (biological) daughter. In 2011, [C.W.], then nineteen, accused her father of rape, sexual molestation, and related acts beginning when she was four-and-a-half years old, until she was seventeen. The Pennsylvania State Police trooper investigating [C.W.]'s charges had her sign releases and obtained records from various psychiatric and mental health treatment providers.
[C.W.] testified at a preliminary hearing that over the twelve year time span, … T.J.W., engaged in six to eight acts of oral, vaginal and anal intercourse with her, as well as digital penetration and other inappropriate touching, without her consent.
[C.W.] further testified that she always remembered the first incident, when she was about four and her father had her perform oral sex on him in his shower. However, on cross-examination, she also testified that she blocked out the memories of the other later incidents until she was nineteen. At that time, she began receiving amorous emails from one of her college professors, who apparently was trying to pursue her romantically ([C.W.] says he "hit on" her), telling her she was beautiful and that she made his wife jealous.
[C.W.] stated that these emails from a man about her father's age who also told her she was beautiful and treated her "in a sexual nature" triggered memories by which she gradually recalled her father's other sexual assaults….
T.J.W. denies the charges. He maintains that [C.W.]'s recovered memories are false. He asserts that they were induced by controversial techniques employed during [C.W.]'s course of psychotherapy. He argues that the process of recovering repressed memories of childhood sexual abuse is unproven and unreliable. [T.J.W.] also argues in his brief, as he did at oral argument, that [C.W.]'s counsel's agreement to a stipulated order, and subsequent refusal to submit the documents to the trial court, raises the inference that "the files contain exculpatory evidence that contradicts or undermines [[C.W.]'s] version of the facts."
… T.J.W. also filed an omnibus pre-trial motion and served subpoenas on several of [C.W.]'s mental health treatment providers…. Eventually, the parties to the litigation and counsel for [C.W.] reached an agreement, and the court entered an order with accompanying opinion on April 5, 2013.
On December 5, 2013, the trial court filed another order. This order directed [C.W.]'s treatment providers to submit their records to her counsel, who would redact any information asserted to be privileged, and prepare a privilege log, both to be forwarded to the trial court. The court directed counsel to forward a copy of the privilege log (only) to … T.J.W. and to the Commonwealth….
On April 1, 2014, after a hearing, the trial court filed another order, the order on appeal here, directing [C.W.]'s counsel to produce and deliver to the trial court redacted mental health treatment records and privilege logs pursuant to the terms of the stipulated order of December 5, 2013. Instead, counsel for [C.W.] [appealed] ….
[The confidentiality issue and the waiver argument:] [C.W. claims] that all information acquired by her psychiatrists or psychologists, including communications from the therapist to [C.W.] as the patient, and records of treatment, are protected by absolute privilege under section 5944….
We begin by noting that "[t]he law is clear that a criminal defendant is entitled to know about any information that may affect the reliability of the witnesses against him." Therefore, absent an applicable claim of privilege, if … T.J.W. were able to articulate a reasonable basis for his request, he would have a colorable claim to seek evidence which might show that the complainant's memories were somehow impaired or otherwise unreliable.
Tracking the language of section 5944, [C.W.] argues that the privilege here asserted is "as impenetrable as the attorney-client privilege." … [But] these claims are waived…. A privilege can be waived. See Octave, supra at 1262 (holding patient waived confidentiality protections under Mental Health Procedures Act … where, judged by an objective standard, he knew or reasonably should have known his mental health, specifically suicidal tendencies, would be placed directly at issue by filing lawsuit for injuries suffered after he allegedly attempted to commit suicide by jumping under tractor-trailer); see also Law Office of Douglas T. Harris, Esq. v. Phila. Waterfront Partners, LP, 957 A.2d 1223, 1232 (Pa. Super. 2008) (holding client implicitly waived attorney-client privilege when his attorney failed to invoke or assert privilege before trial court, and raised issue for first time on appeal).
Here, [C.W.], through counsel, agreed to the stipulated order of December 5, 2013. Notably, the trial court (then-presiding Judge Nagle) expressly held that order in abeyance for three days to afford counsel an opportunity to appeal the ruling prior to its entry into effect.
Therefore, we conclude that [C.W.] waived her claim of privilege by agreeing to the stipulated order in December of 2013, and not asserting privilege until over four-and-a-half months later, after the instant order directing compliance with the order from December.
[Limits on confidentiality even apart from the waiver argument:] Moreover, the claim would not merit relief. Our Supreme Court has recently explained:
It must be emphasized that evidentiary privileges have been viewed by this Court to be in derogation of the search for truth, and are generally disfavored for this reason. The effect of that concern in this case is obvious. Accordingly, we hold a patient waives his confidentiality protections under the [Mental Health Procedures Act] where, judged by an objective standard, he knew or reasonably should have known his mental health would be placed directly at issue by filing the lawsuit.
Similarly here, from our review of the record we conclude that [C.W.] should reasonably have known (or that counsel would have timely advised her) that the long delay in reporting the persistent memory of the first incident and the recovery of memories of the intervening incidents, would, inter alia, raise an issue of the reliability of the recovered memories.
[C.W.] argues that the privilege is absolute. However, we conclude that especially in the circumstances of this case, [C.W.]'s argument is unpersuasive…. [E]ven in the cases which adopt the "absolute privilege" terminology, there is recognition, often expressly, that the disposition of a claim of privilege involves an impartial assessment of the competing claims.
Additionally, in [a past precedent] this Court concluded in pertinent part that "files containing diagnoses, opinions, evaluations, and treatment plans … are not confidential communications from the client covered under § 5944." …
Here, as in [past cases], remand is required to implement the order and allow the trial court to determine what communications are protected by the privilege claimed. See also Pennsylvania v. Ritchie, 480 U.S. 39, 61 (1987) (plurality) (permitting in camera review by trial court of confidential records to determine if they contain material exculpatory to defendant) ….
There are a bunch of things going on here, including some arguments (such as those based on the December 2013 order) that are quite specific to this case. But the court's broader logic about limits on the privilege, and perhaps even about waiver by going to the police (if that's the analogy the court is trying to draw by citing Octave and Harris), strike me as significant (whether or not correct).