The Use of Mental Health Treatment Records to Impeach Credibility

• Publication year: 1994
• Pages: 839
• Citation: Vol. 23 No. 4 Pg. 839

23 Colo.Law. 839 Colorado Lawyer 1994.

1994, April, Pg. 839. The Use of Mental Health Treatment Records to Impeach Credibility

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839

Vol. 23, No. 4, Pg. 839

The Use of Mental Health Treatment Records to Impeach Credibility

by Laurence B. James

Q: Can a witness's mental health treatment records be discovered and used to impeach the witness's credibility?

A: No. In Colorado, mental health treatment records are privileged, and unless the privilege is waived by the witness, the information cannot be discovered or used at trial to impeach a witness's credibility.

Assumed Facts

Your client is charged with sexual assault on a child. You have learned that the teenage girl who is accusing your client has a long history of mental health care. Further, you have read in the police report that the girl's psychologist claims she has made similar allegations in the past, only to later recant. The psychologist has already told the police, so this information is surely no longer confidential. Can you compel the psychologist to provide you with records and to testify in court? No.

Discussion

In a case involving these circumstances, the Colorado Court of Appeals held that the information was privileged and could not be obtained by the defendant or used at trial.(fn1) The court reasoned that under Colorado law, once the psychologist-patient privilege attaches, the only basis for allowing any disclosure is a waiver by the person holding the privilege.(fn2) Even when a criminal defendant raises the constitutional right of confrontation, the privilege prevails.(fn3) The fact that the psychologist had improperly disclosed information to the police did not serve as a waiver. The patient holds the privilege, and the decision to waive it cannot be made by the psychologist.(fn4)

The information developed in a mental health treatment relationship is privileged by statute. The psychologist-patient privilege is established by CRS § 13-90-107(g). In 1993, the legislature expanded that statutory privilege to include licensed professional counselors, marriage and family therapists and social workers. The section now states:

A licensed psychologist, professional counselor, marriage and family therapist, or social worker shall not be examined without the consent of such licensee's client as to any communication made by the client to such licensee or such licensee's advice given thereon in the course of...