Jaffee v. Redmond: the Supreme Court Adopts a Federal Psychotherapist-patient Privilege and Extends the Scope to Encompass Licensed Social Workers - Melanie Stephens Stone

• Publication year: 1997

Jaffee v. Redmond: The Supreme Court Adopts a Federal Psychotherapist-Patient Privilege and Extends the Scope to Encompass Licensed Social Workers

Acknowledging conflict among the courts of appeals, and recognizing the importance of the issue, the United States Supreme Court granted certiorari in Jaffee v. Redmond¹ to decide whether federal courts should recognize a privilege for communications between psychotherapist and patient under Rule 501 of the Federal Rules of Evidence.²

I. Factual Background

In Jaffee, police officer Mary Lu Redmond responded to a fight-in-progress call on June 27, 1991.³ According to Redmond, Ricky Allen burst from an apartment building chasing another man with a butcher knife.⁴ Allen disregarded her repeated commands to drop the knife.⁵ Believing Allen was going to stab the man he was chasing, Redmond fatally shot him.⁶ Petitioner, the administrator of the estate of Ricky Allen, filed suit in the United States District Court for the Northern District of Illinois alleging that Redmond violated Allen's constitutional rights through the use of excessive force.⁷ Testimony from family members of Allen conflicted with that of Redmond on crucial issues, such as whether Allen was armed when Redmond shot him.⁸

Petitioner learned during pretrial discovery that subsequent to the shooting incident, Redmond had obtained counseling from Karen Beyer, a licensed clinical social worker.⁹ Petitioner sought access to notes from the counseling sessions, but met with vigorous resistance from respon-dents, who argued the conversations between Redmond and Beyer were protected under a psychotherapist-patient privilege.¹⁰ The district judge rejected respondents' argument and ordered disclosure of Beyer's notes.¹¹ However, neither Redmond nor Beyer complied with the order, and when called to testify, both "either refused to answer certain questions or professed an inability to recall details of their conversa-tions."¹² The judge instructed the jury that no legal justification existed for refusing to turn over the notes and that the jury could therefore presume that the notes would have been unfavorable to Redmond.¹³ The jury verdict was in favor of the petitioner.¹⁴ The Court of Appeals for the Seventh Circuit reversed and remanded for a new trial, concluding that '"reason and experience' . . . compelled recognition of a psychotherapist-patient privilege."¹⁵ The Supreme Court affirmed, holding that a psychotherapist-patient privilege exists under Rule 501.¹⁶

II. Legal Background

Article Five of the Proposed Rules of Evidence set forth nine specific privileges, including a psychotherapist-patient privilege.¹⁷ Congress rejected the Proposed Rules and instead adopted the more general mandate of Rule 501 instructing the courts to interpret the common law "in the light of reason and experience."¹⁸ The Senate Committee emphasized that Congress, in approving the general rule of privileges, was not disapproving the recognition of a psychotherapist-patient privilege.¹⁹

The Fifth Circuit had the first opportunity to interpret the rule in United States v. Meagher,²⁰ decided in 1976. There, defendant was convicted of bank robbery, and the only defense raised was insanity at the time of the offense.²¹ Prior to the robbery, defendant had voluntari-ly participated in a research program concerning criminal behavior conducted by Dr. Samuel Yochelson, a noted psychiatrist.²² Dr. Yochelson testified that in his professional opinion, defendant was not insane at the time of the robbery.²³ Defendant argued that admission of this testimony violated his privilege against compelled disclosure of confidential information between physician and patient.²⁴ Because no such privilege existed at common law, the court held that no such privilege would be recognized, and even if such a privilege were to be recognized, defendant could not utilize the privilege and rely upon his mental condition as his defense.²⁵

In 1983, three circuits were faced with this issue: the Sixth Circuit decided In re Zuniga,²⁶ the Seventh Circuit decided In re Pebsworth,²⁷ and the Eleventh Circuit decided United States v. Lindstrom.²⁸ In Zuniga, two psychiatrists were served with subpoenas duces tecum seeking patient files to ascertain the fact and time of treatment.²⁹ Both doctors refused to comply with the subpoenas, contending such information was protected from disclosure by psychiatrist-patient privilege.³⁰ The court relied on Proposed Rule 504 which articulated the psychotherapist-patient privilege,³¹ language from the accompany-ing Senate Report,³² and a Supreme Court decision which stated that "'[t]he Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privilege[s]."'³³ Concluding that it clearly had authority to recognize a psychiatrist-patient privilege,³⁴ the court then employed a balancing test to determine if such a privilege should be recognized in the case at bar.³⁵ The court determined that the patient's interest in maintaining confidentiality, coupled with the interests of society in successfully treating mental illness, outweighed the evidentiary need.³⁶ Conse-quently, the court held that a psychotherapist-patient privilege was mandated.³⁷

In Pebsworth, the Seventh Circuit avoided the ultimate issue of whether a psychotherapist-patient privilege exists by holding that a patient waives any arguable privilege as to medical records when he explicitly authorizes disclosure of such information to a medical insurance carrier for reimbursement.³⁸ In Lindstrom, the Eleventh Circuit determined that the privacy interests of a patient in maintaining confidentiality of medical records "are not absolute and, in the context of [a] criminal trial, must 'yield to the paramount right of the defense to cross-examine effectively the witness in a criminal case.'"³⁹

In 1988, the Eleventh Circuit had occasion to re-examine this issue in United States v. Corona.⁴⁰ Corona argued that any confidences he conveyed to his psychiatrist during the course of treatment were privileged and protected from disclosure at trial.⁴¹ The court emphasized that its earlier decisions in Lindstrom and Meagher also involved psychiatrists, and the Eleventh Circuit had in each instance declined to recognize a psychotherapist-patient privilege.⁴² In reaffirming that no physician (including psychotherapist)-patient privilege exists in federal criminal trials, the court relied on the rationale from those cases and Supreme Court language stating that "privileges 'are not lightly created nor expansively construed, for they are in derogation of the search for the truth.'"⁴³ In 1989, the Ninth Circuit followed suit in In re Grand Jury Proceedings,⁴⁴ holding that notwithstanding the discretion contained in Rule 501, courts are limited to the development of common law and no such privilege exists at common law.⁴⁵

In 1992, this matter surfaced in the Second Circuit case of Doe v. Diamond.⁴⁶ There, appellant was scheduled as a key witness for the government in an extortion case.⁴⁷ Because of the importance of appellant's testimony in prosecuting the alleged extortionist, appellant's own credibility was expected to be a central issue during trial.⁴⁸ In the course of discovery, the government learned that appellant had suffered from depression periodically over the previous thirty years and had therefore obtained psychiatric treatment.⁴⁹ In deciding this issue of first impression in that circuit, the court analyzed the following: the decision of the Sixth Circuit in In re Zuniga,⁵⁰ the district court cases recognizing the privilege within the circuit,⁵¹ the courts of appeals that declined to recognize the privilege,⁵² and the fact that forty-nine states had adopted some form of psychotherapist-patient privilege.⁵³ The court found the cases rejecting the privilege unpersuasive because of the underlying rationale that Rule 501 limits the development of the common law, viewing that rationale as "contrary to the teaching of Trammel [v. United States] 'not to freeze the law of privilege.'"⁵⁴ The court concluded that communications between a psychotherapist and patient are intensely personal, disclosure of such communications would be embarrassing to the patient, and unrestrained disclosure might discourage individuals from seeking needed psychiatric help.⁵⁵ The court held that a psychotherapist-patient privilege should be recognized under Rule 501.⁵⁶

More recently, the Tenth Circuit chose to decide the narrower question of whether such a privilege exists in the context of criminal child sexual abuse cases.⁵⁷ Based on the significant evidentiary need to further child sexual abuse prosecutions, the court declined to recognize a psychotherapist-patient privilege in that context.⁵⁸

Following this turmoil in the courts of appeals which spanned almost twenty years, the Supreme Court granted certiorari in Jaffee v. Redmond⁵⁹ to decide this important question.

III. Rationale of the Court

In Jaffee v. Redmond,⁶⁰ the Supreme Court, in a seven-to-two decision, held "that confidential communications between a licensed psychotherapist [or licensed social worker in the course of psychothera-py] and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence."⁶¹ In reaching this decision, the Court employed much of the same reasoning and rationale as did the circuit courts that recognize the privilege.

The Court first interpreted the language of Rule 501, which "authoriz-es federal courts to define new privileges by interpreting 'common law principles ... in the light of reason and experience.'"⁶² In interpreting this language, the Court relied on the Senate Report accompanying the adoption of the Rules,⁶³ and the language from Trammel v. United States which "directed federal courts to 'continue the evolutionary development of testimonial privileges.'"⁶⁴

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