Other Bulletins

May 2004
Health Law Bulletin

New Case Raises Questions About Procedures For Review Of Privileged Records in Criminal Cases
By Vanessa L. Smith, Esq.

The Massachusetts Supreme Judicial Court ("SJC") decided a case in March, 2004, concerning the analytical protocol that courts must follow in cases where a criminal defendant seeks access to the confidential counseling records of an alleged victim. The decision clarifies certain aspects of the protocol, which has been in place since 1993, but it also raises questions about the protocol's continued viability.

Competing Interests of Defendant and Victim

Particularly in cases of alleged rape and sexual assault, criminal defendants frequently seek to review counseling records of the victim. For example, a defendant may believe that the records will show that the victim's allegations are the result of coaching, or that the victim has, on other occasions, fabricated allegations similar to those made against the defendant in the current case. Courts have recognized that criminal defendants have a constitutional right to obtain such potentially exculpatory evidence for use in preparing a defense.

At the same time, records concerning mental health treatment and counseling are confidential and privileged. Society's strong interest in protecting confidential relationships is reflected in various statutory privileges in Massachusetts that safeguard patients' communications with psychotherapists, social workers, rape and sexual assault counselors, and allied mental health professionals. The SJC has observed that "revelation of privileged information adversely affects the purposes underlying the need for the confidential relationship and serves as a disincentive to the maintenance of such relationships. The purpose of enacting a privilege is to prevent the chilling effect which routine disclosures may have in preventing those in need from seeking that help." Commonwealth v. Bishop, 416 Mass. 169, 176 (1993).

The Bishop/Fuller Protocol

In 1993, in Commonwealth v. Bishop, the SJC articulated a five-step protocol that courts must follow when reviewing a criminal defendant's request for access to an alleged victim's counseling records. The protocol represents an attempt to balance, on the one hand, the defendant's right to a fair trial and, on the other, the victim's right to privacy and confidentiality in therapeutic relationships. The SJC modified the protocol in 1996 in Commonwealth v. Fuller.

Under step one of the Bishop/ Fuller protocol, if the victim or the keeper of the records sought by a criminal defendant refuses to produce records because of a statutory privilege against disclosure, the victim or keeper of the records must bring that fact to the attention of the judge. The judge must then make a written finding as to whether the records are privileged, making specific reference to the privilege or privileges claimed and found, if any. Step two of the protocol, as modified by the Fuller decision, requires that the defendant, now on notice of a finding of privilege, demonstrate "a good faith, specific, and reasonable basis for believing that the records will contain exculpatory evidence which is relevant and material to the issue of the defendant's guilt." "Material evidence" is evidence that tends to create a reasonable doubt that might not otherwise exist. If the judge decides that the records are likely to be relevant, the judge then reviews the records in camera, outside the presence of all other persons, to determine if the records, or any portion of the records, are in fact relevant to the case.

If there are relevant records, in step three, the judge gives the prosecutor and the defense attorney access to the records, in their capacities as officers of the court. The sole purpose of granting counsel access to the records at this point is to determine if

the records must be disclosed to the jury in order for the defendant to have a fair trial. The burden is on the defendant to establish that disclosure is necessary. The examination under step three of the protocol is made under a protective order to continue to safeguard the content of the records and to ensure that the records are not disclosed beyond the extent needed for the purpose of protecting the defendant's right to a fair trial. If the defendant makes the required showing, any portions of the records deemed necessary for the purpose of preparing and mounting a defense are disclosed to the defendant in step four. Finally, at trial, in step five, the judge determines whether the records may be introduced into evidence in support of the defendant's case.

Recent Decision Clarifies Protocol

The SJC's recent decision in Commonwealth v. Pelosi clarifies the first step of the Bishop/ Fuller protocol. The SJC reiterated that the protocol requires, in the first instance, the claim and identification of a privilege. In order to ensure that a basis exists to deny a defendant's access to counseling records, the victim, or a health care provider on the victim's behalf, must assert a claim of privilege as to the records. The claim must be supported by facts sufficient to demonstrate that a valid statutory privilege protects from disclosure the victim's communications during counseling. As the SJC previously has noted, such facts include a statement of qualifications of the mental health provider to whom the communications were made, and a statement of the purposes for and the circumstances under which the victim communicated with the provider. The SJC stressed in Pelosi that a court must first make written findings regarding the existence of a privilege before proceeding beyond the first step of the Bishop/ Fuller protocol.

BR&G Attorney to Participate in Review of Protocol

Even as it clarified certain aspects of the Bishop/ Fuller protocol, the SJC questioned its continued viability. Before hearing oral arguments in the Pelosi case, the SJC indicated that it would "comprehensively review and reconsider the protocol." The Court asked the parties to the case, and other interested parties, to "present their positions on whether the protocol should be retained in its present form or whether it should be amended in some fashion or replaced in its entirety."

In response to the Court's request, the parties submitted supplemental briefs on this issue. The defendant argued that the protocol should be replaced by a procedure that assures defendants greater access to privileged records, on Theory that they are necessary to a complete defense. The prosecution proposed a modified version of the protocol designed to provide strong protection to privileged records. In addition to the parties' submissions, the Court received briefs on the issue from, among others, the National Crime Victim Law Institute, the Committee for Public Counsel Services, and the Massachusetts District Attorneys Association.

Two members of the Court expressed the view in the Pelosi case that the Bishop/ Fuller protocol is "both unduly cumbersome and constitutionally flawed." The same day it issued the decision in Pelosi, the SJC announced the formation of a committee to study and suggest alternatives to the current protocol. The committee will make recommendations to the Court as to whether the protocol should be retained and, if so, whether it should be revised, in whole or in part. Associate Justice Martha B. Sosman of the SJC chairs the committee, the members of which include representatives of those with a role in the protocol in practice: judges, prosecutors, defense counsel, victim/witness advocates, health care providers, and the Department of Social Services. The SJC has appointed Sandy Dibble, chair of the Executive Committee of BR&G, to serve on the committee to represent the perspective of health care providers.

Health care providers should be sensitive to their confidentiality obligations under the protocol when responding to court inquiries for patient records. BR&G attorneys are available to provide additional information on these issues and to assist providers in preparing responses to such inquiries.

Vanessa L. Smith is a member of the Health Law Practice Group and Litigation Department at BR&G and can be reached at (413) 272-6213 or at vsmith@bulkley.com.