State v. Johnson

GREENE, J. Respondent, Jonathan Johnson, was convicted of sexual abuse of a minor and second-degree sexual offense. Leading up to trial, Respondent sought, by means of a trial subpoena, access to the minor victim’s mental health records. The trial court denied Respondent’s request for an in camera review of those records, reasoning that his request amounted to a “fishing expedition,” and concluding that Respondent did not show a reasonable likelihood that the records contained exculpatory evidence as required by Goldsmith v. State, 337 Md. 112 , 651 A.2d 866 (1995). In Goldsmith , this Court rejected the argument that a criminal defendant has the right to seek a victim’s privileged mental health records during pre-trial discovery, but recognized that a criminal “defendant’s constitutional rights at trial may outweigh the victim’s right to assert a privilege.” 337 Md. at 129 , 651 A.2d at 874 (emphasis added).

Thus, we pick up where Goldsmith left off; in this case, we consider whether a criminal defendant’s constitutional rights at trial may trump a victim’s privilege in his or her mental health records, and, further, what standard the defendant’s proffer must meet before being entitled to an in camera review of the privileged records. We shall hold that a criminal defendant is entitled to an in camera review of a ²³² victim’s mental health records, even though privileged, if the defendant can establish a reasonable likelihood that the privileged records contain exculpatory evidence relevant to the defense. FACTUAL AND PROCEDURAL HISTORY The facts surrounding Respondent’s history with the minor victim, J.C., 1 are set forth in Petitioner’s brief, pursuant to the parties’ agreed Statement of Facts, 2 as follows: Between April 2007 and April 2008, Respondent lived in an apartment in Baltimore City with his girlfriend, who was also the mother of Respondent’s infant children, and with J.C. (Respondent’s girlfriend’s nine/ten year old son), and J.C.’s older sister (Respondent’s girlfriend’s oldest daughter).

Because J.C.’s mother worked, Respondent oftentimes was the only adult home when J.C. returned from school, which was about an hour earlier than his oldest sister. On one occasion, Respondent entered J.C.’s room after J.C. returned home from school and was changing clothes. Respondent, who was riled up at the time, ordered J.C. to turn over in a mean tone. He then pushed J.C. around onto J.C.’s bed and, after pulling J.C.’s shorts down, Respondent put on a condom and forced his penis “in and out” of J.C.’s “butt.” J.C., who cried at the time, threatened to kill Respondent when Respondent finished.

J.C. did not tell his mother or another adult because he did not trust a lot of people and did not feel comfortable talking to someone about the assault. J.C. began to live with his maternal grandfather in March 2009 and ceased all contact with Respondent at that time. While J.C. was living with his grandfather, one evening they ²³³ dined at a Chinese restaurant. During dinner, J.C. and his grandfather spoke about the trouble that J.C. had been having at school.

His grandfather encouraged him to talk about his problems with “somebody,” or with his “therapist,” or with other “people.” After learning from his grandfather that his grandfather had been molested as a child, J.C. reported Respondent’s sexual assault to his grandfather. Upon returning home from the restaurant, J.C.’s grandfather called the police. At trial, Respondent stated that he was never alone with J.C. and denied that he had ever sexually assaulted J.C. According to Respondent, J.C.’s grandfather and Respondent had a sexual encounter about twenty years earlier and then, more recently, introduced Respondent to J.C.’s mother. (Citations to the record omitted.) Based on J.C.’s allegations, Respondent was charged, in the Circuit Court for Baltimore City, with sexual abuse of a minor and other related offenses.

According to the record, J.C. became a patient at National Pike Health Center, Inc. (“National Pike”), a full service medical facility with a staff that includes both psychiatrists and licensed clinical social workers. Prior to trial, Respondent filed a subpoena duces tecum to require National Pike to produce records pertaining to J.C. National Pike filed a Motion for Protective Order, effectively seeking to quash the subpoena. On November 9, 2011, the morning of trial, the trial judge held a hearing with regard to National Pike’s Motion for Protective Order. National Pike explained that the records sought by Respondent are privileged and confidential because they contain communications by J.C. to mental health providers, and include notes from psychiatrists and a licensed clinical social worker.

The trial judge asked defense counsel to explain the reason for requesting the records, to which defense counsel responded: DEFENSE COUNSEL: ... I’d like to see the records, one, to know what is this young man’s mental health diagnosis. Is he, is he bipolar? Is he paranoid schizophrenic?

Is he delusional? Does he have hallucinations, Your Honor? ²³⁴ THE COURT: And the reason for that? DEFENSE COUNSEL: Your Honor, if he, if he’s delusional, and if [he] has hallucinations, I believe that’s, leads to exculpatory, that’s exculpatory for Mr. Jonathan Johnson’s case.... THE COURT: Well, I assume you’re, you’re saying you want to see these records generally because these records may disclose information that could affect his credibility or his ability to perceive; is that what you’re talking about?

DEFENSE COUNSEL: Yes, Your Honor. THE COURT: Okay. So just, just like the—maybe they do. I mean, maybe there’s something in there or not.

But you don’t, you don’t know that for a fact, correct? DEFENSE COUNSEL: Correct, Your Honor. THE COURT: Any other reasons? DEFENSE COUNSEL: No, Your Honor.

I’m just trying to get an idea of anything exculpatory about this young man, why he’s in treatment. If he’s in treat—if there’s allegations that he’s in treatment for disciplinary issues, if he’s in treatment for, if he’s seeing a counselor because he’s a habitual liar. THE COURT: Okay. Why isn’t this just a fishing expedition?

I mean, you could say that—I assume, and I’m, and I, I—again, in these cases I’m sympathetic to the defense because in a sense you obviously don’t have the records, so you can’t tell me what exactly they contain. But I guess part of my concern is just merely a proffer that, in fact, it may affect his credibility or it may [] provide you some information you can use for cross-examination. Is there anything more specific beyond that? DEFENSE COUNSEL: Not without even having a slightest idea of what may be in the records, Your Honor, not without even knowing his diagnosis, no.

So, it, it’s—if you wish to call it a fishing expedition, it may be because I have no idea what these records may contain. We have a State’s witness who has mental health issues, obviously has mental health issues that may lead to his ²³⁵ credibility, may affect his credibility, may affect his ability to perceive, to understand.... Relying on Goldsmith v. State, 337 Md. 112 , 651 A.2d 866 (1995), and Fisher v. State, 128 Md.App. 79 , 736 A.2d 1125 (1999), discussed infra, the trial court concluded that defense counsel’s proffer to the court was insufficient to permit disclosure of the victim’s privileged mental health records. Therefore, the trial judge granted National Pike’s motion, but ordered that the records sought by defendant be sealed.

On November 14, 2011, after a three day jury trial, Respondent was convicted of sexual abuse of a minor and second-degree sexual offense. On February 10, 2012, Respondent was sentenced to fifteen years incarceration. Respondent noted an appeal, arguing that the trial court committed reversible error by granting National Pike’s motion. In an unreported opinion, one judge dissenting, 3 the Court of Special Appeals panel reversed, concluding that “[Respondent] sufficiently established the likelihood that the records sought would provide exculpatory information.” Noting the need to “strike a balance between the competing interests of a witness’s privilege and a defendant’s constitutional rights to obtain and present information necessary to his defense,” the court stated further, “[w]hile we cannot expect counsel to have precise information as to the content of the records, he did suggest that it would be appropriate to know of [J.C.’s] propensity for veracity.” In the court’s view, “[t]hose suggestions alone were sufficient, at the very least, to call for an in camera review of the records to determine their relevance, vis a vis [Respondent’s constitutional rights, before ruling on [National Pike’s motion].” On the State’s petition, we granted certiorari, 435 Md. 501 , 79 A.3d 947 (2013), to answer the following question: ²³⁶ Is a “suggestion” by the defendant that the victim’s mental health records may contain information that is either exculpatory or relating to the victim’s “propensity for veracity” insufficient, under Goldsmith v. State, 337 Md. 112 , 651 A.2d 866 (1995), to “call for an in camera review” of those records?

For the following reasons, we reverse the judgment of the Court of Special Appeals. DISCUSSION Petitioner would have us create a bright line rule and hold that a victim’s mental health records are subject to an absolute privilege; therefore, a defendant would not be entitled to the disclosure of such records under any circumstances. At the very least, Petitioner argues, in order to access privileged records the defendant should be required to demonstrate a sufficient factual basis supporting his or her proffer that the records sought likely contain exculpatory information. Specifically, Petitioner asserts that a defendant must satisfy a high threshold test, and present credible evidence that would otherwise be admissible under the Maryland Rules of Evidence.

Respondent argues that a criminal defendant’s constitutional rights at trial must trump a victim’s privilege in mental health records, and an in camera review of the records is an appropriate method to both protect the victim’s privacy interest in his or her records and ensure a criminal defendant’s constitutional rights and access to exculpatory evidence. Respondent contends that the burden on the defendant to warrant an in camera review cannot be as high as Petitioner suggests, however. Instead, Respondent urges this Court to follow the standard set forth by the United States Supreme Court in Pennsylvania v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987), that is, where the defendant cannot possibly know exactly what the records contain, he or she need only “make some plausible showing” that the information in the records would be “both material and favorable to his [or her] defense.” Ritchie, 480 U.S. at 58 n. 15, 107 S.Ct. at 1002 n. 15, 94 L.Ed.2d at 58 n. 15 (quoting United States v. ²³⁷ Valenzuela-Bernal, 458 U.S. 858, 867 , 102 S.Ct. 3440, 3446 , 73 L.Ed.2d 1193, 1202 (1982)). In undertaking our review of Goldsmith and other relevant precedent, we shall first discuss the threshold question of whether a criminal defendant’s trial rights may prevail over a victim’s right to assert a privilege in his or her mental health records.

Because we answer that question in the affirmative, we shall next address when a criminal defendant will be entitled to an in camera review 4 of the privileged records. I. May the defendant’s trial rights trump the victim’s privilege? A patient’s privilege to preclude the disclosure of his or her communications to a licensed psychiatrist and communications to a licensed clinical social worker, respectively, are governed by Md.Code (1973, 2013 RepLVol., 2014 Supp.), §§ 9-109 and 9-121 of the Courts and Judicial Proceedings Article (hereinafter all references to the Maryland Code are to the Courts and Judicial Proceedings Article, unless otherwise noted). Specifically, § 9-109 (“Communications between patient and psychiatrist or psychologist”) provides in relevant part: (b) Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient’s authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing: (1) Communications relating to diagnosis or treatment of the patient; or (2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment. ²³⁸ Similarly, § 9-121 (“Communications between licensed social worker and client”) provides in relevant part: (b) Unless otherwise provided, in all judicial or administrative proceedings, a client has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications made while the client was receiving counseling or any information that by its nature would show that such counseling occurred.

Nothing in the relevant statutes purports to make the privileges absolute. Indeed, the statutes provide for certain exceptions, not relevant here, and, like other evidentiary privileges, the privilege holder may waive the privilege. See §§ 9—109(d); 9-121(d) and (e). 5 In this case, Respondent sought the minor victim’s records held by a private counseling center. There is no dispute that the records sought are privileged mental health records 6 and that the victim at no time waived the privilege.

As phrased by Petitioner, this case involves a “tug of war” between the right of the victim to assert his or her privilege to prevent disclosure of confidential mental health records and the right of a criminal defendant to present a fair defense at trial. See U.S. Const, amend. VI; Md. Decl. of Rts. Art. 21.

Specifically, a criminal defendant has a “right to put before a jury evidence that might influence the determination of guilt,” or, in other words, a right to obtain and present exculpatory evidence. Ritchie, 480 U.S. at 56 , 107 S.Ct. at 1000 , 94 L.Ed.2d at 56 . In addition, the Sixth Amendment provides the criminal defendant with the right to confront witnesses, which is achieved through cross-examination. See Davis v. Alaska, 415 U.S. 308, 315 , 94 S.Ct. 1105, 1110 , 39 L.Ed.2d 347 , ²³⁹ 353 (1974).

We addressed this conflict of rights, albeit in dicta, in Goldsmith v. State, 337 Md. 112 , 651 A.2d 866 (1995). Goldsmith v. State In Goldsmith , the defendant was charged with and convicted of sexual child abuse, and other related offenses, of his stepdaughter. 337 Md. at 115 , 651 A.2d at 868 . During pretrial discovery, the defendant sought access to the minor victim’s psychotherapy records, asserting “(1) that the complainant [had] been in treatment with [her] psychologist ] for over four years, and (2) that a police detective related that it took years of counseling for the complainant to summon the courage to bring these charges against her stepfather.” 337 Md. at 116 , 651 A.2d at 868 . The trial judge denied Goldsmith’s motion on the basis of the victim’s asserted privilege. 337 Md. at 119 , 651 A.2d at 869 .

Notably, “the motions judge precluded the pre-trial discovery review of [the therapist’s] records[, but] [t]he defense was not precluded from calling [the therapist] when the case actually went to trial.” Id. (emphasis in original). The therapist, however, was never called to testify at trial. Id.

On appeal, this Court affirmed the denial of pre-trial discovery of the victim’s privileged mental health records under Md. Rule 4-264. 7 Goldsmith, 337 Md. at 123 , 651 A.2d at 871 (“Md. Rule 4-264 means what it says and precludes pre-trial discovery of a victim’s privileged psychotherapist-patient records.”). Noting that “an accused has limited pretrial discovery rights,” we further held that there is no state or federal constitutional right that “establishes a pre-trial right of a defendant to discovery review of a potential wit ²⁴⁰ ness’s privileged psychotherapy records.” Goldsmith, 337 Md. at 121, 127 , 651 A.2d at 870, 873 . In other words, the rule announced in Goldsmith is that a criminal defendant is never entitled to pre-trial discovery of a victim’s privileged mental health records (absent waiver by the privilege holder). See id.; see also Thomas v. State, 372 Md. 342, 358-59 , 812 A.2d 1050, 1060 (2002) (affirming the trial court’s holding that a witness’s psychotherapy records “are privileged and therefore not discoverable” where the defendant sought to obtain those records during pre-trial discovery); Fisher v. State, 128 Md. App. 79, 126 , 736 A.2d 1125, 1150 (1999) (“With respect to a defendant’s entitlement to review [privileged psychotherapy records] pretrial, the privilege is an absolute bar and there is no such entitlement under any circumstance[.]”).

The Court’s discussion in Goldsmith did not end there, however. We distinguished between three scenarios: (1) pretrial discovery of privileged information; (2) disclosure of merely confidential (rather than privileged) information; and (3) disclosure of privileged information for use at trial. As we have seen, a victim’s privilege is an absolute bar to disclosure of privileged mental health records during pre-trial discovery. The other two categories, the Court said, are not barred absolutely, but may be available to the criminal defendant, if the defendant makes the requisite showing of need. 8 With regard to the disclosure of privileged information at trial, although the issue was not presented by the facts in Goldsmith , we “distinguish[ed] between a defendant’s right of access to information during pre-trial discovery as opposed to the defendant’s constitutionally based right at trial to fairly present a defense” and “recognize[d] that the defendant’s constitutional rights at trial may outweigh the victim’s right to assert a privilege.” 337 Md. at 129 , 651 A.2d at 874 (emphasis in original).

Without further analysis, we noted that the partic ²⁴¹ ular constitutional rights at issue are the rights to confrontation and compulsory process. 9 In distinguishing a defendant’s limited right to pre-trial discovery from the defendant’s use of privileged information at trial, we also reasoned that the trial judge would be in a better position to protect the interests of both parties (the defendant and the victim/witness) when evaluating a trial subpoena as opposed to a pre-trial discovery request. “The balancing of the defendant’s need for exculpatory information against the need to protect the victim’s psychotherapist-patient privilege will be a much more informed decision at trial.” Goldsmith, 337 Md. at 131 , 651 A.2d at 875 . Similarly, because at that point the trial judge knows that the case is actually going to trial, “the trial judge will be in a better position to determine what the contested issues are and evaluate the relevancy of the information the defense is seeking.” Goldsmith, 337 Md. at 131-32 , 651 A.2d at 876 . We also noted that in contrast to a pre-trial subpoena under Md. Rule 4-264, which is only for documents or other tangible evidence, “a trial subpoena duces tecum under Md. Rule 4-265 covers the witness as well as documents or tangible evidence. Therefore, when conducting an in camera review ..., the trial judge may be able to enlist the psychotherapist’s assistance in locating relevant portions of the notes, as well as interpreting the notes.” Goldsmith, 337 Md. at 131 , 651 A.2d at 875 .

Accordingly, we concluded that under some circumstances a criminal defendant’s constitutional rights will trump a victim’s right to assert a privilege during the defendant’s trial. See Goldsmith, 337 Md. at 133-34 , 651 A.2d at 876-77 . Jaffee v. Redmond Petitioner contends that Jaffee v. Redmond, 518 U.S. 1 , 116 S.Ct. 1923 , 135 L.Ed.2d 337 (1996), decided one year after ²⁴² Goldsmith , casts doubt on this Court’s analysis in Goldsmith. 10 Jaffee involved a civil lawsuit against a police officer by the survivors of a man shot and killed by the police officer. 518 ,U.S. at 4, 116 S.Ct. at 1925 , 135 L.Ed.2d at 341 . Upon learning that the officer had participated in numerous counseling sessions with a licensed clinical social worker, the family members sought access to the social worker’s records of those sessions for use in cross-examination.

Jaffee, 518 U.S. at 5 , 116 S.Ct. at 1926 , 135 L.Ed.2d at 342 . The police officer and the social worker refused to produce those documents, or answer questions about them in depositions and trial, on the basis that they were protected by a psychotherapist-patient privilege. Id. The trial judge rejected the notion that the counseling records were privileged, and therefore instructed the jury that they could “presume that the contents of the notes would have been favorable to [the family members].” Jaffee, 518 U.S. at 5-6 , 116 S.Ct. at 1926 , 135 L.Ed.2d at 342 .

The United States Court of Appeals for the Seventh Circuit reversed, holding that a psychotherapist-patient privilege protected the confidential communications between the police officer and the social worker, unless, in the interests of justice, the need for disclosure “outweighs that patient’s privacy interests.” Jaffee, 518 U.S. at 6-7 , 116 S.Ct. at 1926 , 135 L.Ed.2d at 342-43 . The United States Supreme Court affirmed, recognizing for the first time a “psychotherapist-patient privilege” that extends to a patient’s confidential communications made to both licensed psychiatrists/psychologists and licensed social workers “in the course of psychotherapy.” Jaffee, 518 U.S. at 15 , 116 S.Ct. at 1931 , 135 L.Ed.2d at 348 . 11 The Supreme Court ²⁴³ rejected, however, the application of a balancing test, which, as proposed by the Seventh Circuit, would weigh the need for the evidence against the protection of the privilege. Jaffee, 518 U.S. at 17-18 , 116 S.Ct. at 1932 , 135 L.Ed.2d at 349-50 (“Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.”). Thus, explaining and relying on the societal benefits of the privilege, 12 the Supreme Court held that the psychotherapist-patient privilege was an absolute bar to disclosure in that case.

Jaffee, 518 U.S. at 17 , 116 S.Ct. at 1932 , 135 L.Ed.2d at 349 . Importantly, however, the majority opinion noted in closing that “we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.” Jaffee, 518 U.S. at 18 n. 19, 116 S.Ct. at 1932 n. 19, 135 L.Ed.2d at 349 n. 19. We disagree with Petitioner that Jaffee is inconsistent with Goldsmith . First, Jaffee is a civil case; the Supreme Court ²⁴⁴ was not faced with the significant constitutional rights at play-in a criminal trial. 13 Second, we find Footnote 19 instructive, as it specifically leaves the door open for situations where the privilege could yield to some greater interest.

In arguing that Jaffee is inconsistent with Goldsmith , Petitioner asserts that “[njotably, the [Supreme] Court did not include the circumstance present here—it did not suggest that a criminal defendant’s constitutional rights of confrontation or compulsory process would merit abrogation of the privilege.” The exclusion of this situation in the Court’s analysis does not suggest that the Supreme Court meant to foreclose that possibility (or any other possible scenario where a privilege might yield to some greater interest). Certainly, the issue of a criminal defendant’s constitutional rights was not relevant to or at issue in that civil case and, therefore, the Supreme Court had no occasion to consider it. For the same reason, we also conclude that the fact that the Supreme Court rejected the use of a balancing test in the context of that case does not mean that a balancing test may never be appropriate. Moreover, the Supreme Court made it very clear that “[a] rule that authorizes the recognition of new privileges on a case-by-case basis makes it appropriate to define the details of new privileges in a like manner.” Jaffee, 518 U.S. at 18 , 116 S.Ct. at 1932 , 135 L.Ed.2d at 349 .

The Jaffee majority further explained, “[b]ecause this is the first case in which we have recognized a psychotherapist privilege, it is neither necessary nor feasible to delineate its full contours in a way that would ‘govern all conceivable future questions in this area.’ ” Id. (citation omitted). Although in the dissenting opinion Justice Scalia cautioned that “[f]or the rule proposed [by the Jaffee majority], the victim is more likely to be some individual who is prevented from proving a valid claim-or (worse still) prevented from establishing a valid defense[,]” Jaffee, 518 U.S. at 19 , 116 S.Ct. ²⁴⁵ at 1932-33, 135 L.Ed.2d at 350 (Scalia, J., dissenting), it appears that the lower federal courts are split as to whether a criminal defendant’s right to present a “valid defense” under the Sixth Amendment will trump the psychotherapist-patient privilege. See, e.g., United States v. Shrader, 716 F.Supp.2d 464, 471-72 (S.D.W.Va.2010) (noting that “[s]ince Jaffee , courts have differed on whether the Sixth Amendment can trump the psychotherapist-patient privilege” but “find[ing] that the psychotherapist-patient privilege is not subordinate to the Sixth Amendment rights of [defendant”