NOTICE: This opinion is subject to formal
correction before publication in the Pacific
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Clerk of the Appellate Courts, 303 K Street,
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THE COURT OF APPEALS OF THE STATE OF ALASKA
M.R.S., )
) Court of Appeals No. A-4624
Appellant, ) Trial Court No. 3AN-S89-455CP
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1334 - February 4, 1994]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, John Reese,
Judge.
Appearances: Margi Mock, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
M.R.S., a minor, appeals a superior court order waiving
children's court jurisdiction and allowing the state to charge
him as an adult with first-degree robbery and attempted first-
degree murder. On appeal, M.R.S. contends that the superior
court erred during the waiver hearing by allowing expert
testimony concerning a psychological evaluation of M.R.S. that
had been submitted pursuant to court order in a previous delin
quency proceeding involving M.R.S. We affirm.
FACTS
On January 5, 1992, an Anchorage taxicab driver was
robbed; the robber fled after stabbing the driver eight times and
cutting his throat. Several days later the state filed a
delinquency petition in connection with the incident, charging
M.R.S. -- then only three months from his eighteenth birthday --
with conduct that would have amounted to first-degree robbery and
attempted first-degree murder if committed by an adult. The
state also petitioned the superior court to waive children's
court jurisdiction over M.R.S. pursuant to AS 47.10.060.1
At a hearing on the issue of waiver, M.R.S. conceded
that the state had established probable cause to believe that he
had committed the alleged offenses, leaving in dispute only the
issue whether M.R.S. was amenable to treatment as a minor -- that
is, whether he was capable of being rehabilitated before reaching
his twentieth birthday. AS 47.10.060(d). On this issue, the
state, over M.R.S.'s objection, called two expert witnesses, Dr.
Larry Bissey and Dr. Irvin Rothrock.
Bissey, a psychologist, had prepared a court-ordered
psychological evaluation of M.R.S. two years previously, in 1990,
to assist in disposition of a delinquency proceeding in which
M.R.S. had admitted participating in an armed robbery. Based
largely on his 1990 evaluation, Bissey testified at the current
waiver hearing that M.R.S. could not successfully be treated by
his twentieth birthday. Rothrock, a forensic psychiatrist, had
never examined M.R.S. but had reviewed Bissey's 1990 evaluation.
Based on this review, Rothrock confirmed Bissey's opinion that
M.R.S. was not amenable to treatment as a minor.
After considering the evidence, the superior court
found probable cause to support the accusations against M.R.S.
and concluded that M.R.S. was not amenable to treatment as a
minor. Accordingly, the court ordered children's court
jurisdiction waived and authorized the state to proceed against
M.R.S. as an adult.
M.R.S. appeals the waiver order, challenging the
admissibility of evidence derived from his 1990 court-ordered
psychological evaluation. M.R.S. argues, as he did below, that
this evidence violated two privileges: his privilege against self-
incrimination and the psychotherapist-patient privilege. We
consider each privilege in turn.
PRIVILEGE AGAINST SELF-INCRIMINATION
1. Compulsion
M.R.S. contends that all statements he made during the
1990 psychological evaluation, and any information derived
therefrom, were sheltered from disclosure by the constitutional
privilege against self-incrimination.2 The constitutional
privilege, however, attaches only to statements obtained by
government compulsion. Couch v. United States, 409 U.S. 322
(1973). It may be, as M.R.S. contends, that he would invoke his
constitutional privilege if he were now asked to submit to a
psychological evaluation or to repeat his earlier statements.
But if the government did not originally compel M.R.S.'s
statements, the constitution does not bar the state from relying
on them now, even though the statements may have acquired new or
different significance.
In the present case, the record fails to disclose the
requisite element of compulsion. The record establishes that,
when the court ordered a psychological evaluation of M.R.S. in
1990 for use in disposition of the delinquency petition then
pending against him, M.R.S. did not object; to the contrary, he
actively joined the state in requesting that it be ordered.
Given that the 1990 evaluation was conducted at M.R.S.'s behest
and with his blessing, his statements during the evaluation were
seemingly voluntary, rather than compelled.
Taken at face value, the record permits but one
conclusion: that M.R.S.'s participation in the psychological
evaluation was voluntary rather than compelled, and that, for
this reason, the constitutional privilege did not attach to
M.R.S.'s statements, or to the psychological evaluation that
resulted therefrom. Garner v. United States, 424 U.S. 648
(1976).
2. Self-incrimination
M.R.S. nevertheless contends that the record should not
be taken at face value and that, despite the appearance of
voluntariness, compulsion should be found. M.R.S. maintains that
his failure to assert the constitutional privilege in 1990 -- and
his willing participation in the psychological evaluation --
should not be deemed a waiver of his right to invoke the
privilege in later proceedings.
In support of this argument, M.R.S. advances a two-
pronged theory. First, he suggests that he had no occasion to
assert the privilege in the prior delinquency proceeding, since
the disposition hearing for which his 1990 evaluation was ordered
was the type of non-adversary proceeding -- akin to a competency
hearing -- in which the constitutional privilege would not have
applied. See R.H. v. State, 777 P.2d 204, 210 (Alaska App.
1989). Alternatively, M.R.S suggests that, when he participated
in the 1990 evaluation, he reasonably expected that the results
would be disclosed only in connection with the delinquency action
then pending against him. M.R.S. reasons that any waiver of the
constitutional privilege by him in 1990 did not extend to future
proceedings.
Even if we accepted these arguments, however, they
would be unavailing. M.R.S.'s alternative theories of compulsion
rest on the assumption that, because his 1990 statements were
made under circumstances excusing his failure to object on the
ground of self-incrimination, his right to object on that ground
was preserved and could be resurrected at some later point,
regardless of the extent to which the 1990 statements were
incriminatory when he originally made them. This assumption, a
necessary component of M.R.S.'s claim of compulsion, runs afoul
of a separate prerequisite of the constitutional privilege: the
requirement of self-incrimination.
To be protected under the constitutional privilege, a
statement must tend to incriminate its maker: "Without the threat
of conviction or punishment, an individual may no[t] . . . invoke
the protection of the privilege against self-incrimination."
State v. Gonzalez, 853 P.2d 526, 529 n.1 (Alaska 1993) (citation
omitted). The pertinent question in determining the
incriminatory potential of a compelled statement is whether it
exposes the witness to a real or substantial hazard of
incrimination. Id. at 529-30. The resolution of this question
necessarily hinges on the circumstances existing when the
statement is compelled, for "a witness may not refuse to testify
where there is no real or substantial hazard of incrimination[.]"
E.L.L. v. State, 572 P.2d 786, 788 (Alaska 1977) (citations
omitted).
Thus, whether the privilege against self-incrimination
attaches to a compelled statement depends not on hindsight
enlightened by the passage of time, but on foresight exercised at
the time the statement is compelled. This is so because the
privilege itself "does not attach in all situations. By its own
terms, it cannot be claimed when a witness has no reasonable
grounds to fear that an answer might be incriminatory." State v.
Gonzalez, 825 P.2d 920, 923 (Alaska App. 1992) (citations
omitted), aff'd, 853 P.2d 526 (Alaska 1993).
Because the privilege does not attach and cannot be
invoked in the absence of a "real or substantial hazard of
incrimination," no valid claim of privilege can arise from the
speculative possibility that an otherwise non-incriminatory
statement might later incriminate the witness as to offenses not
yet committed. United States v. Apfelbaum, 445 U.S. 115, 128
(1980); Marchetti v. United States, 390 U.S. 39, 53-54 (1968). A
contrary finding would be inimical to the privilege against self-
incrimination, for the privilege was never meant to "suppl[y]
insulation for a career of crime about to be launched." United
States v. Freed, 401 U.S. 601, 606-07 (1971).
The claim of privilege M.R.S. asserts here poses this
very problem. The statements he now claims to be constitution
ally privileged were made in 1990, in connection with his
previous delinquency action. M.R.S. did not invoke the privilege
in that case. Apart from their potential for incriminating
M.R.S. in the then-pending delinquency proceedings, his 1990
statements exposed him to no risk of self-incrimination except as
to crimes he had not yet conceived of or committed. This
speculative risk of future, self-generated incrimination could
not have sustained a claim of privilege in 1990. Since any claim
of constitutional privilege M.R.S. might have had in 1990 existed
solely by virtue of his then- pending delinquency proceedings,
his failure to assert the privilege as to those proceedings --
for whatever reason3 -- left him with no privilege to assert.
It is undeniable that, in light of the new charges
pending against him, M.R.S.'s prior statements to Bissey have now
become incriminatory. But M.R.S. is not being compelled to make
those statements now; to the extent the statements were compelled
at all, they were compelled long ago, when their incriminatory
potential -- measured in terms of whether they then posed a real
and substantial hazard of incrimination -- differed considerably.
In summary, a claim of self-incrimination rests on the
circumstances existing at the time the statement was made. If a
statement was not incriminatory when made, a person cannot
retrospectively assert the privilege and insulate the previous
statement even though circumstances alter and the statement takes
on new incriminatory significance. If, as M.R.S. suggests, his
statements at the 1990 examination were compelled because he had
no privilege to interpose at that time, he cannot now claim the
privilege based on the altered circumstances arising from his new
criminal activity. If, as M.R.S. alternatively suggests, he was
deterred from raising an objection to the 1990 interview because
he was assured that his statements would be used only in the
context of determining his disposition in that 1990 juvenile
case, his claim fails because he has not shown that his
statements had any incriminatory potential, outside that juvenile
case, at the time he made them.
The privilege against self-incrimination is not a
springing privilege. M.R.S.'s newly filed charges cannot revive
a claim of privilege that had no life in the first instance.
Accordingly, we conclude that the superior court did not err in
denying M.R.S.'s attempt to assert the privilege against self-
incrimination in order to bar use of his prior statements at the
waiver hearing.
PSYCHOTHERAPIST-PATIENT PRIVILEGE
M.R.S. separately contends that admission at his waiver
hearing of expert testimony derived from his 1990 psychological
evaluation violated the psychotherapist-patient privilege.
Alaska's psychotherapist-patient privilege is embodied in Alaska
Rule of Evidence 504, which, with certain exceptions, prohibits
non-consensual disclosure of confidential communications between
a patient and the patient's physician or psychotherapist.
Subsection 504(b) sets forth the general rule of privilege:
(b) General Rule of Privilege. A
patient has a privilege to refuse to disclose
and to prevent any other person from disclos
ing confidential communications made for the
purpose of diagnosis or treatment of his
physical, mental or emotional conditions,
including alcohol or drug addiction, among
himself, his physician or psychotherapist, or
persons who are participating in the diagno
sis or treatment under the direction of the
physician or psychotherapist, including
members of the patient's family.
Under A.R.E. 504(a)(1) and (a)(3), a "patient is a
person who . . . is examined . . . by a . . . psychotherapist[;]"
a "psychotherapist" includes any licensed psychologist who is
"engaged in the diagnosis or treatment of a mental or emotional
condition[.]" In this case, it is undisputed that M.R.S. fell
within this rule's definition of "patient" when examined by
Bissey in 1990 and that Bissey, in turn, was a "psychotherapist."
Subsection 504(d) describes various exceptions to the
psychotherapist-patient privilege. Of relevance here is A.R.E.
504(d)(6), which specifies that no psychotherapist-patient
privilege arises "[a]s to communications made in the course of an
examination ordered by the court of the . . . mental or emotional
condition of the patient, with respect to the particular purpose
for which the examination is ordered[.]" M.R.S. acknowledges
this exception but points out that it takes effect only "with
respect to the particular purpose for which the examination is
ordered[.]" Id. Under this rule, the privilege remains in
effect when disclosure is sought for any purpose other than the
"particular purpose" for which the examination was ordered.
M.R.S. argues that the only purpose of his 1990 court-
ordered psychological examination was to assist the court in the
disposition of his then-pending delinquency action. Relying on
the limited nature of the exception set forth in A.R.E.
504(d)(6), M.R.S. reasons that the "particular purpose" of the
1990 examination was wholly unrelated to his current waiver
hearing. Accordingly, M.R.S. argues that, while the court-
ordered examination exception would have precluded his invocation
of the privilege at the 1990 disposition hearing, the privilege
remained in effect -- and the exception was inapplicable -- in
the context of his recent waiver hearing.
The state responds that the general purpose underlying
both the 1990 disposition hearing and the current waiver hearing
was essentially the same: to ascertain M.R.S.'s prospects for
rehabilitation. The state argues that, for this reason, the
court-ordered examination exception applied equally to both
proceedings.
In view of the narrow manner in which A.R.E. 504(d)(6)
defines the exception for court-ordered examinations, we find the
state's argument unpersuasive. The position urged by the state
virtually ignores the requirement of particularity contained in
the court-ordered examination exception. While it might be fair
to say that disclosure of the 1990 psychological evaluation
served the same general purposes in the context of the original
disposition hearing and the current waiver proceeding, it would
stretch both language and credulity to conclude that the use to
which the evaluation was most recently put was "the particular
purpose for which the [1990] examination was ordered." A.R.E.
504(d)(6). In terms of particular purpose, the use of a
psychiatric evaluation to determine disposition in the case of a
child adjudicated as a delinquent differs significantly from the
use of a psychiatric evaluation in a waiver proceeding to
determine whether a child may be tried as an adult.
Our rejection of the state's argument does not resolve
the psychotherapist-patient privilege issue. Under A.R.E. 504,
the psychotherapist-patient privilege extends only to
"confidential communications." Not all psychotherapist-patient
communications are confidential: under A.R.E. 504(a)(4), a
communication loses confidentiality when it is "intended to be
disclosed to third persons other than those present to further
the interest of the patient in . . . the examination . . . or
persons who are participating in the diagnosis and treatment
under the direction of the . . . psychotherapist[.]"4
Here, the circumstances surrounding the 1990 court-
ordered examination make it apparent that the parties and the
court alike intended M.R.S.'s statements to be disclosed to the
children's court, counsel for the state, and various Department
of Health and Social Services officials participating in the
delinquency proceedings. Disclosure was in fact made to these
persons. M.R.S. advances a conclusory argument that, because all
of the persons who received the results of his psychological
evaluation were involved in the disposition phase of his
delinquency case or were to become involved with his treatment
following disposition, they all qualified as "persons . . .
participating in [M.R.S.'s] diagnosis and treatment under the
direction of the . . . psychotherapist" and, as such, were
persons to whom disclosure could be made without loss of
confidentiality. A.R.E. 504(a)(4).
M.R.S. misreads the rule. Neither the judge who
ordered M.R.S.'s psychological evaluation nor the other partici
pants in the 1990 children's court proceedings who received
information concerning the evaluation's results are encompassed
in the sphere of psychotherapist-patient confidentiality
described by A.R.E. 504(a)(4). Even if the various persons to
whom the evaluation was disclosed could be deemed to have been
"participating in the diagnosis and treatment" of M.R.S. -- a
shaky proposition in itself -- their participation clearly was
not "under the direction of the . . . psychotherapist," Bissey.
To the contrary, here it was Bissey who acted under the direction
of the court in preparing the evaluation.
The commentary to the Alaska Rules of Evidence confirms
that the confidential communication provision cannot be read as
broadly as M.R.S. would have us read it. With respect to A.R.E.
504(a)(4), the commentary indicates that "[c]onfidential
communication is defined in terms conformable with those of the
lawyer-client privilege, Rule 503(a)(5), with changes appropriate
to the difference in circumstance." Alaska Evidence Rules
Commentary, Rule 504(a)(4). The commentary to Rule 503(a)(5), in
turn, reveals that, in the attorney-client context, the provision
relating to third-party disclosure was meant to be limited to the
narrow sphere of "persons to whom disclosure is in furtherance of
the rendition of professional . . . services to the client,
contemplating those in such relation to the client as `spouse,
parent, business associate, or joint client.'" Commentary, Rule
503(a)(5).
In M.R.S.'s case, the children's court judge and the
various other persons who were given Bissey's evaluation in 1990
were in no realistic sense acting in furtherance of the rendition
of professional services to M.R.S. by Bissey. At most, those
persons received the results of the professional services Bissey
had already rendered. To the extent that the court, the state's
attorney, and various Department of Health and Social Services
officials had it within their power to suggest, order, or provide
further treatment for M.R.S., that treatment would plainly have
gone beyond the professional services Bissey rendered and would
not have been "under the direction of" Bissey.
Cases construing language functionally identical to
that contained in A.R.E. 504(a)(4) have concluded that, "[i]f a
patient makes a communication expecting it to be disclosed to
persons other than those excepted in [that] subsection . . .,
there is no privilege." Lora v. Board of Education, 74 F.R.D.
565, 585 (E.D.N.Y. 1977); see also Matter of Sherry C. and John
M., 824 P.2d 341, 347 (N.M. App. 1991); 8 John H. Wigmore,
Wigmore on Evidence 2285 (McNaughton rev. 1961). When a person
is aware that an examination is made at the request of and for
use by the court, any statements made ordinarily cannot be
confidential. See Meador v. State, 711 P.2d 852, 855 (Nev.
1985), overruled on other grounds, Talancon v. State, 721 P.2d
764 (Nev. 1986).
As we have already noted, in the present case, the
circumstances involved in the 1990 children's court proceeding
make it abundantly clear that M.R.S. and his counsel understood
that M.R.S.'s communications with Bissey would be disclosed to
the court and to other participants associated with the scheduled
disposition hearing. Indeed, M.R.S. has never claimed that he
did not intend such disclosure to occur. For this reason, the
statements M.R.S. made to Bissey in the course of the
psychological evaluation were not confidential communications
under A.R.E. 504(a)(4).5 Thus, at his current waiver hearing,
M.R.S. had no right to invoke the psychotherapist-patient
privilege, with respect to testimony derived from his earlier
statements to Bissey.
CONCLUSION
M.R.S. has asserted no basis for excluding the disputed
evidence apart from his claims that the evidence violated his
privilege against self-incrimination and the psychotherapist-
patient privilege. Since we have rejected both of those claims,
we conclude that the trial court did not err in admitting the
disputed evidence.
The superior court's order waiving children's court
jurisdiction is AFFIRMED.
_______________________________
1. AS 47.10.060 provides, in pertinent part:
Waiver of jurisdiction. (a) If the
court finds at a hearing on a petition that
there is probable cause for believing that a
minor is delinquent and finds that the minor
is not amenable to treatment under this
chapter, it shall order the case closed.
After a case is closed under this subsection,
the minor may be prosecuted as an adult.
. . . .
(d) A minor is unamenable to treatment
under this chapter if the minor probably
cannot be rehabilitated by treatment under
this chapter before reaching 20 years of age.
In determining whether a minor is unamenable
to treatment, the court may consider the
seriousness of the offense the minor is
alleged to have committed, the minor's
history of delinquency, the probable cause of
the
minor's delinquent behavior, and the facilities available to the
division of youth and adult authority for treating the minor.
2. The Fifth Amendment to the United States Constitution
provides in part: "No person . . . shall be compelled in any
criminal case to be a witness against himself . . . ." Article
I, 9 of the Alaska Constitution similarly provides: "No person
shall be compelled in any criminal proceeding to be a witness
against himself."
3. The question of why M.R.S. failed to claim the
privilege in 1990 is simply irrelevant for present purposes. The
only significant matter at this juncture is that, apart from
their potential to incriminate him in the then-pending
delinquency proceedings, M.R.S.'s 1990 statements in fact did not
expose him to any real or substantial hazard of incrimination
when he made them.
It may well be, as M.R.S. contends, that the 1990
disposition hearing was the type of neutral proceeding in which
the privilege would not apply. In that event, M.R.S.'s right to
assert the privilege as to that hearing arguably would not have
constituted a waiver as to other foreseeable proceedings in which
his statements might have been incriminatory -- at least in the
absence of clear prior notice that his statements might be used
in those other proceedings. Cf. Battie v. Estelle, 655 F.2d 692,
700-01 (5th Cir. 1981); Vanderbilt v. Lynaugh, 683 F.Supp. 1118,
1123-24 (E.D. Texas 1988), vacated in part on other grounds,
Vanderbilt v. Collins, 994 F.2d 189 (5th Cir. 1993). The issue
of waiver becomes moot, however, if M.R.S.'s statements did not
in fact expose him to a substantial risk of incrimination apart
from their tendency to incriminate him in the delinquency
proceeding. Absent any other real or substantial hazard of
incrimination, the constitutional privilege would not have
attached to M.R.S.'s statements, and M.R.S. would have had no
grounds for invoking the privilege when the court ordered the
examination.
Likewise, it may be, as M.R.S. alternatively contends,
that M.R.S. was led to believe that any waiver of the privilege
in connection with the 1990 psychological evaluation would be
limited in scope to allowing the use of his statements in the
then-pending disposition hearing. In that event, too, M.R.S
could arguably be deemed to have reserved the right to invoke the
privilege. Cf. State v. R.H., 683 P.2d 269, 281-82 (Alaska App.
1984). But again, M.R.S. would have had the right to reserve the
privilege only to the extent that some real or substantial hazard
of incrimination existed other than the hazard arising from the
pending disposition hearing, as to which M.R.S. was willing to
relinquish his claim. Without some independent hazard of
incrimination, M.R.S. would have had no remaining basis for
claiming the privilege; and without grounds to invoke the
privilege at the time, M.R.S. could not have reserved its
invocation for some future occasion.
4. The term "confidential communication" is defined as
follows in A.R.E. 504(a)(4):
(4) A communication is confidential if
not intended to be disclosed to third persons
other than those present to further the inter
est of the patient in the consultation, exami
nation, or interview, or persons reasonably
necessary for the transmission of the communi
cation, or persons who are participating in
the diagnosis and treatment under the direc
tion of the physician or psychotherapist,
including members of the patient's family.
5. Our interpretation of the definition of confidential
communications gives effect to the plain meaning of A.R.E.
504(b)(4). At first blush, however, this interpretation, which
would effectively exempt court-ordered evaluations from a claim
of privilege in almost all circumstances, might appear to render
superfluous the exception for court-ordered psychiatric
examinations stated in A.R.E. 504(d)(6), which more narrowly
exempts court-ordered examinations from a claim of privilege when
disclosure is sought for "the particular purpose for which the
examination is ordered." This would arguably weigh against
interpreting subsection (a)(4) in accordance with its plain
meaning, since the rules of statutory construction normally
counsel against interpreting a rule or statute in a manner that
renders other provisions meaningless. Matter of E.A.O., 816 P.2d
1352, 1357 (Alaska 1991); In re Estate of Hutchinson, 577 P.2d
1074, 1075 (Alaska 1978).
In this regard, however, it is worthwhile mentioning
that some commentators have specifically suggested that an
exception for court-ordered psychological examinations is in fact
unnecessary because such examinations fall outside the purview of
confidential communications. See, e.g., Samuel J. Knapp, et al.,
Privileged Communications for Psychotherapists in Pennsylvania: A
Time for Statutory Reform, 60 Temp.L.Q. 267, 286 (1987) ("Court-
ordered examinations do not violate the spirit of the privilege
because treatment is not contemplated and do not affect the
privileged status of other psychotherapeutic relationships.");
Abraham S. Goldstein and Jay Katz, Psychiatrist-Patient
Privilege: The GAP Proposal and the Connecticut Statute, 36
Conn.B.J. 175, 187 (1962) ("It is arguable that such an exception
need not have been included
. . ., because a patient examined [by order of a court] is not
consulting a psychiatrist 'for the purpose of securing diagnosis
or treatment of his mental condition.'"). See also 2 Jack B.
Weinstein and Margaret A. Berger, Weinstein's Evidence 504[07]
at 504-33 (1989).
Moreover, closer scrutiny indicates that our interpreta-
tion of subsection (b)(4) does not actually render the court-
ordered examination exception superfluous. Although the
commentary to A.R.E. 504 sheds no light on the issue, we believe
that the exception set out in A.R.E. 504(d)(6) serves at least
three potentially useful purposes, even when (a)(4) is read, as
we read it, to mean that any statement made in the course of a
court-ordered examination is not confidential if disclosure to
the court is contemplated.
First, on some occasions, courts may order
psychological evaluations prepared by psychotherapists who have
already rendered services to the patient and who will thus be
placed in a position of disclosing to the court psychotherapist-
patient statements that pre-date the court order. In such
circumstances, subsection (d)(6) would be necessary to assure
full disclosure, since the pre-order statements would not have
been made in contemplation of disclosure to the court. Second,
the definition of confidential communications set out in
subsection (d)(4) focuses on the patient's intent to disclose as
determinative of confidentiality. There may be instances in
which court-ordered examinations occur without any subjective
awareness on the patient's part that disclosure to the court or
to other participants in the court proceedings is contemplated.
In such situations, subsection (d)(6) would authorize limited
disclosure regardless of the patient's intent. Third, a judge
may at times be called upon to seek disclosure of a court-ordered
evaluation in the patient's absence; in such cases, issues
concerning the patient's subjective intent to maintain
confidentiality might arise in a context where the patient's
intent could not readily be ascertained. Because the patient is
the holder of the psychotherapist-patient privilege and the
psychotherapist is authorized to invoke the privilege on the
patient's behalf, see A.R.E. 504(c), the psychotherapist might
feel constrained to maintain confidentiality in the absence of an
express waiver or a specifically stated exception. In such
cases, subsection (d)(6) would clarify the situation by plainly
informing the psychotherapist that, regardless of the patient's
intent, the privilege could not properly be asserted if
disclosure was sought for the particular purpose for which the
examination was ordered.
