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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
N.G.,
Court of Appeals No. A-11049
Petitioner, Trial Court No. 3AN-10-4740 Cr
v.
O P I N I O N
SUPERIOR COURT,
Respondent. No. 2384 - December 14, 2012
Original Application for Relief from an order of the Superior
Court, Third Judicial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: Shaun M. Sehl and Victor Kestor, Office of
Victims' Rights, Anchorage, for the Petitioner. Hanley R.
Smith, Assistant Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Real Party in Interest, David
Standifer. Allen M. Bailey, Anchorage, for Amicus Curiae
National Crime Victim Law Institute. No separate appearance
for the Superior Court.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
BOLGER, Judge, concurring.
----------------------- Page 2-----------------------
David Standifer is facing charges of sexual assault, attempted sexual
assault, and physical assault, based on allegations that he attacked a woman named N.G..
It appears that N.G. has a history of alcoholism, and there is at least some
indication that she was previously diagnosed as suffering from a mental illness. Based
on this, the superior court has issued an order that requires N.G. to identify everyone
who has provided health care to her during the past twenty years, and that requires N.G.
to sign a release so that the court can issue subpoenas to all of these health care
providers, directing them to produce their records for the court's in camera inspection.
The court intends to examine these records to determine whether they contain non-
privileged information, and to determine whether this information is relevant to N.G.'s
"ability to accurately perceive or truthfully report [the] events" at issue in this case. If
so, the court intends to disclose this information to Standifer's defense team.
As we explain in this opinion, we conclude that the superior court's order
is premised on a mistakenly narrow interpretation of the psychotherapist-patient
privilege. We further conclude that the superior court's order is inconsistent with Alaska
law governing the circumstances in which a court has the authority to order disclosure
of a victim's or witness's privileged psychotherapy records. We therefore reverse the
superior court's order.
Underlying facts
As explained at the beginning of this opinion, David Standifer stands
charged with sexual assault, attempted sexual assault, and physical assault, based on
allegations that he attacked N.G.. According to the State's evidence, the attack took
place in an isolated area near downtown Anchorage. N.G. managed to escape and run
away to a more public place; a passerby observed N.G. after she collapsed on a roadway,
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bleeding and naked from the waist down. The police were summoned, and N.G. was
taken to a medical facility for a sexual assault examination. A few days later, N.G.
sought follow-up medical care. At that time, she was seen by two physicians.
The case notes prepared by the sexual assault examiner, as well as the case
notes prepared later by the two physicians, refer to N.G.'s history of treatment for
alcohol abuse and alcohol withdrawal. In addition, one of the physicians' case notes
mentions that N.G. "[has] a history of bipolar disorder".
Following Standifer's indictment, Standifer's attorney asked the superior
court to order production of "any and all medical, alcohol treatment[, and] psychiatric
records concerning N.G.". The State opposed this motion, as did N.G. herself. (N.G.
appeared independently for this purpose, represented by the Office of Victims' Rights.)
With regard to the request for disclosure of N.G.'s history of alcohol
treatment, Standifer's attorney noted that the case notes (described above) referred to
N.G.'s history of alcohol treatment. The defense attorney also asserted that he had
examined other court records (public records) involving N.G., and that these records
indicated that N.G. had a history of crimes that may have been alcohol-related. One of
these records indicated that N.G. might have suffered an alcohol blackout.
With regard to the remainder of the defense request - i.e., the request for
disclosure of all of N.G.'s other medical and psychiatric records - the defense attorney
merely asserted that "there [was] a reference to a mental health diagnosis" in the
physicians' case notes described above. The defense attorney was apparently referring
to the one physician's mention of "bipolar disorder".
Standifer's attorney acknowledged that the State presumably did not
possess N.G.'s medical and psychiatric records. The defense attorney therefore asked
the superior court to order N.G. to produce the names and addresses of every health care
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provider from whom she had ever sought medical treatment, psychiatric care or
psychological counseling, or alcohol counseling or treatment.
In addition, the defense attorney asked the superior court to order N.G. to
sign a blanket release, authorizing all of these health care providers to turn their files
over to the superior court for the purpose of allowing the court to conduct an in camera
inspection of these materials - with the understanding that these materials would later
be disclosed to Standifer's defense team if the court concluded that the materials were
relevant to "[N.G.'s] ability to accurately perceive or truthfully report [the] events" at
issue in this case.
Standifer's attorney conceded that he was seeking the production of
privileged records - that is, N.G. had an evidentiary privilege to refuse to produce these
materials. However, the defense attorney asserted that even if the requested materials
were protected by privilege, the superior court should still order N.G. to authorize the
disclosure of the requested materials because (according to the defense attorney) N.G.'s
privilege had to yield to the defendant's need for relevant evidence.
After considering Standifer's request, as well as the separate oppositions
filed by the State and by N.G., the superior court granted Standifer's request without
explanation or comment.
In essence, the superior court ordered the production of all of N.G.'s
treatment records, albeit in a two-stage process. The initial portion of the court's order
directed N.G. to disclose the names and addresses of all of her health care providers
(during the previous two decades), and further directed N.G. to sign a release authorizing
these health care providers to turn their records over to the superior court. In the second
stage of the process, the court intended to order these health care providers to produce
their files to the court, so that the court could inspect these files.
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N.G. promptly sought reconsideration of the superior court's decision, but
the superior court ultimately re-affirmed its earlier order. This time, the superior court
offered a legal justification for its decision: the superior court declared that it was
adopting the reasoning contained in a written decision issued earlier (May 13, 2011) by
another superior court judge in another case - State v. Kalmakoff, File No. 3AN-09-
14599 Cr.
The Kalmakoff case involved a similar court order - that is, an order
directing the victim of an alleged crime to reveal the identity of all her health care
providers, so that the court could then obtain all of the victim's psychotherapy records.
In Kalmakoff , the superior court rejected the victim's argument that all of a person's
psychotherapy records are privileged.
The superior court noted that, under Alaska Evidence Rule 504(b), the
psychotherapist-patient privilege protects only "confidential communications" - as that
term is defined in Evidence Rule 504(a)(4) - "made for the purpose of diagnosis or
treatment of the patient's physical, mental, or emotional conditions". The court reasoned
that, because the privilege was limited to confidential communications made for these
specific purposes, there might well be other information contained in a person's
psychotherapy records that was not privileged - i.e., information that did not disclose
the content of confidential communications.
Based on this reasoning, the superior court in Kalmakoff concluded that the
witness's psychotherapy records were likely to contain both privileged information and
non-privileged information - and that the only way to separate the privileged
information from the non-privileged information was for the court to conduct an
in camera inspection of all of the psychotherapy records.
This, then, was the justification that the superior court gave in the present
case for its order requiring the production of all of N.G.'s psychotherapy records.
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N.G. now appeals the superior court's decision.
An overview of the legal issues presented here
At the outset, we must point out that two distinct legal issues are presented
in this case, but the superior court's order addresses only one of them.
As we have explained, the superior court's stated rationale for ordering the
production of N.G.'s health providers' records was that these records probably contained
both privileged and non-privileged information - because the psychotherapist-patient
privilege protects only "confidential communications". Based on this interpretation of
the scope of the privilege, the superior court concluded that it needed to examine all of
N.G.'s psychotherapy records in camera - so that the court could identify the non-
privileged information, determine if that non-privileged information was relevant to
assessing N.G.'s credibility as a witness, and (if so) disclose that information to
Standifer's defense team.
Thus, one of the issues presented in this appeal is whether the superior court
was correct in construing the psychotherapist-patient privilege in this limited fashion,
and correct in presuming that N.G.'s psychotherapy records likely contained a substantial
amount of non-privileged information.
But under Alaska law, even if all of the information in N.G.'s treatment
records were privileged, this would not necessarily resolve the question of whether that
information should be disclosed to the defense. Several times, this Court and the Alaska
Supreme Court have approved trial judges' decisions to conduct in camera examinations
of confidential or privileged records for the purpose of determining whether some of the
information contained in those records should be disclosed to a litigant.
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Thus, there are really two main issues to be addressed in N.G.'s case. The
first issue is whether the superior court was correct when it concluded that N.G.'s
treatment records likely included non-privileged information - information that had to
be separated from the privileged information contained in those records. But the second
issue is whether, even if all of the information contained in N.G.'s treatment records
were privileged, the superior court would still be justified in ordering disclosure of some
or all of this information to the defense.
The scope of the psychotherapist-patient privilege under Alaska law, and
why we conclude that the superior court was wrong in supposing that
significant portions of N.G.'s psychotherapy records would not be
privileged
Alaska Evidence Rule 504(b) declares that any person who has consulted
a physician or a psychotherapist has a privilege to refuse to disclose (and to prevent other
people from disclosing) "confidential communications made for the purpose of diagnosis
or treatment of the patient's physical, mental[,] or emotional conditions, including
alcohol or drug addiction".
The privilege for physician-patient communications does not apply in
criminal proceedings; see Evidence Rule 504(d)(7). However, the privilege for
psychotherapist-patient communications does apply in criminal proceedings. Ibid.
Moreover, Evidence Rule 504(a)(3) adopts an expansive definition of
"psychotherapist". Under this rule, the term "psychotherapist" includes not only
psychiatrists and psychologists, but also all licensed professional counselors, all licensed
marital and family therapists, and "[any] person authorized to practice medicine ... while
engaged in the diagnosis or treatment of a mental or emotional condition, including
alcohol or drug addiction".
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Given this broad definition of the health practitioners who qualify as
"psychotherapists" for purposes of the privilege, it would appear that N.G.'s
psychotherapist-patient privilege covers essentially all of the information that Standifer's
defense team ultimately wishes to obtain - that is, all information relating to N.G.'s
diagnosis and treatment for alcohol abuse or for mental illness, insofar as this
information might be pertinent to her ability to "accurately perceive or truthfully report
events".
But the superior court's order in this case is premised on the idea that, even
though all of the health care providers who treated N.G. for alcohol abuse or mental
illness might qualify as "psychotherapists" for purposes of the privilege, there is still a
significant possibility that some of the information contained in these health care
providers' records would not be covered by the psychotherapist-patient privilege.
The superior court noted that the privilege extends only to "confidential
communications", as defined in Evidence Rule 504(a)(4). Because of this limitation, the
superior court reasoned that the information in N.G.'s psychotherapy records would not
be privileged unless that information described, or otherwise revealed, the content of
"confidential communications".
The superior court did not further explain or specify the kinds of
information that it believed would not be privileged. However, because of the court's
emphasis on "confidential communications", it appears that the court was thinking of
information that did not involve the disclosure of a patient's statements.
Thus, for instance, one might argue that a psychotherapist's observations
of a patient's physical condition, or a psychotherapist's observations of a patient's
emotional state or "affect", considered as a distinct factor in the diagnosis (apart from the
content of what the patient actually said), would not be covered by the privilege.
Similarly, one might argue that the privilege would not protect the psychotherapist's
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ultimate diagnosis of the patient, or the psychotherapist's treatment plan for the patient
- even though the privilege might protect the patient's various statements that led the
psychotherapist to reach that diagnosis, or to formulate that treatment plan.
This interpretation of Evidence Rule 504 is incorrect.
First, we note that the psychotherapist-patient privilege protects more than
the statements that a patient makes to their psychotherapist. Evidence Rule 504(b)
declares that the privilege applies to all confidential communications made for the
purpose of diagnosis or treatment - regardless of whether those communications take
place directly between the patient and the psychotherapist, or between the patient and
other persons who are participating in the diagnosis or treatment under the direction of
the psychotherapist (including members of the patient's family), or solely among the
people participating in the diagnosis or treatment (i.e., even when the patient is not a
participant in the conversation).
See, e.g., State v. Miller, 709 P.2d 225, 238-240 (Or. 1985), where the
Oregon Supreme Court held that the defendant's explanation to a secretary-receptionist
as to why he needed to see a doctor was covered by the psychotherapist-patient privilege,
since "[a] reasonable person in [the] defendant's position could have believed [that] he
had to tell her his problem in order to get past her to talk to a doctor." (Assumedly, the
receptionist's later communication of the defendant's words to the doctor was also
covered by the privilege.)
See also American National Watermattress Corp. v. Manville , 642 P.2d
1330, 1333-35 (Alaska 1982), where the Alaska Supreme Court held that the attorney-
client privilege covered statements made by a prospective tort plaintiff to an investigator
employed by an attorney - even though the attorney had not yet agreed to take the
plaintiff's case - because the purpose of having the plaintiff talk to the investigator was
to enable the attorney to evaluate the plaintiff's case.
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In general, see the Commentary to Evidence Rule 504(b), which explains
that the scope of the communications protected by the psychotherapist-patient privilege
(and the physician-patient privilege) is modeled after the broad scope of communications
protected by Alaska's attorney-client privilege (which is described in the Commentary
to Evidence Rule 503(b), third paragraph).
Second, even though Evidence Rule 504(b) ostensibly protects only
"confidential communications", we interpret this phrase to include other information
generated during the professional relationship (e.g., test results), as well as the
psychotherapist's perceptions, theories, and conclusions pertaining to diagnosis and
treatment when these perceptions, theories, and conclusions are based on information
imparted to the psychotherapist through confidential communications.
In many jurisdictions where the psychotherapist-patient privilege is codified
by statute or rule, the privilege is defined so that it explicitly extends to these matters.
See, for instance, California Evidence Code § 1012, which states that the term
"confidential communication", for purposes of the psychotherapist-patient privilege,
"includes a diagnosis made and the advice given by the psychotherapist in the course of
that relationship". But even in jurisdictions where the privilege is defined solely in terms
of "confidential communications" - as it is in Alaska - the privilege is still generally
construed in a broader manner. As McCormick on Evidence explains,
Statutes conferring a physician-patient privilege vary
extensively, though probably a majority follow the pioneer
New York and California statutes in extending the privilege
to "any information acquired in attending the patient."
Understandably, these provisions have been held to protect
not only information explicitly conveyed to the physician by
the patient, but also data acquired by examination and testing.
Other statutes appear facially to be more restrictive and to
limit the privilege to communications by the patient. This
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appearance, however, may frequently be misleading, for
statutes of this sort have been construed to provide a privilege
fully as broad as that available elsewhere.
Kenneth S. Broun et alia, McCormick on Evidence (6th edition, 2006), § 100, Vol. 1,
pp. 455-56 (footnotes omitted).
We conclude that Alaska's psychotherapist-patient privilege should be
construed in the broader manner suggested by this passage from McCormick .
First, as we explained earlier, the Commentary to Alaska Evidence Rule
504 declares that the scope of the psychotherapist-patient privilege is meant to mirror the
scope of the attorney-client privilege codified in Evidence Rule 503. Even though the
attorney-client privilege is also defined solely in terms of "confidential communications",
see Evidence Rule 503(b), Alaska cases clearly hold that the attorney-client privilege
extends not only to confidential communications between the client and the attorney, but
also to other information generated during the professional relationship.
For example, in Houston v. State , 602 P.2d 784, 790 (Alaska 1979), our
supreme court held that, when the defendant's attorney employed a psychiatrist to
evaluate the defendant's potential insanity defense, the defendant's statements to the
psychiatrist as well as the psychiatrist's resulting opinion were all protected by the
attorney-client privilege. Similarly, in Oines v. State, 803 P.2d 884, 886 (Alaska App.
1990), this Court held that the attorney-client privilege protected the results of a blood
test performed by a defense expert (i.e., an expert hired by the defendant's attorney), and
thus neither the attorney nor the expert could be required to disclose the blood test
results.
By analogy, then, the psychotherapist-patient privilege likewise should
cover not only the confidential communications themselves but also other types of
information generated during the professional relationship as a result of the confidential
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communications - information such as test results and diagnostic perceptions, theories,
and conclusions.
In his brief to this Court, Standifer argues against this broader reading of
the privilege. Standifer relies on what this Court said about the psychotherapist-patient
privilege in Cooper v. District Court, 133 P.3d 692, 716 (Alaska App. 2006):
[T]he psychotherapist-patient privilege does not cover all
testimony that discloses that someone suffers from mental
health or behavioral problems, or that describes those
problems, or that describes other people's reactions to those
problems. The privilege has a narrower scope: it applies
only to testimony that reveals the substance of confidential
communications made for the purpose of diagnosing or
treating those problems.
But the testimony at issue in Cooper - testimony relating to Cooper's
son's behavioral problems and the effect that this was having on the marriage - was not
elicited from, or (with one exception) attributed to, any mental health professional
involved in the treatment of Cooper's son. Rather, this information was obtained from
other people who had knowledge of the son's behavioral difficulties and the Coopers'
marital relationship.
(The one exception, which we noted in our opinion, 133 P.3d at 717, was
a single statement attributed to a mental health professional regarding his assessment of
the boy's case. We declared that this statement was admissible, not because it was
unprivileged, but because "no objection was made." Ibid.)
In other words, our decision in Cooper is consistent with the interpretation
of Evidence Rule 504 that we adopt now.
We also believe there is a second, more fundamental reason for construing
the psychotherapist-patient privilege more broadly than the phrase "confidential
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communications" might suggest: The privilege would essentially be gutted if a
psychotherapist could be ordered to testify about a person's diagnosis or treatment, over
the person's objection, so long as the psychotherapist refrained from expressly
describing or referring to the content of any confidential communications.
If we were to construe the privilege in the narrow fashion suggested by
Standifer, and apparently adopted by the superior court, this would defeat the societal
interests protected by the privilege. As our supreme court explained in Allred v. State ,
554 P.2d 411 (Alaska 1976):
[C]ommunications to a psychotherapist in the course
of therapy are inherently confidential. Patients often make
statements in psychotherapy which they would not make to
even the closest members of their families. Psychotherapy
tends to explore the innermost recesses of the personality, the
very portions of the self which the individual seeks to keep
secret from the world at large. Revelation of such matters
could have an irrevocably harmful effect upon the reputation
and well being of the patient. [Citation omitted]
[In addition], inviolability of the confidence is
essential to achievement of the psychotherapeutic goal.
Without foreknowledge that confidentiality will attach, the
patient will be extremely reluctant to reveal to his therapist
the details of his past life and his introspective thoughts and
feelings. Without the patient's confidence a psychiatrist's
efforts are worthless.
Allred , 554 P.2d at 417.
We therefore hold that the psychotherapist-patient privilege codified in
Alaska Evidence Rule 504 protects not only "confidential communications" as defined
in Rule 504(a)(4) but also other types of information generated during the professional
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relationship as a result of the confidential communications - information such as test
results and diagnostic perceptions, theories, and conclusions.
Because we interpret the psychotherapist-patient privilege in this manner,
it follows that the superior court was mistaken when it concluded that N.G.'s
psychotherapy records likely contained significant amounts of non-privileged
information, and that an in camera inspection of those records would be needed so that
the court could cull this non-privileged information and disclose it to Standifer's defense
team.
Standifer is seeking all information contained in these records pertaining
to N.G.'s diagnosis and treatment for alcohol abuse and/or mental illness, insofar as this
information might be pertinent to N.G.'s ability to accurately perceive or truthfully report
events. Given our interpretation of the scope of the privilege, it appears likely that all
of the information that Standifer is seeking is, indeed, privileged.
Standifer points out that the initial portion of the superior court's order does
not require disclosure of any psychotherapy records; instead, the court has simply
ordered N.G. to identify all of her health care providers. Standifer asserts that N.G. has
no privilege to refuse to disclose the names and addresses of her health care providers.
In Moudy v. Superior Court , 964 P.2d 469, 471 (Alaska App. 1998), this
Court held that the attorney-client privilege does not normally protect the fact that a
person has consulted an attorney - as distinct from the confidential communications
between attorney and client concerning the client's need for legal services, and the
attorney's ensuing advice to the client. 1
1 See also Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal
Rules of Evidence Manual (9th ed. 2006), Vol. 2, pp. 501-38 - 501-39.
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As explained in McCormick on Evidence , § 100, many jurisdictions follow
this same rule with regard to the physician-patient privilege and the psychotherapist-
patient privilege - although there is some contrary authority. 2 And, as explained in
footnote 6 of this section of McCormick , some state courts have drawn a distinction (for
this purpose) between the physician-patient relationship and the psychotherapist-patient
relationship - concluding that, in the context of psychotherapy, disclosure of a patient's
identity would likely expose something about the nature of the patient's condition and
3
treatment.
Our supreme court appears to have endorsed this approach in Falcon v.
Alaska Public Offices Commission , 570 P.2d 469 (Alaska 1977). That case arose when
Falcon, a physician who was running for elected office, refused to disclose the names of
his patients to the Public Offices Commission. In discussing the policy interests at stake,
the supreme court observed that, at least in certain situations, the mere fact that an
individual has visited a certain physician might have the effect of disclosing confidential
or sensitive information. The supreme court explained:
2 See, e.g., Falco v. Institute of Living , 757 A.2d 571, 576 (Conn. 2000) (holding that
the identity of the patient attacking the plaintiff was privileged under the psychiatrist-patient
privilege statute); Dorris v. Detroit Osteopathic Hospital Corp. , 594 N.W.2d 455, 460 (Mich.
1999) (holding that the identity of the patient was protected by the physician-patient privilege
statute).
3 Footnote 6 of McCormick lists the following decisions: Ex parte Abell , 613 S.W.2d
255 (Tex. 1981) (holding that the privilege precluded the disclosure of the names of a
psychiatrist's patients); Rudnick v. Superior Court of Kern County , 523 P.2d 643 (Cal. 1974)
(holding that a patient's identity is privileged if the context of the disclosure will reveal the
nature of the patient's illness); Hetter v. Eighth Judicial District Court , 874 P.2d 762 (Nev.
1994) (holding that the names of a surgeon's patients may be protected if nature of the
medical problem or the treatment would be revealed by disclosure of the name).
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[When] an individual visits a physician who specializes in
contraceptive matters or whose primary practice is known to
be giving abortions[,] and the fact of a visit or rendering of
services becomes public information, private and sensitive
information has, in our view, been revealed. Even visits to a
general practitioner may cause particular embarrassment or
opprobrium where the patient is a married person who seeks
treatment without the spouse's knowledge[,] or a minor who
does so without parental intelligence. Similar situations
would be presented where, because of a specialized practice,
the disclosure of the patient's identity also reveals the nature
of the treatment, and the particular type of treatment is one
which patients would normally seek to keep private. Some
examples would include the patients of a psychiatrist,
psychologist or of a physician who specialized in treating
sexual problems or venereal disease.
Falcon , 570 P.2d at 479-480.
However, we need not resolve this issue in N.G.'s case - because it would
be completely artificial to view this one aspect of the superior court's order in isolation.
The superior court not only ordered N.G. to disclose the names and addresses of her
psychotherapists, but the court also ordered N.G. to sign a release authorizing these
psychotherapists to turn their records over to the court. The superior court made it clear
that its ultimate intention was to identify all of N.G.'s psychotherapists, and then order
them to produce their files for the court's in camera inspection - under the assumption
that these psychotherapy records likely contained non-privileged information that should
be disclosed to Standifer's defense team.
Thus, even if there might be some instances where a person would have no
privilege under Evidence Rule 504 to withhold the identities of their psychotherapists,
we conclude that N.G. did have a privilege to withhold this information in the present
case.
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Even though it appears that all, or essentially all, of N.G.'s psychotherapy
records are privileged, did the superior court nevertheless have a
justification for concluding that N.G.'s privilege might have to give way to
Standifer's demand for production - and that, therefore, the court should
conduct an in camera review of the psychotherapy records?
As we noted toward the beginning of this opinion, the fact that all
(or essentially all) of the information contained in N.G.'s psychotherapy records is
privileged does not necessarily answer the question of whether the superior court had the
authority to order production of these records and then examine the records in camera
to determine if some of the information contained in these records should be disclosed
to the defense.
Conceivably, even when information about a witness is protected by the
psychotherapist-patient privilege, a court might be justified in ordering disclosure of that
information to the defendant if the information was sufficiently important to the
defendant's cross-examination of the witness. Standifer indeed argues that his rights of
confrontation and compulsory process, as well as his right to due process of law, must
take precedence over N.G.'s psychotherapist-patient privilege if the information
contained in N.G.'s psychotherapy records is pertinent to his defense - and he urges us
to uphold the superior court's order on that basis.
There are times when a witness's right to keep certain information
confidential must yield to a criminal defendant's right to confront the witnesses against
them. See, for example, Davis v. Alaska , 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347
(1974), where the United States Supreme Court held that the defendant's right of
confrontation took precedence over a statute requiring that the records of juvenile
delinquency proceedings be kept confidential.
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Some evidentiary privileges, such as the government's privilege under
Alaska Evidence Rule 509 to conceal the identity of its informants, are expressly defined
so as to allow a court to engage in this weighing of interests. Other evidentiary
privileges are treated in the same way, by court decision. See, for instance, Salazar v.
State, 559 P.2d 66, 78-79 (Alaska 1976), holding that, under the facts, the marital
communications privilege had to yield to the defendant's right of confrontation.
However, certain evidentiary privileges - such as the attorney-client
privilege - are treated as absolute. That is, once the holder of the privilege establishes
that the privilege protects the information being sought, the privilege will be honored no
matter how strong the countervailing interests in disclosure might be. 4
Currently, Alaska law does not provide a firm answer to the question of
whether a person's psychotherapist-patient privilege is absolute or, instead, can be
overridden by a litigant's competing interest in disclosure.
In Gunnerud v. State, 611 P.2d 69, 71-72 (Alaska 1980), the Alaska
Supreme Court approved a trial judge's decision to conduct an in camera review of a
psychiatric report concerning a government witness, to see if the report contained
information that was relevant to assessing the witness's credibility. The trial judge in
Gunnerud examined the psychiatric report, concluded that it had no relevance to the
witness's credibility, and therefore refused to disclose the report to the defense. The
supreme court upheld the trial judge's decision - but the implication of Gunnerud is
that the trial judge would properly have disclosed the psychiatric report to the defense
if the judge had concluded that the report was relevant to assessing the witness's
credibility.
4 See Edward J. Imwinkelried, The New Wigmore: A Treatise on Evidence: Evidentiary
Privileges (2nd edition, 2010), § 6.2.8, p. 578, n. 506.
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Seemingly, Gunnerud supports Standifer's position in this appeal - his
argument that a defendant's interest in confronting a government witness can override
the psychotherapist-patient privilege. But it is unclear whether the witness in Gunnerud
had a privilege to assert.
The psychiatric report in Gunnerud was part of a pre-sentence report that
was prepared in connection with an earlier criminal prosecution of the witness. 5 In other
words, the psychiatric report was already in the hands of the court and the State -
apparently because the witness consented to be examined by a psychiatrist in connection
with the sentencing in that earlier case, or else because the witness waived her
psychotherapist-patient privilege for the purpose of allowing the sentencing court to
consider a pre-existing psychiatric report.
In Spencer v. State, 642 P.2d 1371 (Alaska App. 1982), the trial court
conducted a similar in camera review of a witness's psychiatric records, but those
records also were already in the possession of the State - because the witness had
signed a release authorizing disclosure of those records to the prosecutor, apparently in
contemplation of the later in camera review by the court. 6
Thus, no Alaska case provides a direct answer to the question of whether
a court may override a witness's assertion of the psychotherapist-patient privilege in a
criminal case and order disclosure of privileged information, based on the court's
assessment that the defendant's interest in disclosure is more important than the witness's
interest in maintaining the confidentiality of the privileged information.
This issue has, however, arisen in other jurisdictions, and a majority of
those courts have concluded that, if the defendant makes a sufficient preliminary
5 Gunnerud, 611 P.2d at 71.
6 Spencer, 642 P.2d at 1374.
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showing, the defendant is entitled to have the trial court conduct an in camera inspection
of a government witness's mental health records - and that the witness's
psychotherapist-patient privilege can be overridden if the trial court concludes that
portions of those records are sufficiently relevant to the defendant's guilt or innocence,
or are sufficiently relevant to the witness's credibility.
See State v. Storlazzi, 464 A.2d 829, 832-33 (Conn. 1983); Bobo v. State ,
349 S.E.2d 690, 692 (Ga. 1986) (plurality opinion); State v. Peseti, 65 P.3d 119, 128
(Haw. 2003); People v. Dace , 449 N.E.2d 1031, 1035 (Ill. App. 1983), aff'd, 470 N.E.2d
993 (Ill. 1984); Commonwealth v. Stockhammer, 570 N.E.2d 992, 1002 (Mass. 1991);
People v. Stanaway , 521 N.W.2d 557, 562 (Mich. 1994); State v. McBride, 517 A.2d
152, 160 (N.J. App. 1986); People v. Acklin , 424 N.Y.S.2d 633, 636 (N.Y. Sup. Ct.
1980); State v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992); State v. Green, 646
N.W.2d 298, 304-312 (Wis. 2002); Gale v. State, 792 P.2d 570, 581-82 (Wyo. 1990).
But contra : People v. Hammon , 938 P.2d 986, 993; 65 Cal.Rptr.2d 1, 7
(Cal. 1997); People v. District Court , 719 P.2d 722, 727 (Colo. 1986); State v.
Famiglietti , 817 So.2d 901, 906 (Fla. App. 2002); Goldsmith v. State, 651 A.2d 866, 873
(Md. 1995); Commonwealth v. Wilson, 602 A.2d 1290, 1296-98 (Pa. 1992).
See also Jaffee v. Redmond , 518 U.S. 1, 17-18; 116 S.Ct. 1923, 1932; 135
L.Ed.2d 337 (1996) (a civil case in which the Supreme Court held that, under federal
law, a witness's psychotherapist-patient privilege is absolute - that the protection of the
privilege is not contingent on "a trial judge's later evaluation of the relative importance
of the patient's interest in privacy and the evidentiary need for disclosure". However,
the Supreme Court did suggest that there might be generalized situations in which the
privilege would not apply; see footnote 19, 518 U.S. at 18, 116 S.Ct. at 1932).
But even if this Court were to hold that a witness's psychotherapist-patient
privilege could be overridden by a criminal defendant's constitutional interest in
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confronting the witness, we would not be able to affirm the superior court's order on this
basis.
As we have explained, when the superior court ordered the in camera
production of N.G.'s psychotherapy records, the court did so under the theory that those
records likely contained a significant amount of non-privileged material (because of
the court's overly narrow interpretation of what sort of information is protected by
the psychotherapist-patient privilege). The superior court's announced purpose for
conducting its in camera examination of N.G.'s psychotherapy records was to separate
privileged information from non-privileged information - and then disclose any
relevant non-privileged information to Standifer's defense team.
But as we explained in the preceding section of this opinion, there is little
reason to think that N.G.'s psychotherapy records contain any significant amount of non-
privileged information. Instead, one would expect that all, or essentially all, of the
information contained in those records is covered by the psychotherapist-patient
privilege. Thus, the superior court's rationale for conducting an in camera examination
of those records was mistaken.
The superior court never addressed the alternative question of whether the
court might be legally justified in examining the psychotherapy records, and ultimately
disclosing information contained in those records, even if that information was
privileged. Thus, even if Alaska law allowed trial judges to balance a witness's
psychotherapist-patient privilege against a defendant's interest in disclosure - i.e.,
allowed a judge to conduct an in camera examination of undisputedly privileged
materials and then, potentially, order disclosure of some or all of this privileged
information to the defense - the fact remains that the superior court made no findings
and no ruling on this issue in N.G.'s case.
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The question, then, is whether this Court should remand this case to the
superior court for consideration of this issue, or whether we should reverse the superior
court's order outright. The answer to this question hinges on whether Standifer's offer
of proof could conceivably justify an in camera review of N.G.'s psychotherapy records.
We recently addressed an analogous issue in Booth v. State , 251 P.3d 369
(Alaska App. 2011), a case that involved a defendant's request for disclosure of a police
officer's personnel file. We held in Booth that the defendant was entitled to have the trial
court conduct an in camera examination of the officer's personnel file if the defendant
identified
a type of information that would be relevant to the
defendant's guilt or innocence (in light of the facts of the
case, the State's theory of prosecution, and the defendant's
theory of defense), and if this type of information is the kind
of information that would be recorded in a police officer's
personnel file[.]
Booth , 251 P.3d at 374. We further held in Booth that if, during this in camera
examination, the judge discovered that the personnel file did indeed contain this
information, then the judge should turn the information over to the defense. Ibid.
N.G.'s case differs from Booth because the files at issue in this case are not
personnel files, but rather psychotherapy records. Arguably, even if the psychotherapist-
patient privilege is not an absolute privilege, a person's psychotherapy records should
still be entitled to greater protection than a public officer's employment records. See
Commonwealth v. Barroso, 122 S.W.3d 554, 564 (Ky. 2003) (overruling an earlier, more
lenient test, and holding that "in camera review of a witness's psychotherapy records is
authorized only upon receipt of evidence sufficient to establish a reasonable belief that
the records [actually] contain exculpatory evidence").
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We need not decide whether the Booth test applies to defense requests for
in camera inspection of a person's psychotherapy records, or whether a more protective
test should apply, or whether psychotherapy records are absolutely privileged, because
we conclude that Standifer's request for production in this case fails to satisfy even the
Booth test.
Standifer requested disclosure of any portions of N.G.'s psychotherapy
records that might contain evidence that N.G. lacked the "ability to accurately perceive
or truthfully report [the] events" at issue in this case. In support of that request, Standifer
pointed to portions of the record indicating that N.G. had a history of treatment for
alcohol abuse and alcohol withdrawal, including one incident where she may have
suffered an alcoholic blackout. Standifer additionally relied on a notation made by one
of the physicians who examined N.G., in which the physician indicated that N.G. had
"a history of bipolar disorder".
But even assuming the truth of these suggestions that N.G. has a history of
alcoholism and a history of bipolar disorder, the question is whether, given the other
facts of this case, there is reason to believe that these mental conditions significantly
impaired N.G.'s ability to perceive or relate the events at issue here. As we noted in our
order granting review in this case, the question is whether Standifer's offer of proof
provided an evidentiary basis for concluding that persons who have experienced an
alcoholic blackout at some point in the past, or who have a history of bipolar disorder,
are therefore more likely to hallucinate or fundamentally misperceive events, or are more
likely to be unable to discern truth from fiction in their later recounting of events.
This is essentially the test that our supreme court endorsed in Gunnerud v.
State, 611 P.2d 69 (Alaska 1980). As we explained earlier, Gunnerud involved a
situation where the trial court was in possession of a psychiatric report dealing with a
government witness (because this report was part of a pre-sentence report that was
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prepared in an earlier case involving the witness). The question was whether the
defendant was entitled to disclosure of this psychiatric report.
The trial judge examined the psychiatric report in camera and then declared
that he was not going to disclose the report to the defendant "unless [the psychiatrist] can
first advise [me] that the [patient's] history, and the examination, and [the] diagnosis
[and] treatment, or ... any prognosis that he might have concerning this witness would
be such as to bear upon her credibility." 7 In other words, the trial judge was unwilling
to assume that the witness's credibility was in doubt simply because she had been
diagnosed with, or treated for, mental illness. The supreme court upheld the judge's
decision.
See also Pickens v. State , 675 P.2d 665 (Alaska App. 1984), where this
Court addressed the related issue of whether the trial court should have granted the
defendant's request for a court order directing the alleged victim in a sexual assault case
to submit to a psychological examination. Despite the fact that there was evidence
indicating that the victim, V.C., suffered from emotional problems, and that she ingested
both alcohol and cocaine before the offense, we concluded that the defendant's offer of
proof was inadequate to support an order requiring the victim to submit to a
psychological examination:
Pickens failed to make an adequate showing of a
potential relationship between V.C.'s psychiatric condition
and her veracity as a trial witness ... . Pickens relied
exclusively on an affidavit ... stating that V.C. threatened
suicide two months prior to the sexual assault[,] and that she
had previous emotional problems. The affidavit also noted
that V.C. had used cocaine and was intoxicated at the time of
the offense. On the basis of this affidavit, Pickens argues that
7 Gunnerud, 611 P.2d at 72.
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psychiatric testimony would have aided the jury in assessing
how alcohol and cocaine might have affected V.C.'s
credibility. [But] Pickens does not indicate any specific
reason to believe that V.C.'s prior emotional problems might
have affected her veracity.
The general assertions that V.C. had previously
suffered emotional problems of an unspecified nature and that
she used cocaine and alcohol before the offense do not
directly call into question her psychiatric condition or the
relationship of her condition to her veracity as a witness.
Defense counsel's speculation that a psychiatric evaluation of
the victim might turn something up does not amount to a
showing of necessity justifying a court-ordered evaluation.
We think that, at the very least, it would have been incumbent
upon Pickens to make a specific showing of good cause to
believe, first, that V.C.'s ability to perceive events accurately
or to relate those events truthfully was substantially impaired
and, second, that this impairment was of such a nature that a
psychological evaluation would be likely to confirm its
existence or to provide material information as to its scope.
Pickens , 675 P.2d at 668-69.
Standifer's offer of proof in the present case suffers from the same defect.
His request for production of N.G.'s psychotherapy records rests on his implicit assertion
that a person who suffers from alcoholism and/or bipolar disorder is, as a consequence,
significantly more likely to fundamentally misperceive events, or significantly less likely
to be able to discern truth from fiction in their later recounting of events.
Conceivably, Standifer's assertion might be true - but we are unable to
simply assume the truth of this assertion, and the record in front of us does not support
this assertion. Accordingly, Standifer's offer of proof that N.G. suffers from alcoholism,
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----------------------- Page 26-----------------------
and may suffer from bipolar disorder, was not sufficient to justify an in camera
examination of her psychotherapy records.
We note that, as part of Standifer's offer of proof, Standifer relied on an
earlier court record indicating that, about two and a half years before the incident in
Standifer's case, N.G. was arrested for shoplifting in Fairbanks, and when she was
interviewed by the police, she claimed that she was innocent and that she had "blacked
out".
Recently, in Milligan v. State , 286 P.3d 1065 (Alaska App. 2012), this
Court held that evidence of a witness's prior alcoholic blackouts would be relevant if the
proponent of this evidence showed that the witness was drinking at the time of the events
being litigated, and that the witness's prior alcoholic blackouts were recent. Id. at 1069-
1070.
But here, Standifer did not offer evidence that some third person observed
N.G. experiencing a blackout, or that a medical care provider diagnosed N.G. as having
experienced a blackout. Rather, Standifer relied on N.G.'s own exculpatory assertion to
the police that she was not guilty of shoplifting because she was experiencing a
"blackout". In addition, the incident in question occurred in January 2008, approxi-
mately two and a half years before the events in Standifer's case. For these reasons, we
conclude that Milligan is distinguishable.
In sum, we conclude that Standifer's offer of proof was insufficient to
justify an in camera examination of N.G.'s privileged psychotherapy records.
Conclusion
The superior court's order is REVERSED.
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BOLGER, Judge, concurring.
I agree with the reasonably broad construction of the psychotherapist-
patient privilege discussed in the lead opinion. I write separately to note that this
construction avoids some thorny constitutional questions.
For example, N.G. argues that an order compelling a crime victim to
provide a list of all of her health care providers could violate the victim's right to privacy
under Article I, § 22 of the Alaska Constitution.1 In view of this fundamental right, it is
arguable that any such order must be narrowly drawn so that disclosure is limited to
information for which there is a demonstrable and compelling need.2
Moreover, as a crime victim, N.G. had the right to be "treated with dignity,
respect, and fairness during all phases of the criminal ... process" under Article I, § 24
of the Alaska Constitution. Construing similar constitutional language, another state
court has required a criminal defendant, in order to justify in camera review of a crime
victim's treatment records, to make a strict foundational showing that there is: (1) a
reasonable certainty that exculpatory evidence exists, which would be favorable to the
defense; and (2) a reasonable probability that, if the evidence were disclosed to the
defense, the result of the proceeding would be different.3
We are not required to decide these constitutional questions because the
disclosure order in this case unnecessarily infringes on the psychotherapist-patient
1 See Falcon v. Alaska Pub. Offices Comm'n , 570 P.2d 469, 479-80 (Alaska 1977)
(annulling a statute that required doctors seeking public office to disclose the names of their
patients).
2 See Messerli v. State, 626 P.2d 81, 86 (Alaska 1980) (holding that a campaign
disclosure statute that affected the right to privacy would have to be justified by a "legitimate
and compelling governmental interest").
3 See State v. Blake, 63 P.3d 56, 60 (Utah 2002).
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privilege. But these circumstances serve as a reminder that a healthy construction of this
privilege is necessary to avoid infringing privacy interests protected by the constitution.4
4 See State v. R.H ., 683 P.2d 269, 280-81 (Alaska App. 1984).
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