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2013 Conn. App. LEXIS 39 (2013)

Nature of the case:

Child sexual abuse

Facts and Issues on Appeal:

The defendant was convicted of raping and sexually assaulting the victim when she was approximately seven years old, during a time when he was living with the victim, her mother and her sister. Prior to trial, the defendant filed a motion seeking discovery of the victim's medical and therapy records. The prosecutor delivered the records to the judge for a private or "in camera" screening. The judge reviewed the records and ruled there was no information in the records that would be useful to the defense. The defendant was convicted.

On appeal, the defendant argued that his fair trial rights were violated because the victim's privileged records were not turned over to the defense. The appellate court disagreed, reasoning as follows:

Ruling & Rationale:

Under the standard set forth in State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), the trial judge has discretion to determine whether privileged treatment files should be disseminated to the defense. If the records are not disseminated, they are held under seal by the trial court for possible review by an appellate court. This process represents a balance between Connecticut's "broad psychiatrist-patient privilege that protects the confidential communications or records of a patient seeking diagnosis and treatment. . . ." and "the defendant's right to confront the state's witnesses…," which includes the right to "cross-examine witnesses against him . . . and to expose to the jury the facts from which the jurors . . . could appropriately draw inferences relating to the reliability of the witnesses. . . . Once a claim of privilege is asserted, the accused must make a showing that there is "reasonable ground to believe that the failure to produce the information is likely to impair the defendant's right of confrontation…" Upon such a showing the court "may then afford the state an opportunity to secure the consent of the witness for the court to conduct an in camera inspection of the claimed information and, if necessary, to turn over to the defendant any relevant material for the purposes of cross-examination.

If the defendant makes a sufficient showing and the victim's consent is not forthcoming, then the court "may be obliged to strike the testimony of the witness."

"If the in camera inspection does reveal [such] material then the witness should be given an opportunity to decide whether to consent to release of such material to the defendant or to face having her testimony stricken in the event of refusal. . . ."

After carefully reviewing the records at issue, the appellate court agreed with the trial judge and ruled that the records need not have been divulged to the defense because the records did "not contain evidence that tended to discredit the victim's testimony, her capacity to testify or her reliability as a witness".

Editorial Comment

While the result in this case protected the victim's privacy rights, the process in Connecticut may be unconstitutional because it requires abrogation of a victim's constitutionally protected privacy rights without first according due process to the victim. In addition, the court requires disclosure if nondisclosure would "impair the defendant's right of confrontation", yet the court nowhere acknowledges that the defendant enjoys no discovery rights, or other constitutional rights, against private persons during the pre-trial period. This makes it questionable whether a judge can order a non-state actor to produce private papers that are not otherwise part of the state's evidence and/or are already under the custody or control of the prosecution. In other words, the rights of the accused run only against the state, not the victim. As a result, there is an issue as to whether a judge can order the pretrial release of such records and whether the victim's refusal to release her records at the behest of the perpetrator can subject her to sanctions such as striking her testimony for refusing to submit to the perpetrator's demand for access. For more on this important topic, see Privacy Rights in Mental Health Counseling: Constitutional Confusion and the Voicelessness of Third Parties in Criminal Cases, Journal of the American Academy of Psychiatry and Law, 39: 387-395 (2011).

Submitted By: Megan Mitchell -- Law Student

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