This case presents the question whether, and under what circumstances, records of
This Court is faced with the difficult task of reconciling the state's compelling interest in protecting the confidentiality of counseling and juvenile diversion records with the defendant's federal and state constitutional rights to obtain evidence necessary to his defense in a criminal trial. We hold that where a defendant can establish a reasonable probability that the privileged records are likely to contain material information necessary to his defense, an in camera review of those records
The procedure we adopt today attempts to balance the Legislature's interest in protecting the confidentiality of the therapeutic setting with the possibility that there may be exculpatory evidence in such records necessary to prevent the conviction of an innocent person.
In People v Stanaway, we affirm the trial court's denial of an in camera review of the victim's counseling records. The defendant's generalized assertion of a need to attack the credibility of his accuser did not establish the threshold showing of a reasonable probability that the records contain information material to his defense sufficient to overcome the various statutory privileges. However, we hold that the trial court abused its discretion when it allowed the improper impeachment of a prosecution witness with hearsay testimony that was highly prejudicial. We reverse Stanaway's conviction and remand for a new trial because the error was not harmless.
In People v Caruso, we remand to the trial court for a determination of whether an in camera review of the victim's counseling records is warranted. If the defendant has demonstrated a good-faith belief, grounded in articulable fact, that there is a reasonable probability that the records contain material information necessary to his defense such an inspection should be conducted by the trial judge.
A. PEOPLE v STANAWAY
Defendant Brian Stanaway was charged with
Before trial, Stanaway's defense counsel filed a motion that sought direct access to the records of a social worker in the juvenile diversion program and a sexual assault counselor regarding the complainant. The defendant argued that the records might contain inconsistent statements or might lead to exculpatory evidence, but admitted he had no basis for a good-faith belief that it was probable such information would be found.
The complaining witness testified at trial that
A second incident occurred two weeks later. The witness stated she was visiting her aunt who lived on the same block as the defendant. She was in the backyard when another nephew of the defendant, Ricky Stanaway, called to her. Ricky indicated that the defendant was in the house and wanted to talk to her. Once in the house, Ricky told her the defendant was in the bathroom and that she should just knock and he would let her in. She knocked and entered and the defendant closed the door behind her. She said the defendant was naked and indicated to her that he wanted to have sex. She said she repeated that she did not want to. Again the defendant pulled down her
The witness testified that the third incident happened later that summer. She could not remember the circumstances of how it came to be that she was at the defendant's house but she said sexual intercourse took place on a single bed in a back bedroom. She remembered the defendant getting a towel to clean off the bed afterwards.
The defendant testified on his own behalf. He denied having any sexual contact with the complainant. He said there was no tent in the yard at the time in question. He said she was never in his house except to baby-sit and he and his wife would have been gone together.
The jury convicted the defendant on all three counts. In the Court of Appeals, defendant challenged the denial of discovery, the admittance of testimony by a police officer regarding a statement made by a nephew of the defendant, statements made by the prosecutor during closing arguments and the ineffectiveness of his trial counsel. The Court of Appeals affirmed the defendant's conviction in an unpublished opinion per curiam, issued August 14, 1991 (Docket No. 130448).
On the basis of statements made by the prosecutor that suggested access to the records in question, this Court entered an order directing the trial judge to conduct an in camera review of the requested documents. That order was later modified in response to motions to intervene filed by the social worker, the rape crisis counselor, and the mental health clinic. Although the motions to intervene eventually were denied, the prosecutor instead was ordered to file a written response explaining the basis for the statements made during closing arguments regarding what the complaining witness told counselors. Specifically, the
B. PEOPLE v CARUSO
Defendant Stanley Caruso is charged with second-degree criminal sexual conduct.
Before trial, defense counsel moved to obtain the complainant's counseling records, asserting that there was good reason to believe the complainant had been the victim of sexual abuse by her biological father. It was further suggested that this may not have been the first note written to the live-in boyfriend of a sexual nature. It was believed by the defense that the child had written at least one prior note in which she suggested she wanted to
The Court of Appeals granted the prosecutor's interlocutory emergency motion for immediate consideration, but affirmed the trial court's order requiring production for an in camera review.
The first issue to decide is whether the various statutory privileges are intended to shield disclosure of this evidence and, if so, whether they violate the defendants' rights under US Const, Ams VI, XIV, and Const 1963, art 1, §§ 17, 20.
A. THE STATUTORY PRIVILEGES
In opposition to defendant Stanaway's discovery motion, the prosecutor asserted that the records at
In opposition to defendant Caruso's discovery request, the prosecutor asserted that the records requested were absolutely privileged under Michigan's statutory psychologist-patient privilege, MCL 330.1750; MSA 14.800(750).
Unlike other evidentiary rules that exclude evidence because it is potentially unreliable, privilege statutes shield potentially reliable evidence in an attempt to foster relationships. Westen, The compulsory process clause, 73 Mich L R 71, 160-161 (1974). While the assurance of confidentiality may encourage relationships of trust, privileges inhibit rather than facilitate the search for truth. 1 McCormick, Evidence (4th ed), § 72, pp 268-270. Privileges therefore are not easily found or endorsed by the courts. "The existence and scope of a statutory privilege ultimately turns on the language and meaning of the statute itself." Howe v Detroit Free Press, 440 Mich. 203, 211; 487 N.W.2d 374 (1992). Even so, the goal of statutory construction is to ascertain and facilitate the intent of the Legislature. People v Love, 425 Mich. 691, 705; 391 N.W.2d 738 (1986).
The Legislature expressly provided that confidential communications made to a sexual or domestic assault counselor "shall not be admissible as evidence in any civil or criminal proceeding without the prior written consent of the victim."
The only exception recognized in MCL 600.2157a; MSA 27A.2157(1) is the mandatory disclosure provisions of the Child Protection Act, MCL 722.623(1); MSA 25.248(3)(1).
The statute addressing the social worker-client privilege, MCL 339.1610(1); MSA 18.425(1610)(1) provides in part one that the social worker "shall not be required to disclose a communication" and in part two that communications are confidential. The exceptions to the privilege are disclosures for internal supervision of the social worker, disclosures made under the duty to warn third parties, as set forth in MCL 330.1946; MSA 14.800(946), and where the client has waived the privilege.
The psychologist-patient privilege, MCL 330.1750; MSA 14.800(750), establishes an evidentiary
Defendant Stanaway included a request for the juvenile diversion records of the complainant in his discovery motion. The prosecutor asserted that those records were privileged by both the social worker-client privilege and under the Juvenile Diversion Act, MCL 722.828-722.829; MSA 25.243(58)-25.243(59).
The Juvenile Diversion Act
Records created pursuant to these requirements are accessible by court order if it is determined that the person requesting them has a legitimate interest.
We hold that the records required under the act are subject to the privilege established by the act. Any additional records created by the juvenile diversion officer in her capacity as a social worker are protected by the statutory social worker-client privilege. Defendants' need for the records does not fit any of the exceptions afforded under the statutes.
We agree with the prosecutors' views that these privileges shield the counseling and juvenile diversion records of the complainants.
B. DUE PROCESS CHALLENGE
We now must consider whether the constitutional rights of the defendants to due process
At the heart of this controversy is the defendants' premise that if relevant evidence is shielded by privilege for some purpose other than enhancing the truth-seeking function of a trial, then the danger of convicting an innocent defendant increases. While the duty to provide evidence may involve a sacrifice of privacy, the public has a right to everyone's evidence. 8 Wigmore, Evidence
The nation's highest court has struck down a Mississippi hearsay rule because, when combined with that state's voucher rule, the defendant was prevented from presenting witnesses in his defense. Chambers v Mississippi, 410 U.S. 284, 302; 93 S.Ct. 1038; 35 L Ed 2d 297 (1973). "[T]he ... rule may not be applied mechanistically to defeat the ends of justice," but must meet the fundamental standards of due process. Evidentiary rules must be evaluated when applied for a determination whether the interests served justify the potential limitation imposed on a defendant's constitutional rights. Rock v Arkansas, 483 U.S. 44, 56; 107 S.Ct. 2704; 97 L Ed 2d 37 (1987) (in which an evidentiary rule regarding the inadmissibility of post-hypnotic memories was determined to unconstitutionally limit the accused's due process right to testify on her own behalf). However, the United
A protective order prohibiting cross-examination regarding a witness' juvenile offenses granted pursuant to a similar state statute providing for juvenile records to be kept confidential was struck down in Davis v Alaska, 415 U.S. 308; 94 S.Ct. 1105; 39 L Ed 2d 347 (1974), as violative of the defendant's right of confrontation under the Sixth and Fourteenth Amendments:
The issue in this case is discovery access to information that would be useful at trial for impeachment purposes or useful as exculpatory evidence. "There is no general constitutional right to discovery in a criminal case...." Weatherford v Bursey, 429 U.S. 545, 559; 97 S.Ct. 837; 51 L Ed 2d 30 (1977). The leading United States Supreme Court case on the issue of pretrial access to privileged
"Our cases establish, at a minimum, that criminal defendants have the right to ... put before a jury evidence that might influence the determination of guilt." Ritchie, supra, p 56. The Court held that the defendant's due process interests in seeking favorable evidence would be satisfied by in camera review. The Court acknowledged that where an in camera review is conducted, the defendant does not receive the benefit of the advocate's eye, but the Court observed that full disclosure would "sacrifice unnecessarily the Commonwealth's
Part of the Court's rationale for upholding in camera inspection was the fact that the records were those of a government agency. Id., pp 57-60. Defendants have a due process right to obtain evidence in the possession of the prosecutor if it is favorable to the accused and material to guilt or punishment. Brady v Maryland, 373 U.S. 83, 87; 83 S.Ct. 1194; 10 L Ed 2d 215 (1963); People v Carter, 415 Mich. 558, 593; 330 N.W.2d 314 (1982). Material has been interpreted to mean exculpatory evidence that would raise a reasonable doubt about the defendant's guilt. United States v Agurs, 427 U.S. 97, 104; 96 S.Ct. 2392; 49 L Ed 2d 342 (1976). The prosecution must turn over such evidence regardless of whether the defendant makes a request. Id. The defendant in Ritchie had been convicted in the trial court without agency records having been furnished. Ritchie, supra, p 57. The in camera inspection was to determine whether the investigatory records contained exculpatory material that should have been provided to him. Id., p 58. The test for whether the material should have been provided to him is "whether it contains information that probably would have changed the outcome of his trial." If there was no such material or if the nondisclosure was harmless beyond a reasonable doubt, then, the Court held, the conviction could be reinstated. In a footnote, the Court indicates that "Ritchie, of course, may not require the trial court to search through the CYS [Children and Youth Services] file without first establishing a
Our remand of Stanaway has established that the prosecutor has not at any time had access to the records requested by the defendant. Nor were these "investigative" records of a governmental agency. The disclosure requirements of Brady, supra, are directly applicable where the prosecutor possesses the record. People v Reed, 393 Mich. 342, 353; 224 N.W.2d 867 (1975); People v Dellabonda, 265 Mich. 486, 500-501; 251 NW 594 (1933). An in camera review would be appropriate to determine whether the prosecutor withheld any evidence he was duty-bound to disclose.
The Ritchie Court also noted that the privilege regarding the investigatory files was "qualified" in that the Pennsylvania statute
Other than the very limited use in deciding whether a juvenile is a likely candidate for diversion, the privilege statutes this Court is asked to apply today do not contemplate use in judicial proceedings. As such, our statutes do not create the qualified privilege the United States Supreme
Absolute privileges — privileges providing that information is not to be disclosed to anyone — have been abrogated despite the existence of the government's privilege to withhold disclosure of the identity of an informant where disclosure was compelled to satisfy the defendant's Sixth Amendment confrontation rights. Roviaro v United States, 353 U.S. 53; 77 S.Ct. 623; 1 L Ed 2d 639 (1957); People v Poindexter, 90 Mich.App. 599; 282 N.W.2d 411 (1979). "[N]o fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Roviaro, supra, p 62.
Common-law and statutory privileges may have
Where other jurisdictions have specifically addressed the validity of counseling privileges, most have attempted to balance the defendant's constitutional right to a fair trial with the complainant's interest in confidential therapy. Many require the defendant to make a preliminary showing that the privileged information is likely to contain evidence useful to his defense.
Illinois and Pennsylvania both have refused to disclose records where the statutory privilege was determined to be absolute. People v Foggy, 121 Ill.2d 337; 521 N.E.2d 86 (1988); Commonwealth v Wilson, 529 Pa. 268, 278; 602 A.2d 1290 (1992); Commonwealth v Kennedy, 413 Pa.Super. 95; 604 A.2d 1036 (1992). In Foggy, the court gave two reasons for denying the defendant's request. The first was support for the strong public policy against disclosure underlying the privilege. The second was the fact that the defendant had failed to show that the files contained relevant information that might exculpate or be useful to impeach. Under the facts of Foggy, the request was merely for inconsistent statements because, in the words of the defendant, the trial would amount to a credibility contest. The court stated that if it were to be held that the defendant had established a sufficient showing that the records likely contained relevant information on the basis that this case
The Pennsylvania appellate courts have also held that in camera review violates the absolute privilege established by the state legislature.
The concurring opinion in Kennedy expressed concern that it was unconstitutional to hold a statutory privilege superior to a defendant's rights of due process. It is the "state's compelling interest in the confidentiality of the counseling relationship [that] must yield to the greater interest in promoting and protecting the defendant's constitutional rights." Id., p 119. Constitutional protections for the accused should not be sacrificed by way of
Not only is judicial in camera review of privileged material possible in certain situations, the Massachusetts Supreme Court has attempted to include the so-called "eye of the advocate" in its review of privileged documents. Commonwealth v Stockhammer, 409 Mass. 867, 882-883; 570 N.E.2d 992 (1991). The procedure involves a multistep inquiry. In order to receive an in camera inspection, a defendant must advance a good-faith belief, having some factual basis, that the privileged records are likely to be relevant to an issue in the case. The judge will then conduct an in camera review of the records. Commonwealth v Bishop, 417 Mass. 169; 617 N.W.2d 990 (1993). If upon inspection, the trial judge finds the records in fact to be relevant, he will then allow defense counsel access to those records to determine whether disclosure of the relevant communications is necessary for a fair trial. Id., pp 179-180. "[F]ull disclosure, predicated solely on a defendant's uninformed request may yield nothing for the defense, and the privilege would have been pierced unnecessarily." Id., p 177.
In State v Shiffra, 175 Wis.2d 600; 499 N.W.2d 719 (1993), the prosecutor provided a defendant accused of sexual assault with information that indicated the complainant had a history of psychiatric problems that might affect her credibility. On the basis of this information, the defendant moved for an in camera inspection of the complainant's past mental health records. Applying Wisconsin
The numerous writings that contributed to the plurality Ritchie holding and the factors discussed, but not resolved therein, make it difficult to divine a precise formula for balancing against a defendant's due process rights the state's pronounced interest in its evidentiary counseling privileges that enhance the healing process in the wake of abuse.
We reject the novel approach fashioned by the separate opinion that would place before the trial court the additional inquiry regarding how important the absolute privilege in question is to the particular privilege holder.
The creation of the various privileges discussed in this opinion establishes the Legislature's assumption that any forced disclosure of the information protected will cause injury to the privilege holder. The weight of the privilege or the need for the privilege is relevant to and is incorporated into the balancing test this Court articulates today. The test we adopt today anticipates that the privilege holder would be better off if the privilege remains intact.
We believe we are upholding the general purposes of the statutory privileges to prevent the routine disclosures that would undermine therapeutic relationships. We must recognize, however, that in certain circumstances an in camera review of the records is necessary so as not to undermine confidence in the outcome of a trial. In camera inspection of privileged information by the court is a "useful intermediate step between full disclosure and total nondisclosure." United States v Gambino, 741 F.Supp. 412, 414 (SD NY, 1990); People v Hackett, 421 Mich. 338; 365 N.W.2d 120 (1984).
Where the defendant has made the required showing, in camera inspection of privileged documents by the judge strikes the delicate balance between the defendant's federal and state constitutional
The state's interest in preserving the confidentiality of the social worker, diversion, and rape-counseling
We now turn to the application of the test enunciated to the specific facts and circumstances of the cases before us. It was not an abuse of discretion to find the counseling communications protected by the privileges in Stanaway or discoverable in Caruso.
Criminal defendants do not have general rights to discovery. MCR 6.001. Discovery in criminal cases, however, is left to the discretion of the trial court:
In general, when a discovery request is made disclosure should not occur when the record reflects that the party seeking disclosure is on "a fishing expedition to see what may turn up." Bowman Dairy Co v United States, 341 U.S. 214, 221; 71 S.Ct. 675; 95 L Ed 879 (1951).
In camera inspection is often utilized to determine whether evidence sought is discoverable. The Legislature has expressly provided for this procedure
Defendant Stanaway asserts that the records sought were necessary to his attempt to unearth any prior inconsistent statements made by the complainant or any other relevant rebuttal evidence. This is no more than a generalized assertion that the counseling records may contain evidence useful for impeachment on cross-examination.
Defendant Caruso may have demonstrated a realistic and substantial possibility that the material he requested might contain information necessary to his defense. The defendant argued in his motion for in camera discovery that the circumstances in which the accusation was made were relevant to the truth or falsity of the claim. The defense theory is that the claimant is a troubled, maladjusted child whose past trauma has caused her to make a false accusation against her uncle. The defendant asserted a good-faith belief in his motion that the complainant suffered sexual abuse by her biological father before this allegation of abuse, the nonresolution of which produced a false accusation,
Should the defendant prevail on rehearing, a waiver of the privilege should be requested of the complainant because the privilege in question in Caruso is an absolute privilege.
Only if the in camera inspection reveals information essential and reasonably necessary to the defense should it be provided to the defendant.
Defendant Stanaway asserts that prosecutorial misconduct occurred during closing arguments to the jury. The defendant further asserts that his trial counsel was ineffective in his failure to object.
The defendant's position is that the effect of the prosecutor's words were to advise the jury that the complainant's privileged statements to various counselors regarding the charged offenses had remained consistent on the numerous occasions on which the incidents were reported. Although the complainant testified about the fact of counseling, she did not reveal any statements actually made
Further support for defendant's theory is found in two questions to the court by the jury during deliberations:
We note at the outset that the prosecutor either was impermissibly arguing facts not in evidence or was vouching for the credibility of the witness. He admitted on remand that he had no specific knowledge of what the complainant told any counselor.
A prosecutor may not argue the effect of testimony that was not entered into evidence at trial. People v McCain, 84 Mich.App. 210, 215; 269 N.W.2d 528 (1988). It is improper bolstering for a prosecutor to vouch for credibility of facts and evidence not in the case. See People v Couch, 49 Mich.App. 69; 211 N.W.2d 250 (1973). If defense
Appellate review of improper prosecutorial remarks is generally precluded absent objection by counsel because the trial court is otherwise deprived of an opportunity to cure the error. People v Buckey, 424 Mich. 1, 17; 378 N.W.2d 432 (1985); People v Gonzalez, 178 Mich.App. 526, 534-535; 444 N.W.2d 228 (1989); People v Gonyea, 126 Mich.App. 177, 189; 337 N.W.2d 325 (1983). An exception exists if a curative instruction could not have eliminated the prejudicial effect or where failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich. 1, 16; 260 N.W.2d 58 (1977); People v Walker, 93 Mich.App. 189, 198; 285 N.W.2d 812 (1979).
Had there been a timely objection by defense council when the prosecutor made his argument, the trial court could have cautioned the prosecutor and instructed the jury that the prosecutor had no knowledge of the content of any counseling the complainant testified she had undergone. Any misleading inference to the contrary could have been dispelled.
The defendant further asserts that his trial counsel's failure to object to the inappropriate remarks constitutes ineffective assistance of counsel. In order to succeed on such a claim, the defendant first must show that counsel's performance was below an objective standard of reasonableness under prevailing professional norms. The defendant must overcome a strong presumption that counsel's assistance constituted sound trial strategy. Second, the defendant must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would
During cross-examination of the complainant, defense counsel pursued a theory in which he asserted that the complainant told a lie the first time she related the occurrence of sex between herself and the defendant. His theory was that once she told the lie the first time, she was compelled to keep repeating the story. If defense counsel had objected in front of the jury to the prosecutor's presentation of the same scenario, he might have undermined his theory of the case. While the lack of an objection may have been questionable strategy, absent the advantage of hindsight, we cannot say that defense counsel performed below the standards of a reasonably competent attorney.
Defendant Stanaway further asserts that the trial court erred when it admitted the hearsay testimony of Officer Robert Peters. As part of the prosecution's case in chief, defendant's nephew, Donald Stanaway was called to testify. The prosecutor
A. I never said that.
Q. And you are related to Brian; right?
A. Brian is my uncle.
A. That's right.
Q. You were down south; right?
A. I don't remember him doing that, no.
Q. You don't remember or he didn't?
A. I don't remember. I have a bad memory.
A. I have a real bad memory.
A. I do.
The prosecutor then called Officer Peters to the stand. Officer Peters was the investigating officer in the case. He testified that he had interviewed the complainant and her parents and that he had interviewed the defendant and some of his family members. He testified that the complainant's testimony was basically the same as when she reported the incidents to him. He testified that the defendant denied the allegations. Over hearsay objections, the prosecutor then asked Officer Peters about what Donald Stanaway had to say:
[People]: Did you ask him about this incident?
Q. What did he say?
The trial court responded to defense counsel's hearsay objection to this line of questioning with a cautionary instruction to the jury, sua sponte:
The jury's attention was again drawn to this impeachment evidence during the final instructions given by the court:
The only relevance Donald Stanaway's testimony had to this case was whether he made the statement regarding his uncle's alleged admission. The witness had no direct knowledge of any of the alleged incidents and was out of town at the time they would have occurred. While prior inconsistent statements may be used in some circumstances to impeach credibility, MRE 613, this was improper impeachment.
While the prosecutor could have presented defendant's alleged admission by way of the nephew's statement, he could not have delivered it by way of the officer's testimony because the statement would be impermissible hearsay. See People v Carner, 117 Mich.App. 560, 571; 324 N.W.2d 78 (1982). Likewise, a prosecutor may not use an elicited denial as a springboard for introducing substantive evidence under the guise of rebutting the denial. People v Bennett, 393 Mich. 445; 224 N.W.2d 840 (1975). Here the prosecutor used the elicited denial as a means of introducing a highly prejudicial "admission" that otherwise would have been inadmissible hearsay.
In our assessment of unfair prejudice in People v Robinson, 417 Mich. 661, 665-666; 340 N.W.2d 631 (1983), we held that a trial judge abused his discretion when he allowed the defendant's prior criminal record to be admitted into evidence:
Similarly, the admission of this improper statement that had the effect of a confession in the minds of the jury was not an error that, under the circumstances of this case, could be cured by a cautionary instruction. This trial essentially came down to a credibility contest between the defendant and the complainant. The complainant testified about the elements of the crime; the defendant denied any sexual involvement. There is little evidence that compares to the probative weight a confession carries, particularly when delivered by a police officer. The inference from the police officer's testimony was that the defendant admitted the acts he was accused of. Any nagging doubts the jury may have had about whether these sexual incidents took place between the complainant and the defendant were likely erased by the words he purportedly uttered to his nephew.
Likewise, we are of the opinion that in this case, the hearsay error was prejudicial. Under these circumstances, we conclude that allowing the police officer to present defendant's statement purportedly made to his nephew requires reversal of the defendant's conviction and a new trial.
In summary, defendant Stanaway's generalized assertion of a need to attack the credibility of his accuser is not sufficient to establish the necessary showing of a reasonable probability that the records contain information material to his defense to overcome the applicable statutory privileges. Despite our agreement that the prosecutor's reference
Defendant Caruso's assertion of particularized facts would support a determination that an in camera review of the victim's counseling records is required. The generalized assertion of a need for impeachment material would not. We vacate the decision of the Court of Appeals and remand to the trial court for a determination of whether an in camera review of the victim's counseling records in People v Caruso must be ordered because the defendant has demonstrated a good-faith belief, grounded in articulable fact, that there is a reasonable probability that the records contain material information that is material and favorable necessary to his defense.
People v Stanaway reversed and remanded.
People v Caruso vacated and remanded to the trial court.
CAVANAGH, C.J., and LEVIN, GRIFFIN, and MALLETT, JJ., concurred with BRICKLEY, J.
RILEY, J. (concurring).
Although I join Justice BRICKLEY'S discussion and result in part IV, I write separately to express my dissatisfaction with the nonconstitutional harmless-error doctrine in Michigan.
Indeed, the lack of guidance from these sources has led many panels of the Court of Appeals to consider varying considerations, including an assumption that the federal constitutional harmless-error rule applies to nonconstitutional error.
While I do not attempt to fully explain or adopt a nonconstitutional harmless-error test in this opinion, I write separately to indicate the need for full briefing and argument on this important issue of state law. See People v Anderson (After Remand), 446 Mich. 392, 407, n 39; 521 N.W.2d 538 (1994). Considering the frequent use of this doctrine and the many factors currently considered by
BOYLE, J. (concurring).
Although I agree with the result in both Stanaway and Caruso, I write separately because I disagree with the majority's rationale. In these cases we deal with the extremely difficult problem of formulating a lawful and usable approach to balancing a defendant's due process right to a fair trial against resistance to discovery based on claims of privilege.
In my judgment, the test for in camera review is a plausible showing of need and materiality. The test for disclosure and use is whether there is a reasonable probability that material and necessary information would affect the factfinder's determination of guilt or innocence. The issues are (1) the nature of the privilege asserted, (2) the test for in camera review, (3) the test for determining when constitutional materiality requires discovery or use of protected information, and (4) the remedy for nondisclosure. The majority (1) creates too rigid a barrier to a defendant's request for in camera review, (2) treats all "privileges" as functionally equivalent, (3) confuses the standard for in camera review with the test for disclosure, and (4) assumes that the remedy appropriate to resistance to discovery of all information protected by an absolute privilege is striking the witness' testimony.
The majority's rationale is based on two dubious grounds, one that unnecessarily limits a defendant's
Moreover, the majority's failure to distinguish
The first step in analysis when a due process right to discovery is asserted and a privilege is invoked, is to examine the basis for the defendant's request. Where the defendant makes a plausible showing of materiality and favorability to his case, further consideration is in order. Passing the initial materiality test, a determination whether the privilege is absolute or conditional is necessary to assess whether further deliberation may be called for before in camera review is warranted. Where the statute establishing the privilege fairly permits a construction that in camera disclosure can be required as a screening device, in camera examination is appropriate. Even where the privilege invoked is absolute, if it cannot be said that in camera review would destroy the ends sought
Achieving in camera review, however, does not end the inquiry. A decision on disclosure to the defendant still awaits. At this stage, the test for disclosure is whether the protected material is both necessary and constitutionally material, as developed more fully below. This standard does not vary with the nature of the privilege.
The psychologist-patient privilege involved in People v Caruso is an absolute privilege protecting private communications. Although Caruso did not make an initially sufficient showing of plausible materiality, on the remand ordered by the majority,
Contemporary case law of this Court has construed "privileges" broadly to uphold the right of a defendant in a criminal case to prevent in-court disclosure of relevant evidence. See, e.g., People v Howe, 445 Mich. 923 (1994); Howe v Detroit Free Press, 440 Mich. 203; 487 N.W.2d 374 (1992); People v Hamacher, 432 Mich. 157; 438 N.W.2d 43 (1989); People v Vermeulen, 432 Mich. 32; 438 N.W.2d 36 (1989). In these cases, however, the failure to engage in a discrete analysis that construes privileges as narrowly as possible in recognition of their impediment to the truth-seeking objective produces a manipulation of the standard for in camera review that jeopardizes the right of a defendant in a criminal case to a fair trial.
The majority today requires that, in order for a court to conduct an in camera review of any privileged records, a defendant must "establish a reasonable probability that the privileged records are likely to contain material information necessary to his defense...." Ante at 649. My first point of departure from the majority's rationale is that this initial materiality requirement erects a higher initial barrier to in camera review than that articulated by the United States Supreme Court.
In Pennsylvania v Ritchie, 480 U.S. 39, 58, n 15; 107 S.Ct. 989; 94 L Ed 2d 40 (1987), the Court rejected the government's resistance to in camera review because Ritchie had not established a "particularized" basis for his claim. The Court required
Valenzuela-Bernal, supra, provides useful instruction on the plausible materiality standard. In that case, the Court sought to determine the requisite showing in order to demonstrate a violation of a defendant's right to compulsory process by the deportation of possible defense witnesses before affording defense counsel an opportunity to interview the deportees. The Court rejected the suggestion that the testimony of the witnesses need only be shown to be of "conceivable benefit" to the defense because such a standard was limited only by the imagination of defense counsel or the trial judge. Id. at 866. The Court held that the defendant
The detail asserted may assist the court in evaluating how the privileged material might be relevant to the defense,
Under the plausible materiality and favorability standard, defendant Stanaway has failed to articulate a sufficient basis for discovery of the social worker-client and juvenile diversion records. Stanaway can only justify his discovery request by a hope to unearth some statements inconsistent with the victim's prior testimony. This generalized aspiration
Because Caruso has not been tried, I agree with the majority that a showing of plausible necessity might yet be made. However, the defendant's claim in Caruso that the listing of a psychologist as an expert witness might permit access to other privileged records on the basis of a good-faith belief that the records may reveal another explanation for the symptoms does not set forth a plausible basis for in camera review. There is no showing of relevancy that is not merely cumulative with respect to the testimony of the expert witness. The opinion of the psychologist/expert witness may be offered only with respect to the behavior traits of the victim. People v Beckley, 434 Mich. 691; 456 N.W.2d 391 (1990). The expert witness' records will be available, thus affording the defendant the basis for full exploration of the expert's opinion. Nor can a plausibly sufficient justification for disclosure of the privileged records be grounded on the claims that the complainant was abused by her father, has not received proper treatment and has a warped sense of right or wrong. These claims are directed at a collateral act. Their relevance to fabrication of this incident is supported only by conclusory statements. The defendant asserts before this Court that the relevance of the requested information is to rebut the
The United States Supreme Court has disclaimed any intent to constitutionalize the discovery process. Weatherford v Bursey, 429 U.S. 545; 97 S.Ct. 837; 51 L Ed 2d 30 (1977). Moreover, "[p]rivileges are not all equally important; they vary with the privacy interests they protect and the policies they promote." Saltzburg, Privileges and professionals: Lawyers and psychiatrists, 66 Va L R 597, 622 (1980), quoted in 1 McCormick, Evidence (4th ed), § 77, p 290, n 5. Lacking clear guidance from the United States Supreme Court, the majority has collapsed all state privileges, irrespective of their relative importance, qualified as well as unqualified,
All the privileges at issue in the instant cases are statutorily protected by language that evinces a respect for the privileged communications. However, only the privileges afforded communications with sexual assault counselors
The statutory privileges extended to communications with sexual assault counselors and psychologists evince the highest societal regard,
Given the lack of guidance from the Supreme Court with respect to the initial materiality standard and the ultimate issue of disclosure and use of privileged information,
There is no authority from the United States Supreme Court that holds that absolute statutory privileges protecting private relationships are unconstitutional on their face. The Court has never dealt squarely with the validity of a statutorily mandated, societal privilege that expressly bars introduction of privileged material into judicial proceedings. In Pennsylvania v Ritchie, supra, the Court expressly refused to articulate an opinion regarding the result of a direct clash between a defendant's pretrial discovery claim to records of a government agency and a specific statutory bar to the desired access. The defendant's request for exculpatory material was opposed in Ritchie by a statute that permitted disclosure of confidential information to a court in appropriate circumstances. The Court construed the statute narrowly to hold that "[g]iven that the Pennsylvania Legislature contemplated some use of [Children and Youth Services] records [the records being sought for discovery] in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions." 480 U.S. 57-58.
The majority acknowledges this limitation on Ritchie, but implicitly concludes
In addition to Ritchie, other United States Supreme Court opinions relevant to an evaluation of absolute privileges fail to provide clear guidance. In Roviaro v United States, 353 U.S. 53; 77 S.Ct. 623; 1 L Ed 2d 639 (1957), the Court determined that the common-law informer's privilege
In United States v Nixon, 418 U.S. 683; 94 S.Ct. 3090; 41 L Ed 2d 1039 (1974), the Court found that the president's generalized claim of absolute executive privilege, made in an attempt to bar in camera review of records of conversations between the president and his close advisors, had to yield to
From the background of precedent discussed above, drawing guidance to aid in evaluation of
If a privilege is conditional, there is no need for further consideration before in camera review. The defendant in such a case has made a plausible showing of materiality and favorability, and the considerations at in camera review, discussed below, await. In Stanaway, had the challenge to the social worker-client and juvenile diversion records privileges met the plausibility standard, the trial court properly would have ordered the records submitted for in camera review.
Where there is a clear indication that a privilege was intended to block the introduction of the information protected into judicial proceedings, however, I would hold that the privilege is an absolute bar to the discovery of the privileged material by a defendant in a criminal proceeding if, under the facts of the particular case, defeat of the privilege would preclude the achievement of the goal sought through the privileged communication. Discovery of the privileged information in this case is only possible through waiver of the
Analysis of the effect of violation of the absolute privilege on the ends sought through the communication should be initiated before any in camera review. It thus serves as an overriding hurdle to further in camera inquiry. When the preliminary showing of the requisite materiality of the evidence sought has been made, and the privilege has been asserted, the prosecutor, representing the interests of the privilege holder, and the defendant should present their respective arguments regarding the effect disclosure would have on the goals of the privilege.
These observations regarding the Legislature's duty do not absolve courts of their responsibility for interpretation and application of privileges. In United States v Nixon, supra, the Court considered the injury that defeat of the asserted privilege for presidential communications would have on the goal of the privilege to encourage frank and honest discussions between the president and his advisers. The Court found that the president's executive privilege had its origins in Article II of the United States Constitution. Id. at 705-706. While acknowledging that the "interest in preserving confidentiality is weighty indeed and entitled to great respect," the Court stated, "we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution." Id. at 712 (citation omitted). Similarly, in Davis v Alaska, supra, the Court considered the possible injury to the goal of the privilege afforded by statute to juvenile records that would result from disclosure of those records through cross-examination of the witness, but characterized such injury as merely a "temporary
Where an absolute privilege is clearly intended by statute, I would allow the court to weigh the anticipated injury in that case to the goal of the privileged communications under consideration, similar to the Court's analysis in Nixon and Davis. This forces the tribunal to come to grips with the importance of the privilege, not just in the abstract, but in the context of the facts of the particular case. Thus, in further proceedings regarding the psychiatrist-patient privilege in Caruso, if a showing of plausible materiality for discovery of material that is expressly exempted from in court disclosure is made, further analysis is in order. If the ends of the absolute privilege would be destroyed by in camera review, the court has no authority to invade it and is precluded from further inquiry unless the privilege holder yields. Similar analysis would apply to discovery of the records protected by the sexual assault counselor privilege in Stanaway, had the defendant been able to pass the initial materiality test.
As I have noted above, a determination whether violation of a statutorily absolute privilege in a particular case would preclude achievement of the ends sought through the communication dictates a specific factual analysis. Such analysis was not done in the trial courts in the present cases, and this Court has insufficient information to legitimately make such a determination on the basis of the record before it. In this connection, it bears repeating that appellate courts can review these questions only on the basis of an adequate record. Thus I am unable at this juncture to predict the probable injury from disclosure of the records protected by the sexual assault counselor privilege in Stanaway and the psychologist privilege in
Assuming that defendant Caruso makes a showing on remand of plausible materiality for discovery of the records protected by the psychologist-patient privilege, under my test the trial court should make a preliminary determination regarding the gravity of the injury. If the injury is grave and the holder will not yield, the prosecutor will bear the consequences.
The final issue regarding disclosure of privileged information to the defendant who has made a successful showing of the need for in camera review is the trial court's determination of the information that should be disclosed. That process encompasses again weighing the defendant's right to the information against privileges that are now acknowledged to be susceptible to breach, but the balancing takes a different focus. At this final stage of review, the policy base for the privilege at issue should still be respected,
When the focus shifts to the question of a workable
Illustration of the requisite materiality of privileged information is provided by Roviaro v United States, supra. The informer's privilege at issue in that case was premised on the furtherance of effective law enforcement. Id. at 59. By allowing the government to assert that an informer's identity was privileged, the government's task in obtaining information inculpating the defendant was eased.
A determination whether the privilege must yield depends on the significance of the privileged information in the particular circumstances of the case, that is, its probative force. Thus, while disclosure of the informant's identity in Roviaro was of vital importance because he was the only witness to the transaction charged, informant identity is denied where the informant does not actively participate in the transaction that generates the charge, or his information would be merely cumulative. United States v Mendoza-Salgado, 964 F.2d 993 (CA 10, 1992). Evidence is material only if there is a reasonable probability that if it is disclosed to the defense, the result of the proceeding will be different. United States v Parker, 836 F.2d 1080, 1083 (CA 8, 1987) quoting Bagley, supra at 682.
Davis v Alaska, supra, while examined as a Confrontation Clause violation affecting testimony at trial, is instructive regarding the requisite standard of necessity. The privilege rule at issue in that case was designed primarily, or at least incidentally, to benefit the state rather than to protect a private communication. In addition, the information protected was subject to disclosure under limited circumstances. Finally, the bar constructed by the juvenile records privilege deprived the defense of the only opportunity to show the witness' bias and ulterior motive for testifying against the defendant. Id. at 316-318; see also Olden v Kentucky, 488 U.S. 227; 109 S.Ct. 480; 102 L Ed 2d 513 (1988). The Court in Davis affirmed that revealing a witness' motive for testifying is included within
Thus, a case for the necessity of disclosure of privileged information is not made out if the information sought is merely cumulative of evidence otherwise available to the defendant.
It thus appears that the test of constitutional relevancy for disclosure purposes is that the evidence must be material in the sense that it would make a difference in the outcome
Several other sources support the conclusion that the majority's test for in camera review is an appropriate standard for disclosure and use of material protected by a privilege. First, on close inspection, every case from the United States Supreme
Although not ultimately adopted, the proposed standard encompasses the advisory committee's recommendation that disclosure should be available on a showing of reasonable probability that privileged information is necessary to a fair determination of guilt or innocence.
The only state my research has located that specifically addresses the standard for disclosure of material protected by a counselor-client privilege, including a sexual assault counselor, provides that otherwise privileged communications may be disclosed:
"(2) if the judge finds:
Applying these principles to the issue of disclosure in the present cases, defendant Stanaway has shown no basis for allowing him access to the privileged information. The defendant made no more than a generalized request for review of the complainant's sexual assault counselor's records to potentially find useful impeachment information. This falls far short of a showing that discovery of the privileged records is either necessary or material to test the complainant's credibility on cross-examination. The defendant has simply failed to demonstrate that effective cross-examination is unavailable because of the privilege bar. As noted by the majority, "statements made to a counselor are not the only avenue ... available for exploration regarding the complainant's credibility." Ante at 682, n 42.
In defendant Caruso's case, the showing made to this point is likewise insufficient. As we have noted, the need for the absolutely protected record was partially based upon a belief that the complainant had written sexually suggestive notes to her mother's fiance. Conflicting testimony from several witnesses has already been presented at a
I have written separately regarding the standard for in camera review, and disclosure and use, of information protected by privilege because I disagree with the majority's initial standard for in camera review and because of the majority's failure to meaningfully distinguish between that standard
The approach I have suggested protects absolutely privileged private communications. It limits the availability of in camera review in respect to absolute privileges, and applies a standard that permits the balancing of societal interests against the defendant's due process interests and disclosure. It is also consistent with the limitations of statutory relevance we have previously found constitutional. People v Arenda, 416 Mich. 1; 330 N.W.2d 814 (1982); People v Hackett, 421 Mich. 338; 365 N.W.2d 120 (1984). Lacking clear direction from the United States Supreme Court, I offer these suggestions, which are a necessarily limited vision of the direction of that jurisprudence, mindful of the frontline responsibility of the trial judiciary to harmonize legislative purpose with the fair ascertainment of truth that is the basic assurance of due process. In the end, there is no surer guide to the resolution of the issues presented here than the experience of trial court judges, as they attempt to strike the delicate balance between upholding the interest protected by a privilege and assuring the integrity of the constitutional guarantee of a fair trial.
RILEY, J., concurred with BOYLE, J.
LEVIN, J. (separate opinion).
I have signed Justice BRICKLEY'S opinion, but would permit a lawyer for the accused to participate in an in camera examination for the reasons stated by the Supreme Judicial Court of Massachusetts in Commonwealth
Regarding the second assumption, we are not convinced that the interests of the State and the complaining witness in preserving the confidentiality of communications to psychotherapists and social workers can only be protected by an in camera review procedure. Trial judges have broad discretion to control the proceedings before them. There is no reason why they cannot take steps to insure that breaches of confidentiality attending discovery are limited only to those absolutely and unavoidably necessary to the preparation and presentation of the defendant's defense. For example, judges could allow counsel access to privileged records only in their capacity as officers of the court. Admission of or reference to any such information at trial could be conditioned on a determination (made after an in camera hearing) that the
In addition to rejecting the assumptions that support the Federal standard, we note that § 20B of G.L. c. 233, and § 135 of G.L. c. 112, are not statements of absolute privilege, unlike certain other statutory testimonial privileges such as G.L. c. 233, § 20A (priest/penitent), and G.L. c. 233, § 20J (sexual assault counselor/victim). See Commonwealth v Jones, supra at 343. Both sections contain exceptions limiting their scope. As such, the privileges at issue here derive from a "less firmly based legislative concern ... for the inviolability of the communication being protected." Commonwealth v Two Juveniles, supra at 266.
Balanced against these qualified privileges are important State constitutional rights of the defendant. Because we have said that, in appropriate circumstances, even absolute statutory privileges (nonconstitutionally based) must yield to a defendant's constitutional right to use privileged communications in his defense, see id., we are not persuaded that allowing counsel access to the treatment records at issue in this case would do great violence to the less firmly based policies represented by §§ 20B and 135. In these circumstances, those policies must give way to the defendant's
Accordingly, we conclude that, under art 12 of the Massachusetts Declaration of Rights, counsel for the defendant is entitled to review the records of the complainant's treatment at the New York Hospital and with the Greenwich, Connecticut, social worker to search for evidence of bias, prejudice, or motive to lie. On remand, the judge shall determine the circumstances under which counsel for the defendant and the Commonwealth shall review the records. The judge then shall conduct an in camera hearing concerning the admissibility of any information in the records that counsel may wish to use at trial. In his discretion, the judge also shall enter any orders that are deemed appropriate to ensure that the information contained in the records will not be disclosed beyond the defendant's need to prepare and present his defense.
Where the United States and Michigan Constitutions contain virtually identical provisions, as is the case when the Sixth Amendment of the United States Constitution is compared to art 1, § 20 of the Michigan Constitution of 1963, federal construction of the constitution should be followed absent compelling reasons for an expansive interpretation of the state constitution. Sitz v Dep't of State Police, 443 Mich. 744; 506 N.W.2d 209 (1993).
We note that the Sixth Amendment would be directly implicated by the request to use at trial evidence subject to statutory privilege. Davis v Alaska, 415 U.S. 308; 94 S.Ct. 1105; 39 L Ed 2d 347 (1974); People v LaLone, supra; People v Adamski, 198 Mich.App. 133; 497 N.W.2d 546 (1993).
The defendant in Adamski had somehow obtained confidential communications between the complainant and a mental health counselor. At trial, the judge ruled that the statements were inadmissible for impeachment purposes because they were privileged under MCL 330.1750; MSA 14.800(750). The Court of Appeals held that the proper inquiry regarding admissibility must include a determination whether exclusion on the basis of the statutory privilege would "unduly infringe" on the defendant's right of confrontation. If so, the privilege must yield. Id., p 141.
Section 9 of the statute provides the following penalty for violations regarding the use of the juvenile diversion record:
We also note that this issue is moot because the act provides for the destruction of a minor's record within twenty-eight days after the minor's seventeenth birthday. MCL 722.828(3); MSA 25.243(58)(3).
The Michigan counterpart, Const 1963, art 1, § 17, provides in part:
But see State v Little, 260 Mont. 460; 861 P.2d 154 (1993) (there is no access to counseling records if the prosecutor does not use them).
The Rhode Island Supreme Court has ruled that the creation of an absolute evidentiary privilege would violate the constitutional rights of the defendant to confrontation and compulsory process. Advisory Opinion to the House of Representatives, 469 A.2d 1161 (RI, 1983).
But cf. DeFries v State, 597 So.2d 742 (Ala App, 1992) (in a jurisdiction that retains a prohibition against impeaching one's own witness, the defendant was not entitled to an in camera inspection of the police report where the officer who prepared the report was called as a defense witness); State v Little, n 24 supra (Ritchie applies to access to Department of Family Services files but not to psychological records); Commonwealth v Kennedy, 413 Pa.Super. 95; 604 A.2d 1036 (1992) (where the statute establishes that the protective service file is to be absolutely privileged, in camera review is not allowed).
See Roviaro v United States, supra (the public interest in protecting the confidentiality of an informant must give way if a defendant can demonstrate that disclosure would be relevant and helpful to his defense or essential for a fair determination of a cause); State v Outlaw, 108 Wis.2d 112; 321 N.W.2d 145 (1982).
As will be the case in many instances, where the accuser is the privilege holder, it would seem that the more unstable the accuser, the greater the likelihood abrogation of the privilege would be deemed harmful. Correlating with the accuser's instability, however, will be the greater need for the defendant to access mental health records to prove that the accusation arises from instability rather than reality. Where a statute seeking to protect a victim clashes with the defendant's federal and state constitutional rights, the statute must yield. It should be remembered that the legal status of an accuser as victim does not obtain until a conviction is entered.
The separate opinion would unnecessarily overcomplicate this decision by requiring the trial court to determine 1) the policy base for the privilege at issue, 2) the significance of the privileged information in a given case, 3) assess the effect the privilege has on the defendant's right to effective cross-examination or theory of defense, and 4) determine whether there are available alternative means to obtain the substantial equivalent of the privileged information.
We simply ask the trial court to decide whether the evidence suspected of being contained in the records was in fact there. The weighing of the legislative purpose in creating the various privileges presented by this case has been done today by this Court. There is no need for any further assessment by the trial court because the importance of the privilege is accounted for in the tests for in camera review and disclosure we announce today.
The defendant never suggests that the incident from which the accusation arises was committed by the child's biological father or that the act was consensual. The defense theory in this case is that the act did not happen. The theory is that this is a false accusation that is the product of unresolved trauma inflicted by the biological father. This Court has recognized that while prior sexual conduct may be declared irrelevant to prove consent or to generally impeach, it may be properly admitted for other purposes such as to show bias, motive for false charge, or fact of prior false accusations. People v Hackett, 421 Mich. 338, 348; 365 N.W.2d 120 (1984).
MRE 607 has since been amended, effective March 1, 1991, to conform to Federal Rule of Evidence 607 and now provides:
Because the new rule would be applied in the event of a new trial, the fact of impeachment alone is not dispositive of this issue, but the manner of impeachment must be analyzed.
We continue to reserve for another day the enunciation of the precise harmless error standard to be applied to preserved, nonconstitutional error. See People v Anderson (After Remand), 446 Mich. 392, 407, n 39; 521 N.W.2d 538 (1994).
Moreover, our evidentiary court rule provides a similar harmless-error rule:
The relevant statute regarding the juvenile diversion records contemplates that the records may be revealed by court order "to persons having a legitimate interest." MCL 722.828(1); MSA 25.243(58)(1). Even though such legitimate interest may be limited to making decisions regarding diversion of a minor, MCL 722.829(1); MSA 25.243(59)(1), the allowance for some use of the records by a court and the absence of an express preclusion from use of the records in judicial proceedings causes me to find that the privilege provided by this statute is not absolute. Pennsylvania v Ritchie, supra at 57-58.