holding that it was “error to admit [the psychotherapist’s] testimony concerning” a report that was not actually required by the statute, and thus the information erroneously reported retained its status as privileged
How later courts described this case
- holding that it was “error to admit [the psychotherapist’s] testimony concerning” a report that was not actually required by the statute, and thus the information erroneously reported retained its status as privileged
- holding that a report by a psychotherapist—made under a mis- taken belief that the report was required—did not vitiate privilege as to the matters reported
- forced disclosure of patients' names by physician, specifically including psychiatrist or psychologist, implicates privacy interests
- cases holding psychotherapist/patient privilege abrogated in criminal child abuse prosecutions by child abuse reporting statutes only to extent permitting evidentiary use of information contained in initial abuse report
Written by the judges who cited it.
The opinion
KAUS, J., Concurring and Dissenting.
While I concur in the result, I reach the conclusion that Dr. Walker’s testimony concerning his session with defendant was inadmissible by a different route than the majority. On the question of the inadmissibility of lay testimony concerning Sarah’s availability, I respectfully dissent.
I.
On the first issue—Dr. Walker’s testimony—there is obviously something revolting about the spectacle of a psychotherapist testifying to a patient’s 1 *522 confidences in a criminal action in which the patient is the defendant. The majority bases its holding that the testimony was inadmissible on its finding that Deputy Buttell misled the doctor into believing that he was required to report the contents of the session with defendant under the Child Abuse Reporting Act (Act) and that Dr. Walker “did not want to disclose defendant’s confidential communications” and “did so only at the behest of Deputy Buttell.” (Ante, p. 514.)
Granting arguendo that under such circumstances the abrogation of the therapist-patient privilege contained in Penal Code section 11171, subdivision (b), would not apply, I do not believe that the record supports the majority’s factual assumptions.
First and foremost, Buttell could not possibly have misled Dr. Walker into believing that he was legally compelled to report the interview with defendant. What, according to the majority, made the report optional rather than compulsory, was the fact that it did not yield any new information. Buttell’s advice, however, was given before the deputy knew that defendant’s talk with Dr. Walker had not yielded anything new. 2
Second, there is no factual basis for the majority’s assumption that but for Buttell’s misleading him into believing that the law required him to disclose defendant’s confidential communications, Dr. Walker would not have disclosed the information. The fact is that we simply do not know what Dr. Walker would have done absent Buttell’s intervention. We do know, of course, that Dr. Walker was generally familiar with the Act—otherwise he would not have spontaneously reported the session with Sarah. It is fair to assume that he would have continued to obey his legal duties as he saw them. At no time did Buttell purport to advise him concerning those duties. All that happened was that at the first interview Buttell expressed concern regarding Sarah’s sister and himself raised the problem of confidentiality which he tried to lay to rest the next day. 3 On these facts I find it impossible to agree that the record permits us to find, as a matter of law, that but for *523 Buttell’s “misleading”—which never happened—Dr. Walker would not have reported the interview with defendant. 4
Nevertheless I do not believe that Dr. Walker’s testimony was admissible. In the area of sexual abuse of children by adults, the law, presumably, has three objectives: to punish the abuser, to identify and protect his victims and to cure him in order to protect future potential victims. Since it is fair to assume that child molesters like to avoid being prosecuted just as much as other criminals, it obviously impedes the objective of cure if therapists who are supposed to effect it are legally bound to testify against their patients in court. Those who do so a few times should not plan on specializing in pedophilia.
Thus the net effect of the abolition of the privilege in Penal Code section 11171, subdivision (b) is likely to be fewer cures, rather than more information leading to conviction and punishment. True or not, this is, of course, a matter of legislative judgment, unless constitutional values are implicated.
In In re Lifschutz (1970) 2 Cal.3d 415, 431-432 [ 85 Cal.Rptr. 829 , 467 P.2d 557 , 44 A.L.R.3d 1 ] we recognized that the psychotherapist privilege has constitutional as well as statutory roots. 5 We held, in effect, that all purported legal invasions of the confidentiality between therapist and patient must be scrutinized in light of constitutionally protected privacy values. (See also Cal. Const., art. I, § 1.)
We are here concerned with a very narrow aspect of the problem of confidentiality. First, we need not inquire to what extent, if any, the Act may clash with the therapist’s professional ethics. (Cf. Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 441-442 [ 131 Cal.Rptr. 14 , 551 P.2d 334 , 83 A.L.R.3d 1166 ].) Second, we need not trouble ourselves with the therapist’s duty to report the interview with defendant to the authorities. Third, we deal with a therapist-patient relation which was not initiated under any kind of legal pressure or compulsion—for example, as *524 a condition of probation. Our sole problem is the admissibility in court of defendant’s incriminatory statements made during a session which he had every reason to believe was therapeutic and confidential rather than investigatory and a prelude to public testimony.
How do we square the apparent statutory duty imposed on the therapist to testify against his patient with the constitutional privacy which enveloped the interview? The answer, I believe, is obvious and was anticipated at trial by defendant’s counsel: 6 during the cross-examination of Dr. Walker, counsel asked whether at the outset of the session with defendant, the doctor had indicated that the conversation would be private and confidential. The prosecutor’s objection, made on relevancy grounds, was sustained. To my mind the question went not only to the heart of the constitutional problem, but also pointed to its solution.
Surely, in the setting of this case, the minimum impact of constitutional privacy considerations is a rule which prohibits the therapist from testifying to confidential communications from the defendant-patient, unless the proponent of the evidence first establishes that the patient, before talking to the therapist, had been made aware of the therapist’s statutory duty to testify against him concerning the contents of the interview. If, in spite of such awareness, the patient chooses to continue with the interview, he is obviously in no position to cry “foul” in the courtroom.
It may be argued that the requirement of awareness really reads subdivision (b) of section 11171 out of the Penal Code, since the solution is nothing but the concept of waiver—applicable to all privileges (Evid. Code, § 912)—in disguise. Not quite: the abrogation of the privilege would remain viable in other contexts; nothing I have said affects the duty of the therapist to comply with the Act by reporting or, for that matter, to testify in actions where the testimony is not offered against the patient. Further, waiver depends on consent. My suggested resolution merely requires awareness.
I would, therefore, reverse the judgment because the People did not show that when defendant talked to Dr. Walker, he was aware of the doctor’s intention to report the contents of the therapeutic session. 7
*525 II.
Although I agree that the admission of Dr. Walker’s testimony demands a reversal, I must express my dissent from the holding that only expert testimony—or the unavailable witness’ own words (People v. Rojas (1975) 15 Cal.3d 540 [ 125 Cal.Rptr. 357 , 542 P.2d 229 , 92 A.L.R.3d 1127 ])— may support a finding that a witness is unavailable because of “mental illness or infirmity.” (Evid. Code, § 240, subd. (3).)
While the question of unavailability is, of course, of constitutional dimension (Ba rber v. Page (1968) 390 U.S. 719 [ 20 L.Ed.2d 255 , 88 S.Ct. 1318 ]; People v. Enriquez (1977) 19 Cal.3d 221, 235 [ 137 Cal.Rptr. 171 , 561 P.2d 261 , 3 A.L.R.4th 73 ]) until today I had never heard that ordinary rules of evidence may not be adequate to prove that the imperative of confrontation has been satisfied. 8
Without belaboring the point, I am at a loss to understand why the admissibility of evidence to establish unavailability of a witness because of mental problems should be excluded from the provisions of section 870 of the Evidence Code, quoted below. 9 The section is but a recodification of former subdivision 10, of section 1870 of the Code of Civil Procedure. 10 Instances abound in which the rule that close acquaintances are competent to testify to a person’s sanity has been applied. (People v. Letourneau (1949) 34 Cal.2d 478, 498 [ 211 P.2d 865 ] [wife]; People v. Nüno (1920) 183 Cal. 126, 129 [ 190 P. 626 ] [employer and fellow worker]; Matter of Coburn (1913) 165 Cal. 202, 217 [ 131 P. 352 ] [nephew]; People v. Delhantie (1912) 163 Cal. 461, 468 [ 125 P. 1066 ] [prison warden]; People v. Clark (1907) 151 Cal. 200, 207 [ 90 P. 549 ] [“frequent” acquaintance].)
It may well be that so far no case has upheld a finding of unavailability based only on testimony from a lay witness. That does not, however, prove that in principle such testimony cannot suffice. Of course, when a mother tries to protect her daughter from the embarassment of the witness stand, questions of credibility because of interest inevitably arise, but that is hardly *526 a basis for declaring her testimony incompetent, which, in effect, is what the majority has done. 11
Of course I do not claim that lay testimony is always sufficient. Where the unavailability depends on a professional prediction of the effect of testimony on the witness’ mental health, even a mother’s evidence may not suffice. My quarrel is rather with the extraordinary breadth of the court’s pronouncement, not its applicability to particular cases.
Wigmore states flatly that “subject to local qualifications and quibbles” lay opinions on questions of sanity “are today everywhere conceded to be admissible.” (7 Wigmore, Evidence (Chadbourn rev. ed. 1978) § 1938.) Are we to have a “local quibble” to the effect that however much a witness’ testimony may be based on immediate, frequent perception of another, however intimately the witness may know the other, the witness’ testimony can never support a finding that the other is unavailable to testify because of mental illness or infirmity?
The People claim that defendant was not a patient of Dr. Walker. They overlook that they stipulated that he was. At the outset of the proceedings the court announced: “I understand that the parties have agreed to stipulate that Dr. Walker is a psychotherapist . . . and that the defendant, Mr. Stritzinger, was his patient at the time that this evidence that you wish to have excluded developed. That these statements were by Mr. Stritzinger to Dr. Walker while Mr. Stritzinger was a patient and Dr. Walker his psychotherapist.” Both sides stipulated to the court’s recital.
If the majority opinion becomes law, we might conceivably require that in the future officers in Buttell’s position explain the niceties of optional versus compulsory reporting before soliciting information. We can, however, hardly blame Buttell for his lack of clairvoyance.
The contents of that conversation are known to us only through a stipulation: “The following morning, July 30th, 1981, Deputy Buttell called Dr. Walker. Dr. Walker expressed reservations about revealing to the deputy what the defendant had told him during the conversation the previous day. The doctor stated that he thought—he was concerned about privilege.
“At that point Deputy Buttell read to the doctor substantially verbatim Section 11171(b) of the Penal Code and the doctor said something to the effect of well, that about takes care of the privilege.
It may be unfair to mention it—we have to take our cases as they come along—but something else which bothers me about the majority opinion is that it really does not decide anything except this case. Even if the facts supported the majority’s conclusion, Dr. Walker would have been free to testify to defendant’s confidences if he had seen defendant before Sarah, or if defendant had related more serious or more frequent sexual misconduct than Sarah.
“We believe that a patient’s interest in keeping such confidential revelations from public purview, in retaining this substantial privacy, has deeper roots than the California statute and draws sustenance from our constitutional heritage. In Griswold v. Connecticut, supra, 381 U.S. 479, 484 [ 14 L.Ed.2d 510, 514 ], the United States Supreme Court declared that ‘Various guarantees [of the Bill of Rights] create zones of privacy,’ and we believe that the confidentiality of the psychotherapeutic session falls within one such zone. (Cf. People v. Belous (1969) 71 Cal.2d 954, 963 [ 80 Cal.Rptr. 354 , 458 P.2d 194 ].)”
It is urged before us by the State Public Defender, appearing as amicus curiae.
The fact is that it is by no means certain that they could not have made such a showing. As noted, an objection to the relevant question was sustained. The record shows, however, that some time before defendant saw Dr. Walker, Deputy Buttell and a colleague contacted Sarah and her mother—defendant’s wife—revealing inevitably that Dr. Walker had been in touch with the police. Nobody asked whether Mrs. Stritzinger, who of course knew of her husband’s appointment later in the day, informed him that the doctor he was about to see had already notified the authorities.
Since I agree that the conviction must be reversed, I am more concerned with the principle which the court announces—that a mother’s testimony cannot, by itself, support a finding that her daughter is too disturbed to testify—than I am with the question whether the testimony sufficed in this particular case.
“A witness may state his opinion as to the sanity of a person when: (a) The witness is an intimate acquaintance of the person whose sanity is in question; (b) The witness was a subscribing witness to a writing, the validity of which is in dispute, signed by the person whose sanity is in question and the opinion relates to the sanity of such person at the time the writing was signed; or (c) The witness is qualified under Section 800 or 801 to testify in the form of an opinion.” (Italics added.)
“. . .; the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given.”
I thought the last vestige of common law incompetence for interest vanished when the Evidence Code did not perpetuate the dead man’s rule (former Code Civ. Proc., § 1880, subd. 3). What, for that matter, is so credible about a gang member who seeks to escape the dilemma of committing perjury or incriminating a friend by claiming that he fears for his life if he testifies? (See People v. Rojas, supra, 15 Cal.3d 540 .) If I had to choose between Mrs. Stritzinger and young Navarette, the witness in Rojas , I would certainly not pick him.