Petition for Writ of Certiorari — Marty Friend, Petitioner v. Indiana
Supreme Court briefApr 9, 2020
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NO. _____
In the Supreme Court of the United States
________________
MARTY FRIEND,
Petitioner,
v.
STATE OF INDIANA,
Respondent.
________________
On Petition for a Writ of Certiorari
to the Supreme Court of Indiana
________________
PETITION FOR A WRIT OF CERTIORARI
__________________
Stacy R. Uliana
5 N. Baldwin Street
P. O. Box 744
Bargersville, Indiana
46106
J. Carl Cecere
Counsel of Record
CECERE PC
6035 McCommas Blvd.
Dallas, Texas 75206
(469) 600-9455
ccecere@cecerepc.com
Counsel for Petitioner
April 9, 2020
QUESTION PRESENTED
Whether, and under what circumstances, criminal defendants’ Sixth Amendment and Due Process rights entitle them to obtain witnesses’ privileged treatment records
from private doctors, psychotherapists, or counselors.
(I)
STATEMENT OF RELATED PROCEEDINGS
Marty W. Friend v. State of Indiana, No. CV-18-0080-PR
(Ind. S. Ct.) (opinion issued and judgment entered January 23, 2020).
Marty Friend v. State of Indiana, No. 18-A-CV-02359
(Ind. Ct. App.) (opinion issued and judgment entered October 8, 2019).
Marty Friend v. State of Indiana, No. 20D03-1509-FA000020 (Elkhart Sup. Ct.) (final judgment entered Sept.
20, 2018).
(II)
TABLE OF CONTENTS
Question presented ................................................................. I
Statement of related proceedings ...................................... II
Table of authorities ................................................................ V
Opinions below........................................................................ 1
Jurisdiction .............................................................................. 2
Constitutional and statutory provisions involved............. 2
Introduction ............................................................................ 2
Statement ................................................................................ 5
A.
Background ............................................................ 5
B.
Factual Background .............................................. 9
C.
The decision below .............................................. 14
Reasons for granting the petition ..................................... 17
A.
There is conflict among the circuits and
state high courts on the Question
Presented. ............................................................. 17
B.
The decision below is incorrect. ........................ 24
C.
The issue is of obvious national importance,
and this is an appropriate vehicle to address
it. ............................................................................. 29
Conclusion ............................................................................. 34
(III)
IV
Appendix:
Appendix A Order in the Indiana Supreme
Court
(January 23, 2020) .................................................... App. 1a
Appendix B Opinion in the Court of Appeals
of Indiana
(October 8, 2019) ...................................................... App. 3a
Appendix C Order in the Elkhart Superior
Court No. 3
(May 9, 2018) ............................................................. App. 29
Appendix D Order in the Elkhart Superior
Court No. 3
(August 30, 2017) .................................................... App. 32a
Appendix E Order in the Elkhart Superior
Court No. 3
(December 21, 2016) .............................................. App. 35a
Appendix F Order in the Elkhart Superior
Court No. 3
(November 23, 2016).............................................. App. 41a
Appendix G Order in the Elkhart Superior Court
No. 3
(March 14, 2015) ....................................................... App. 48
Appendix H Relevant Statutory Provisions ......... App. 50a
TABLE OF AUTHORITIES
Cases:
Advisory Opinion to the House of
Representatives,
469 A.2d 1161 (R.I. 1983) ................................................. 20
Bowman Dairy Co. v. United States,
341 U.S. 214 (1951)............................................................ 23
Brady v. Maryland,
373 U.S. 83 (1963)................................................................ 6
Burns v. State,
968 A.2d 1012 (Del. 2009)................................................. 20
California v. Green,
399 U.S. 149 (1970)............................................................ 26
Commonwealth v. Barroso,
122 S.W.3d 554 (Ky. 2003) ..................................... 20, 22, 23
Commonwealth v. Stockhammer,
570 N.E.2d 992 (Mass. 1991) ........................................... 20
Commonwealth v. Wilson,
602 A.2d 1290 (Pa. 1992) .................................................. 21
Crane v. Kentucky,
476 U.S. 683 (1986)............................................................ 25
Crawford v. Washington,
541 U.S. 36 (2004).............................................................. 27
Delaware v. Van Arsdall,
475 U.S. 673 (1986)........................................................ 3, 26
Easterday v. State,
256 N.E.2d 901 (Ind. 1970). ............................................. 15
Gale v. State,
792 P.2d 570 (Wyo. 1990) .................................................. 20
(V)
VI
Cases—continued:
Giles v. California,
554 U.S. 353 (2008)............................................................ 27
Goldsmith v. State,
651 A.2d 866 (Md. 1995) ....................................... 21, 22, 29
In re Crisis Connection, Inc.,
949 N.E.2d 789, 797 (Ind. 2011) .............................. passim
In re Doe,
964 F.2d 1325 (2d Cir. 1992) ....................................... 19, 22
Jaffee v. Redmond,
518 U.S. 1, 10 (1996). .......................................... 5, 9, 18, 27
Johnson v. State,
27 S.W.3d 405, 411, 412, 413 (Ark. 2000)........................ 21
Love v. Johnson,
57 F.3d 1305, 1312 (4th Cir. 1995) ................................... 19
Lucas v. State,
555 S.E.2d 440 (Ga. 2001) ................................................ 20
Pennsylvania v. Ritchie,
480 U.S. 39, 60 (1987) ......................................................... 3
People v. Foggy,
521 N.E.2d 86 (Ill. 1988) .................................................. 20
People v. Hammon,
938 P.2d 986 (Cal. 1997) .................................................... 21
People v. Stannaway,
521 N.W.2d 557 (Mich. 1994) ............................... 20, 23, 24
People v. Turner,
109 P.3d 639 (Colo. 2005) .................................................. 21
Renusch v. Berghuis,
75 Fed. App’x 415 (6th Cir. 2003).................................... 18
VII
Cases—continued:
Rovario v. United States,
353 U.S. 53 (1957).............................................................. 25
State v. Blake,
63 P.3d 56 (Utah 2002) ................................................ 20, 24
State v. Cressy,
628 A.2d 696, 704 (N.H. 1993) ......................................... 22
State v. Duffy,
6 P.3d 453 (Mont. 2000) ..................................................... 20
State v. Green,
646 N.W.2d 298 (Wis. 2002) ................................. 20, 23, 29
State v. Gomez,
63 P.3d 72 (Utah 2002) ...................................................... 21
State v. Hummel,
483 N.W.2d 68 (Minn. 1992) ............................................. 20
State v. Johnson,
102 A.3d 295 (Md. 2014) ................................. 20, 22, 29, 30
State v. King,
34 A.3d 655 (N.H. 2011) ................................................... 20
State v. Lynch,
885 N.W.2d 89 (Wis. 2016) ............................................... 30
State v. Neiderbach,
837 N.W.2d 180 (Iowa 2013) ............................................ 20
State v. Slimskey,
779 A.2d 723 (Conn. 2001) ............................................... 20
State v. Spath,
581 N.W.2d 123, 126 (N.D. 1998) .................................... 22
State v. Trammell,
435 N.W.2d 197 (Neb. 1989)............................................. 20
VIII
Cases—continued:
Swidler & Berlin v. United States,
524 U.S. 399 (1998)............................................................ 27
United States v. Arias,
936 F.3d 793, (8th Cir. 2019) ...................................... 19, 33
United States v. Bagley,
473 U.S. 667, 682 (1985) ..................................................... 6
United States v. Butt,
955 F.2d 77 (1st Cir. 1992) ................................................ 18
United States v. Fattah,
914 F.3d 112 (3d Cir. 2019) ............................................... 19
United States v. Hach,
162 F.3d 937 (7th Cir. 1998) ....................................... 19, 29
United States v. Henry,
482 F.3d 27 (1st Cir. 2007). ............................................... 30
United States v. Lindstrom,
698 F.2d 1154 (11th Cir. 1983) ......................................... 18
United States v. Mejita,
448 F.3d 436 (D.C. Cir. 2006) ........................................... 19
United States v. Nixon,
418 U.S. 683 (1974)........................................................ 8, 25
United States v. Parrish,
83 F.3d 430 (9th Cir. 1996)................................................ 19
United States v. Robinson,
583 F.3d 1265 (10th Cir. 2009) ......................................... 19
United States v. Soape,
169 F.3d 257 (5th Cir. 1999) ............................................. 19
Williams v. New York,
337 U.S. 241 (1949)............................................................ 23
IX
Constitutional Provisions:
U.S. Const. amend. VI........................................................... 2
U.S. Const. amend. XIV......................................................... 2
U.S. Const. art. VI ............................................................... 24
Statutes:
42 Pa. Cons. Stat. § 5945.1(b) ............................................. 21
Colo. Stat. 13–90–107(1)(k)(I) ............................................ 21
Ind. Code § 25-23.6-6-1........................................................ 14
Ind. Code § 25-23-6-6-1 ....................................................... 12
Ind. Code § 35-37-6-9 ............................................................. 8
Pa. Stat. Tit. 11, 2215(a)(5) ................................................... 7
Utah Code Ann. § 78-3c-4 ................................................... 21
Rules:
Ark. R. Evid. 503 .................................................................. 21
North Dakota Rule of Evidence 503 ................................. 22
Other Authorities:
Clifford S. Fishman, Defense Access to a
Prosecution Witness’s Psychotherapy or
Counseling Records, 86 Or. L. Rev. 1 (2007). ... 4, 5, 7, 23
Jennifer L. Hebert, Note, Mental Health
Records in Sexual Assault Cases: Striking a
Balance to Ensure a Fair Trial for Victims
and Defendants, 83 Tex. L. Rev. 1453 (2005) ............... 29
Edward J. Imwinkelreid, The New Wigmore: A
Treatise on Evidence: Evidentiary Privileges
(2010). .................................................................................... 5
X
Other Authorities—continued:
Kenneth M. Miller, Nixon May Have Been
Wrong, But it is Definitely Misunderstood 51
Willamette L. Rev. 319 (2015) ..................................... 8, 29
John Henry Wigmore, Evidence (John T.
McNaughton ed., 1961). ..................................................... 5
In the Supreme Court of the United
States
No.
MARTY FRIEND,
v.
Petitioner,
STATE OF INDIANA.
On Petition for a Writ of Certiorari
to the Supreme Court of the State of Indiana
PETITION FOR A WRIT OF CERTIORARI
Petitioner Marty Friend respectfully petitions for a
writ of certiorari to review the judgment of the Supreme
Court of the State of Indiana in this case.
OPINIONS BELOW
The state supreme court’s decision (Pet. App. 1a) is reported at 141 N.E.3d 25 (2020), and the opinion of the
court of appeals (Pet. App. 3a) is reported at 134 N.E.3d
441. The trial court’s decisions (Pet. App. 29a-49) are not
reported.
(1)
2
JURISDICTION
The Supreme Court of Indiana denied discretionary
review of Petitioner’s appeal on January 23, 2020. Pet.
App. 2a. This Court has jurisdiction under 28 U.S.C.
§ 1257.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Sixth Amendment provides in relevant part:
In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor * * * *.
U.S. Const. amend. VI.
The Fourteenth Amendment provides in relevant part:
No State shall * * * deprive any person of life, liberty,
or property, without due process of law.
U.S. Const. amend. XIV.
The provisions of the Indiana Code at issue in this case
are reproduced in the appendix. Pet. App. 50a-53a.
INTRODUCTION
This petition concerns the critically important issue of
criminal procedure: whether the Constitution entitles
criminal defendants to obtain witnesses’ treatment records from private doctors, psychotherapists, and counselors when those records are protected from disclosure under some sort of privilege.
This issue arises every day in criminal prosecutions.
And it has special salience in rape and domestic abuse
3
cases, where victims usually seek treatment from a doctor,
therapist, or counselor—and governments understandably hope to shield records of those treatments from public
disclosure. Yet in such cases, “there often are no witnesses
except the victim,” Pennsylvania v. Ritchie, 480 U.S. 39,
60 (1987), and sometimes victims misunderstand, misrepresent, or simply fabricate allegations of abuse, especially
when they suffer conditions inhibiting their ability to perceive, understand, or relate those events. Privileged records can contain critical information about such conditions—and often, it is evidence that exists nowhere outside those records: a diagnosis. Privileges that block access to such treatment records may therefore put the only
evidence proving the defendant’s innocence entirely beyond reach.
Such privileges therefore threaten core constitutional
rights of the accused. These include the Sixth Amendment’s Confrontation right, which, as its “main and essential purpose” protects “the right to effective cross-examination,” and to be armed with the evidence necessary to
conduct it. Delaware v. Van Arsdall, 475 U.S. 673, 678, 679
(1986) (internal quotations omitted). They also include
Sixth Amendment Compelled Process, which requires
governments to assist defendants by “compelling” the appearance of witnesses and the production of documents in
private hands—not erect roadblocks in their paths. And of
course, there is of Due Process, the backstop of all criminal defense rights, which protects the “fundamental fairness of trials,” Ritchie, 480 U.S. at 56—a fairness that is
lacking when the accused is denied critical defense evidence.
Yet determining whether these rights entitle the accused to obtain a witness’s privileged treatment records
4
has led to an “incredible hodgepodge of conflicting approaches and procedural conundrums”—a conflict that
encompasses all the federal circuits and 22 of the States.
Clifford S. Fishman, Defense Access to a Prosecution Witness’s Psychotherapy or Counseling Records, 86 Or. L.
Rev. 1, 4 (2007). Indiana, where this case arises, is the extreme outlier in this conflict. The vast majority of jurisdictions recognize some mechanism for the accused to obtain
privileged documents in virtually any circumstance—mitigated by the protective mediating filter of in camera review by the trial court. But Indiana is one of only a handful
of jurisdictions that will recognize instances in which private treatment records can be categorically denied.
This is a compelling case to address Indiana’s improper standard, and the full breadth of this widespread
conflict, because the trial court’s violations of Petitioner’s
constitutional rights caused him tangible harm. The trial
court first denied Petitioner access to counseling records
that would have revealed whether his putative victim suffered a condition making it likely that she fabricated
events of alleged abuse. Then it used uncertainty about
that undisclosed diagnosis as justification to bar Petitioner
from presenting his own evidence and expert testimony
about her condition. These actions not only precluded Petitioner from showing that the alleged victim’s behavioral
problems made her likely to fabricate abuse allegations,
they also effectively barred him from countering the prosecution’s narrative that those behavioral problems were
caused by the alleged abuse. This case therefore provides
the Court with an important opportunity, on sympathetic
facts, to bring order to the “current, confused state of the
law,” Fishman at 5.
The petition for a writ of certiorari should be granted.
5
STATEMENT
A. Background
1. The common law recognized only two kinds of privileges: those for communications between husbands and
wives, and between attorneys and their clients. 8 John
Henry Wigmore, Evidence § 2290, at 542 (John T.
McNaughton ed., 1961). In the Nineteenth Century, new
types of privileges began to emerge. These began with
protections for physician-patient communications, id.
§ 2380, at 819-820, and gradually expanded to cover communications to “psychiatrists, psychologists, or social
workers.” Fishman at 5. Now privileges for medical, psychological, and counseling records exist in every state. See
Edward J. Imwinkelreid, The New Wigmore: A Treatise
on Evidence: Evidentiary Privileges app. d. And the logic
behind them is obvious. As this Court recognized in creating a federal psychiatrist-patient privilege, effective treatment “depends upon an atmosphere of confidence and
trust.” Jaffee v. Redmond, 518 U.S. 1, 10 (1996). Even “the
mere possibility of disclosure may impede development of
the confidential relationship necessary for successful
treatment.” Ibid.
These new privileges came with greater capacity to
hide critical evidence than their common-law forbearers.
The attorney-client privilege and spousal privilege might
shield particular conversations and witnesses, but they
otherwise leave other avenues of investigation completely
open. Yet the only avenue for investigating whether a witness suffers from a condition that affects her ability to perceive, understand, and accurately relate events is a diagnosis. And treatment privileges prevent that diagnosis
from being uncovered.
6
2. This paramount evidentiary need motivated the
Court in Pennsylvania v. Ritchie to recognize that criminal defendants possess a constitutional right to access
privileged treatment records. The Court held that even
though such privileges serve the most “compelling” of interests, they still cannot “prevent[] disclosure in all circumstances.” 480 U.S. at 57. Accordingly, borrowing a
standard from Brady v. Maryland, 373 U.S. 83 (1963) and
its progeny, the Court held that “Due Process” demands
criminal defendants be entitled, in spite of any privilege,
to obtain records containing “material” evidence—i.e., evidence that “‘there is [some] reasonable probability that,
had the evidence been disclosed to the defense, the result
of the proceeding might have been different.’” Ritchie, 480
U.S. at 57 (quoting United States v. Bagley, 473 U.S. 667,
682 (1985)). And the Court outlined a middle-way procedure that would “serve [Defendant’s] interest” in obtaining material information “without destroying the * * *
need to protect the [privileged information]”—in camera
screening by the trial judge to determine what, if anything, should be disclosed to the defendant. Ritchie, 480
U.S. at 61.
Yet Richie left much undecided, including about the
basic constitutional rights at stake. No majority coalesced
around the ultimate source of this privilege-piercing
right—with a 4-justice plurality looking only to Due Process, and rejecting the Sixth Amendment’s Confrontation
Clause as an alternate source, out of fear of transforming
that “trial right” into “a constitutionally compelled rule of
pretrial discovery.” Id. at 52 (Powell, J., joined by
Rehnquist, C. J., White, and O’Connor, J.J.). Yet three justices claimed it existed in both Due Process and the Confrontation Clause—Brennan joined by Marshall in
7
dissent, id. at 66-72, and Blackmun in his separate concurrence, id. at 61-66. And the justices only found themselves
resorting to Due Process only after rejecting the Compulsory Process Clause as a potential source, determining its
application in “this type of case” to be too “unsettled.” Id.
at 56 (emphasis added). Even so, the Court expressly declined to say “whether and how the guarantees of the
Compulsory Process Clause” might “differ from those of
the Fourteenth Amendment” in other types of cases. Ibid.
Ritchie also sowed uncertainty about the privileges it
pierced. The privilege at issue in Ritchie was relatively
narrow, “subject to 11 specific exemptions,” including one
allowing disclosure of privileged records “to a court of
competent jurisdiction pursuant to a court order,” id. at
43-44 (quoting Pa. Stat. Tit. 11, 2215(a)(5)). The Court expressly left open “whether the result in this case would
have been different” if the state had asserted more “absolute authority to shield its files from all eyes”—through a
privilege that “protected the * * * files from disclosure to
anyone, including law-enforcement and judicial personnel.” Id. at 57, 58 & n.14 (emphasis added). Further still,
since the records at issue in Ritchie belonged to a government agency—the state’s Children and Youth Services—
and Ritchie borrowed Brady’s materiality standards and
Due Process, questions remained whether its rule would
apply if the records were in the possession of private actors who were not subject to Brady obligations.
Ritchie thus “barely scratched the surface” of a criminal defendant’s right to obtain privileged records, Fishman at 4, and what it did decide has been “inconsistently
interpreted,” leading to nationwide divisions on its application. Kenneth M. Miller, Nixon May Have Been Wrong,
8
But it is Definitely Misunderstood 51 Willamette L. Rev.
319, 349 (2015).
3. Indiana is the outlier in this panoply. It adopted
Ritchie’s “plurality view” that the Sixth Amendment is
completely inapplicable to “pre-trial production of information,” because Confrontation is only a “‘trial right[].’”
In re Crisis Connection, Inc., 949 N.E.2d 789, 797 (Ind.
2011) (quoting Ritchie, 480 US. At 53 n.9). And it has refused to expand Ritchie’s Due-Process based rule to instances where records are covered by “absolute” privileges that “prohibit all disclosure,” or are in the hands of
private third parties—even as it acknowledged that other
courts were going different ways. Id. at 799 (citing cases).
It held instead that in these instances, the accused enjoys only a very watered-down right to obtain privileged
treatment records. Id. at 800. Whereas Ritchie provided
an absolute right to material information in privileged records, Indiana instead adopted a privilege-specific “balancing approach,” under which courts are required to “‘weigh
the interest advanced’” by a particular privilege “‘against
the inroads of such a privilege on the fair administration
of criminal justice,’” in determining whether a criminal defendant would be able to access records protected by the
privilege. Ibid. (quoting United States v. Nixon, 418 U.S.
683, 711-712 (1974)).
And whatever door this “balancing approach” leaves
open in theory slams shut in application, as the test is
slanted inexorably against disclosure. In analyzing a request for private records covered under the absolute “victim advocate privilege” in Ind. Code § 35-37-6-9, the court
found the legislature had a “strong interest in maintaining
the confidentiality of these records,” 949 N.E.2d at 802, to
avoid “‘chill[ing]’” the “‘atmosphere of confidence and
9
trust’” “necessary for effective treatment.” Id. at 801
(quoting Jaffee, 518 U.S. at 10, 11-12). And it determined
this interest was “not outweighed by the fair administration of criminal justice” when the defendant enjoys “access to other sources of evidence” and “the primary function of groups protected by the victim advocate privilege
is * * * to provide counseling,” not investigate crimes,
making it “unlikely” that those records would contain evidence that is unobtainable elsewhere. Ibid. For that reason, the Court held that criminal defendants categorically
“do[] not have a constitutional right to an in camera review” of the files of those protected by the “absolute” victim advocate privilege—ever. Ibid.
The results will be the same for virtually any privilege,
because this test weighs an “interest” common to all treatment privileges against discovery rights that all criminal
defendants enjoy in every case and a non-investigatory
purpose shared by all physicians, psychiatrists, and counselors. That calculus goes against the defendant every
time—a fact that the court of appeals confirmed in this
case.
B. Factual Background
1. Marty Friend stands accused of molesting his
daughter A.F.—whom he and his then-wife Kathy adopted
from a Russian orphanage in 2010 when A.F. was seven.
Pet. App. 4a. The only evidence of the molestation came
from A.F. herself. Pet. App. 6a-7a. And all admit A.F. has a
history of disturbed behavior.
The jury heard that A.F. had trouble at home, experiencing difficulty bonding with her parents, especially
Marty, whom she would taunt with cruel names like “idiot,” “jerk,” “stupid,” “liar,” “mean,” “annoying,” “dumb
10
loser,” and “moron.” Tr. Vol. V, p. 205. She also had great
difficulty at school, where her insults continued against
teachers, Tr. Vol. IV, p. 167, and she had problems bullying
and being excessively aggressive with other students—so
much so that she had 13 referrals to the principal’s office.
Tr. Vol. V, p. 57-58, 129, 139.
After Marty and Kathy separated and A.F. had to shuttle between two houses, Kathy claimed A.F. became depressed when she had to go to Marty’s house. Tr. Vol. IV,
p. 67, 69-70. A.F.’s grandmother reported that A.F. would
not want to visit Marty, would recoil from hugs with Marty,
Tr., Vol. IV, p. 211, and when she would pick A.F. from
Marty’s, A.F. would be dirty, greasy, and stinky—behaviors that Kathy’s new boyfriend, Crane, also observed. Tr.
Vol. IV, p. 184-185, 204.
The prosecution attempted to paint these behavioral
difficulties as the result of adjusting to life away from Russia, a lack of male role models in her home country, a lack
of understanding of American norms, and the alleged
abuse. Tr. Vol. IV, p. 63, 139, 167.
But there were inconsistencies in A.F.’s story that
were harder to explain. A.F. claimed that Friend was not
circumcised when he actually was. Tr. Vol. V, p. 210, 216220. And during A.F.’s deposition, she claimed Marty’s penis was erect during one alleged episode of abuse, only to
recant at trial and say it was limp when confronted with
testimony from Marty’s new girlfriend that Friend was
unable to get an erection and was severely allergic to erectile dysfunction medicine. Tr. Vol. VI, p. 21-22.
2. Marty was able to probe these inconsistencies at
trial. He also explained that A.F.’s reticence to go to his
house was a reaction to the coddled, spoiled environment
11
A.F. enjoyed with Kathy and her new boyfriend., and her
poor hygiene the result of obstinacy. Vol. 4, p. 211, Vol. V,
p. 211. And the trial court allowed Marty’s expert, Dr.
Wingard, to provide some limited, generalized testimony
that behavioral difficulties like A.F.’s might stem from reasons other than abuse—such as counseling, changes in
family structure, education, medicine, or certain psychological disorders affecting the “conscience.” Tr. Vol. VI, 3135.
Yet there was a vital part of the story that the jury was
not permitted to hear—one that severely undermined the
likelihood that her stories of abuse were true. The jury
was denied evidence that A.F.’s behavioral problems were
far worse than the trial testimony suggested. Marty obtained records from the Russian orphanage where A.F.
grew up, showing more aggressive behavior, including outbursts that left caretakers questioning whether she was
suffering from severe psychological problems. App., Vol.
II, p. 38-39, 143; Vol. III, p. 211, 213-217.
Marty also collected text messages between A.F.,
Marty, and Kathy showing a repeated pattern of lying and
bullying that Marty and Kathy were at a loss to address.
App., Vol. V, p. 199–App., Vol. VI, p. 23. These texts also
contained evidence that A.F. manipulated her parents.
App. Vol. IV, p. 203-204, 221, 223, 240; App., Vol. V, p. 34-35,
43, 36, 104, 141. Most ominously, around the time A.F. accused Marty of abuse, she texted him complaining: “good
job being a tattle tale to mom about me being rude * * *
things will happen to u if u keep being rude dad.” App.,
Vol. V, p. 171.
Marty prepared to have his expert, Dr. Wingard, testify that A.F.’s behavioral problems were signs of one of
the pathologies Dr. Wingard mentioned: “Reactive
12
Attachment Disorder” (RAD), Tr., Vol. II, p. 58-60, a DSM5-listed disorder that is caused by social neglect and maltreatment, affecting children’s ability to develop a “conscience,” and leaving them open to a variety of “impulsive”
behaviors. Tr., Vol. II, p. 58, 59. It afflicts many orphans,
especially those who grow up in the harsh conditions existing in many foreign orphanages. Tr., Vol. II, p. 58. Children with RAD have numerous behavioral problems that
mapped exactly on to A.F.’s symptoms. They have difficulty developing emotional attachments, they are “unpredictable,” they can “overreact,” “steal[],” “exaggerate,” be
“physical[ly] violen[t].” Tr., Vol. II., p. 60-61, 69-70. Another symptom of RAD is habitual lying, Tr., Vol. II, p. 60,
64, lending credence to Marty’s contention that A.F. fabricated the allegations of abuse.
A.F. had been evaluated for RAD by a private social
worker Kate Creason—who treated A.F. with Marty’s
consent and participation before the abuse allegations surfaced. Tr., Vol. II, p. 41-42, 44-45, 80, 94-95, 153. After they
did, Marty asked Creason to share the records, but she
refused to turn them over, and refused to tell Marty
whether she had diagnosed A.F. with RAD. Ex. Vol., p. 18
(Ex. G).
3. Marty then made repeated requests that the trial
court order Creason to turn over the treatment records,
including a request for in camera review, claiming he had
a constitutional right to obtain them. App., Vol. II, p. 67,
84, 131-132. Yet the trial court refused, invoking the counselor-patient privilege in Ind. Code § 25-23-6-6-1, and insisting Marty had made “no showing that there is exculpatory information in the subject mental health files,” and
“did not establish that A.F. suffers from R.A.D”—neither
of which Marty could know without access to the files
13
themselves. Pet. App. 46a, 49a. The trial court also refused
to conduct an in camera review of the records on the basis
that Marty could not “establish that there is exculpatory
information in A.F.’s confidential mental health file” or
identify “specific documents of an exculpatory nature that
were being withheld,” which, again, would require detailed knowledge of files he had never seen. Pet. App. 37a38a. The court then held that while “Defendant is free * *
* to elicit deposition and trial testimony from A.F.” or “testify as to those behaviors of A.F. which Defendant has personal knowledge,” it would not allow anything more. Pet.
App. 47a.
The trial court enforced that order to the letter, refusing Marty’s attempts to introduce his own evidence of
A.F.’s RAD symptoms, including the text messages
demonstrating A.F.’s behavior problems, the records from
the Russian orphanage, and proffered testimony from Dr.
Wingard, who had examined the texts and was prepared
to testify that he believed A.F. needed to be tested for
RAD Pet. App. 30a-31a. The court rebuffed these efforts,
holding that the “topic” had been “heavily litigated already,” and nothing more would be allowed, because it had
concluded that A.F has not “absolutely been diagnosed
with R.A.D.”—a conclusion the court reached based on
records it refused to review. Pet. App. 30a. The court decided “there is no evidence A.F. suffers from R.A.D. because it has not been established that she does”—because
Dr. Wingard candidly admitted he could not diagnose her
without having interviewed her. Pet. App. 30a.
Accordingly, while the trial court permitted Dr.
Wingard to opine about psychological disorders that impact children’s credibility generally, it refused to allow him
to explain that A.F. had been experiencing symptoms of
14
such a disorder. As a result, the prosecution’s strategy of
claiming A.F.’s actual behavioral difficulties stemmed
from the alleged abuse went largely unrebutted.
C. The decision below
1. On appeal, Petitioner challenged both the denial of
access to A.F.’s counseling records and the rejection of his
own evidence on A.F.’s RAD symptoms, invoking his “Due
Process” “Compulsory Process,” and “Confrontation”
rights. Pet. C.A. Br. 30, 32, 39. The court of appeals rejected both points of error in a divided opinion.
In its review of the trial court’s ruling on A.F.’s counseling records, the panel majority expanded upon the Indiana Supreme Court’s ruling in Crisis Connection. Pet.
App. 11a-18a. It interpreted that case as categorically excluding all access to records of “non-government actors”—even though Crisis Connection itself theoretically
left a door open for accessing those private records, subject to its slanted “balancing approach.” Pet. App. 12a.
The court then expanded on that “balancing approach,” applying it to a statute that was far less “absolute” than the privilege at issue in Crisis Connection itself:
the “counselor” privilege that the trial court invoked here.
Ind. Code § 25-23.6-6-1. Pet. App. XXa. That statutory
privilege contains eight different exceptions, several of
which anticipate use by the government in criminal proceedings. See Id. Sec. 1. (1), (2).
Yet the court of appeals treated this highly qualified
privilege the same as Crisis Connection’s absolute one, because it served the same basic interests, and “[o]ur Supreme Court has held” defendants’ constitutional rights
are “well protected by ‘extensive access to other sources
15
of evidence.’” Pet. App. 12a (quoting Crisis Connection,
949 N.E.2d at 802). The court deemed that general right
of access to evidence sufficient even as it refused to recognize that A.F.’s diagnosis could not be obtained elsewhere,
and as it went on to affirm the exclusion of the only alternative Marty could come up with.
In doing so, the court concluded that the trial court’s
exclusion of Marty’s proffered evidence about A.F.’s RAD
symptoms was proper when there had been no “official diagnosis or, at the very least, a more solid foundation that
[A.F.] was actually suffering from RAD.” Pet. App. 16a.
And it did so despite the fact that the defendant in a criminal case “has no right to subject a prosecuting witness, in
a trial on a sex offense, to a psychiatric examination,”
Easterday v. State, 256 N.E.2d 901, 903 (Ind. 1970). The
court went on to decide that any error was “harmless” in
light of the evidence the jury did hear of A.F.’s “ongoing
behavioral issues,” and the limited testimony from Dr.
Wingard that the trial court allowed. Pet. App. 18a.
2. Judge Crone wrote separately, parting ways with
the majority on whether the trial court should have
granted in camera review of A.F.’s treatment records. Pet.
App. 22a-28a. Judge Crone disagreed with the majority’s
decision to apply Crisis Connection’s “balancing” approach to a counselor-client privilege that was far less “absolute” than the “victim advocate privilege” at issue in
Crisis Connection itself, since that qualification suggested
“‘the legislature anticipated that some interests will
trump the need for counselor-client confidentiality.’” Pet.
App. 24a. (quoting Pet. C.A. Br. at 29). Judge Crone also
noted that in camera review would have raised no risk of
“chilling” the patient-client relationship because
“Creason’s records in this case ‘originated from
16
counseling with nothing to do with alleged abuse and everything to do with A.F.’s behavioral issues and failure to
bond with Friend, which itself could be a motive for a false
accusation.’” Pet. App. 26a (quoting Pet. C.A. Br. 34).
Judge Crone further took issue with the majority’s approval of the trial court’s demand for particularity in documents Marty had never seen, noting that this presented
an impermissible “Catch-22” for the defense—when
“Friend had tried every possible avenue to discover
whether A.F. suffered from RAD,” including “translat[ing] records from the [Russian] orphanage,” only to
have the trial court hold “that all of it was inadmissible
without a diagnoses of RAD, which, of course, Friend
could not discover because of the privilege.” Pet. App. 24a25a. Judge Crone also agreed with Marty that the exclusion was harmful, because “this is a rare case where the
defendant knows there was a RAD assessment, but just
does not know the results.” Pet. App. 25a (quoting Pet.
C.A. Br. 29). And he likewise agreed with Marty that the
entire Crisis Connection “balancing approach” is misguided, because “the real world application of the privilege
is unbalanced for the State”—saying “[u]nder the facts of
this particular case, at least, I must agree.” Ibid.
While Judge Crone agreed with the majority on the
exclusion of Marty’s RAD evidence, he did take care to
note the intertwined nature of this ruling and the one on
A.F.’s treatment records. He concluded that “the trial
court’s rationale for excluding Dr. Wingard’s proffered
testimony regarding RAD would stand on much shakier
ground if Creason did in fact diagnose A.F. with RAD.” After all, the trial court’s demand for a “diagnosis” before
permitting introduction of the RAD evidence falls apart if
that diagnosis existed all along. Pet. App. 28a.
17
Marty filed a motion to transfer the case to the Indiana
Supreme Court, which denied review, although two justices would have taken the case. Pet. App. 1a-2a.
REASONS FOR GRANTING THE PETITION
The traditional criteria of certworthiness are all present here. There is an acknowledged, wide-spread, and
fully developed split on the question presented. And that
question is right now leading to different outcomes in similar cases across jurisdictional lines. This case is a compelling one for resolving the split, as it presents an opportunity to resolve several doctrinal divergences at once and
lend clarity in an area of the law that badly needs a makeover. And the erroneous rule applied below, which places
evidence under lock and key even when absolutely necessary to the defense and unobtainable outside of privileged
records, cannot be squared with this Court’s precedent or
any proper understanding of a criminal defendant’s constitutional rights.
A. There is conflict among the circuits and state
high courts on the Question Presented.
Review is warranted because there is an acknowledged, widespread, and entrenched conflict among the circuits and State high courts on the Question Presented.
Courts diverge on virtually every avenue that Ritchie left
open, including whether Ritchie’s privilege-busting right
extends to treatment records held by private parties,
whether the “absoluteness” of the privilege makes a difference in whether it can be busted, and even the doctrinal
underpinnings of the constitutional rights at issue, which
Ritchie left unsettled. And it is clear that Indiana is on the
wrong end of a lopsided majority on each of these conflicts—at both the federal and state levels.
18
1. As for the federal circuits, they are 9 to 2, against,
with the majority holding, in a series of rulings all involving requests for private medical records, that a criminal
defendant has an unfettered right to access material information in privileged counseling records—filtered through
the mediating influence of in camera review—regardless
of the nature of the privilege.
Even before Ritchie was decided, the Eleventh Circuit
reached this position in United States v. Lindstrom, 698
F.2d 1154 (11th Cir. 1983), categorically holding that “the
privacy interest of a patient in the confidentiality of her
medical records and the societal interest in encouraging
the free flow of information between patient and psychotherapist * * * must yield to the paramount right of the
defense to cross-examine effectively the witness in a criminal case.” Id. at 1167. (internal quotation omitted). That
ruling left no doubt that any sort of privilege must fall, no
matter how absolute.
Since Ritchie was decided, the Sixth Circuit has stated
its rule in similarly categorical terms. Renusch v.
Berghuis, 75 Fed. App’x 415, 424-425 (6th Cir. 2003) (applying Ritchie’s “require[ments]” to habeas review of
Michigan courts’ refusal to turn over private medical records).
Other circuits have been even more explicit in holding
that criminal defendants’ rights trump even “absolute”
privileges, deciding that defendants could obtain records
covered by the federal psychotherapist-patient privilege
that this Court in Jaffee, 518 U.S. at 10, determined to be
absolute. See United States v. Butt, 955 F.2d 77, 82, 87 &
n.16 (1st Cir. 1992) (holding that defendants “received
their due under the Sixth Amendment” when the trial
court conducted an in camera review of witness’s
19
“privileged” privately held psychiatric records); In re Doe,
964 F.2d 1325, 1327, 1329 (2d Cir. 1992) (holding that refusal to allow access to these records “would violate the
Confrontation Clause”); United States v. Fattah, 914 F.3d
112, 179 (3d Cir. 2019) (holding that such refusal is incompatible with a defendant’s right to obtain “evidence that is
favorable to his case”); Love v. Johnson, 57 F.3d 1305, 1312,
1314 (4th Cir. 1995) (holding that these records present a
situation “indistinguishable in any material respect from
Ritchie”); United States v. Arias, 936 F.3d 793, 798-800
(8th Cir. 2019) (holding over the dissent of Judge Coloton,
that the Confrontation Clause required such access);
United States v. Parrish, 83 F.3d 430 (9th Cir. 1996) (following the First Circuit’s decision in Butt and holding that
the Confrontation Clause requires access); United States
v. Robinson, 583 F.3d 1265, 1269-1274 (10th Cir. 2009) (so
holding, over Judge Tymkovich’s dissent).
And while the Fifth Circuit has not directly faced a request for privileged medical records, it has, in a case involving phone records, interpreted Ritchie to apply to records in the hands of third parties. United States v. Soape,
169 F.3d 257, 268-269 & n.6 (5th Cir. 1999). Each of the results above is flatly incompatible with Indiana’s approach.
Only the Seventh and D.C. Circuits actually provide
any support for Indiana’s side at the federal level. Neither
has employed Indiana’s particular “balancing” approach,
but both have held that Ritchie does not allow defendants
to reach privileged records in the hands of third parties.
United States v. Hach, 162 F.3d 937, 947 (7th Cir. 1998)
(holding that “if the documents are not in the government’s possession,” there can be no “state action” and consequently no violation of Ritchie’s Due Process right);
United States v. Mejita, 448 F.3d 436, 458 (D.C. Cir. 2006)
20
(holding that Ritchie’s “right” “is limited to” “certain categories of evidence in the possession of the government”).
That is slim federal support for Indiana’s side.
2. The state of the States is similarly lopsided. On the
state level, as numerous courts have recognized—and in
another series of rulings all involving privately-held treatment records—“a majority,” comprised of the highest
courts of 16 states, “have held that a criminal defendant,
upon a preliminary showing that the records likely contain
exculpatory evidence, is entitled to some form of pretrial
discovery of a prosecution witness's mental health treatment records that would otherwise be subject to an ‘absolute’ privilege.” Commonwealth v. Barroso, 122 S.W.3d
554, 561 (Ky. 2003); see also State v. Johnson, 102 A.3d 295,
305 (Md. 2014) (noting that “the majority of state courts *
* * agree that a victim’s privilege may be subordinate to a
criminal defendant’s constitutional rights at trial”).1 See
also Advisory Opinion to the House of Representatives,
469 A.2d 1161, 1166 (R.I. 1983) (holding creation of an absolute evidentiary privilege would violate the defendant's
1
State v. Slimskey, 779 A.2d 723 (Conn. 2001); Burns v. State, 968
A.2d 1012 (Del. 2009); Lucas v. State, 555 S.E.2d 440 (Ga. 2001); People
v. Foggy, 521 N.E.2d 86 (Ill. 1988); State v. Neiderbach, 837 N.W.2d
180 (Iowa 2013); Commonwealth v. Barroso, 122 S.W.3d 554 (Ky. 2003);
Commonwealth v. Stockhammer, 570 N.E.2d 992 (Mass. 1991); People
v. Stannaway, 521 N.W.2d 557 (Mich. 1994); State v. Hummel, 483
N.W.2d 68 (Minn. 1992); State v. Duffy, 6 P.3d 453 (Mont. 2000); State
v. King, 34 A.3d 655 (N.H. 2011); State v. Trammell, 435 N.W.2d 197
(Neb. 1989); State v. Blake, 63 P.3d 56 (Utah 2002); State v. Green, 646
N.W.3d 298 (Wis. 2002); Gale v. State, 792 P.2d 570 (Wyo. 1990).
21
constitutional rights to confrontation and compulsory process).
Only six states agree with Indiana that there are instances in which records might remain completely off-limits for the accused. California and Maryland say this occurs only when the records are in the hands of third parties. People v. Hammon, 938 P.2d 986, 991 n.3 (Cal. 1997)
(calling it a step too far “in a direction the United States
Supreme Court has not gone” to hold that a defendant’s
constitutional rights require turnover of private records
that were never in “the government’s possession”); Goldsmith v. State, 651 A.2d 866, 873 (Md. 1995) (finding “no
common law, court rule, statutory or constitutional requirement [providing] that a defendant be permitted pretrial discovery of privileged records held by a third
party”).
Arkansas, Colorado, Pennsylvania, and Utah say this
occurs only when the privilege is “absolute.” Johnson v.
State, 27 S.W.3d 405, 411, 412, 413 (Ark. 2000) (holding,
over a dissent by Justice Brown, joined by Justices Imber
and Thornton, that the “absolute privilege” in Ark. R.
Evid. 503 “preempts” a criminal defendant’s “constitutional right to present his defense”); People v. Turner, 109
P.3d 639, 644, 647 (Colo. 2005) (holding that records covered by the “absolute” privilege in Colo. Stat. 13–90–
107(1)(k)(I), were not subject to in camera review); Commonwealth v. Wilson, 602 A.2d 1290, 1267-1297 (Pa. 1992)
(holding, with Judge Larson concurring, joined by Judge
Papadakos and Judge Zapala dissenting, the same for records covered under the “absolute” privilege in 42 Pa. Cons.
Stat. § 5945.1(b)); State v. Gomez, 63 P.3d 72 (Utah 2002)
(holding the same for an absolute privilege for “rape crisis
counselor” records in Utah Code Ann. § 78-3c-4).
22
Only North Dakota joins Indiana in holding Ritchie
distinguishable, and records unavailable, when either of
these conditions are met. State v. Spath, 581 N.W.2d 123,
126 (N.D. 1998) (distinguishing Ritchie because the privilege for medical records in North Dakota Rule of Evidence 503 had stronger protections than the statute at issue in Ritchie, and neither the prosecutor nor any other
state agency “held [the] records”).
Further, much of the support for Indiana’s position
within this minority is qualified. Maryland, for example,
disallows only pretrial access, Goldsmith, 651 A.2d at 873,
still allowing for a right of access “at trial.” State v. Johnson, 102 A.3d 295, 306 (Md. 2014) (emphasis added).
3. Even within the lopsided majority of jurisdictions
that allow unconditional access, there are substantial doctrinal divisions. Courts differ first on the source of the
right at issue. Some depart from the Ritchie plurality and
hold that this right comes from the Sixth Amendment
right of Confrontation. E.g., In re Doe, 964 F.2d at 1329;
Vitale, 459 F.3d at 195. Some say it is a legitimate extension of Ritchie to apply it to third parties or to pierce “absolute” privileges. E.g., State v. Cressy, 628 A.2d 696, 704
(N.H. 1993) (“[A] defendant’s rights are no less worthy of
protection simply because he seeks information maintained by a non-public entity.”). And some read Ritchie’s
conflation of Compelled and Due Process as limited to its
facts, giving the former independent operation when records are in third-party hands. E.g., Barrosso, 122 S.W.3d
at 560.
This disagreement on fundamentals is a problem, because it influences how courts apply the right in practice.
To provide one example, the Court has not extended Confrontation rights to sentencing, Williams v. New York, 337
23
U.S. 241 (1949), so some formulations limit the right to access privileged material to the guilt phase of the proceeding, saying the defendant must demonstrate that “the records will be necessary to a determination of guilt or innocence.” See, e.g., State v. Green, 646 N.W.2d 298, 310 (Wis.
2002). Others finding different origins for the right say the
records requested can be “material to guilt or punishment.” E.g., Barroso, 122 S.W.3d at 564 (Compelled Process).
There is also disagreement in the substantial majority
that allows for universal access on the threshold showing
a defendant must make to obtain in camera review in order to obtain it. On some things, “there appears to be a
unanimous consensus,” such as the nature of the showing
that the defendant must make, at least “in sexual-assault
and child abuse cases.” Fishman at 34. The request for
records must be more than a “fishing expedition,”
Stanaway, 521 N.W.2d at 576 (quoting Bowman Dairy Co.
v. United States, 341 U.S. 214, 221 (1951)), and “a defendant must do more than speculate” that the privileged records “might contain statements about the incident or incidents that are inconsistent with the complainant’s testimony at trial.” Fishman at 37 & n. 143 (citing cases). After
all, that would make in camera review required “in virtually every such case.” Id. at 38. Rather, the courts are
united that the defendant must demonstrate a belief that
the records likely will reveal some “evidence probative of
the witness's ability to recall, comprehend, and accurately
relate the subject matter of the testimony.” E.g., Barroso,
122 S.W.3d at 563.
Yet the courts differ once again about how strong that
belief must be. Some require a “reasonable ground to believe” the evidence exists. Peeler, 857 A.2d at 841. Some
24
are more relaxed than that, requiring only a “good faith
belief, grounded on some demonstrable fact,” Stanaway,
521 N.W.2d at 574. And some are stricter, requiring closer
to “reasonable certainty.” State v. Blake, 63 P.3d 56, 61
(Utah 2002) (internal quotations omitted). Plenary review
is needed to correct all of these conflicts.
B. The decision below is incorrect.
1. Review is also necessary because the court of appeals is incorrect. If the lower court had done no more
than follow Indiana precedent, it would still be wrong, because Indiana’s “balancing” approach adopted by the Indiana Supreme Court and followed in this case is completely broken. There can be no “balancing” of interests to
be done here. The Constitution is “the supreme law of the
land.” U.S. Const. art. VI. In any balancing contest between the constitution and a privilege statute—state or
federal—the constitution must prevail.
To consign a criminal defendant’s core constitutional
rights to second-class status, so that they might stand on
equal footing with statutes that infringe upon them, is fundamentally misguided. And the particular balancing employed here is doubly problematic, because Indiana’s idea
of “balancing” is not balancing at all: the accused’s constitutional rights always lose—even when the information
the defendant needs is unavailable from any other source.
Every time, “relevant evidence is shielded by privilege for
some purpose other than enhancing the truth-seeking
function of a trial, [and] the danger of convicting an innocent defendant increases.” Stanaway, 521 N.W.2d at 567.
Unsurprisingly, the sources Indiana draws upon to
support adoption of this balancing approach, all of which
predate Ritchie, provide no support for the idea that the
25
constitutional rights of a criminal defendant should ever
be balanced against the interests served by privilege statutes. Indiana relied upon United States v. Nixon, 418 U.S.
683 (1974). Crisis Connection, 949 N.E.2d at 801. But
Nixon involved no criminal defendant—at least none
seeking constitutional protection. It involved the Watergate Special Prosecutor—and the one claiming constitutional rights was the one claiming privilege—the President of the United States. Crane v. Kentucky, 476 U.S. 683
(1986) involved no assertion of privilege. It involved only a
defendant’s claimed right to challenge exclusions of evidence on Due Process grounds. And Rovario v. United
States, 353 U.S. 53 (1957) involved no constitutional
rights—only the particular contours of a particular privilege. While, as the Indiana high court mentioned, Rovario
referenced the “individual’s right to prepare his defense,”
949 N.E. at 801 (quoting 353 U.S. at 62), it did so in the
most generic sense. So Indiana’s precedent lacks both logical and doctrinal foundation.
And the court of appeals did not merely follow this
precedent, it improperly expounded upon it, by applying
Indiana’s balancing approach to a context it was never
meant to handle—to bar a criminal defendant from obtaining records even when covered under a statutory privilege
that is not absolute. That is flatly incompatible with
Ritchie.
2. The legal maneuvering Indiana employs to develop
its weakened, located-nowhere, slanted balancing test for
access to privileged records is also fundamentally wrongheaded. Indiana’s (and others’) acceptance of the Ritchie
plurality’s conclusion that the Confrontation Clause has
no application to a defendant’s request for privileged records makes no sense. The “main and essential purpose” of
26
the Confrontation Clause is to protect “the right to effective cross-examination,” and to be armed with the evidence necessary to conduct it. Delaware v. Van Arsdall,
475 U.S. 673, 677, 678 (1986) (internal quotations omitted
and emphasis added). No minimally “effective” cross-examination can be conducted while the accused is denied
material evidence in privileged records necessary to
cross-examine the key witness in any trial—when such evidence could literally be the difference between innocence
and guilt, life or death. Recognizing that fact does not
“transform the Confrontation Clause into a constitutionally compelled rule of pretrial discovery,” as the Ritchie
plurality feared. 480 U.S. at 52 (Powell, J., joined by
Rehnquist, C. J., White, and O’Connor, J.J.). A criminal
defendant like Marty is not asking the court to create new,
constitutionally imposed avenues for obtaining evidence.
He is simply asking that the currently available avenues
for obtaining evidence not be blocked by statutory privilege.
Nor does such recognition risk expanding upon Confrontation’s roots as a “trial right.” Ibid. This information
is not being pursued as an academic exercise, nor is it
sought in service of some procedure collateral to the trial
itself, like a probable cause hearing, which is properly regarded as separate from trial. See California v. Green, 399
U.S. 149, 157-158 (1970). Rather, it is being pursued for
trial, so that the information may be used during crossexamination, making it a proper part of the trial itself. If
there is any doubt of that fact, this case is the perfect example of why: The refusal to grant in camera review of
A.F.’s records here affected the entire course of the trial,
fatally hindering Marty’s ability to introduce any evidence
about A.F.’s RAD symptoms. This is because, as Judge
27
Crone noted, Pet. App. 22a-23a, 27a-28a, the trial court
cited the lack of a “definitive” RAD diagnosis as grounds
to exclude Dr. Wingard’s opinion that A.F.’s behaviors
were consistent with RAD. If A.F.’s counseling records
had been turned over, it might have turned out there had
been a diagnosis all along. It requires blinders to suggest
that this error was fundamentally divorced from the trial.
3. The artificial restraints that Indiana (and others in
the minority) put on Ritchie are also improper. It makes
no difference how “absolute” a privilege is. This Court’s
cases demonstrate that virtually every privilege must fall
before a criminal defendant’s constitutional rights. Even
vaunted common law privileges like the marital privilege
do not stand up against those rights. Crawford v. Washington, 541 U.S. 36 (2004). Indeed, the Court has left open
whether the granddaddy of all common law privileges—
the attorney-client privilege—must yield against a criminal defendant’s rights. Swidler & Berlin v. United States,
524 U.S. 399, 409 n.3 (1998). And as the Sixth Amendment
“Confrontation right concede only to evidentiary restrictions that existed at common law,” that puts the newer
crop of treatment-related evidentiary privileges on even
lower footing than their common law forbearers. Giles v.
California, 554 U.S. 353, 358 (2008) (internal quotation
omitted). Indeed, even as this Court created one of these
treatment privileges in Jaffe and made it absolute, it recognized that “there are situations in which the privilege
must give way.” 518 U.S. at 18 n.19. And that is the only
constitutionally permissible result.
In any event, the idea inherent in giving greater protection to “absolute” privileges—the fewer loopholes the
better—again gets constitutional rights backward. Normally with tailoring, the Court looks to see if the statute
28
intrudes on constitutional liberties as little as possible.
Here, maximal intrusion on constitutional liberties is regarded as preferable. That cannot be right.
It was likewise improper for Indiana to misread
Ritchie as limited to the Brady and government-possessed records. It may have been natural enough for the
court to reference Brady standards when it was adopting
Brady standards of materiality and in camera review—
and, after all, the records at issue in the case were governmental records. But the references in Ritchie to Brady obligations mean nothing at all in determining whether
Ritchie’s Due Process right applies when the records being pursued are not in government hands. This is because
Ritchie draws upon concepts of Due Process that are
broader than Brady, protecting the “fundamental fairness
of trials,” Ritchie, 480 U.S. at 56, which implicate the legal
system as a whole, not simply the behavior of the prosecution. Indeed, if the right described in Ritchie were nothing
more than a right to obtain material that the prosecution
already had to turn over under Brady, then the right
would mean nothing at all. Limiting Ritchie’s Due-Process right only to information in government hands would
therefore be completely arbitrary.
4. This is especially true because Compulsory Process
should pick up wherever Due Process leaves off when a
criminal defendant “seek[s] in camera review of records
that are possessed by a private entity.” Fishman 62. Accordingly, Compulsory Process may have lain dormant in
Ritchie itself, providing no more than Due Process already allowed, but that was only because it was not needed
in Ritchie. The government was already a party in the
case. It already had an obligation to turn over records of
its own volition. The trial court did not need to access any
29
other powers to order they be turned over. But when records are in the hands of a private party who is not a part
of the criminal prosecution, the right of Compelled Process comes roaring to life, because that right conveys “an
imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or the defense.” Nixon, 418 U.S.
at 709. And it does so regardless of privilege claims, as in
Nixon itself. Accordingly, the right to Compelled Process
requires all members of the criminal process—be that the
legislature or the courts—to do their part in facilitating
such access, not hindering it by putting material documents behind privilege walls. For all these reasons, the
lower court’s ruling was wrong, as was the precedent it
applied. And this Court’s intervention is needed to correct
these serious errors.
C. The issue is of obvious national importance,
and this is an appropriate vehicle to address it.
1. Certiorari is also warranted because the Question
Presented in this case is a recurring one of national significance. The conflict implicated here incorporates 33 jurisdictions and the procedural rules of all 50 states and the
federal government. That widespread conflict has been
recognized in numerous appellate decisions—including by
the applicable Indiana precedent at issue in this case. Crisis Connection, 949 N.E. 2d at 797, 799-800; see also Johnson, 102 A.3d at 305; Goldsmith, 651 A.2d at 881-882 (Bell,
J., dissenting); Green, 646 N.W.2d at 308-310; Hach, 162
F.3d at 947. It is acknowledged by commentators. See
generally Fishman; Miller at 343-355; Jennifer L. Hebert,
Note, Mental Health Records in Sexual Assault Cases:
Striking a Balance to Ensure a Fair Trial for Victims
and Defendants, 83 Tex. L. Rev. 1453 (2005). It is even
30
acknowledged by the Justice Department. See United
States of America v. Arias, Pet. for Rehearing En Banc at
2, 9-10 No. (8th Cir. Oct. 22, 2019) (asserting that the
Eighth Circuit “conflicts” with other circuits over a criminal defendant’s “right to compelled discovery from a sex
abuse victim’s psychotherapist”). This conflict has existed
almost as long as Ritchie has been on the books, and time
has only sent it spiraling out of control. The issue frequently fractures courts internally, as the many split opinions noted above all attest. And indeed, the Wisconsin Supreme Court recently took a case to revisit its position
within the conflict on the Question Presented, see State v.
Lynch, 885 N.W.2d 89 (Wis. 2016), only to fail at the task
when an equally divided court could not unify behind a single resolution. Only this court can bring order to this proliferating chaos.
2. Moreover, these conflicts in the law are intolerable.
The basic split between states like Indiana and the majority elsewhere means that defendants in some jurisdictions
are denied access to records that would be granted to
them in others based on arbitrary jurisdictional boundaries—which is no way to treat constitutional rights that
should be uniform. The basic confused state of the law also
makes these rules hard to understand and apply. And the
risk of misunderstanding can be fatal. Even in a jurisdiction that allows access, one defendant’s pretrial request
for the records might be unripe and too early, because the
right of access applies only “during trial,” Johnson, 102
A.3d at 303, whereas another defendant who waits until
trial to request those materials might be found to have
come too late because of his “eve-of-trial demands.”
United States v. Henry, 482 F.3d 27, 30 (1st Cir. 2007).
31
Even the most diligent attorney who tries to pick through
this mess is likely to be led astray.
3. This case is also a compelling one to resolve all these
conflicts. Marty has raised all three of the constitutional
rights that might be implicated by his request for privileged records, giving the Court an opportunity to set the
entire doctrinal thicket to right.
And there is also no question that the standard was
outcome determinative. That is because if Marty were
only tried in one of the 25 jurisdictions that allow access to
privileged records, he would have been able to meet even
the most restrictive threshold showing necessary to obtain
review: “reasonable certainty.” Blake, 63 P.3d at 61. Marty
knows that A.F. was evaluated for RAD—he took part in
the counseling sessions during which the evaluation was
done. He simply does not know whether she was ultimately diagnosed with the condition. And it is likely that
she was. A.F.’s counselor must have believed A.F. had
symptoms of RAD or some similar disorder. After all, as
Justice Crone noted, “[h]ealth care providers do not test
for disorders they have no reason to think exist.” Pet. App.
25a. There is also no question that this condition would impact A.F.’s “ability to perceive, remember, and relate
events.” Fishman at 45. The trial court’s refusal to grant
at least in-camera access to these treatment records was
therefore serious constitutional error.
4. The consequence of that refusal infected the entire
trial. If Marty had been armed with A.F.’s counseling records, he would have been able to challenge the veracity of
A.F.’s story by questioning whether she had the capacity
to accurately tell it, and he would have been able to effectively counter the Government’s theory, by showing that
A.F.’s behavioral problems were not caused by the abuse,
32
but caused her to make up her story. And Marty’s attempts to come up with substitute evidence he was denied
from the records only showed the futility of the task: he
needed a diagnosis that could only be found in the records.
And his failure to obtain evidence of that diagnosis was
cited as sole reason why Marty’s second-best evidence was
refused.
The net effect of these rulings was to deny Marty any
opportunity to cross-examine A.F. on the most important
issue of the case—the veracity of her allegations. And it
slanted the playing field heavily in the Government’s favor. This case therefore puts the rub to the question of
whether information can be hidden behind privilege when
it is vital to the defense and is unobtainable anywhere else.
Plenary review is required to correct this obvious violation
of Marty’s constitutional rights.
5. This is also the appropriate vehicle for the Court to
entertain such review. The Government has indicated it is
currently considering whether to seek writ of certiorari in
this Court from the Eighth Circuit’s decision in the Arias
case. See Application for An Extension of Time, United
States v. Arias, 19A-927 (Feb. 20, 2020) (requesting an extension of time because “The Solicitor General has not yet
determined whether to file a petition for a writ of certiorari in this case.”). If it does so, it is likely to raise the precise issue in this case or one closely related to it. See Pet.
for En Banc Rehr’g 2 (claiming that the result in Arias
“conflicts” with other circuits on “the right to compelled
discovery from a sex abuse victim’s psychotherapist”).
But this case is a superior vehicle to Arias. Unlike
Marty, who raised all of his potentially applicable constitutional rights—under both the Sixth and Fourteenth
Amendments—Arias raised only his Sixth Amendment
33
Confrontation rights. He did not raise Due Process on appeal. Pet. for En Banc Rehr’g 4 n.1. That is why the Eighth
Circuit’s ruling applied only the “Confrontation Clause”
even as it relied upon Ritchie, and determined it was
properly invoked under Ritchie solely because Arias
raised his records request “at trial.” 936 F.3d at 795, 799.
Accordingly, the holding in Arias strips Ritchie of its Due
Process roots. This Court’s review of that ruling would
therefore mean deciding the issue on a basis that the
Ritchie plurality rejected and ruling on Ritchie’s application without being able to consider the Due Process application upon which it actually was decided. That cramped
procedural posture is a recipe for a fractured opinion, undoubtedly hampering any effort to undo the doctrinal
thicket that currently exists, which is doing substantial
harm to criminal defendants nationwide. Accordingly, the
Court should grant this case instead of Arias.
In any event, if the Government does file a petition in
Arias, the Court should consolidate this case and that one,
to allow for a fuller presentation of the Question Presented. At the very least, a hold for Arias would certainly
be appropriate.
34
CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted,
Stacy R. Uliana
5 N. Baldwin Street
P. O. Box 744
Bargersville, Indiana 46106
J. Carl Cecere
Counsel of Record
CECERE PC
6035 McCommas Blvd.
Dallas, Texas 75206
(469) 600-9455
ccecere@cecerepc.com
Counsel for Petitioner
April 9, 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.