Can Defense Counsel Discover Confidential Records from the Victim?

You were recently accused of sexual assault by a woman that you met at a local cocktail bar. To help disprove her claim that you acted wrongfully, you intend to obtain her mental health and medical records. Can you discover these otherwise confidential records? Our experienced sex crimes defense attorney will explain the answer.

U.S. Supreme Court’s Ruling in Pennsylvania v. Ritchie

In Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the defendant was charged with various sexual offenses against his minor daughter. The matter was referred to the state’s Children and Youth Services (CYS) agency. During pretrial discovery, the defendant sought to obtain records related to the charges, but the CYS claimed that the records were privileged under a state statute.

The U.S. Supreme Court held that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. Evidence is considered “material” only if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. As such, defendant was entitled to have the records reviewed by the trial court to determine whether it contained information that probably would have changed the outcome of the trial.

While the government had the duty to disclose exculpatory evidence, it is important to note that defense counsel itself was not entitled to examine any confidential information contained in the CYS files.

California Supreme Court’s Ruling in People v. Hammon

In People v. Hammon, 15 Cal. 4th 117 (1997) the defendant was charged with committing lewd and lascivious acts upon a child under 14 years of age in violation of PC 288(a). At trial, the defendant admitted to engaging in certain lewd and lascivious acts with the child, but claimed that he did so after her 14th birthday. The defendant attempted to obtain records made by the victim’s psychotherapist in order to challenge her credibility.

The California Supreme Court held that the defendant did not have a right to pretrial discovery of the victim’s psychotherapy records. However, the California Supreme Court reiterated that the defendant did have a right to discovery at the trial stage of the litigation.

In Hammon, Justice Kennard suggested a two-step process regarding discovery of the victim’s privileged records.

First, a defendant must make a showing of good cause for discovery. This means that there is a reasonable likelihood that the documents contained in the record are material and favorable to the defense. Also, the same information must not be obtainable from a non-privileged source. Second, the court should examine the records to balance the interests served by disclosing the records against the victim’s right to confidentiality. If the balance tips in the defendant’s favor, the document may be disclosed in whole or in part.

Sex Crimes Defense Attorney

The skilled sex crimes defense attorneys at Wallin & Klarich have over 40 years of experience successfully defending clients accused of sexual offenses. Our law firm approaches every case with the belief that the person we are defending could easily be one of our own family members. We have seen firsthand how stressful sexual offense matters can be for our clients and their loved ones. We are committed to being available to our clients at all times — 24 hours a day, 7 days a week, and 365 days a year.

Our offices are located in Orange County, San Bernardino, Los Angeles, San Diego, Riverside, West Covina, Victorville, Torrance, Sherman Oaks, and Ventura. Call us today at (877) 4-NO-JAIL or (877) 466-5245. We will get through this together.