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N.G. v. Superior Court (12/14/2012) ap-2384

N.G. v. Superior Court (12/14/2012) ap-2384

                                                NOTICE
 

        The text of this opinion can be corrected before the opinion is published in the 

        Pacific Reporter.    Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts: 



                               303 K Street, Anchorage, Alaska  99501
 

                                         Fax:   (907) 264-0878
 

                         E-mail:   corrections @ appellate.courts.state.ak.us
 



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



N.G., 

                                                             Court of Appeals No. A-11049 

                                Petitioner,                 Trial Court No. 3AN-10-4740 Cr 



                        v. 

                                                                     O   P  I  N  I  O  N 

SUPERIOR COURT, 



                                Respondent.                 No. 2384    -   December 14, 2012 



                Original Application for Relief from an order of the Superior 

                Court,     Third    Judicial   District,   Anchorage,      Michael     L. 

                Wolverton, Judge. 



                Appearances:      Shaun   M.   Sehl   and   Victor   Kestor,   Office   of 

                Victims'     Rights,  Anchorage,     for  the  Petitioner.  Hanley   R. 

                Smith, Assistant Public Defender, and Quinlan Steiner, Public 

                Defender,     Anchorage,     for  the  Real  Party   in  Interest,  David 

                Standifer.    Allen   M.   Bailey,   Anchorage,   for Amicus   Curiae 

                National Crime Victim Law Institute.         No separate appearance 

                for the Superior Court. 



                Before:     Coats,   Chief   Judge,   and  Mannheimer       and  Bolger, 

                Judges. 



                MANNHEIMER, Judge. 

                BOLGER, Judge, concurring. 


----------------------- Page 2-----------------------

                 David   Standifer   is   facing   charges   of   sexual   assault,   attempted   sexual 



assault, and physical assault, based on allegations that he attacked a woman named N.G.. 



                 It appears that N.G. has a history of alcoholism, and there is at least some 



indication that she was previously diagnosed as suffering from a mental illness.                    Based 



on this, the superior court has issued an order that requires N.G. to identify everyone 



who has provided health care to her during the past twenty years, and that requires N.G. 



to   sign   a   release   so   that   the   court   can   issue   subpoenas   to   all   of   these   health   care 



providers, directing them to produce their records for the court's in camera inspection. 



The court intends to examine these records   to determine whether they contain non- 



privileged information, and to determine whether this information is relevant to N.G.'s 



"ability to accurately perceive or truthfully report [the] events" at issue in this case.  If 



so, the court intends to disclose this information to Standifer's defense team. 



                 As we explain in this opinion, we conclude that the superior court's order 



is   premised     on   a  mistakenly     narrow    interpretation     of  the  psychotherapist-patient 



privilege. We further conclude that the superior court's order is inconsistent with Alaska 



law governing the circumstances in which a court has the authority to order disclosure 



of a victim's or witness's privileged psychotherapy records.                 We therefore reverse the 



superior court's order. 



         Underlying facts 



                 As   explained   at   the   beginning   of   this   opinion,   David   Standifer   stands 



charged with sexual assault, attempted sexual assault, and physical assault, based on 



allegations that he attacked N.G..          According to the State's evidence, the attack took 



place in an isolated area near downtown Anchorage.                 N.G. managed to escape and run 



away to a more public place; a passerby observed N.G. after she collapsed on a roadway, 



                                                   - 2 -                                              2384
 


----------------------- Page 3-----------------------

bleeding and naked from the waist down.              The police were summoned, and N.G. was 



taken to a medical facility for a sexual assault examination.                A few days later, N.G. 



sought follow-up medical care.          At that time, she was seen by two physicians. 



                The case notes prepared by the sexual assault examiner, as well as the case 



notes   prepared   later   by   the   two   physicians,   refer   to   N.G.'s   history   of   treatment   for 



alcohol abuse and alcohol withdrawal.            In addition, one of the physicians' case notes 



mentions that N.G. "[has] a history of bipolar disorder". 



                Following Standifer's indictment, Standifer's attorney asked the superior 



court to order production of "any and all medical, alcohol treatment[, and] psychiatric 



records concerning N.G.".         The State opposed this motion, as did N.G. herself.             (N.G. 



appeared independently for this purpose, represented by the Office of Victims' Rights.) 



                With   regard   to   the   request   for   disclosure   of   N.G.'s   history   of   alcohol 



treatment, Standifer's attorney noted that the case notes (described above) referred to 



N.G.'s history of alcohol treatment.            The defense attorney also asserted that he had 



examined other court records (public records) involving N.G., and that these records 



indicated that N.G. had a history of crimes that may have been alcohol-related.                  One of 



these records indicated that N.G. might have suffered an alcohol blackout. 



                With regard to the remainder of the defense request - i.e., the request for 



disclosure of all of N.G.'s other medical and psychiatric records - the defense attorney 



merely   asserted   that   "there   [was]   a   reference   to   a   mental   health   diagnosis"   in   the 



physicians' case notes described above.  The defense attorney was apparently referring 



to the one physician's mention of "bipolar disorder". 



                Standifer's     attorney    acknowledged       that   the  State  presumably     did   not 



possess N.G.'s medical and psychiatric records.             The defense attorney therefore asked 



the superior court to order N.G. to produce the names and addresses of every health care 



                                                  - 3 -                                             2384
 


----------------------- Page 4-----------------------

provider     from    whom     she   had   ever   sought   medical     treatment,    psychiatric    care   or 



psychological counseling, or alcohol counseling or treatment. 



                 In addition, the defense attorney asked the superior court to order N.G. to 



sign a blanket release, authorizing all of these health care providers to turn their files 



over to the superior court for the purpose of allowing the court to conduct an in camera 



inspection of these materials - with the understanding that these materials would later 



be disclosed to Standifer's defense team if the court concluded that the materials were 



relevant to "[N.G.'s] ability to accurately perceive or truthfully report [the] events" at 



issue in this case. 



                 Standifer's     attorney    conceded     that   he  was   seeking    the  production     of 



privileged records - that is, N.G. had an evidentiary privilege to refuse to produce these 



materials.    However, the defense attorney asserted that even if the requested materials 



were protected by privilege, the superior court should still order N.G. to authorize the 



disclosure of the requested materials because (according to the defense attorney) N.G.'s 



privilege had to yield to the defendant's need for relevant evidence. 



                 After considering Standifer's request, as well as the separate oppositions 



filed by the State and by N.G., the superior court granted Standifer's request without 



explanation or comment. 



                 In   essence,   the   superior   court   ordered   the   production   of   all   of   N.G.'s 



treatment records, albeit in a two-stage process.  The initial portion of the court's order 



directed N.G. to disclose the names and addresses of all of her health care providers 



(during the previous two decades), and further directed N.G. to sign a release authorizing 



these health care providers to turn their records over to the superior court.   In the second 



stage of the process, the court intended to order these health care providers to produce 



their files to the court, so that the court could inspect these files. 



                                                   - 4 -                                              2384
 


----------------------- Page 5-----------------------

                 N.G. promptly sought reconsideration of the superior court's decision, but 



the superior court ultimately re-affirmed its earlier order.             This time, the superior court 



offered   a   legal   justification   for   its   decision: the   superior   court   declared   that   it   was 



adopting the reasoning contained in a written decision issued earlier (May 13, 2011) by 



another superior court judge in another case - State v. Kalmakoff, File No. 3AN-09- 



14599 Cr. 



                 The Kalmakoff   case   involved   a   similar   court   order   -   that   is,   an   order 



directing   the   victim   of   an   alleged   crime   to   reveal   the   identity   of   all   her   health   care 



providers, so that the court could then obtain all of the victim's psychotherapy records. 



In Kalmakoff , the superior court rejected the victim's argument that all of a person's 



psychotherapy records are privileged. 



                 The superior court noted that, under Alaska Evidence Rule 504(b), the 



psychotherapist-patient privilege protects only "confidential communications" - as that 



term is defined in Evidence Rule 504(a)(4) - "made for the purpose of diagnosis or 



treatment of the patient's physical, mental, or emotional conditions". The court reasoned 



that, because the privilege was limited to confidential communications made for these 



specific    purposes,     there   might   well   be   other   information     contained     in  a  person's 



psychotherapy records that was not privileged - i.e., information that did not disclose 



the content of confidential communications. 



                 Based on this reasoning, the superior court in Kalmakoff concluded that the 



witness's psychotherapy records were likely to contain both privileged information and 



non-privileged       information      -    and   that  the   only   way    to  separate    the   privileged 



information      from    the  non-privileged      information     was   for   the  court   to  conduct   an 



in camera inspection of all of the psychotherapy records. 



                 This, then, was the justification that the superior court gave in the present 



case for its order requiring the production of all of N.G.'s psychotherapy records. 



                                                   - 5 -                                               2384
 


----------------------- Page 6-----------------------

               N.G. now appeals the superior court's decision. 



        An overview of the legal issues presented here 



               At the outset, we must point out that two distinct legal issues are presented 



in this case, but the superior court's order addresses only one of them. 



               As we have explained, the superior court's stated rationale for ordering the 



production of N.G.'s health providers' records was that these records probably contained 



both privileged and non-privileged information - because the psychotherapist-patient 



privilege protects only "confidential communications".           Based on this interpretation of 



the scope of the privilege, the superior court concluded that it needed to examine all of 



N.G.'s psychotherapy records  in camera - so that the court could identify the non- 



privileged information,   determine if that non-privileged information was relevant to 



assessing    N.G.'s   credibility  as  a  witness,   and  (if  so)  disclose  that  information   to 



Standifer's defense team. 



               Thus, one of the issues presented in this appeal is whether the superior court 



was correct in construing the psychotherapist-patient privilege in this limited fashion, 



and correct in presuming that N.G.'s psychotherapy records likely contained a substantial 



amount of non-privileged information. 



               But under Alaska law, even if all of the information in N.G.'s treatment 



records were privileged, this would not necessarily resolve the question of whether that 



information should be disclosed to the defense.  Several times, this Court and the Alaska 



Supreme Court have approved trial judges' decisions to conduct in camera examinations 



of confidential or privileged records for the purpose of determining whether some of the 



information contained in those records should be disclosed to a litigant. 



                                               - 6 -                                          2384
 


----------------------- Page 7-----------------------

                 Thus, there are really two main issues to be addressed in N.G.'s case.  The 



first   issue   is   whether   the   superior   court   was   correct   when   it   concluded   that   N.G.'s 



treatment records likely included non-privileged information - information that had to 



be separated from the privileged information contained in those records.  But the second 



issue is whether, even if all of the information contained in N.G.'s treatment records 



were privileged, the superior court would still be justified in ordering disclosure of some 



or all of this information to the defense. 



         The scope of the psychotherapist-patient privilege under Alaska law, and 

        why   we   conclude   that   the   superior   court   was   wrong   in   supposing   that 

        significant     portions     of  N.G.'s    psychotherapy       records     would    not   be 

        privileged 



                 Alaska Evidence Rule 504(b) declares that any person who has consulted 



a physician or a psychotherapist has a privilege to refuse to disclose (and to prevent other 



people from disclosing) "confidential communications made for the purpose of diagnosis 



or   treatment   of   the   patient's   physical,   mental[,]   or   emotional   conditions,   including 



alcohol or drug addiction". 



                 The   privilege   for   physician-patient   communications   does   not   apply   in 



criminal     proceedings;     see   Evidence      Rule   504(d)(7).     However,       the   privilege    for 



psychotherapist-patient communications does apply in criminal proceedings.  Ibid. 



                 Moreover,   Evidence   Rule   504(a)(3)   adopts   an   expansive   definition   of 



"psychotherapist".        Under      this  rule,  the  term   "psychotherapist"       includes    not   only 



psychiatrists and psychologists, but also all licensed professional counselors, all licensed 



marital and family therapists, and "[any] person authorized to practice medicine ... while 



engaged in the diagnosis or treatment of a mental or emotional condition, including 



alcohol or drug addiction". 



                                                   - 7 -                                               2384
 


----------------------- Page 8-----------------------

                 Given   this   broad   definition   of   the   health   practitioners   who   qualify   as 



"psychotherapists"         for  purposes      of  the   privilege,    it  would     appear    that   N.G.'s 



psychotherapist-patient privilege covers essentially all of the information that Standifer's 



defense team ultimately wishes to obtain - that is, all information relating to N.G.'s 



diagnosis      and   treatment    for   alcohol    abuse    or  for  mental     illness,  insofar    as  this 



information might be pertinent to her ability to "accurately perceive or truthfully report 



events". 



                 But the superior court's order in this case is premised on the idea that, even 



though all of the health care providers who treated N.G. for alcohol abuse or mental 



illness might qualify as "psychotherapists" for purposes of the privilege, there is still a 



significant   possibility   that   some   of   the   information      contained   in   these   health   care 



providers' records would not be covered by the psychotherapist-patient privilege. 



                 The superior court noted that the privilege extends only to "confidential 



communications", as defined in Evidence Rule 504(a)(4). Because of this limitation, the 



superior court reasoned that the information in N.G.'s psychotherapy records would not 



be privileged unless that information described, or otherwise revealed, the content of 



"confidential communications". 



                 The    superior    court    did  not   further   explain    or   specify   the   kinds    of 



information that it believed would not be privileged.               However, because of the court's 



emphasis on "confidential communications", it appears that the court was thinking of 



information that did not involve the disclosure of a patient's statements. 



                 Thus, for instance, one might argue that a psychotherapist's observations 



of   a   patient's   physical   condition,   or   a   psychotherapist's   observations   of   a   patient's 



emotional state or "affect", considered as a distinct factor in the diagnosis (apart from the 



content   of   what   the   patient   actually   said),   would   not   be   covered   by   the   privilege. 



Similarly, one might argue that the privilege would not protect the psychotherapist's 



                                                   - 8 -                                               2384
 


----------------------- Page 9-----------------------

ultimate diagnosis of the patient, or the psychotherapist's treatment plan for the patient 



- even though the privilege might protect the patient's various statements that led the 



psychotherapist to reach that diagnosis, or to formulate that treatment plan. 



                This interpretation of Evidence Rule 504 is incorrect. 



                First, we note that the psychotherapist-patient privilege protects more than 



the   statements   that   a   patient   makes   to   their   psychotherapist. Evidence   Rule   504(b) 



declares   that   the   privilege   applies   to  all   confidential   communications   made   for   the 



purpose of diagnosis or treatment - regardless of whether those communications take 



place directly between the patient and the psychotherapist, or between the patient and 



other persons who are participating in the diagnosis or treatment under the direction of 



the psychotherapist (including members of the patient's family), or solely among the 



people participating in the diagnosis or treatment (i.e., even when the patient is not a 



participant in the conversation). 



                See, e.g., State v. Miller, 709 P.2d 225, 238-240 (Or. 1985), where the 



Oregon Supreme Court held that the defendant's explanation to a secretary-receptionist 



as to why he needed to see a doctor was covered by the psychotherapist-patient privilege, 



since "[a] reasonable person in [the] defendant's position could have believed [that] he 



had to tell her his problem in order to get past her to talk to a doctor."           (Assumedly, the 



receptionist's   later   communication   of   the   defendant's   words   to   the   doctor   was   also 



covered by the privilege.) 



                See also American National Watermattress Corp. v. Manville , 642 P.2d 



1330, 1333-35 (Alaska 1982), where the Alaska Supreme Court held that the attorney- 



client privilege covered statements made by a prospective tort plaintiff to an investigator 



employed by an attorney - even though the attorney had not yet agreed to take the 



plaintiff's case - because the purpose of having the plaintiff talk to the investigator was 



to enable the attorney to evaluate the plaintiff's case. 



                                                 - 9 -                                             2384
 


----------------------- Page 10-----------------------

                In general, see the Commentary to Evidence Rule 504(b), which explains 



that the scope of the communications protected by the psychotherapist-patient privilege 



(and the physician-patient privilege) is modeled after the broad scope of communications 



protected by Alaska's attorney-client privilege (which is described in the Commentary 



to Evidence Rule 503(b), third paragraph). 



                Second,    even   though    Evidence    Rule   504(b)   ostensibly    protects  only 



"confidential communications", we interpret this phrase to include other information 



generated     during   the  professional    relationship   (e.g.,  test  results),  as  well  as  the 



psychotherapist's   perceptions,   theories,   and   conclusions   pertaining   to   diagnosis   and 



treatment when these perceptions, theories, and conclusions are based on information 



imparted to the psychotherapist through confidential communications. 



                In many jurisdictions where the psychotherapist-patient privilege is codified 



by statute or rule, the privilege is defined so that it explicitly extends to these matters. 



See,    for  instance,  California    Evidence    Code      1012,   which   states  that  the  term 



"confidential communication", for purposes of the psychotherapist-patient privilege, 



"includes a diagnosis made and the advice given by the psychotherapist in the course of 



that relationship". But even in jurisdictions where the privilege is defined solely in terms 



of "confidential communications" - as it is in Alaska - the privilege is still generally 



construed in a broader manner.        As McCormick on Evidence explains, 



                       Statutes conferring a physician-patient privilege vary 

                extensively, though probably a majority follow the pioneer 

               New York and California statutes in extending the privilege 

               to   "any   information     acquired    in  attending   the  patient." 

               Understandably, these provisions have been held to protect 

               not only information explicitly conveyed to the physician by 

               the patient, but also data acquired by examination and testing. 

                Other statutes appear facially to be more restrictive and to 

                limit the privilege to communications by the patient.           This 



                                               -  10 -                                         2384
 


----------------------- Page 11-----------------------

                 appearance,   however,        may    frequently     be  misleading,   for 

                 statutes of this sort have been construed to provide a privilege 

                 fully as broad as that available elsewhere. 



Kenneth S. Broun et alia, McCormick on Evidence (6th edition, 2006),  100, Vol. 1, 



pp. 455-56 (footnotes omitted). 



                 We   conclude   that   Alaska's   psychotherapist-patient   privilege   should   be 



construed in the broader manner suggested by this passage from McCormick . 



                 First, as we explained earlier, the Commentary to Alaska Evidence Rule 



504 declares that the scope of the psychotherapist-patient privilege is meant to mirror the 



scope of the attorney-client privilege codified in Evidence Rule 503.                   Even though the 



attorney-client privilege is also defined solely in terms of "confidential communications", 



see Evidence Rule 503(b), Alaska cases clearly hold that the attorney-client privilege 



extends not only to confidential communications between the client and the attorney, but 



also to other information generated during the professional relationship. 



                 For example, in Houston v. State , 602 P.2d 784, 790 (Alaska 1979), our 



supreme   court   held   that,   when   the   defendant's   attorney   employed   a   psychiatrist   to 



evaluate the defendant's potential insanity defense, the defendant's statements to the 



psychiatrist  as   well   as  the   psychiatrist's   resulting   opinion   were   all   protected   by   the 



attorney-client privilege.       Similarly, in Oines v. State, 803 P.2d 884, 886 (Alaska App. 



1990), this Court held that the attorney-client privilege protected the results of a blood 



test performed by a defense expert (i.e., an expert hired by the defendant's attorney), and 



thus neither the attorney nor the expert could be required to disclose the   blood   test 



results. 



                 By analogy, then, the psychotherapist-patient privilege likewise should 



cover   not   only   the   confidential   communications   themselves   but   also   other   types   of 



information generated during the professional relationship as a result of the confidential 



                                                   -  11 -                                             2384
 


----------------------- Page 12-----------------------

communications - information such as test results and diagnostic perceptions, theories, 



and conclusions. 



                In his brief to this Court, Standifer argues against this broader reading of 



the privilege.   Standifer relies on what this Court said about the psychotherapist-patient 



privilege in Cooper v. District Court, 133 P.3d 692, 716 (Alaska App. 2006): 



                [T]he   psychotherapist-patient   privilege   does   not   cover   all 

                testimony that discloses that someone suffers from mental 

                health     or  behavioral     problems,     or  that  describes     those 

                problems, or that describes other people's reactions to those 

                problems.      The privilege has a narrower scope:            it applies 

                only to testimony that reveals the substance of confidential 

                communications         made    for  the  purpose     of  diagnosing     or 

                treating those problems. 



                But the testimony at issue in  Cooper - testimony relating to Cooper's 



son's behavioral problems and the effect that this was having on the marriage - was not 



elicited   from,   or   (with   one   exception)   attributed   to,   any   mental   health   professional 



involved in the treatment of Cooper's son.            Rather, this information was obtained from 



other people who had knowledge of the son's behavioral difficulties and the Coopers' 



marital relationship. 



                (The one exception, which we noted in our opinion, 133 P.3d at 717, was 



a single statement attributed to a mental health professional regarding his assessment of 



the boy's case.       We declared that this statement was admissible, not because it was 



unprivileged, but because "no objection was made."               Ibid.) 



                In other words, our decision in Cooper is consistent with the interpretation 



of Evidence Rule 504 that we adopt now. 



                We also believe there is a second, more fundamental reason for construing 



the   psychotherapist-patient        privilege   more    broadly    than   the   phrase   "confidential 



                                                 -  12 -                                            2384
 


----------------------- Page 13-----------------------

communications"        might   suggest:   The    privilege   would   essentially   be  gutted   if  a 



psychotherapist could be ordered to testify about a person's diagnosis or treatment, over 



the   person's    objection,   so  long  as  the   psychotherapist    refrained   from   expressly 



describing or referring to the content of any confidential communications. 



               If we were to construe the privilege in the narrow fashion suggested by 



Standifer, and apparently adopted by the superior court, this would defeat the societal 



interests protected by the privilege.      As our supreme court explained in Allred v. State , 



554 P.2d 411 (Alaska 1976): 



                       [C]ommunications to a psychotherapist in the course 

               of therapy are inherently confidential.       Patients often make 

                statements in psychotherapy which they would not make to 

               even the closest members of their families.         Psychotherapy 

               tends to explore the innermost recesses of the personality, the 

               very portions of the self which the individual seeks to keep 

                secret from the world at large.       Revelation of such matters 

               could have an irrevocably harmful effect upon the reputation 

               and well being of the patient.     [Citation omitted] 



                       [In    addition],   inviolability   of  the   confidence    is 

               essential    to  achievement     of  the  psychotherapeutic     goal. 

               Without foreknowledge that confidentiality will attach, the 

               patient will be extremely reluctant to reveal to his therapist 

               the details of his past life and his introspective thoughts and 

               feelings.    Without the patient's confidence a psychiatrist's 

               efforts are worthless. 



Allred , 554 P.2d at 417. 



               We therefore hold that the psychotherapist-patient privilege codified in 



Alaska Evidence Rule 504 protects not only "confidential communications" as defined 



in Rule 504(a)(4) but also other types of information generated during the professional 



                                              -  13 -                                         2384
 


----------------------- Page 14-----------------------

relationship as a result of the confidential communications - information such as test 



results and diagnostic perceptions, theories, and conclusions. 



                 Because we interpret the psychotherapist-patient privilege in this manner, 



it   follows    that  the   superior    court   was    mistaken     when    it  concluded     that   N.G.'s 



psychotherapy         records    likely    contained     significant     amounts      of  non-privileged 



information, and that an in camera inspection of those records would be needed so that 



the court could cull this non-privileged information and disclose it to Standifer's defense 



team. 



                 Standifer is seeking all information contained in these records pertaining 



to N.G.'s diagnosis and treatment for alcohol abuse and/or mental illness, insofar as this 



information might be pertinent to N.G.'s ability to accurately perceive or truthfully report 



events.    Given our interpretation of the scope of the privilege, it appears likely that all 



of the information that Standifer is seeking is, indeed, privileged. 



                 Standifer points out that the initial portion of the superior court's order does 



not   require   disclosure   of   any   psychotherapy   records;   instead,   the   court   has   simply 



ordered N.G. to identify all of her health care providers.  Standifer asserts that N.G. has 



no privilege to refuse to disclose the names and addresses of her health care providers. 



                 In Moudy v. Superior Court , 964 P.2d 469, 471 (Alaska App. 1998), this 



Court held that the attorney-client privilege does not normally protect the fact  that a 



person has consulted an attorney - as distinct from the confidential communications 



between   attorney   and   client   concerning   the   client's   need   for   legal   services,   and   the 

attorney's ensuing advice to the client. 1 



    1   See also Stephen A. Saltzburg, Michael M. Martin,   and Daniel J. Capra, Federal 



Rules of Evidence Manual (9th ed. 2006), Vol. 2, pp. 501-38 - 501-39. 



                                                  -  14 -                                               2384 


----------------------- Page 15-----------------------

                 As explained in McCormick on Evidence ,  100, many jurisdictions follow 



this same rule with regard to the physician-patient privilege and the psychotherapist- 

patient privilege - although there is some contrary authority. 2                    And, as explained in 



footnote 6 of this section of McCormick , some state courts have drawn a distinction (for 



this purpose) between the physician-patient relationship and the psychotherapist-patient 



relationship - concluding that, in the context of psychotherapy, disclosure of a patient's 



identity would likely expose something about the nature of the patient's condition and 



              3 

treatment. 



                 Our supreme court appears to have endorsed this approach in Falcon v. 



Alaska Public Offices Commission , 570 P.2d 469 (Alaska 1977).  That case arose when 



Falcon, a physician who was running for elected office, refused to disclose the names of 



his patients to the Public Offices Commission. In discussing the policy interests at stake, 



the   supreme   court   observed   that,   at   least   in   certain   situations,   the   mere   fact   that   an 



individual has visited a certain physician might have the effect of disclosing confidential 



or sensitive information.        The supreme court explained: 



    2    See, e.g., Falco v. Institute of Living , 757 A.2d 571, 576 (Conn. 2000) (holding that 



the identity of the patient attacking the plaintiff was privileged under the psychiatrist-patient 

privilege statute); Dorris v. Detroit Osteopathic Hospital Corp. , 594 N.W.2d 455, 460 (Mich. 

1999) (holding that the identity of the patient was protected by the physician-patient privilege 

statute). 



    3    Footnote 6 of McCormick lists the following decisions:  Ex parte Abell , 613 S.W.2d 



255   (Tex.   1981)   (holding   that   the   privilege   precluded   the   disclosure   of   the   names   of   a 

psychiatrist's patients); Rudnick v. Superior Court of Kern County , 523 P.2d 643 (Cal. 1974) 

(holding that a patient's identity is privileged if the context of the disclosure will reveal the 

nature of the patient's illness); Hetter v. Eighth Judicial District Court , 874 P.2d 762 (Nev. 

1994)   (holding   that   the   names   of   a   surgeon's   patients   may   be   protected   if   nature   of   the 

medical problem or the treatment would be revealed by disclosure of the name). 



                                                    -  15 -                                               2384
 


----------------------- Page 16-----------------------

               [When] an individual visits a physician who specializes in 

               contraceptive matters or whose primary practice is known to 

               be giving abortions[,] and the fact of a visit or rendering of 

               services becomes public information, private and sensitive 

               information has, in our view, been revealed.  Even visits to a 

               general practitioner may cause particular embarrassment or 

               opprobrium where the patient is a married person who seeks 

               treatment without the spouse's knowledge[,] or a minor who 

               does    so   without   parental   intelligence. Similar   situations 

               would be presented where, because of a specialized practice, 

               the disclosure of the patient's identity also reveals the nature 

               of the treatment, and the particular type of treatment is one 

               which patients would normally seek to keep private.  Some 

               examples      would    include   the  patients  of   a  psychiatrist, 

               psychologist or of a physician who specialized in treating 

               sexual problems or venereal disease. 



Falcon , 570 P.2d at 479-480. 



               However, we need not resolve this issue in N.G.'s case - because it would 



be completely artificial to view this one aspect of the superior court's order in isolation. 



The superior court not only ordered N.G. to disclose the names and addresses of her 



psychotherapists, but the court also ordered N.G. to sign a release authorizing these 



psychotherapists to turn their records over to the court.   The superior court made it clear 



that its ultimate intention was to identify all of N.G.'s psychotherapists, and then order 



them to produce their files for the court's in camera inspection - under the assumption 



that these psychotherapy records likely contained non-privileged information that should 



be disclosed to Standifer's defense team. 



               Thus, even if there might be some instances where a person would have no 



privilege under Evidence Rule 504 to withhold the identities of their psychotherapists, 



we conclude that N.G. did have a privilege to withhold this information in the present 



case. 



                                              -  16 -                                        2384
 


----------------------- Page 17-----------------------

        Even though it appears that all, or essentially all, of N.G.'s psychotherapy 

        records     are   privileged,    did   the  superior     court   nevertheless     have    a 

        justification for concluding that N.G.'s privilege might have to give way to 

        Standifer's demand for production - and that, therefore, the court should 

        conduct an in camera review of the psychotherapy records? 



                As    we   noted    toward    the  beginning     of  this  opinion,    the  fact  that  all 



(or   essentially   all)   of   the   information   contained   in   N.G.'s   psychotherapy   records   is 



privileged does not necessarily answer the question of whether the superior court had the 



authority to order production of these records and then examine the records in camera 



to determine if some of the information contained in these records should be disclosed 



to the defense. 



                Conceivably, even when information about a witness is protected by the 



psychotherapist-patient privilege, a court might be justified in ordering disclosure of that 



information      to  the  defendant     if  the  information     was   sufficiently   important     to  the 



defendant's cross-examination of the witness.  Standifer indeed argues that his rights of 



confrontation and compulsory process, as well as his right to due process of law, must 



take    precedence     over    N.G.'s    psychotherapist-patient       privilege    if  the  information 



contained in N.G.'s psychotherapy records is pertinent to his defense - and he urges us 



to uphold the superior court's order on that basis. 



                There     are   times   when    a  witness's    right  to  keep    certain   information 



confidential must yield to a criminal defendant's right to confront the witnesses against 



them.    See, for example, Davis v. Alaska , 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 



(1974),   where   the   United   States   Supreme   Court   held   that   the   defendant's   right   of 



confrontation   took   precedence   over   a   statute   requiring   that   the   records   of   juvenile 



delinquency proceedings be kept confidential. 



                                                  -  17 -                                            2384
 


----------------------- Page 18-----------------------

                 Some   evidentiary   privileges,   such   as   the   government's   privilege   under 



Alaska Evidence Rule 509 to conceal the identity of its informants, are expressly defined 



so   as   to   allow   a   court   to   engage   in   this   weighing   of   interests. Other   evidentiary 



privileges are treated in the same way, by court decision.                See, for instance, Salazar v. 



State,   559   P.2d   66,   78-79   (Alaska   1976),   holding   that,   under   the   facts,   the   marital 



communications privilege had to yield to the defendant's right of confrontation. 



                 However,   certain   evidentiary   privileges   -   such   as   the   attorney-client 



privilege - are treated as absolute.   That is, once the holder of the privilege establishes 



that the privilege protects the information being sought, the privilege will be honored no 

matter how strong the countervailing interests in disclosure might be. 4 



                 Currently, Alaska law does not provide a firm answer to the question of 



whether   a   person's   psychotherapist-patient   privilege   is   absolute   or,   instead,   can   be 



overridden by a litigant's competing interest in disclosure. 



                 In  Gunnerud   v.   State,   611   P.2d   69,   71-72   (Alaska   1980),   the   Alaska 



Supreme Court approved a trial judge's decision to conduct an in camera review of a 



psychiatric   report   concerning   a   government   witness,   to   see   if   the   report   contained 



information that was relevant to assessing the witness's credibility.                    The trial judge in 



Gunnerud examined the psychiatric report, concluded that it had no relevance to the 



witness's credibility, and therefore refused to disclose the report to the defense.                      The 



supreme court upheld the trial judge's decision - but the implication of Gunnerud is 



that the trial judge would properly have disclosed the psychiatric report to the defense 



if   the   judge   had   concluded   that   the   report  was   relevant   to   assessing   the   witness's 



credibility. 



    4    See Edward J. Imwinkelried, The New Wigmore: A Treatise on Evidence: Evidentiary 



Privileges (2nd edition, 2010),  6.2.8, p. 578, n. 506. 



                                                   -  18 -                                                2384 


----------------------- Page 19-----------------------

                Seemingly, Gunnerud supports Standifer's position in this appeal - his 



argument that a defendant's interest in confronting a government witness can override 



the psychotherapist-patient privilege.  But it is unclear whether the witness in Gunnerud 



had a privilege to assert. 



                The psychiatric report in Gunnerud was part of a pre-sentence report that 

was prepared in connection with an earlier criminal prosecution of the witness. 5  In other 



words, the psychiatric report was already in the hands of the court and the State - 



apparently because the witness consented to be examined by a psychiatrist in connection 



with    the  sentencing     in  that  earlier  case,   or  else  because    the   witness   waived     her 



psychotherapist-patient privilege for the purpose of allowing the sentencing court to 



consider a pre-existing psychiatric report. 



                In  Spencer v. State, 642 P.2d 1371 (Alaska App. 1982), the trial court 



conducted   a   similar  in   camera   review   of   a   witness's   psychiatric   records,   but   those 



records also were already in the possession of the   State - because the witness had 



signed a release authorizing disclosure of those records to the prosecutor, apparently in 

contemplation of the later in camera review by the court. 6 



                Thus, no Alaska case provides a direct answer to the question of whether 



a court may override a witness's assertion of the psychotherapist-patient privilege in a 



criminal   case   and   order   disclosure   of   privileged   information,   based   on   the   court's 



assessment that the defendant's interest in disclosure is more important than the witness's 



interest in maintaining the confidentiality of the privileged information. 



                This issue has, however, arisen in other jurisdictions, and a majority of 



those   courts   have   concluded   that,   if   the   defendant   makes   a   sufficient   preliminary 



    5   Gunnerud, 611 P.2d at 71. 



    6   Spencer, 642 P.2d at 1374. 



                                                 -  19 -                                              2384 


----------------------- Page 20-----------------------

showing, the defendant is entitled to have the trial court conduct an in camera inspection 



of    a  government       witness's     mental    health    records    -    and   that   the   witness's 



psychotherapist-patient   privilege   can   be   overridden   if   the   trial   court   concludes   that 



portions of those records are sufficiently relevant to the defendant's guilt or innocence, 



or are sufficiently relevant to the witness's credibility. 



                See State v. Storlazzi, 464 A.2d 829, 832-33 (Conn. 1983); Bobo v. State , 



349 S.E.2d 690, 692 (Ga. 1986) (plurality opinion); State v. Peseti, 65 P.3d 119, 128 



(Haw. 2003); People v. Dace , 449 N.E.2d 1031, 1035 (Ill. App. 1983), aff'd, 470 N.E.2d 



993 (Ill. 1984); Commonwealth v. Stockhammer, 570 N.E.2d 992, 1002 (Mass. 1991); 



People v. Stanaway , 521 N.W.2d 557, 562 (Mich. 1994); State v. McBride, 517 A.2d 



152, 160 (N.J. App. 1986); People v. Acklin , 424 N.Y.S.2d 633, 636 (N.Y. Sup. Ct. 



1980); State v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992); State v. Green, 646 



N.W.2d 298, 304-312 (Wis. 2002); Gale v. State, 792 P.2d 570, 581-82 (Wyo. 1990). 



                But contra :  People v. Hammon , 938 P.2d 986, 993; 65 Cal.Rptr.2d 1, 7 



(Cal.    1997);  People     v.  District  Court ,   719   P.2d   722,   727   (Colo.   1986);  State    v. 



Famiglietti , 817 So.2d 901, 906 (Fla. App. 2002); Goldsmith v. State, 651 A.2d 866, 873 



(Md. 1995); Commonwealth v. Wilson, 602 A.2d 1290, 1296-98 (Pa. 1992). 



                See also Jaffee v. Redmond , 518 U.S. 1, 17-18; 116 S.Ct. 1923, 1932; 135 



L.Ed.2d 337 (1996) (a civil case in which the Supreme Court held that, under federal 



law, a witness's psychotherapist-patient privilege is absolute - that the protection of the 



privilege is not contingent on "a trial judge's later evaluation of the relative importance 



of the patient's interest in privacy and the evidentiary need for disclosure".               However, 



the Supreme Court did suggest that there might be generalized situations in which the 



privilege would not apply; see footnote 19, 518 U.S. at 18, 116 S.Ct. at 1932). 



                But even if this Court were to hold that a witness's psychotherapist-patient 



privilege    could    be  overridden     by  a  criminal    defendant's    constitutional    interest   in 



                                                 - 20 -                                             2384
 


----------------------- Page 21-----------------------

confronting the witness, we would not be able to affirm the superior court's order on this 



basis. 



                 As   we   have   explained,   when   the   superior   court   ordered   the  in   camera 



production of N.G.'s psychotherapy records, the court did so under the theory that those 



records likely contained a significant amount of non-privileged material (because of 



the   court's   overly   narrow   interpretation   of   what   sort   of   information   is   protected   by 



the   psychotherapist-patient   privilege).        The   superior   court's   announced   purpose   for 



conducting its in camera examination of N.G.'s psychotherapy records was to separate 



privileged     information      from   non-privileged      information     -    and   then   disclose    any 



relevant non-privileged information to Standifer's defense team. 



                 But as we explained in the preceding section of this opinion, there is little 



reason to think that N.G.'s psychotherapy records contain any significant amount of non- 



privileged information.         Instead, one would   expect that all, or essentially all, of the 



information      contained     in  those    records   is  covered     by   the  psychotherapist-patient 



privilege.   Thus, the superior court's rationale for conducting an in camera examination 



of those records was mistaken. 



                 The superior court never addressed the alternative question of whether the 



court might be legally justified in examining the psychotherapy records, and ultimately 



disclosing      information     contained     in  those    records,   even    if  that  information    was 



privileged.     Thus,   even   if   Alaska   law    allowed     trial   judges   to   balance   a   witness's 



psychotherapist-patient   privilege   against   a   defendant's   interest   in   disclosure   -  i.e., 



allowed     a   judge   to   conduct   an in   camera   examination        of   undisputedly   privileged 



materials     and   then,   potentially,   order   disclosure     of  some    or  all   of  this  privileged 



information to the defense - the fact remains that the superior court made no findings 



and no ruling on this issue in N.G.'s case. 



                                                   - 21 -                                              2384
 


----------------------- Page 22-----------------------

                The question, then, is whether this Court should remand this case to the 



superior court for consideration of this issue, or whether we should reverse the superior 



court's order outright.   The answer to this question hinges on whether Standifer's offer 



of proof could conceivably justify an in camera review of N.G.'s psychotherapy records. 



                We recently addressed an analogous issue in Booth v. State , 251 P.3d 369 



(Alaska App. 2011), a case that involved a defendant's request for disclosure of a police 



officer's personnel file. We held in Booth that the defendant was entitled to have the trial 



court conduct an in camera examination of the officer's personnel file if the defendant 



identified 



                 a   type   of   information     that   would     be   relevant    to  the 

                 defendant's guilt or innocence (in light of the facts of the 

                 case, the State's theory of prosecution, and the defendant's 

                theory of defense), and if this type of information is the kind 

                 of information that would be recorded in a police officer's 

                personnel file[.] 



Booth ,   251   P.3d   at   374.  We   further   held   in  Booth   that   if,   during   this in   camera 



examination,       the  judge   discovered     that  the  personnel     file  did  indeed   contain    this 



information, then the judge should turn the information over to the defense.  Ibid. 



                N.G.'s case differs from Booth because the files at issue in this case are not 



personnel files, but rather psychotherapy records. Arguably, even if the psychotherapist- 



patient privilege is not an absolute privilege, a person's psychotherapy records should 



still be entitled to greater protection than a public officer's employment records.                   See 



Commonwealth v. Barroso, 122 S.W.3d 554, 564 (Ky. 2003) (overruling an earlier, more 



lenient test, and holding that "in camera review of a witness's psychotherapy records is 



authorized only upon receipt of evidence sufficient to establish a reasonable belief that 



the records [actually] contain exculpatory evidence"). 



                                                  - 22 -                                             2384
 


----------------------- Page 23-----------------------

                We need not decide whether the Booth test applies to defense requests for 



in camera inspection of a person's psychotherapy records, or whether a more protective 



test should apply, or whether psychotherapy records are absolutely privileged, because 



we conclude that Standifer's request for production in this case fails to satisfy even the 



Booth test. 



                 Standifer requested disclosure of any portions of N.G.'s psychotherapy 



records that might contain evidence that N.G. lacked the "ability to accurately perceive 



or truthfully report [the] events" at issue in this case. In support of that request, Standifer 



pointed to portions of the record indicating that N.G. had a history   of treatment for 



alcohol   abuse   and   alcohol   withdrawal,   including   one   incident   where   she   may   have 



suffered an alcoholic blackout.   Standifer additionally relied on a notation made by one 



of the physicians who examined N.G., in which the physician indicated that N.G. had 



"a history of bipolar disorder". 



                But even assuming the truth of these suggestions that N.G. has a history of 



alcoholism and a history of bipolar disorder, the question is whether, given the other 



facts of this case, there is reason to believe that these mental conditions significantly 



impaired N.G.'s ability to perceive or relate the events at issue here.  As we noted in our 



order granting review in this case, the question is whether Standifer's offer of proof 



provided an evidentiary basis for concluding that persons who have experienced an 



alcoholic blackout at some point in the past, or who have a history of bipolar disorder, 



are therefore more likely to hallucinate or fundamentally misperceive events, or are more 



likely to be unable to discern truth from fiction in their later recounting of events. 



                This is essentially the test that our supreme court endorsed in Gunnerud v. 



State,   611   P.2d   69   (Alaska   1980).    As   we   explained   earlier,  Gunnerud   involved   a 



situation where the trial court was in possession of a psychiatric report dealing with a 



government   witness   (because   this   report   was   part   of   a   pre-sentence   report   that   was 



                                                  - 23 -                                             2384
 


----------------------- Page 24-----------------------

prepared   in   an   earlier   case   involving   the   witness).    The   question   was   whether   the 



defendant was entitled to disclosure of this psychiatric report. 



                 The trial judge examined the psychiatric report in camera and then declared 



that he was not going to disclose the report to the defendant "unless [the psychiatrist] can 



first advise [me] that the [patient's] history, and the examination, and [the] diagnosis 



[and] treatment, or ... any prognosis that he might have concerning this witness would 

be such as to bear upon her credibility." 7          In other words, the trial judge was unwilling 



to   assume   that the   witness's   credibility   was   in   doubt simply   because   she   had   been 



diagnosed with, or treated for, mental illness.             The supreme court upheld the judge's 



decision. 



                 See also Pickens v. State , 675 P.2d 665 (Alaska App. 1984), where this 



Court addressed the related issue of whether the trial court should have granted the 



defendant's request for a court order directing the alleged victim in a sexual assault case 



to   submit to a psychological examination.              Despite the fact that there was evidence 



indicating that the victim, V.C., suffered from emotional problems, and that she ingested 



both alcohol and cocaine before the offense, we concluded that the defendant's offer of 



proof     was   inadequate      to  support    an   order    requiring    the   victim    to  submit    to  a 



psychological examination: 



                         Pickens   failed     to  make   an    adequate   showing       of   a 

                 potential relationship between V.C.'s psychiatric condition 

                 and    her   veracity    as  a  trial  witness    ...  . Pickens     relied 

                 exclusively   on   an   affidavit   ...   stating   that   V.C.   threatened 

                 suicide two months prior to the sexual assault[,] and that she 

                 had previous emotional problems.              The affidavit also noted 

                 that V.C. had used cocaine and was intoxicated at the time of 

                 the offense. On the basis of this affidavit, Pickens argues that 



    7    Gunnerud, 611 P.2d at 72. 



                                                   - 24 -                                                2384 


----------------------- Page 25-----------------------

                 psychiatric testimony would have aided the jury in assessing 

                 how      alcohol    and    cocaine    might     have    affected    V.C.'s 

                 credibility.    [But]   Pickens   does   not   indicate   any   specific 

                 reason to believe that V.C.'s prior emotional problems might 

                 have affected her veracity. 



                         The     general     assertions    that   V.C.    had   previously 

                 suffered emotional problems of an unspecified nature and that 

                 she    used   cocaine    and   alcohol   before     the  offense    do  not 

                 directly   call   into   question   her   psychiatric   condition   or   the 

                 relationship   of   her   condition   to   her   veracity   as   a   witness. 

                 Defense counsel's speculation that a psychiatric evaluation of 

                 the   victim   might   turn   something   up   does   not   amount   to   a 

                 showing of necessity justifying a court-ordered evaluation. 

                 We think that, at the very least, it would have been incumbent 

                 upon Pickens to make a specific showing of good cause to 

                 believe, first, that V.C.'s ability to perceive events accurately 

                 or to relate those events truthfully was substantially impaired 

                 and, second, that this impairment was of such a nature that a 

                 psychological       evaluation     would    be   likely   to  confirm    its 

                 existence or to provide material information as to its scope. 



Pickens , 675 P.2d at 668-69. 



                 Standifer's offer of proof in the present case suffers from the same defect. 



His request for production of N.G.'s psychotherapy records rests on his implicit assertion 



that a person who suffers from alcoholism and/or bipolar disorder is, as a consequence, 



significantly more likely to fundamentally misperceive events, or significantly less likely 



to be able to discern truth from fiction in their later recounting of events. 



                 Conceivably, Standifer's assertion might be true - but we are unable to 



simply assume the truth of this assertion, and the record in front of us does not support 



this assertion. Accordingly, Standifer's offer of proof that N.G. suffers from alcoholism, 



                                                   - 25 -                                               2384
 


----------------------- Page 26-----------------------

and    may    suffer  from   bipolar   disorder,   was    not   sufficient   to  justify  an in  camera 



examination of her psychotherapy records. 



                We note that, as part of Standifer's offer of proof, Standifer relied on an 



earlier court record indicating that, about two and a half years before the incident in 



Standifer's   case,   N.G.   was   arrested   for   shoplifting   in   Fairbanks,   and   when   she   was 



interviewed by the police, she claimed that she was innocent and that she had "blacked 



out". 



                Recently, in Milligan v. State , 286 P.3d 1065 (Alaska App. 2012), this 



Court held that evidence of a witness's prior alcoholic blackouts would be relevant if the 



proponent of this evidence showed that the witness was drinking at the time of the events 



being litigated, and that the witness's prior alcoholic blackouts were recent. Id. at 1069- 



 1070. 



                But here, Standifer did not offer evidence that some third person observed 



N.G. experiencing a blackout, or that a medical care provider diagnosed N.G. as having 



experienced a blackout. Rather, Standifer relied on N.G.'s own exculpatory assertion to 



the   police   that   she  was  not   guilty  of   shoplifting   because   she   was   experiencing     a 



"blackout".     In addition, the incident in question occurred in January 2008, approxi- 



mately two and a half years before the events in Standifer's case.  For these reasons, we 



conclude that Milligan is distinguishable. 



                In sum, we conclude that Standifer's offer   of proof was insufficient to 



justify an  in camera examination of N.G.'s privileged psychotherapy records. 



        Conclusion 



                The superior court's order is REVERSED. 



                                                 - 26 -                                            2384
 


----------------------- Page 27-----------------------

BOLGER, Judge, concurring. 



                 I   agree   with   the   reasonably   broad   construction   of   the   psychotherapist- 



patient   privilege   discussed   in   the   lead   opinion.    I   write   separately   to   note   that   this 



construction avoids some thorny constitutional questions. 



                 For   example,   N.G.   argues   that   an   order   compelling   a   crime   victim   to 



provide a list of all of her health care providers could violate the victim's right to privacy 

under Article I,  22 of the Alaska Constitution.1            In view of this fundamental right, it is 



arguable that any such order must be narrowly drawn so that disclosure is limited to 

information for which there is a demonstrable and compelling need.2 



                 Moreover, as a crime victim, N.G. had the right to be "treated with dignity, 



respect, and fairness during all phases of the criminal ... process" under Article I,  24 



of the Alaska Constitution.          Construing similar constitutional language, another state 



court has required a criminal defendant, in order to justify in camera review of a crime 



victim's treatment records, to make a strict foundational showing that there is:  (1) a 



reasonable certainty that exculpatory evidence exists, which would be favorable to the 



defense; and (2) a reasonable probability that, if the evidence were disclosed to the 

defense, the result of the proceeding would be different.3 



                 We are not required to decide these constitutional questions because the 



disclosure   order   in   this   case   unnecessarily   infringes   on   the   psychotherapist-patient 



    1   See Falcon v. Alaska   Pub. Offices Comm'n , 570 P.2d 469, 479-80 (Alaska 1977) 



(annulling a statute that required doctors seeking public office to disclose the names of their 

patients). 



    2   See   Messerli   v.   State,   626   P.2d   81,   86   (Alaska   1980)   (holding   that   a   campaign 



disclosure statute that affected the right to privacy would have to be justified by a "legitimate 

and compelling governmental interest"). 



    3   See State v. Blake, 63 P.3d 56, 60 (Utah 2002). 



                                                   - 27 -                                               2384
 


----------------------- Page 28-----------------------

privilege.  But these circumstances serve as a reminder that a healthy construction of this 

privilege is necessary to avoid infringing privacy interests protected by the constitution.4 



   4   See State v. R.H ., 683 P.2d 269, 280-81 (Alaska App. 1984).
 



                                            - 28 -                                       2384
 

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