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NOTICE
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Pacific Reporter. Readers are encouraged to bring typographical or other
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303 K Street, Anchorage, Alaska 99501
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E-mail: corrections @ akcourts.gov
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN ROBERT DOUGLAS,
Court of Appeals Nos. A-12755 & A-12756
Appellant, Trial Court Nos. 3AN-14-04783 CR
& 2KB-05-00526 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2741 - March 17, 2023
Appeal from the Superior Court, Third Judicial District,
Anchorage, Michael L. Wolverton, Judge.
Appearances: Justin Facey, Assistant Public Advocate, and
James Stinson, Public Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD.
In N.G. v. Superior Court, we addressed, but did not resolve, the question
of whether there are circumstances under which a government witness's assertion of the
psychotherapist-patient privilege must yield to a criminal defendant's constitutional right
----------------------- Page 2-----------------------
1
to a fair trial. In N.G., we noted that the majority of jurisdictions addressing this issue
had concluded that "if the defendant makes a sufficient preliminary showing, the
defendant is entitled to have the trial court conduct an in camera inspection of a
government witness's mental health records," and had further concluded 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
2
innocence, or are sufficiently relevant to the witness's credibility."
Although we noted this majority approach in N.G., we did not directly
adopt the majority rule under Alaska law because we concluded that resolution of N.G.
3
did not require us to decide this issue.
The current case, however, requires us to resolve
this issue and to further define the legal standard that a defendant must meet to obtain in
camera review of privileged mental health records that are in the hands of a third party
4
and not known to the prosecution.
The defendant in the current case, John Robert Douglas, was convicted,
following a jury trial, of second-degree sexual assault for grabbing a woman's breast in
5
an elevator.
At the time of the incident, the woman (R.D.) had a full legal guardian who
1 N.G. v. Superior Court, 291 P.3d 328, 335-38 (Alaska App. 2012).
2 Id. at 337.
3 Id. at 337-38.
4 But cf. Gunnerud v. State, 611 P.2d 69, 71-73 (Alaska 1980) (addressing standard for
obtaining witness's psychotherapy records that are in the possession of the prosecution);
Spencer v. State, 642 P.2d 1371, 1374-76 (Alaska App. 1982) (same).
5 Former AS 11.41.420(a)(1) (2014).
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----------------------- Page 3-----------------------
had been appointed ten years earlier after R.D. suffered a traumatic brain injury from a
6
serious car accident.
Prior to trial, Douglas moved for discovery of neuropsychological records
in R.D.'s guardianship file on the ground that these records likely contained information
that could be favorable to the defense regarding R.D.'s ability to recall, comprehend, and
accurately relate what occurred in the elevator. Douglas renewed this motion during
trial, after it became clear that R.D. had memory issues and still suffered from some of
the cognitive effects of the traumatic brain injury.
The superior court denied both requests, ruling that it had no authority to
order an in camera review under our decision in N.G. because the neuropsychological
reports were privileged by statute and by Alaska's psychotherapist-patient privilege.
But, as just explained, N.G. did not resolve the question of whether
Alaska's psychotherapist-patient privilege can be overridden in criminal cases, and our
decision provided very little guidance on what type of showing a defendant must make
to obtain in camera review of otherwise privileged mental health records. Accordingly,
we now resolve those questions by formally adopting a test similar to the one used by the
majority of jurisdictions that have addressed this issue. Under this test, a defendant is
entitled to in camera review of privileged mental health records if the defendant can
show a reasonable likelihood that the records contain exculpatory evidence that is
relevant to the defense and unavailable from less intrusive sources. If the in camera
inspection subsequently reveals materially exculpatory evidence - i.e., evidence,
6 See AS 13.26.316(c) (providing that a guardian of an incapacitated person has the
same powers and duties for the ward that a parent has for an unemancipated minor child, with
few exceptions); AS 13.26.201 (describing the purpose of a guardian and basis for a
guardianship); AS 13.26.266 (allowing for the court appointment of a guardian if the court
determines that a person is incapacitated and services of a guardian are necessary).
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----------------------- Page 4-----------------------
including impeachment evidence, that is favorable to the accused and material to guilt
or innocence - then that evidence must be disclosed to the defendant.
Because we conclude that Douglas met this standard, we remand this case
to the superior court so that the court can conduct the requested in camera review and
disclose any materially exculpatory evidence that may exist in the records. The parties
may then litigate whether Douglas is entitled to a new trial or whether the failure to
conduct the in camera review was harmless beyond a reasonable doubt under the facts
of this case.
Background facts and prior proceedings
On May 30, 2014, R.D. went to pick up a check from her guardian at the
Office of Public Advocacy. R.D. went into the building alone, although her mother
waited for her outside the building.
After picking up her check, R.D. noticed a man (later identified as Douglas)
standing next to her at the elevators looking at his phone. He bumped into her while they
were waiting for the elevator, but she thought that it was accidental. When the elevator
arrived, they both boarded the elevator. Douglas stood right next to R.D., even though
the elevator was otherwise empty. The elevator stopped on another floor and three
people got on. The elevator stopped again and the three people got off, leaving R.D.
alone with Douglas.
According to R.D.'s testimony at trial, as the elevator doors closed, Douglas
"grabbed [R.D.'s] boob and . . . private part." Douglas grabbed R.D.'s right breast
"[r]eally, really, really hard" with one hand and "dug[] . . . really hard" into the "middle"
of R.D.'s "vagina area" with the other. R.D. testified that she began to scream and
Douglas punched her "[v]ery hard" in her forehead, above her right eye.
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----------------------- Page 5-----------------------
When the elevator doors opened to the lobby, a receptionist saw R.D. and
Douglas engaged in a struggle. The receptionist testified that at first she thought they
were "horsing around" with Douglas pushing and pulling at R.D. and her telling him to
"knock it off" and "[s]top it." But then she saw Douglas attempt to rip R.D.'s pants
down and she heard R.D. screaming for Douglas to stop. The receptionist stood up from
her desk and made eye contact with Douglas, who moved like he was going to leave.
She then called building security.
While the receptionist was still on the phone with building security,
Douglas came back to the elevators where R.D. was standing. The receptionist heard "a
blood-curdling scream" followed by R.D.'s cries that Douglas was hurting her. The
receptionist ran into the lobby. Douglas then ran out of the building and was chased by
two co-workers of the receptionist who had been alerted to what was going on.
The receptionist called 911. While she was calling 911, the receptionist
saw R.D. crying, walk outside, clutch her lower abdomen, and collapse.
The two co-workers caught up with Douglas at a nearby parking garage,
and Douglas was apprehended by security personnel.
Anchorage Police Officer Heidi Schaeffer interviewed R.D. at the scene.
R.D. was "very upset" but she declined medical attention. R.D. told the officer that
Douglas had grabbed her breast and genital area during the assault. Officer Schaeffer
noticed a red scratch on R.D.'s left forearm, but she did not take any photographs.
Officer Schaeffer took R.D. to the police car where Douglas was
handcuffed. When R.D. and Officer Schaeffer both looked into the window, Douglas
began making "crude" facial expressions, wagging his tongue back and forth. R.D.
identified Douglas as her assailant. When Officer Schaeffer escorted Douglas to jail, she
noticed that his jeans were buttoned, but unzipped.
- 5 - 2741
----------------------- Page 6-----------------------
A grand jury later indicted Douglas on one count of second-degree sexual
assault for engaging in sexual contact ("hand to genitals and/or female breast") with R.D.
"without consent."7
Douglas's pretrial motion for in camera review of R.D.'s
guardianship file
At the grand jury hearing, R.D. testified that she had a full legal guardian.
She characterized the guardian as someone who helps her with money issues. She also
testified that she was in a car accident ten years earlier that left her with "[m]ajor"
medical issues and caused her to walk slowly.
Following the grand jury proceedings, Douglas filed a motion requesting
that the superior court provide discovery of the neuropsychological reports that were part
of R.D.'s guardianship file. Douglas argued that these portions of the guardianship
8
records were not privileged and instead were only "confidential" under Alaska law.
According to Douglas, there was good cause to conduct an in camera review of these
parts of the guardianship file because the appointment of the guardian necessarily meant
that R.D. had been found to be incapacitated by a court. Douglas further argued that the
7 See former AS 11.41.470(8)(A) (2015) ("'without consent' means that a person . . .
with or without resisting, is coerced by the use of force against a person or property, or by
the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted
on anyone.").
8 See AS 13.26.021(a) (formerly AS 13.26.013(a)) (allowing courts to release "[a]ll . . .
information contained in the court records" relating to guardianship proceedings "upon court
order for good cause shown"). But see AS 13.26.241(b) (formerly AS 13.26.109(b))
("Statements of a ward or respondent in the course of evaluations, examinations, and
treatment [in guardianship proceedings] are privileged, confidential, and not admissible
without the ward's or respondent's consent in any civil or criminal proceeding other than
[guardianship] proceedings[.]").
- 6 - 2741
----------------------- Page 7-----------------------
"major" medical issues that R.D. alluded to at the grand jury hearing likely included
traumatic brain injury, and traumatic brain injuries can "affect [a person's] thinking
skills, communication, and emotions."
The State opposed the motion, asserting that the neuropsychological and
9
court visitor reports that Douglas wanted reviewed were privileged under Alaska law.
The State characterized Douglas's motion as a "fishing expedition" based on mere
"speculat[ion]" that R.D. had a traumatic brain injury, and the State argued that there was
no evidence that R.D. suffered from any cognitive deficits or that she had any difficulty
perceiving or remembering the incident.
R.D. separately opposed the motion for in camera review, arguing that the
requested portions of her guardianship file should be treated as absolutely privileged
under Alaska law. She also argued, in the alternative, that any in camera review be
limited to reports from the time of the events of this matter - May 30, 2014 - to the
time of the motion.
The superior court denied Douglas's pretrial motion for in camera review
of R.D.'s guardianship records. The superior court ruled first that the records were
10
privileged under AS 13.26.241(b) (formerly AS 13.26.109(b)
) and Alaska Evidence
Rule 504(b) (thepsychotherapist-patient privilege), and that any in camera review would
11
therefore be governed by this Court's decision in N.G. v. Superior Court.
The court
9 See AS 13.26.241(b) (formerly AS 13.26.109(b)); see also Alaska R. Evid. 504(b) (the
psychotherapist-patient privilege).
10 Since the time of Douglas's offense and the proceedings before the superior court in
this case, the guardianship statutes have been renumbered. However, they were not
substantively changed and, going forward, we will refer to the current statutory numbering
scheme.
11 N.G. v. Superior Court, 291 P.3d 328 (Alaska App. 2012).
- 7 - 2741
----------------------- Page 8-----------------------
then found that Douglas failed to meet even the Booth standard discussed in N.G.
because he offered only "a number of very speculative assumptions" that R.D. had a
traumatic brain injury.12
Douglas's mid-trial renewed motion for in camera review of
the neuropsychological reports
At trial, more information about R.D.'s cognitive functioning emerged,
including the fact that she had suffered a traumatic brain injury and that she had some
memory issues as a result.
R.D.'s mother was the State's first witness. According to R.D.'s mother,
R.D. suffered from brain damage as a result of injuries sustained in a 2004 car collision.
13
For this reason, R.D. required a guardian.
She was also unable to live independently,
and required a personal care assistant and a conservator to manage her finances.
R.D.'s mother testified that R.D. had "regained the majority of her
memories," but she stated that R.D. occasionally had lapses in memory and had trouble
keeping appointments straight. According to R.D.'s mother, R.D.'s long-term and short-
term memory "seem[ed] to be working okay." And in response to defense counsel
asking whether R.D. had a "hard time remembering things," R.D.'s mother stated, "Not
things like this incident."
12 Booth v. State, 251 P.3d 369, 377 (Alaska App. 2011) (determining that "a defendant
must present a factual predicate for their discovery request - either pointing to facts already
within the record, or making an offer of proof that provides the evidentiary foundation for
the request").
13 The record indicates that, at the time of the underlying incident, R.D. had a full
guardian. However, it appears that the guardianship may have been partially dissolved by
the time of trial, and there was testimony suggesting that R.D. no longer had a full guardian,
although she did have a conservator and a personal care assistant.
- 8 - 2741
----------------------- Page 9-----------------------
R.D. also testified at the trial. R.D. testified that she had been in a car
accident and "smashed [her] head really hard, and . . . had head trauma where . . . [her]
brain fill[ed with] fluid, and all the fluid leaked out." The prosecutor asked R.D. if she
was referring to a traumatic brain injury, and R.D. replied that she was. Later, when the
defense attorney attempted to cross-examine R.D. about her injuries, R.D. asked what
her "personal business" had to do with the case.
During her direct examination, R.D. testified that Douglas grabbed her
breast "[r]eally, really, really hard." R.D. also testified that Douglas grabbed her above
her vagina, but that he did not touch her vagina.
The next day, after the State had rested its case-in-chief, R.D. told the
prosecutor's paralegal that, after thinking it over the previous night, she remembered
more of what had happened during her altercation with Douglas and she wanted to
supplementher testimony. Specifically,R.D. wanted to clarify that shenow remembered
that Douglas had touched her vagina. The prosecutor accordingly moved to reopen the
State's case.
The defense attorney objected to the State's case being reopened. The
defense attorney also argued that this kind of situation might have been avoided if the
court had granted discovery of the neuropsychological records because the parties would
have better known how to prepare for R.D.'s testimony.
The court had R.D. testify outside the presence of the jury to determine
what she wanted to say. Using a tissue box to demonstrate, R.D. testified that she was
thinking about the incident last night and she now remembered that Douglas's palm had
been on her vagina at the time he was grabbing at her lower abdomen. The defense
attorney expressed frustration at trying to cross-examine R.D., noting, "[W]e're dealing
with a complaining witness who has a serious traumatic brain injury." The superior
court acknowledged that this was the case.
- 9 - 2741
----------------------- Page 10-----------------------
Douglas then renewed his request for an in camera review of the
neuropsychological reports in the guardianship file, arguing that the testimony at trial
had established that R.D. had a traumatic brain injury and that she might have cognitive
difficulties and problems perceiving and remembering events.
Significantly, the prosecutor did not oppose the in camera review. The
prosecutor pointed out that he had not been the assigned prosecutor when the initial in
camera review request was litigated and he was not familiar with the litigation. But he
"assum[ed] if there had been matters in the confidential filing that touched on memory
loss, that the [c]ourt would have examined that . . . [and] ordered it disclosed." The
prosecutor also stated that he "assum[ed] those [confidential] matters . . . remain in the
sealed record of the court for appellate review," and he stated that he would leave it to
the court's discretion whether to "reopen that issue and reexamine the in camera
materials in light of this development."
The court took a short recess and then returned with its ruling. The court
ruled that it would allow the State to reopen its case so that R.D. could testify to her new
memory. But the court denied Douglas's renewed motion for an in camera review of the
neuropsychological records in the guardianship file, concluding that this Court's decision
in N.G. precluded any such review. The court noted that it had been the trial court in
N.G. and that, while it disagreed with this Court's decision in N.G., it was bound to
follow it.
R.D. then testified for a second time, stating that she now remembered that
Douglas's palm had been on her vagina at the time he grabbed at her "private area." On
cross-examination, R.D. acknowledged that she had not said this explicitly in her police
report or grand jury testimony.
Following the close of evidence, the defense attorney moved for ajudgment
of acquittal on the hand-to-vagina theory of sexual assault. The court denied the motion.
- 10 - 2741
----------------------- Page 11-----------------------
During closing argument, the defense attorney argued that Douglas was
trying to steal R.D.'s check, but that he did not sexually assault her. The defense
attorney focused on the inconsistencies between R.D.'s testimony and her mother's
testimony. The defense attorney also emphasized R.D.'s memory problems.
The jury ultimately determined beyond a reasonable doubt that Douglas had
touched R.D.'s breast "without consent."14
However, the jury did not reach a unanimous
verdict with regard to the allegation that Douglas had touched R.D.'s vagina.
15
This appeal followed.
The parties' arguments on appeal regarding whether the information that
would be subject to the in camera review is privileged or merely
confidential
In his opening brief, Douglas argues that he was seeking in camera review
of information in the guardianship file that was merely confidential, not privileged.
Douglas bases this argument on AS 13.26.021(a), the statute that sets forth the general
disclosure rules for guardianship proceedings. This statute provides that, while some
documents relating to the existence of a guardianship are available for public inspection,
14 See former AS 11.41.470(8)(A) (2015) ("'without consent' means that a person . . .
with or without resisting, is coerced by the use of force against a person or property, or by
the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted
on anyone").
15 We note that, following the jury's guilty verdict, the superior court revoked Douglas's
probation in a separate case and imposed the remainder of his suspended sentence (Case No.
2KB-05-00526CR). Although the probation case was consolidated with the second-degree
sexual assault case on appeal, Douglas does not challenge the adjudication or disposition of
his probation violation.
- 11 - 2741
----------------------- Page 12-----------------------
the information contained in court records relating to a guardianship is otherwise
confidential and may be released only to case participants or "for good cause shown."16
In response, the State argues that, while there are some parts of a
guardianship file that are merely confidential, Douglas's request was primarily to have
the neuropsychological reports reviewed, and those reports are privileged under Alaska
Evidence Rule 504(b), the psychotherapist-patient privilege. The State also argues that
any statements by R.D. in those records would be protected under AS 13.26.241(b),
which provides:
Statements of a ward or respondent in the course of
evaluations, examinations, and treatment [in guardianship
proceedings] are privileged, confidential, and not admissible
without the ward's or respondent's consent in any civil or
criminal proceeding other than [guardianship] proceedings[.]
In his reply brief, Douglas concedes t hat the State is correct and that the
portions of the guardianship file that he sought to have reviewed are privileged.
We agree with the parties that the neuropsychological reports in the
guardianship file are privileged under Alaska Evidence Rule 504(b). We also agree that,
under AS 13.26.241(b), any statements by R.D. in the guardianship file are privileged.
Because the majority of the requested in camera review would primarily involve
privileged material, we now turn to our decision in N.G. v. Superior Court, in which we
16 AS 13.26.021(a) ("A notice of the filing of a petition, a summary of all formal
proceedings, and a dispositional order or modification or termination of a dispositional order
relating to a proceeding under this chapter shall be available for public inspection. All other
information contained in the court records relating to a proceeding under this chapter is
confidential and available only upon court order for good cause shown . . . .").
- 12 - 2741
----------------------- Page 13-----------------------
discussed what standard should apply when a defendant seeks in camera review of
17
privileged mental health documents that are held by a third party.
Our decision in N.G. v. Superior Court
The defendant in N.G. was charged with sexual assault, attempted sexual
assault, and physical assault based on allegations that he had attacked a woman named
18
N.G.
Prior to trial, the defendant moved for discovery of N.G.'s "medical, alcohol
treatment[, and] psychiatric records," asserting that he was entitled to these records
19
because they could include information that was relevant to his defense.
The only
support that the defendant provided for this request was (1) case notes from the sexual
assault examination report stating that N.G. had a history of alcohol abuse and "a history
of bipolar disorder"; and (2) N.G.'s criminal history, which included convictions that
20
may have been for alcohol-related crimes and may have included an alcohol blackout.
In response to the defendant's request, the trial court issued an order
requiring N.G. to produce the names and addresses of "every health care provider from
whom she had ever sought medical treatment, psychiatric care or psychological
21
counseling, or alcohol counseling or treatment." The order also required N.G. to sign
a blanket release authorizing all of these health care providers to turn their files over to
the trial court so that the court could conduct an in camera review of the files and
disclose any materials that were relevant to "[N.G.'s] ability to accurately perceive or
17 N.G. v. Superior Court, 291 P.3d 328 (Alaska App. 2012).
18 Id. at 329.
19 Id. at 329-30.
20 Id. at 329.
21 Id.
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----------------------- Page 14-----------------------
22
truthfully report [the] events" at issue in the case. The trial court justified its order
based on its view that the records would likely contain information that was not
privileged under the psychotherapist-patient privilege.23
The Office of Victims' Rights subsequently filed an original application
with this Court on N.G.'s behalf, arguing that the trial court erred in its interpretation of
24
the psychotherapist-patient privilege.
This Court agreed with the Office of Victims' Rights that the trial court had
25
taken too narrow a view of the psychotherapist-patient privilege. We held that the
protections of Evidence Rule 504(b) extend not only to "confidential communications"
between a patient and their psychotherapist but also to "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
26
psychotherapist through confidential communications." We also noted that the
definition of "psychotherapist" under the rule was intended to be very broad and to
encompass not only psychiatrists and psychologists, but also all licensed professional
counselors, all licensed marital and family therapists, and "[any] person authorized to
22 Id. at 330 (alterations in original).
23 Id.
24 Id. at 328, 330; see also Brief of Petitioner at 6, 29-32, N.G. v. Superior Court, 291
P.3d 328 (Alaska App. 2012) (No. A-11049), 2011 WL 13383948, at *6, *30-32.
25 N.G., 291 P.3d at 331-34.
26 Id. at 332.
- 14 - 2741
----------------------- Page 15-----------------------
practice medicine . . . while engaged in the diagnosis or treatment of a mental or
27
emotional condition, including alcohol or drug addiction."
We therefore concluded that the trial court erred when it assumed that the
requested mental health and alcohol treatment records would contain significant amounts
28
of non-privileged information. Instead, it was likely that virtually all of the requested
29
records would qualify as privileged.
We then turned to the larger question of whether, and under what
circumstances, a witness's interests in the confidentiality of their privileged mental health
30
information must yield to a defendant's constitutional right to confrontation.
We noted
that the majority of other jurisdictions that have considered this issue have held that "if
the defendant makes a sufficient preliminary showing, the defendant is entitled to have
the trial court conduct an in camera inspection of a government witness's mental health
31
records."
These jurisdictions have likewise held that a "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,
32
or are sufficiently relevant to the witness's credibility."
We concluded, however, that we did not need to resolve this question in
N.G. because, even assuming that we would follow the majority of jurisdictions in
holding that the psychotherapist-patient privilege could be overridden under certain
27 Id. at 331 (alteration and omission in original).
28 Id. at 334.
29 Id.
30 Id. at 335-40.
31 Id. at 337.
32 Id.
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----------------------- Page 16-----------------------
circumstances, the defendant in N.G. had failed to make even the minimal preliminary
33
showing that would be required. We described this minimal showing as the standard
we adopted in Booth v. State.34
In Booth, we addressed the question of what type of showing was required
to grant a defendant's request for in camera review of law enforcement personnel
35
We held that a defendant would be
records, which are confidential under Alaska law.
entitled to this type of review if:
the defendant identifies 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
[36]
officer's personnel file.
We further held that if, during the in camera review, the court discovered that the
personnel file did contain information relevant to the defendant's guilt or innocence, then
37
the court should turn that information over to the defense.
We emphasized, however,
that a defendant must support the motion for in camera review "with more than
38
conclusory statements or unsupported assertions."
33 Id. at 338.
34 Id. (discussing Booth v. State, 251 P.3d 369, 374 (Alaska App. 2011)).
35 Booth, 251 P.3d at 373-78.
36 Id. at 374 (citing Dana v. State, 623 P.2d 348 (Alaska App. 1981)); see also People
v. Gissendanner, 399 N.E.2d 924 (N.Y. 1979).
37 Booth, 251 P.3d at 374.
38 Id. at 376. Similarly, Alaska Criminal Rule 42(b)(2) requires that a motion must be
supported by "a detailed statement of material facts which can be proved by the [moving]
(continued...)
- 16 - 2741
----------------------- Page 17-----------------------
In N.G., we held that the defendant had failed to meet the Booth test
39
because the defendant's offer of proof was too speculative. That is, the defendant did
not provide a sufficient 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
40
recounting of events."
We therefore reversed the trial court's order granting in camera
review of "every health care provider from whom [N.G.] had ever sought medical
treatment, psychiatric care or psychological counseling, or alcohol counseling or
treatment."41
Why we conclude that the superior court erred in ruling that N.G.
precluded any in camera review of R.D.'s guardianship file
In the current case, the superior court denied Douglas's renewed motion for
in camera review of the neuropsychological records in R.D.'s guardianship file because
the court read N.G. as precluding any such review. We agree with Douglas that this was
error. As just explained, we did not resolve in N.G. whether, and under what
circumstances, in camera review of privileged mental health documents should occur
under Alaska law because the defendant in N.G. did not even meet the Booth standard
required for in camera review of merely confidential documents.
38 (...continued)
party."
39 N.G., 291 P.3d at 338-40.
40 Id.
41 Id. at 329, 340.
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----------------------- Page 18-----------------------
Here, in contrast to N.G., Douglas did put forward an offer of proof that
was more than sufficient to meet the Booth relevancy standard. Certainly by the time of
the renewed motion at trial, it was clear that R.D.'s guardianship file would likely
contain information that was relevant to R.D.'s ability to accurately perceive, recount,
and/or recall the events in dispute and that this information could be directly relevant to
the defense attorney's ability to effectively cross-examine R.D. at trial.
This case therefore requires us to resolve the legal questions we left open
in N.G. - namely, whether there are circumstances under which a witness's
psychotherapist-patient privilege must yield to a defendant's constitutional rights and,
if so, what type of showing a defendant must make to obtain in camera review of such
privileged information.
Why we conclude that the psychotherapist-patient privilege must, under
certain circumstances, yield to a defendant's constitutional rights
On appeal, the State urges us to hold that Alaska's psychotherapist-patient
privilege presents an absolute bar to disclosure in criminal cases.
In support of this argument, the State cites to Jaffee v. Redmond.42
In
Jaffee, the United States Supreme Court held that a civil plaintiff was not entitled to
discovery of statements that a police officer made to a licensed social worker because
43
those statements were protected by the federal psychotherapist-patient privilege. In
reaching this holding, the Court emphasized that the psychotherapist-patient privilege
44
The Court
was protective of both a patient's privacy interests and the public good.
42 Jaffee v. Redmond , 518 U.S. 1 (1996).
43 Id. at 4-5, 18.
44 Id. at 11.
- 18 - 2741
----------------------- Page 19-----------------------
explained that "[e]ffective psychotherapy . . . depends upon an atmosphere of confidence
and trust" and therefore "the mere possibility of disclosure may impede development of
the confidential relationship necessary for successful treatment."45
The Court further
explained that "[t]he psychotherapist privilege serves the public interest by facilitating
the provision of appropriate treatment for individuals suffering the effects of a mental or
emotional problem" and that "[t]he mental health of our citizenry, no less than its
physical health, is a public good of transcendent importance."46
In dicta, the Jaffee Court seemingly rejected a balancing approach that
would have weighed the various interests at stake and allowed disclosure under certain
circumstances. Instead, the Court opined that "[a]n uncertain privilege, or one which
purports to be certain but results in widely varying applications by the courts, is little
47
The Court declined, however, to hold that the privilege
better than no privilege at all."
was absolute, concluding that "it [was] neither necessary nor feasible to delineate its full
48
contours in a way that would 'govern all conceivable future questions in this area.'"
We consider Jaffee to be of only marginal relevance to the current case.
Jaffee is a civil case, and, as such, it does not involve a criminal defendant's
49
constitutional rights. Indeed, many federal and state courts have declined to extend the
45 Id. at 10.
46 Id. at 11.
47 Id. at 18 (quoting Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)).
48 Id. (quoting Upjohn, 449 U.S. at 386). The Court also recognized that there probably
were circumstances where the privilege must yield: "we do not doubt that there are situations
in which the privilege must give way, for example, if a serious threat of harm to the patient
or to others can be averted only by means of a disclosure by the therapist." Id. at 18 n.19.
49 See U.S. Const. amend. V, VI, XIV; Alaska Const. art. I, § 11; cf. Davis v. Alaska, 415
(continued...)
- 19 - 2741
----------------------- Page 20-----------------------
50
Jaffee reasoning into the criminal context for that reason. Instead, these courts have
applied a balancing approach to this issue and have held that there will be circumstances
where the psychotherapist-patient privilege must yield to a defendant's due process right
to present a defense as well as a defendant's constitutional rights to confrontation, cross-
examination, and compulsory process.51
49 (...continued)
U.S. 308 (1974) (holding that a state's interest in the confidentiality of juvenile records must
yield to a criminal defendant's Sixth Amendment right to confront the witnesses against
them).
50 See, e.g., Bassine v. Hill, 450 F. Supp. 2d 1182, 1185-86 (D. Or. 2006) (distinguishing
Jaffee and concluding that criminal defendant's constitutional rights outweighed privacy
interest in psychotherapy records); United States v. Mazzola, 217 F.R.D. 84, 88-89 (D. Mass.
2003) (declining to extend Jaffee to criminal case and holding that societal interests in
guarding the confidentiality of communications between a therapist and client were
outweighed by a criminal defendant's constitutional right to effectively prepare and cross-
examine a witness); United States v. Hansen, 955 F. Supp. 1225, 1226 (D. Mont. 1997)
(holding that a criminal defendant's demonstrated need for the records outweighed the
witness's privilege, and noting that this was "consistent with the Jaffee Court's intent that
the precise contours of the privilege be developed in specific cases"); State v. Fay, 167 A.3d
897, 909 (Conn. 2017) (holding that "the balance of equities in criminal cases involving the
psychiatrist-patient privilege of a homicide victim is significantly different than in civil cases
like Jaffee" and concluding that a criminal defendant is entitled to in camera review if they
can establish a compelling need); Commonwealth v. Barroso , 122 S.W.3d 554, 558 (Ky.
2003) (noting that, unlike in Jaffe , balancing of interests in criminal cases involves
defendant's constitutional rights); State v. Johnson , 102 A.3d 295, 303-06 (Md. 2014)
(distinguishing Jaffee and holding that the victim's right to assert a privilege may, under
certain circumstances, have to yield to the criminal defendant's constitutional rights at trial).
51 See, e.g., D.P. v. State, 850 So. 2d 370, 374 (Ala. Crim. App. 2002); State v. Slimskey,
779 A.2d 723, 731-32 (Conn. 2001); Burns v. State, 968 A.2d 1012, 1024-25 (Del. 2009);
Bobo v. State, 349 S.E.2d 690, 692 (Ga. 1986); State v. Peseti, 65 P.3d 119, 128 (Haw.
2003); Barroso, 122 S.W.3d at 563; Commonwealth v. Dwyer, 859 N.E.2d 400, 415-16
(Mass. 2006); People v. Stanaway, 521 N.W.2d 557, 575 (Mich. 1994); State v. Hummel, 483
(continued...)
- 20 - 2741
----------------------- Page 21-----------------------
Thus, for example, in Bobo v. State, the Georgia Supreme Court held that
"when the privilege of a witness stands in the way of the defendant's right to confront
the witnesses against him, then, upon a proper showing by the defendant, the balance
52
must be tipped in favor of his constitutional rights and the search for the truth."
Likewise, in State v. Peseti, the Hawai'i Supreme Court held that "when a statutory
privilege interferes with a defendant's constitutional right to cross-examine, then, upon
a sufficient showing by the defendant, the witness' statutory privilege must, in the
interest of the truth-seeking process, bow to the defendant's constitutional rights."53
Similarly, in Commonwealth v. Barroso, the Kentucky Supreme Court held that "[i]f the
psychotherapy records of a crucial prosecution witness contain evidence probative of the
witness's ability to recall, comprehend, and accurately relate the subject matter of the
testimony, the defendant's right to compulsory process must prevail over the witness's
54
psychotherapist-patient privilege." And in People v. Stanaway, the Michigan Supreme
51 (...continued)
N.W.2d 68, 71-72 (Minn. 1992); State v. King, 34 A.3d 655, 657-58 (N.H. 2011); State v.
L.J.P. , 637 A.2d 532, 536-37 (N.J. Super. App. Div. 1994); State v. Gonzales, 912 P.2d 297,
299-302 (N.M. App. 1996); People v. Acklin, 424 N.Y.S.2d 633, 636 (N.Y. Sup. 1980); State
v. Middlebrooks, 840 S.W.2d 317, 332-33 (Tenn. 1992), superseded on other grounds by
statute, Tenn. L. Pub. 1995 ch. 377, § 1; State v. Blake, 63 P.3d 56, 61-62 (Utah 2002); State
v. Kalakosky, 852 P.2d 1064, 1077-78 (Wash. 1993); State v. Green, 646 N.W.2d 298, 304-
10 (Wis. 2002). We note that there are also two jurisdictions (California and Maryland) that
allow in camera review and disclosure of privileged mental health records at trial upon a
sufficient defense showing, but otherwise reject pretrial discovery of such privileged
materials. See People v. Hammon, 938 P.2d 986, 992-93 (Cal. 1997); Goldsmith v. State, 651
A.2d 866, 873 (Md. 1995).
52 Bobo v. State, 349 S.E.2d 690, 692 (Ga. 1986).
53 State v. Peseti, 65 P.3d 119, 128 (Haw. 2003).
54 Commonwealth v. Barroso, 122 S.W.3d 554, 563 (Ky. 2003).
- 21 - 2741
----------------------- Page 22-----------------------
Court held, "The state's interest in preserving the confidentiality of the social worker,
diversion, and rape-counseling records must yield to a criminal defendant's due process
right to a fair trial when the defendant can show that those records are likely to contain
information necessary to his defense."55
Having reviewed the relevant case law from other jurisdictions, we
conclude that the reasoning from the courts permitting in camera review of privileged
mental health records under certain circumstances is more persuasive than the approach
followed by the handful of jurisdictions that treat their evidentiary privileges as an
56
absolute bar to any disclosure.
Accordingly, we now formally join the majority of
55 People v. Stanaway, 521 N.W.2d 557, 575 (Mich. 1994).
56 On appeal, the State cites to cases from three jurisdictions (Pennsylvania, Colorado,
and Illinois) that it asserts treat their evidentiary privilege as absolute. See Commonwealth
v. Wilson, 602 A.2d 1290 (Pa. 1992) (holding a statutory rape victim-counselor privilege to
be absolute); People v. District Court, 719 P.2d 722, 727 & n.3 (Colo. 1986) (holding the
psychotherapist-patient privilege absolute and rejecting the "balancing test" that other
jurisdictions use); People v. Foggy, 500 N.E.2d 1026, 1031-32 (Ill. App. 1986), aff'd, 521
N.E.2d 86 (Ill. 1988) (upholding a facial and as-applied constitutional challenge to a statutory
rape victim-counselor privilege that the legislature intended to be absolute).
As an initial matter, we question the inclusion of Illinois in this list. The State cites
to an Illinois Supreme Court case, People v. Foggy, in support of its claim that the
psychotherapist-patient privilege is absolute under Illinois law. But, in that case, the Illinois
Supreme Court fell short of declaring its statutory rape victim-counselor privilege absolute
and instead held only that the defendant's particular showing was inadequate. See Foggy,
521 N.E.2d at 91-92 (affirming the denial of an in camera review but emphasizing that the
defense request was "merely general"). Moreover, Foggy involved a specific Illinois statute
that created an absolute statutory privilege for rape victim counselors; it did not involve the
general psychotherapist-patient privilege that applies to other types of mental health records.
See id. at 87. Indeed, there are Illinois cases, some of which post-date Foggy, that suggest
that a defendant in Illinois is entitled to an in camera review of mental health records if the
defendant "sufficiently show[s] that the requested records are material and relevant to the
witness's credibility." People v. Graham, 947 N.E.2d 294, 300 (Ill. App. 2011) (quoting
(continued...)
- 22 - 2741
----------------------- Page 23-----------------------
courts in holding that Alaska's psychotherapist-privilege must, under certain
circumstances, yield to a criminal defendant's constitutional rights, and thus, upon a
sufficient preliminary showing, a defendant is entitled to in camera review of otherwise
privileged mental health records. We turn next to the question of what that preliminary
showing should entail.
The standard that applies to a defendant's request for in camera review of
privileged mental health records
In N.G. v. Superior Court, we suggested that the standard that must be met
to obtain in camera review of privileged mental health records should be higher than the
standard used in Booth to obtain in camera review of a police officer's confidential
personnel file, given the enhanced privacy concerns associated with a person's mental
health records.57
We now formally adopt this suggestion, holding that the standard
should be higher, particularly because the defense request will often be for the alleged
victim's mental health records. We note that under Article I, Section 24 of the Alaska
Constitution, crime victims have the right "to be treated with dignity, respect, and
fairness during all phases of the criminal . . . process." The Alaska Victims' Rights Act
56 (...continued)
People v. K.S., 900 N.E.2d 1275, 1278 (Ill. App. 2008)); see also People v. Dace, 449 N.E.2d
1031 (Ill. App. 1983).
We also note that the Pennsylvania psychotherapist-patient privilege is statutory and
does not include any exceptions. See 42 Pa. Cons. Stat. § 5944 (stating that "[t]he
confidential relations and communications between a psychologist or psychiatrist and his
client shall be on the same basis as those provided or prescribed by law between an attorney
and client"). In contrast, the Alaska psychotherapist-patient privilege is rule-based and
includes a number of already established exceptions. See Alaska R. Evid. 504(d)
(enumerating different exceptions to the psychotherapist-patient privilege including when
"the condition of the patient is an element of the claim or defense of the patient").
57 N.G. v. Superior Court, 291 P.3d 328, 338 (Alaska App. 2012).
- 23 - 2741
----------------------- Page 24-----------------------
likewise contains several provisions that are specifically intended to "protect victims of
58
. . . crime from risk of harassment, intimidation, and unwarranted invasion of privacy."
It is therefore necessary to craft a standard that takes full account of the competing
59
constitutional rights at stake.
In Booth, we held that a defendant was entitled to in camera review of a
police officer's confidential personnel records based primarily upon a showing of
possible relevancy. Under Booth, "the defendant need only show that if the requested
personnel files contain the sort of information described in the defendant's motion, this
information would be relevant to the defendant's guilt or innocence (given the facts of
60
the case, the State's theory of prosecution, and the defendant's theory of defense)." In
addition, to prevent defendants from engaging in whole-scale fishing expeditions, the
defendant "must present a factual predicate for their discovery request - either pointing
to facts already within the record, or making an offer of proof that provides the
61
evidentiary foundation for the request."
In contrast, to obtain in camera review of otherwise privileged records,
most jurisdictions require a defendant to show more than just the possibility that the
records might contain relevant information. Instead, defendants must generally show
something akin to a "reasonable probability," "reasonable belief," or a "reasonable
likelihood" that the records will contain evidence that is "exculpatory" or "necessary to
58 AS 12.61.100.
59 See N.G., 291 P.3d at 340-41 (Bolger, J., concurring) (noting Article I, Section 24 and
concluding that "a healthy construction of [the psychotherapist-patient] privilege is necessary
to avoid infringing on privacy interests protected by the constitution").
60 Booth v. State, 251 P.3d 369, 375 (Alaska App. 2011).
61 Id. at 377.
- 24 - 2741
----------------------- Page 25-----------------------
a determination of guilt or innocence" or "material information necessary to the
defense."
Below is a representative sample of the various tests that defendants in
different jurisdictions must meet in order to obtain in camera review of otherwise
privileged mental health records.
Connecticut: The defendant must make a preliminary
showing that "there is a reasonable ground to believe that the
failure to produce the records would likely impair his right to
impeach the witness."[62]
Hawai'i: The defendant must demonstrate that "(1) there is
a legitimate need to disclose the protected information;
(2) the information is relevant and material to the issue before
the court; and (3) the party seeking to pierce the privilege
shows by a preponderance of the evidence that no less
[63]
intrusive source for that information exists."
Kentucky: The defendant must establish "a reasonable belief
that the records contain exculpatory evidence."[64]
Maryland: The defendant must establish "a reasonable
likelihood that the privileged records contain exculpatory
information necessary for a proper defense."[65]
Michigan: The defendant must make a showing of a "good-
faith belief, grounded on some demonstrable fact, that there
62 State v. Peeler, 857 A.2d 808, 841 (Conn. 2004) (quoting State v. Slimskey, 779 A.2d
723, 732 (Conn. 2001)).
63 State v. Peseti, 65 P.3d 119, 129 (Haw. 2003) (quoting State v. L.J.P., 637 A.2d 532,
537 (N.J. Super. App. Div. 1994)).
64 Commonwealth v. Barroso, 122 S.W.3d 554, 564 (Ky. 2003).
65 Goldsmith v. State, 651 A.2d 866, 877 (Md. App. 1995); see also State v. Johnson,
102 A.3d 295, 299 (Md. 2014).
- 25 - 2741
----------------------- Page 26-----------------------
is a reasonable probability that the records are likely to
[66]
contain material information necessary to the defense."
New Hampshire: The defendant must establish "a reasonable
probability that the records contain information that is
material and relevant to his defense."[67]
Utah: The defendant must show "with reasonable certainty
that exculpatory evidence exists which would be favorable to
[the] defense."[68] (Note that "reasonable certainty" in this
context is defined as resting between a "reasonable
probability" and "more likely than not."[69])
Wisconsin: The defendant must "set forth, in good faith, a
specific factual basis demonstrating a reasonable likelihood
that the records contain relevant i nformation necessary to a
determination of guilt or innocence and is not merely
cumulative to other evidence available to the defendant."[70]
66 People v. Stanaway, 521 N.W.2d 557, 574 (Mich. 1994).
67 State v. King, 34 A.3d 655, 658 (N.H. 2011) (quoting State v. Gagne, 612 A.2d 899,
901 (N.H. 1992)); see also Iowa Code § 622.10(4)(a)(2)(a) (requiring defendant to show "a
reasonable probability that the information sought is likely to contain exculpatory
information").
68 State v. Blake, 63 P.3d 56, 61 (Utah 2002) (alteration in original) (quoting State v.
Cardall, 982 P.2d 79, 85 (Utah 1999)). We note that Utah has a separate standard that
applies to the in camera review once the records have been obtained. In conducting the in
camera review, the trial court is required to use a "reasonable probability" standard to decide
which of the privileged records are "material" to the defendant's defense and should
therefore be disclosed. Under this standard, evidence is deemed "material" and must be
disclosed where "there is a reasonable probability that, if the evidence is disclosed to the
defense, the result of the proceeding will be different." Id. at 62.
69 Id. at 61.
70 State v. Green, 646 N.W.2d 298, 310 (Wis. 2002).
- 26 - 2741
----------------------- Page 27-----------------------
Despite the slight differences in how these standards are described, they all
appear to operate similarly in practice.
For example, all of the standards require a defendant to do more than make
a general request for in camera review based on the fact that the victim or witness has
71
been in counseling or might have a mental illness. In State v. Blake, for example, the
defendant argued that the victim's mental health records were "important" because they
72
might have information about "whether she has recanted or not" during the counseling.
The defendant also speculated that the records might contain information about
"medication she's taking that effect [sic] her credibility" or that the victim "may have a
73
mental illness where part of the diagnosis is chronic lying."
The Utah Supreme Court held that this showing was insufficient to justify
in camera review, noting that the situation "differs markedly from cases where a criminal
defendant can point to information from outside sources suggesting that a victim has
71 See, e.g., State v. Fay, 167 A.3d 897, 914 (Conn. 2017) (defendant's claim that victim
suffered from depression and attended psychiatric counseling insufficient to justify in camera
review because "the mere existence of a mental condition, without any showing of relevance,
will not suffice to justify intrusion into the victim's privileged medical records"); State v.
Johnson , 102 A.3d 295, 309 (Md. 2014) (noting that a "speculative assertion that the records
might be relevant for impeachment" is insufficient to justify in camera review (quoting
Goldsmith v. State, 651 A.2d 866, 877 (Md. App. 1995))); State v. Gonzales, 912 P.2d 297,
302 (N.M. App. 1996) ("A general assertion that inspection of the records is needed for a
possible attack on the victim's credibility is insufficient to meet [the] threshold showing.");
Blake, 63 P.3d at 61-62 (holding that the defendant's "mere speculation" that the victim's
counseling records might have contained exculpatory evidence was "clearly not enough to
warrant in camera review").
72 Blake, 63 P.3d at 61-62.
73 Id.
- 27 - 2741
----------------------- Page 28-----------------------
recanted or accused another of the crime alleged or has a history of mental illness
74
relevant to the victim's ability to accurately report on the assault."
Later in its opinion, the supreme court provided additional guidance
regarding what type of showing would justify an in camera review under the Utah
"reasonable certainty" standard:
At a minimum, specific facts must be alleged. These might
include references to records of only certain counseling
sessions, which are alleged to be relevant, independent
allegations made by others that a victim has recanted, or
extrinsic evidence of some disorder that might lead to
uncertainty regarding a victim's trustworthiness.[75]
The Kentucky Supreme Court has likewise declared that "[a] person's
credibility is not in question merely because he or she is receiving treatment for a mental
76
Indeed, "[t]o subject every witness in a criminal prosecution to an in
health problem."
camera review of their psychotherapist's records would be the invasion of privacy which
77
the psychotherapist-patient privilege is intended to prevent."
At the same time, the supreme court recognized that "[c]ertain forms of
78
mental disorder have high probative value on the issue of credibility."
Thus, for
example, if a defendant had a good-faith factual basis for believing that the victim may
suffer from hallucinations or delusions, such a showing would be sufficient to obtain in
74 Id. at 62.
75 Id.
76 Commonwealth v. Barroso, 122 S.W.3d 554, 563 (Ky. 2003) (quoting People v. Pack,
201 Cal. App. 3d 679, 248 Cal. Rptr. 240, 244 (Cal. App. 1988)).
77 Id. (quoting Pack, 248 Cal. Rptr. at 244).
78 Id. at 562 (quoting United States v. Lindstrom, 698 F.2d 1154, 1160 (11th Cir.1983)).
- 28 - 2741
----------------------- Page 29-----------------------
79
camera review under Kentucky law. Other jurisdictions have followed similar
80
reasoning.
On appeal, the State argues that this Court should adopt a higher standard
for permitting in camera review than that recognized by the majority of jurisdictions.
Specifically, the State contends that the standard should be the same as that which
applies to a defendant's request for a court-ordered psychiatric evaluation of the alleged
victim.
In Pickens v. State, we held that a court should order a psychiatric
examination of a victim only if "the circumstances indicate a necessity for an
examination."81
We further explained,
Such necessity would generally arise only if little or no
corroboration supported the charge and if the defense raised
the issue of the effect of the complaining witness' mental or
[82]
emotional condition upon her veracity.
79 Id. at 562-63.
80 See, e.g., State v. Peeler, 857 A.2d 808, 842 (Conn. 2004) (in camera review justified
where witness diagnosed with significant mental disorders, including cocaine induced
psychiatric disorder with hallucinations; chronic paranoid schizophrenia; drug induced
psychosis while using cocaine, and antisocial personality disorder); People v. Stanaway, 521
N.W.2d 557, 576-77 (Mich. 1994) (in camera review justified where defendant claimed
victim was a "troubled, maladjusted child whose past trauma had caused her to make a false
accusation" and defendant pointed to prior abuse by biological father and factual support
showing sexually aggressive behavior by the victim); State v. Pandolfi, 765 A.2d 1037, 1043
(N.H. 2000) (in camera review of counseling records justified to determine what medication,
if any, the witness was taking after witness testified that she may have been confused about
certain dates because of the medication she was taking in connection with her counseling).
81 Pickens v. State, 675 P.2d 665, 668 (Alaska App. 1984) (quoting Ballard v. Superior
Court, 410 P.2d 838, 849 (Cal. 1966)).
82 Id. (quoting Ballard, 410 P.2d at 849).
- 29 - 2741
----------------------- Page 30-----------------------
Moreover, to sufficiently raise the issue of the victim's mental or emotional condition,
it would be incumbent on the defendant to make "a specific showing" of "good cause to
believe" that (1) the victim's ability to perceive events accurately or to relate those events
truthfully was substantially impaired; and (2) 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.83
The Pickens standard shares some commonalities with the standards used
in other jurisdictions to obtain in camera review of a victim's privileged mental health
records. Like those standards, it requires a good faith factual basis - i.e., a "specific
showing" and it relies on a similar concept of constitutional "necessity."
But the Pickens standard is nevertheless more stringent, because ordering
a victim to undergo a court-ordered psychiatric examination is significantly more
intrusive than an in camera review of already-existing mental health records. The
Pickens standard is also inapposite because it does not address other types of exculpatory
evidence - such as a recantation - that may exist in a victim's mental health records.
Accordingly, we reject the State's suggestion that we should adopt the
Pickens standard as the proper standard to evaluate a defense request for in camera
review of a victim or witness's privileged mental health records. Instead, we adopt a
standard that is similar to the ones used by the majority of other jurisdictions. Under this
standard, a defense request for in camera review of privileged mental health records
should be granted if the defendant has shown a reasonable likelihood that the records will
contain exculpatory evidence that is necessary to the defense and unavailable from a less
intrusive source.
83 Id. at 669.
- 30 - 2741
----------------------- Page 31-----------------------
Like the standards used in other jurisdictions, this standard is intended to
protect both the privilege and a defendant's constitutional rights. As one commentator
has noted, "Requiring a defendant to allege a good faith factual basis in his request for
privileged records poses a significant hurdle to a defendant who seeks records merely as
an intimidation tactic, reduces the disclosure of records in 'fishing expeditions,' and
protects both the victim's privacy rights and the privilege."84
We also emphasize that this standard is the preliminary showing that a
defendant must meet to obtain in camera review of privileged mental health records.
Like most other jurisdictions, we hold that the trial court may only disclose those records
containing information that qualifies as materially exculpatory under the facts of that
case. As a general matter, evidence is deemed material when it "might have led the jury
85
to entertain a reasonable doubt about the defendant's guilt."
As other jurisdictions have recognized, there are distinct advantages to
requiring an initial in camera review, rather than requiring disclosure directly to the
86
defendant or the defendant's attorney.
First, an in camera review is significantly less
intrusive than such disclosure would be. Indeed, as the Connecticut Supreme Court has
explained:
84 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, 1477
(2005).
85 Williams v. State, 629 P.2d 54, 64 (Alaska 1981).
86 See, e.g., State v. Green, 646 N.W.2d 298, 310 (Wis. 2002); State v. Peseti, 65 P.3d
119, 132-34 (Haw. 2003); Stanaway, 521 N.W.2d at 575; see also March v. State, 859 P.2d
714, 717 (Alaska App. 1993) (noting that in camera review of confidential materials is "the
proper procedure for safeguarding a criminal defendant's due process rights to discovery of
exculpatory information").
- 31 - 2741
----------------------- Page 32-----------------------
An in camera review is a relatively modest intrusion into a
victim's mental health history, and that narrow exception to
the psychiatrist-patient privilege - an exception available
only when the court finds it clearly necessary in order to
safeguard the accused's fair trial rights - is unlikely to prove
any more of a deterrent to persons seeking mental health
treatment than that already attributable to existing statutory
exceptions.[87]
Second, an in camera review has the benefit of creating a record for any future appellate
review. This provides an additional safeguard in cases where the trial court grants the
in camera review but ultimately does not disclose any of the privileged material.
For these reasons, some jurisdictions have encouraged trial courts to err on
the side of granting in camera review in close cases, while still emphasizing the need for
stringency with regard to the decision of what to disclose following the in camera
review. As the Wisconsin Supreme Court has advised trial courts,
Our standard is not intended . . . to be unduly high for the
defendant before an in camera review is ordered by the circuit
court. The defendant, of course, will most often be unable to
determine the specific information in the records. Therefore,
in cases where it is a close call, the circuit court should
generally provide an in camera review. We have confidence
in the circuit courts to then make a proper determination as to
whether disclosure of the information is necessary based on
[88]
the competing interests involved in such cases.
We recognize the burden that in camera review places on trial courts, who
generally lack complete information about the facts of the case and may therefore fail to
87 State v. Fay, 167 A.3d 897, 909-10 (Conn. 2017).
88 Green, 646 N.W.2d at 310 (citations omitted).
- 32 - 2741
----------------------- Page 33-----------------------
89
recognize the significance (or insignificance) of particular information to the defense.
Because of these difficulties, there is at least one jurisdiction - Massachusetts - that
eschews the use of in camera reviews altogether. Under Massachusetts law, a defendant
must make a preliminary showing of necessity similar to the preliminary showing
90
required by other jurisdictions to obtain production of statutorily privileged records.
However, unlike in other jurisdictions, once those records have been produced, they are
given directly to the defense attorney who is allowed to review them for exculpatory
evidence under a strict protective order that precludes the attorney from copying the
records or disclosing their contents to anyone else, including the defendant, until
91
expressly permitted to do so by the trial court.
The Massachusetts Supreme Judicial
Court adopted this unique protocol because it concluded that "[t]he absence of an
advocate's eye may have resulted in overproduction, as well as underproduction, of
privileged records, and has repeatedly contributed to trial delays and appeals,
92
jeopardizing the rights of defendants, complainants, and the public."
Douglas does not request that we adopt a protocol similar to the one used
in Massachusetts. Nor are we inclined to do so. Despite the burden that an in camera
review can place on trial courts, we believe that it remains the best method for striking
the appropriate balance between the competing interests at stake.
We nevertheless remind defense attorneys of the need to provide the court
with an overview of the facts of the case, the State's theory of prosecution, the
defendant's theory of defense, and the reasons why the exculpatory evidence (if it exists)
89 See, e.g., Commonwealth v. Dwyer, 859 N.E.2d 400, 418 (Mass. 2006).
90 Id. at 418-19.
91 Id. at 419, 422.
92 Id. at 418.
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93
would be material to the determination of guilt or innocence. Such information is
important not only to establish the preliminary showing required to obtain in camera
review, but also to educate the trial court about the case for the later in camera review.
We also advise trial courts that, in some circumstances, the full exculpatory
value of certain records may not be clear until after the witness has testified at trial and
more is known about the case and the witness. Trial courts should therefore be aware
94
that the duty to disclose is an ongoing duty that continues through trial.
Courts should
also be receptive to any renewed requests for in camera review that may be based on
new information learned at trial (as occurred in this case).
Lastly, we note that there are some jurisdictions that leave the ultimate
decision of whether the privilege should be breached to the privilege holder - i.e., to the
95
Thus, in these jurisdictions, if a
witness whose privileged records are being sought.
93 See Green, 646 N.W.2d at 310 ("In creating this standard, we intend to place the
burden on the defendant to reasonably investigate information related to the victim before
setting forth an offer of proof and to clearly articulate how the information sought
corresponds to his or her theory of defense.").
94 Cf. Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) ("[T]he duty to disclose [material,
privileged investigative records] is ongoing; information that may be deemed immaterial
upon original examination may become important as proceedings progress, and the court
would be obligated to release information material to the fairness of the trial."). We note that
the judge who presides over the trial will need to have conducted their own in camera review
of the privileged materials if they were not the judge who handled the issue during the
pretrial proceedings.
95 See, e.g., State v. Slimskey, 779 A.2d 723, 731-32 (Conn. 2001) (holding that the
witness's testimony will be stricken if the witness refuses to consent to an in camera
inspection of their records after defendant has made a sufficient preliminary showing and that
the witness's testimony will also be stricken if the witness refuses to allow disclosure of
records that are found to be "especially probative of the witness' capacity to relate the truth
or to observe, recollect and narrate relevant occurrences"); People v. Stanaway, 521 N.W.2d
(continued...)
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defendant is successful at making the preliminary showing, the trial court must then
obtain a limited waiver from the witness before obtaining the records and conducting the
in camera review.96
An additional waiver is also required before any exculpatory
97
evidence discovered during the in camera review can be disclosed to the parties. If the
witness refuses to waive the privilege, the witness is precluded from testifying - or, if
98
the witness has already testified, the testimony is stricken from the record.
Neither party has requested that we adopt this approach under Alaska law.
The advantage of this approach is that it empowers the privilege holder (who is often the
alleged victim) by giving them direct control over whether the privilege will be breached.
However, other courts have criticized this approach as "unworkable" and "unwieldy" in
99
practice.
This approach also means that the fate of the criminal prosecution often will
ultimately rest in the hands of the witness or the alleged victim, a proposition that is
95 (...continued)
557, 577 (Mich. 1994) ("Our ruling is that where the privilege is absolute if the complainant
will not waive her statutory privilege and allow the in camera inspection after the defendant's
motion has been granted, suppression of the complainant's testimony is the appropriate
sanction."); State v. Trammell, 435 N.W.2d 197, 201 (Neb. 1989) (determining that "where
the witness refuses to waive the privilege, the result is that the testimony of the witness is
inadmissible because the defendant is prevented from full and . . . effective cross-
examination of the witness"); State v. Lynch, 859 N.W.2d 125, 126-27 (Wis. App. 2014)
(explaining that when the victim refused to release her records for an in camera review, the
appropriate remedy was "the exclusion of the victim's testimony at trial").
96 Slimskey, 779 A.2d at 732.
97 Id.
98 Id.
99 See Commonwealth v. Barroso, 122 S.W.3d 554, 565 (Ky. 2003).
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100
generally at odds with our legal traditions and current Alaska law. Given these
criticisms, we are unwilling to adopt such an approach here, particularly in the absence
of any controlling legislative intent or a direct request to do so. We nevertheless
emphasize that notice must be given to the privilege holder before any privileged records
are obtained so that the privilege holder's position on their privilege can be determined
and questions about the appropriate scope of the request and/or whether there are less
intrusive sources for the requested information can be addressed.101
In sum, to obtain in camera review of privileged mental health records held
by a third party, a defendant must show a reasonable likelihood that the records will
contain exculpatory evidence and that there is no less intrusive source for this
102
evidence.
If the defendant succeeds in this preliminary showing, the trial court shall
order the production of the relevant records under seal and shall then conduct an in
camera review of the records to determine whether the records actually contain
exculpatory evidence - i.e., evidence, including impeachment evidence, that is both
favorable to the accused and material to the determination of guilt or innocence. If the
in camera review reveals information that qualifies as both favorable and material in the
100 See Cooper v. District Court, 133 P.3d 692, 700, 705 (Alaska App. 2006) (explaining
that while crime victims in Alaska have various constitutional rights, including the right to
attend all proceedings and provide input before certain decisions are made, they do not have
the right to intervene in the litigation of a criminal case - that is, crime victims do not have
a right to determine what charges should be brought, how those charges should be litigated
or settled, or to control how appellate review should be sought).
101 See Spencer v. State, 642 P.2d 1371, 1376 n.3 (Alaska App. 1982) ("We caution trial
judges to make sure that the individuals involved in third party discovery, in fact, resist
discovery by invoking their privilege before denying discovery on this ground. We also
believe that a prosecutor may not ethically influence his witnesses to claim a privilege.").
102 This assumes that the privilege holder has not waived their privilege.
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context of that particular case, the court shall disclose that information to the parties with
an appropriate protective order to prevent any further disclosures beyond those required
to litigate the case. Any records that are not disclosed to the parties shall be kept under
seal and remain in the record for any future appellate review. To facilitate this appellate
review, we encourage the trial court to provide a written or oral explanation of its
disclosure decision.103
Such an explanation may be made under seal.
Applying these principles to the current case
In the current case, Douglas sought in camera review of
neuropsychological reports in R.D.'s guardianship file. Most, if not all, of these reports
were likely privileged under AS 13.26.241(b) and Alaska Evidence Rule 504(b) (the
104
psychotherapist-patient privilege).
The superior court denied Douglas's initial pretrial motion for in camera
review on the ground that Douglas was just "speculating" that R.D. had a traumatic brain
injury. The superior court subsequently denied Douglas's renewed mid-trial motion on
the ground that N.G. precluded the court from ordering any in camera review of
privileged records.
103 See Commonwealth v. Shaw, 600 S.W.3d 233, 239 n.3 (Ky. 2020) ("We emphasize
that trial courts should keep a detailed record of each step of this process, as appellate courts
will need to know exactly what the trial court looked at and what the defense was eventually
allowed to see, if anything.").
104 We note that, to the extent that there is information in the records that is not privileged
and instead merely confidential, the superior court should disclose that information if there
is "good cause" to do so. See AS 13.26.021(a). The court should also refrain from
disclosing any privileged material that would be cumulative of any confidential material
already disclosed.
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Douglas argues that the superior court erred when it refused to order in
camera review of the relevant portions of R.D.'s guardianship file. We agree.
As an initial m atter, the superior court l ikely erred in denying Douglas's
pretrial motion. The existence of the guardianship was itself evidence that R.D. might
have ongoing deficits in perceiving, remembering, and/or reporting information. To
appoint a full guardian, a court must find, by clear and convincing evidence, that the
person is "incapacitated" to such a degree that they are "totally without capacity to care
for [their own needs]."105
An "incapacitated person" is defined as:
a person whose ability to receive and evaluate information or
to communicate decisions is impaired for reasons other than
minority to the extent that the person lacks the ability to
provide the essential requirements for the person's physical
[106]
health or safety without court-ordered assistance.
This is not to say that the existence of a guardianship necessarily means that
a defendant should automatically be granted in camera review of a person's guardianship
file. We leave that question for another day.
Here, it is enough to say that it was certainly error for the superior court to
deny Douglas's renewed mid-trial motion for in camera review once the trial testimony
established that R.D. had an underlying condition - traumatic brain injury - that
continued to affect her memory and may also have affected her ability to perceive and/or
report information from the alleged assault. As we previously noted, the superior court
105 See AS 13.26.251(b)-(c) & (f).
106 AS 13.26.005(5).
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made this erroneous ruling even after the prosecutor at trial made clear that he had no
107
objection to an in camera review of the relevant documents.
But this error does not necessarily entitle Douglas to a new trial. Instead,
the error must be reviewed in light of the entire record to determine whether it was
108
harmless beyond a reasonable doubt. Whether such an error is harmless beyond a
reasonable doubt in a particular case depends upon a host of factors, including:
the importance of the witness' testimony in the prosecution's
case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the
overall strength of the prosecution's case. . . . If the
evidence may have had a tendency to influence the judgment
[109]
of the jury, it cannot be considered harmless.
107 As we have explained, the prosecutor who represented the State at trial was not the
same prosecutor who represented the State during the earlier proceedings. The record shows
that the trial prosecutor mistakenly assumed that an in camera review had already occurred.
108
See State v. Peeler, 857 A.2d 808, 846 (Conn. 2004) (concluding that the error was
harmless where the State established, beyond a reasonable doubt, that disclosure and use of
the witness's mental health records would not "have had a tendency to influence the
judgment of the jury" (quoting State v. Rolon, 777 A.2d 604, 617 (Conn. 2001))); State v.
Ballos, 602 N.W.2d 117, 120-21 (Wis. App. 1999) (concluding that there was no reasonable
possibility that the error contributed to the conviction where jury learned of witness's mental
health problems and evidence of guilt was overwhelming); State v. Middlebrooks, 840
S.W.2d 317, 333 (Tenn. 1992), superseded on other grounds by statute, Tenn. L. Pub. 1995
ch. 377, § 1 (concluding that the error was harmless because in camera review of records
established that the records "contained very little information probative of [the witness's]
credibility").
109
Peeler, 857 A.2d at 844 (quoting Rolon, 777 A.2d at 617); see also Delaware v. Van
Arsdall , 475 U.S. 673, 684 (1986); State v. Blackwell, 801 S.E.2d 713, 728 (S.C. 2017).
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Here, there are reasons to believe that the error might be harmless.
Although Douglas's motions for in camera review of the guardianship file were denied,
the jury was still made aware that R.D. had suffered a traumatic brain injury and had a
guardian at the time of the incident. The jury was also made aware, through both R.D.'s
and her mother's testimony, that the brain injury continued to affect R.D.'s memory, at
least to some extent. In addition, although there was no eyewitness to the sexual assault
in the elevator, there were multiple eyewitnesses to the immediate aftermath, during
which Douglas continued to harass R.D. and act in a sexualized manner.
Ultimately, however, whether a new trial is required will depend on the
results of the in camera review and the information it produces. Accordingly, we
remand this case to the superior court so that the court can obtain the relevant portions
of the guardianship file for in camera review.
Once the records are obtained, the superior court should subject them to an
in camera review. The court should only disclose information from the records to the
parties if the information qualifies as both favorable and material in the context of this
particular case.110
110 We note that, to the extent possible, the court's disclosure order should be tailored to
the time periods that are directly relevant to this case - i.e., the time period around the
original incident and the time period before trial. See State v. Storlazzi, 464 A.2d 829, 833
(Conn. 1983) (holding that defendant should be granted access to records bearing on "the
mental unsoundness of a witness (i.e., relating to a trait importing in itself a defective power
of observation, recollection or communication), at or around the time of trial or of the
occurrence about which he is to testify" (quoting State v. Piskorski, 419 A.2d 866, 895
(Conn. 1979))). Additional records should only be disclosed if the records from the relevant
time periods cannot be understood without them.
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As previously explained, evidence is generally deemed material if it "might
111
have led the jury to entertain a reasonable doubt about the defendant's guilt."
"Material evidence" is also sometimes defined as any evidence where "there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
112
the proceeding would have been different." (A "reasonable probability" is "a
113
) These definitions are
probability sufficient to undermine confidence in the outcome."
sometimes criticized as "backward-looking" and difficult to apply except in the appellate
context. But, on remand, the superior court in this case will be in the unique position of
evaluating materiality in the context of a trial that is already complete and fully
transcribed. The superior court is therefore better positioned than most trial courts to
determine the materiality of any favorable evidence that the records may include.
Thus, if the in camera review reveals evidence that qualifies as both
favorable and material, the superior court shall disclose that evidence to the parties and
allow the parties to brief the question of whether non-disclosure of this information was
111 Williams v. State, 629 P.2d 54, 64 (Alaska 1981).
112 Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (quoting United States v. Bagley, 473
U.S. 667, 682 (1985) (opinion of Blackmun, J.)); see also State v. Blake, 63 P.3d 56, 62
(Utah 2002); Storlazzi, 464 A.2d at 834 ("The test of materiality is whether the omitted
evidence, evaluated in the context of the entire record, creates a reasonable doubt that did not
otherwise exist.").
113 Ritchie, 480 U.S. at 57 (quoting Bagley, 473 U.S. at 682); see also Lambert v. State,
435 P.3d 1011, 1020 (Alaska App. 2018) (explaining that "reasonable probability" is a legal
term of art that does not mean "more likely than not"); Blake, 63 P.3d at 61 (same).
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114
harmless beyond a reasonable doubt. All non-disclosed records shall be kept under
seal and made part of the record for appellate review.
Following disclosure and adversarial briefing (if any), the superior court
shall issue a final order on whether Douglas is entitled to a new trial. The case will then
return to this Court to allow for appellate review of that decision, if requested.
Conclusion
This case is REMANDED for further proceedings in accordance with this
opinion. We retain jurisdiction.
114 See State v. Peseti, 65 P.3d 119, 130 (Haw. 2003) ("[T]he denial of a defendant's right
to confront adverse witnesses is subject to the harmless-beyond-a-reasonable-doubt standard
of review."); State v. Peeler, 857 A.2d 808, 846 (Conn. 2004) (concluding that the State
established, beyond a reasonable doubt, that the disclosure and use of the defendant's mental
health records would not "have had a tendency to influence the judgment of the jury"
(quoting State v. Rolon, 777 A.2d 604, 617 (Conn. 2001))); see also Spencer v. State, 642
P.2d 1371, 1376 (Alaska App. 1982) (applying constitutional standard of harmless beyond
a reasonable doubt to an error involving discovery of a witness's psychiatric records held by
the State).
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