STATE v. FAMIGLIETTI

COPE, J.

The question presented is whether the defendant in a criminal case can invade the victim's privileged communications with her psychotherapist if the defendant can establish a reasonable probability that the privileged matters contain material information necessary to his defense. We conclude that the answer is no.

First, the Evidence Code contains no authority for such an invasion of privileged matter. Second, no applicable constitutional provision authorizes an intrusion into matters protected by the psychotherapist-patient privilege.

In this domestic violence case, the defendant is charged with attempted murder for beating the victim, his girlfriend, nearly to death with a tire iron, and with ramming the police vehicle of the officers who attempted to apprehend him the following day.

The defense took the deposition of the victim and asked her about prior incidents of domestic violence. The victim testified that in connection with a prior incident of domestic violence (for which she was hospitalized), she told her psychiatrist that she had been beaten by two unknown males. She indicated that she did this because she did not want to disclose that the defendant, her boyfriend, had beaten her.

The defendant moved for issuance of a subpoena duces tecum to the victim's psychiatrist, requiring disclosure of all of the victim's psychiatric records. The defendant's motion asserted that the information in the psychiatric files "is potentially either exculpatory evidence, goes to the credibility of the victim's testimony or is necessary information toward the preparation of the Defendant's defense."

The trial court granted the motion in part. The court ruled that all of the psychiatrist's files regarding the victim would be disclosed to the judge in camera. The judge would then make the determination whether to release any of the records to the defense.

The State filed a petition for writ of certiorari. A panel of this court granted the petition and quashed the order. The panel opinion agreed with the defendant in principle that a defendant could invade a victim's privileged psychiatric records through the application of a balancing test.

The panel concluded, however, that in this case the defendant had not made a sufficiently specific showing of need to justify invading the victim's psychiatric records. The trial court order was quashed, but without prejudice to the defendant to make a more particularized showing.

On its own motion, this court set the case for rehearing en banc.

[1] In setting this case for en banc consideration, the court directed the parties to address (among other things) the question whether the State had standing to assert the psychotherapist-patient privilege on behalf of the patient. The State is not listed in subsection 90.503(3), Florida Statutes (2001) as one of the persons or entities that may invoke the psychotherapist-patient privilege on behalf of a patient.

We are now satisfied that the State does have standing. First, subsection 960.001(7), Florida Statutes (2001), provides in part, "The victim of a crime . . . and the state attorney, with the consent of the victim . . . have standing to assert the rights of a crime victim which are provided by law or s. 16(b), Art. I of the State Constitution." The psychotherapist-patient privilege is a right provided by law. § 90.503, Fla. Stat. (2001).

[2] Second, the defense has not raised any objection to the State's standing. Under Florida Supreme Court precedent, the issue of standing is waived if it is not raised in the trial court. Krivanek v. Take Back Tampa Political Committee, 625 So.2d 840, 842 (Fla. 1993); Markham v. Neptune Hollywood Beach Club, 527 So.2d 814, 814 n. 2 (Fla. 1988); Cowart v. City of West Palm Beach, 255 So.2d 673, 674-75 (Fla. 1971).

[3] Proceeding to the merits, the Evidence Code does not contain any provision which would allow the defendant to invade a victim's communications which are protected by the psychotherapist-patient privilege.

Under the Evidence Code, the patient of a psychotherapist "has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition. . . ." § 90.503(2), Fla. Stat. (2001). By the plain language of the Code, if the communication is privileged then it is not to be disclosed.

In defining the scope of the psychotherapist-patient privilege, the Code contains three exceptions. Id. § 90.503(4). These exceptions say in substance that there is no privilege in involuntary commitment proceedings, or when there is a court-ordered mental examination, or when the patient herself raises the issue of her mental condition in litigation. The Evidence Code also provides that the privilege may be waived by voluntary disclosure. Id. § 90.507.

None of the statutory exceptions applies in this case. Thus, the psychiatric records at issue here are privileged. Under the plain words of the Evidence Code the victim has a right to prevent the disclosure of her psychiatric record.

[4] The dissent argues that if the legislature has created exceptions to the psychiatrist-patient privilege then it follows that the privilege is somehow a qualified, or limited, one which may be invaded under a balancing test. That is not so.

The Evidence Code itself describes the scope of the privilege which has been created. If the communication fits within the privilege, then the patient may refuse, and may insist that others refuse, to disclose the communication. Id. § 90.503(2). There is no language in the Code which expressly or impliedly allows anyone to override a valid claim of psychiatrist-patient privilege. Cf. Jackson v. State, 603 So.2d 670, 671 (Fla. 4th DCA 1992) ("As the statute specifically delineates those exceptions to the marital privilege, we are loath to add additional exceptions.") (citations omitted).

When the legislature desires to create a qualified privilege, it knows how to do so. When the legislature created the journalist's privilege, the legislature said in plain words that it is "a qualified privilege not to be a witness concerning . . . information . . . that the professional journalist has obtained while actively gathering news." § 90.5015(2), Fla. Stat. (2001) (emphasis added). The statute goes on to set forth the balancing test which must be met by "[a] party seeking to overcome this privilege. . . ." Id.

The psychotherapist-patient privilege contains no "qualified privilege" language. The psychotherapist-patient privilege does not contain any authority for invading the privileged communication nor any legal standard for doing so.

Arguing for judicially created exceptions to Evidence Code privileges, the dissent points to a statement by the Florida Supreme Court that "[t]he attorney-client privilege is not absolute and `may be outweighed by the public interest in the administration of justice in certain circumstances.'" Turner v. State, 530 So.2d 45, 46 (Fla. 1987) (citation omitted). But in Turner the disclosure of the privileged communications was authorized by a specific provision of the Evidence Code. Id. (citing § 90.502, Fla. Stat.). The Turner decision did not involve a judicially-created exception to the attorney-client privilege.

The dissent makes reference to the State's limited privilege to withhold the identity of a confidential informant. However, that analogy does not apply here. The privilege regarding the confidential informant is purely a creature of case law, and case law defines its scope. In the present case we deal with a testimonial privilege which has been codified in the Evidence Code. Once codified, the words of the statute control.

The defendant relies on Katlein v. State, 731 So.2d 87 (Fla. 4th DCA 1999), but that case involved mental health treatment records covered by sections 394.4615 and 397.501, Florida Statutes (1997). 731 So.2d at 88. Both statutes allowed release of mental health records on a showing of good cause. Id. There is no comparable provision in the Evidence Code for invasion of the psychotherapist-patient privilege under a good cause standard.

The defendant argues that disclosure is authorized in this case by section 90.510, Florida Statutes, which states:

90.510. Privileged communication necessary to adverse party.

In any civil case or proceeding in which a party claims a privilege as to a communication necessary to an adverse party, the court, upon motion, may dismiss the claim for relief or the affirmative defense to which the privileged testimony would relate. In making its determination, the court may engage in an in camera inquiry into the privilege.

(Emphasis added).

By its terms, section 90.510 does not apply. First, this Evidence Code provision applies only in civil cases, not criminal cases. Second, even if it did, the crime victim is not a party to the case.

The foregoing interpretation of the Evidence Code is also sound policy. Writing in the context of federal evidentiary rules, the United States Supreme Court considered a case in which the Seventh Circuit had held that the psychotherapist-patient privilege could be overcome if "in the interests of justice, the evidentiary need for the disclosure of the contents of a patient's counseling sessions outweighs that patient's privacy interests." Jaffee v. Redmond, 518 U.S. 1, 7, 116 S.Ct. 1923, 135 L.Ed.2d 337(1996) (citation and internal quotation marks omitted).

The Supreme Court said:

We part company with the Court of Appeals on a separate point. We reject the balancing component of the privilege implemented by that court and a small number of States. Making the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. As we explained in Upjohn [v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584(1981)], if the purpose of the privilege is to be served, the participants in the confidential conversation "must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all." 449 U.S. at 393, 101 S.Ct. at 684.

That analysis is on point here. The Evidence Code sets forth what communications will be held confidential precisely so that citizens know in advance what the ground rules are.

The dissent focuses on footnote 19 of Jaffee, in which the Court said:

Although it would be premature to speculate about most future developments in the federal psychotherapist privilege, 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.

In the federal system, unlike Florida, evidentiary privileges are established by case law. Federal Evidence Rule 501 provides, as pertinent here, that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." In footnote 19, the Jaffee Court acknowledged that federal courts may in the future announce that some communications are not protected by the psychotherapist-patient privilege. The Jaffee decision is very clear, however, that once a communication falls within the scope of the psychotherapist-patient privilege, it is not to be invaded under any sort of a balancing test, because to allow such an invasion would defeat the purpose of the privilege.

[5] The next question is whether the psychotherapist-patient privilege may be invaded under federal constitutional principles. Again, we conclude that the answer is no.

The Fourth District Court of Appeal has held that under the due process clause, a defendant in a criminal case may obtain access to the victim's privileged communications with a sexual assault counselor. State v. Pinder, 678 So.2d 410 (Fla. 4th DCA 1996). Those records would otherwise be immune from disclosure under section 90.5035, Florida Statutes (2001), which creates the sexual assault counselor-victim privilege. Under Pinder:

To obtain in camera review of confidential communications or records under section 90.5035, a defendant must first establish a reasonable probability that the privileged matters contain material information necessary to his defense. Only then may a trial court conduct an in camera hearing to determine if, in fact, the privileged communications contain such information.

678 So.2d at 417 (citation omitted); see also Katlein, 731 So.2d at 90.

When the present case was pending in the trial court, the parties and the court proceeded on the assumption that Pinder correctly stated the applicable law. After the trial court granted the request for an in camera inspection, the State petitioned for a writ of certiorari in this court on theory that the defense showing was insufficient to satisfy the requirements of Pinder.

On its own motion, this court directed the parties to address the question whether Pinder correctly states the applicable law. It is our conclusion that Pinder is wrongly decided.

[6] It is of course true that a constitutional provision can override a state evidentiary code. But such an invasion is not called for under the circumstances present here.

For its analysis the Pinder court relied heavily on Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). The Ritchie case, however, did not involve a testimonial privilege. Instead, the Ritchie case involved a Pennsylvania statute which provided that case files of the state Children and Youth Services agency ("CYS") were not public records and must be held confidential. 480 U.S. at 43-44, 107 S.Ct. 989. The state statute contained numerous exceptions, including an exception which allowed disclosure "to a `court of competent jurisdiction pursuant to a court order.'" Id. at 44, 107 S.Ct. 989 (citation omitted).

The Supreme Court noted that "[t]his is not a case where a state statute grants CYS the absolute authority to shield its files from all eyes." Id. at 58, 107 S.Ct. 989 (citation and footnote omitted). The Court ruled that the defendant was "entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial." Id. The Court expressly left open the question "whether the result in this case would have been different if the statute had protected the CYS files from disclosure to anyone, including law-enforcement and judicial personnel." Id. at 58 n. 14, 107 S.Ct. 989 (emphasis in original).

In the present case we deal with a generally-accepted testimonial privilege, not a statute protecting a public agency's case files, and in the present case there is no statutory provision which authorizes disclosure. Neither Ritchie nor an earlier similar case, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), constitute authority that the due process clause authorizes the invasion of a generally-recognized testimonial privilege. Indeed, the more recent decision of the United States Supreme Court in Jaffee rejects the idea of applying a balancing test to the psychotherapist-patient privilege. 518 U.S. at 17-18, 116 S.Ct. 1923. See also John W. Strong, McCormick on Evidence § 74.2 (5th ed. 1999).

The Pinder court concluded that the Florida Supreme Court has adopted such a due process balancing test in Mills v. State, 476 So.2d 172 (Fla. 1985), but that reads too much into the Mills decision. In Mills, defense counsel on cross-examination of a state witness asked questions which drew an objection (by the state and by the witness' own counsel) on grounds of attorney-client privilege. 476 So.2d at 175. The Florida Supreme Court held that the objections were properly sustained and that the defendant's cross-examination and confrontation rights did not outweigh the assertion of privilege. Id. at 176. The Mills decision upholding a claim of privilege is not properly viewed as authority for invading the privilege.

In sum, the due process clause does not authorize the invasion of a generally-accepted testimonial privilege.

We conclude that there is neither an Evidence Code provision, nor an applicable constitutional principle, which allows the invasion of the victim's privileged communications with her psychotherapist. Accordingly we quash the trial court's order. We certify direct conflict with Pinder.

As this case illustrates, reasonable people can disagree over whether evidentiary privileges have value, and under what circumstances (if any) privileged communications may be invaded. The policy determinations in this case have been made by the legislature in the Evidence Code, and if the evidentiary privileges are to be modified, then the legislature is the appropriate body to address it.

JORGENSON, GERSTEN, GODERICH, and GREEN, JJ., concur.

RAMIREZ, J., concurs with opinion.