psychotherapist-patient privilege in Alaska

2023In 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 to a fair trial.1 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’

2012In Gunnerud v. State, 611 P.2d 69, 71-72 (Alaska 1980), the Alaska Supreme Court approved a trial judge's decision to conduct an in camera review of a psychiatric report concerning a government witness, to see if the report contained information that was relevant to assessing the witness's credibility.

2023In 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 those statements were protected by the federal psychotherapist-patient privilege.43 In reaching this holding, the Court emphasized that the psychotherapist-patient privilege was protective of both a patient’s privacy interests and the public good.44 The Court 42 Jaffee v. Redmond, 518 U.S. 1 (1996). 43 Id. at 4-5, 18 . 44 Id. at 11 . – 18 – 2741 expla

2023In 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 those statements were protected by the federal psychotherapist-patient privilege.43 In reaching this holding, the Court emphasized that the psychotherapist-patient privilege was protective of both a patient’s privacy interests and the public good.44 The Court 42 Jaffee v. Redmond, 518 U.S. 1 (1996). 43 Id. at 4-5, 18 . 44 Id. at 11 . – 18 – 2741 expla

2023These 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 health problem.”76 Indeed, “[t]o subject every witness in a criminal prosecution to an in camera review of their psychotherapist’s records would be

2012See Commonwealth v. Barroso, 122 S.W.3d 554, 564 (Ky.2008) (overruling an earlier, more lenient test, and holding that "in camera review of a witness's psychotherapy records is authorized only upon receipt of evidence sufficient to establish a reasonable belief that the records [actually] contain exeulpatory evidence").

1995In determining whether a minor is unamenable to treatment, the court may consider the seriousness of the offense the minor is alleged to have committed, the minor's history of delinquency, the probable cause of the minor's delinquent behavior, and the facilities available to the division of youth and adult authority for treating the minor. [2] Although Justice Bistline advocated protection of the information under the rubric of an Idaho statute making records of juvenile proceedings confidential, State v. Brown, 121 Idaho 385, 395 , 825 P.2d 482, 492 (1992) (Bistline, J., concurring), his argu

1995In determining whether a minor is unamenable to treatment, the court may consider the seriousness of the offense the minor is alleged to have committed, the minor's history of delinquency, the probable cause of the minor's delinquent behavior, and the facilities available to the division of youth and adult authority for treating the minor. [2] Although Justice Bistline advocated protection of the information under the rubric of an Idaho statute making records of juvenile proceedings confidential, State v. Brown, 121 Idaho 385, 395 , 825 P.2d 482, 492 (1992) (Bistline, J., concurring), his argu

2023In 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 to a fair trial.1 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’

2012In Spencer v. State, 642 P.2d 1371 (Alaska App.1982), the trial court conducted a similar in camera review of a witness's psychiatric records, but those records also were already in the possession of the State-because the witness had signed a release authorizing disclosure of those records to the prosecutor, apparently in contemplation of the later in camera review by the court. 6 Thus, no Alaska case provides a direct answer to the question of whether a court may override a witness's assertion of the psychotherapist-patient privilege in a criminal case and order disclosure of privileged infor

2001See State v. R.H., 683 P.2d 269, 274-75 (Alaska App.1984) (holding that, even though AS 47.17.020 obliges mental health care providers to report incidents of sexual abuse, the psychotherapist-patient privilege still applies to allegations of sexual abuse). 5 .

1991In State v. R.H., 683 P.2d 269 (Alaska App.1984), we held that Alaska’s mandatory child abuse reporting law did not abrogate the psychotherapist-patient privilege in criminal proceedings.

2023See 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.

2023I, § 11; cf. Davis v. Alaska, 415 (continued...) – 19 – 2741 Jaffee reasoning into the criminal context for that reason.50 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 def

2023In 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 to a fair trial.1 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’

2023In 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 to a fair trial.1 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’

2023Or. 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.

2023These 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 health problem.”76 Indeed, “[t]o subject every witness in a criminal prosecution to an in camera review of their psychotherapist’s records would be

2023These 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 health problem.”76 Indeed, “[t]o subject every witness in a criminal prosecution to an in camera review of their psychotherapist’s records would be

2023These 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 health problem.”76 Indeed, “[t]o subject every witness in a criminal prosecution to an in camera review of their psychotherapist’s records would be

2023See 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.

2020She analogizes her case to Kennedy v. Municipality of Anchorage, where we held that a civil litigant did not waive psychiatrist-patient privilege when he asserted a “garden-variety” mental anguish claim.9 Relying on cases discussing the psychotherapist-patient privilege, she argues that this privilege serves important social purposes so that we should only allow 7 AS 23.30.108(d). 8 AS 23.30.108(e). 9 305 P.3d 1284, 1290-91 (Alaska 2013). -11- 7464 discovery of employees’ mental health records when they themselves elect to put them in issue.10 Alaska Children’s Services contends that under the

2012See State v. Storlazzi, 191 Conn. 453 , 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172 , 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908 , 70 Ill.Dec. 684 , 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96 , 83 Ill.Dec. 573 , 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255 , 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596 , 424 N.

2012See State v. Storlazzi, 191 Conn. 453 , 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172 , 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908 , 70 Ill.Dec. 684 , 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96 , 83 Ill.Dec. 573 , 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255 , 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596 , 424 N.

2012See State v. Storlazzi, 191 Conn. 453 , 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172 , 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908 , 70 Ill.Dec. 684 , 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96 , 83 Ill.Dec. 573 , 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255 , 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596 , 424 N.

2012See State v. Storlazzi, 191 Conn. 453 , 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172 , 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908 , 70 Ill.Dec. 684 , 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96 , 83 Ill.Dec. 573 , 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255 , 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596 , 424 N.

2012See State v. Storlazzi, 191 Conn. 453 , 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172 , 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908 , 70 Ill.Dec. 684 , 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96 , 83 Ill.Dec. 573 , 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255 , 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596 , 424 N.

2012See State v. Storlazzi, 191 Conn. 453 , 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172 , 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908 , 70 Ill.Dec. 684 , 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96 , 83 Ill.Dec. 573 , 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255 , 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596 , 424 N.

2012Standifer relies on what this Court said about the psychotherapist-patient privilege in Cooper v. District Court, 133 P.3d 692, 716 (Alaska App.2006): [The psychotherapist-patient privilege does not cover all testimony that discloses that someone suffers from mental health or behavioral problems, or that describes those problems, or that describes other people's reactions to those problems.

2012See State v. Storlazzi, 191 Conn. 453 , 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172 , 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908 , 70 Ill.Dec. 684 , 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96 , 83 Ill.Dec. 573 , 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255 , 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596 , 424 N.

2012See State v. Storlazzi, 191 Conn. 453 , 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172 , 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908 , 70 Ill.Dec. 684 , 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96 , 83 Ill.Dec. 573 , 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255 , 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596 , 424 N.

2012See, e.g., State v. Miller, 300 Or. 203 , 709 P.2d 225, 238-240 (1985), where the Oregon Supreme Court held that the defendant's explanation to a secretary-receptionist as to why he needed to see a doctor was covered by the psychotherapist-patient privilege, since "[a] reasonable person in [the] defendant's position could have believed [that] he had to tell her his problem in order to get past her to talk to a doctor." (Assumedly, the receptionist's later communication of the defendant's words to the doctor was also covered by the privilege.) See also American National Watermat-tress Corp. v.

2012See, e.g., State v. Miller, 300 Or. 203 , 709 P.2d 225, 238-240 (1985), where the Oregon Supreme Court held that the defendant's explanation to a secretary-receptionist as to why he needed to see a doctor was covered by the psychotherapist-patient privilege, since "[a] reasonable person in [the] defendant's position could have believed [that] he had to tell her his problem in order to get past her to talk to a doctor." (Assumedly, the receptionist's later communication of the defendant's words to the doctor was also covered by the privilege.) See also American National Watermat-tress Corp. v.

2012See State v. Storlazzi, 191 Conn. 453 , 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172 , 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908 , 70 Ill.Dec. 684 , 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96 , 83 Ill.Dec. 573 , 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255 , 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596 , 424 N.

2012See State v. Storlazzi, 191 Conn. 453 , 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172 , 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908 , 70 Ill.Dec. 684 , 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96 , 83 Ill.Dec. 573 , 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255 , 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596 , 424 N.

2012See State v. Storlazzi, 191 Conn. 453 , 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172 , 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908 , 70 Ill.Dec. 684 , 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96 , 83 Ill.Dec. 573 , 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255 , 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596 , 424 N.

2012See State v. Storlazzi, 191 Conn. 453 , 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172 , 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908 , 70 Ill.Dec. 684 , 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96 , 83 Ill.Dec. 573 , 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255 , 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596 , 424 N.