Bobo v. State, 349 S.E.2d 690 (Ga. 1986). · Go Syfert
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Bobo v. State, 349 S.E.2d 690 (Ga. 1986). Cases Citing This Book View Copy Cite
“n order to abrogate the psychiatrist-patient privilege, the defendant must make a showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is otherwise unavailable to him”
160 citation events (73 in the last 25 years) across 14 distinct courts.
Strongest positive: State v. Fay (conn, 2017-09-12) · Strongest negative: Dynin v. Hall (gactapp, 1993-01-29)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 36 distinct citers.
discussed Abrogated Dynin v. Hall (2×)
Ga. Ct. App. · 1993 · confidence high
In Bobo v. State, 256 Ga. 357 ( 349 SE2d 690 ) (1986), four Justices of the Supreme Court did not agree that the psychiatrist-patient privilege could be abrogated by a showing of “necessity.” But see Brown v. State, 261 Ga. 66, 71 (5e) ( 401 SE2d 492 ) (1991).
discussed Cited "but see" Mincey v. Georgia Department of Community Affairs (2×)
Ga. Ct. App. · 2011 · signal: but see · confidence high
But see Bobo v. State, 256 Ga. 357, 359-61 (3), (4) ( 349 SE2d 690 ) (1986) (in the criminal context, a witness’s statutory mental-health privilege must yield to a defendant’s constitutional right to confront witnesses against him if the evidence in question is critical to his defense and substantially similar evidence is otherwise unavailable to him). 10 Herendeen, 279 Ga. at 327 (citation and punctuation omitted).
examined Cited "but see" Kennestone Hospital, Inc. v. Hopson (3×)
Ga. · 2000 · signal: but see · confidence high
But see Bobo v. State, 256 Ga. 357, 360 ( 349 SE2d 690 ) (1986) (plurality opinion) (concluding that a witness’ statutory psychiatrist-patient privilege must yield to the defendant’s constitutional right of confrontation in a proper case). 14 See Dynin v. Hall, 207 Ga. App. 337, 338 ( 428 SE2d 89 ) (1993). 15 See Fields v. State, 221 Ga. 307, 308-309 ( 144 SE2d 339 ) (1965). 16 See Bobo, 256 Ga. at 358 . 17 Johnson v. Flynt, 240 Ga. 359, 366 ( 240 SE2d 858 ) (1977). 18 Black’s Law Dictionary 1575 (7th ed. 1999). 19 Id.; Johnson v. Flynt, 240 Ga. at 366 . 20 See Jones v. Abel, 209 Ga. App…
examined Cited as authority (quoted) State v. Fay (2×)
Conn. · 2017 · quote attribution · 2 verbatim quotes · confidence low
n order to abrogate the psychiatrist-patient privilege, the defendant must make a showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is otherwise unavailable to him
examined Cited as authority (rule) In Re Charity Muse, Lpc, Bcc (4×)
Ga. Ct. App. · 2024 · confidence medium
In Bobo, supra, our 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 must be tipped in favor of his constitutional rights and the search for the truth.” 256 Ga. at 359 (3).
discussed Cited as authority (rule) John Robert Douglas v. State of Alaska, John Robert Douglas v. State of Alaska (2×)
Alaska Ct. App. · 2023 · confidence medium
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 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, t…
examined Cited as authority (rule) In Re Jerri Frost (6×) also: Cited "see"
Ga. Ct. App. · 2022 · confidence medium
Bobo, 256 Ga. at 360 (4).
discussed Cited as authority (rule) Robert Dipietro v. State
Ga. Ct. App. · 2020 · confidence medium
Pretermitting the issue of whether A. S. was authorized to reassert the privilege after reaching the age of majority, the trial court ultimately ruled that Dr. Norman could not testify as to the impact of the victim’s mental health condition — as documented in the contested mental health records — on the credibility of her outcry against DiPietro because the expert’s conclusions lacked sufficient probative value, 8 In Bobo, our Supreme Court held, in a plurality opinion, that a witness’s statutory psychiatrist-patient privilege must yield to the defendant’s constitutional right of …
examined Cited as authority (rule) Cooksey v. Landry (5×)
Ga. · 2014 · confidence medium
Applying these rules, our courts have determined that the privilege is not waived when a party claiming the privilege puts at issue in a civil proceeding the nature and extent of his or her emotional or mental injuries, see Mincey v. Georgia Dept. of Community Affairs, 308 Ga. App. 740, 745 ( 708 SE2d 644 ) (2011), is not waived when the person claiming the privilege makes disclosures in a separate, unrelated proceeding, see Bobo v. State, 256 Ga. 357, 358 ( 349 SE2d 690 ) (1986) and Trammel v. Bradberry, 256 Ga. App. 412, 424 (6) ( 568 SE2d 715 ) (2002), is not waived when communications are …
examined Cited as authority (rule) Cooksey v. Landry (3×)
Ga. · 2014 · confidence medium
Moreover, and of primary importance in this case, is the fact that unlike other recognized privileges, the psychiatrist-patient privilege survives the death of the patient.6 See Sims v. State, 251 Ga. 877, 881 ( 311 SE2d 161 ) (1984); 5 Applying these rules, our courts have determined that the privilege is not waived when a party claiming the privilege puts at issue in a civil proceeding the nature and extent of his or her emotional or mental injuries, see Mincey v. Georgia Dept. of Community Affairs, 308 Ga. App. 740, 745 ( 708 SE2d 644 ) (2011), is not waived when the person claiming the pri…
discussed Cited as authority (rule) N.G. v. Superior Court
Alaska Ct. App. · 2012 · confidence medium
See 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.…
discussed Cited as authority (rule) Brown v. State (2×)
Ga. · 2010 · confidence medium
Brown relies upon Bobo v. State, 256 Ga. 357, 360 (4) ( 349 SE2d 690 ) (1986), in which [a] plurality of this Court ... held that “(i)n order to abrogate the psychiatrist-patient privilege, the (criminal) defendant must make a showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is not otherwise available to him.” [Cit.] Applying that standard, we find that the trial court did not err in failing to disclose portions of the records that reflected psychiatrist-patient communications.
discussed Cited as authority (rule) Haughton v. Canning
Ga. Ct. App. · 2007 · confidence medium
See, e.g., OCGA§ 24-9-40 (governingreleaseofmedicalinformation); Gilmore v. State, 175 Ga. App. 376, 378 ( 333 SE2d 210 ) (1985) (no error in failure to suppress evidence obtained from defendant’s doctor); OCGA § 24-9-21 (5) (relationship of psychiatrist and patient privileged); Bobo v. State, 256 Ga. 357, 358 (2) ( 349 SE2d 690 ) (1986) (no error in denying admission of witness’s psychiatric history).
examined Cited as authority (rule) Hunt v. State (7×) also: Cited "see, e.g."
Ga. Ct. App. · 2004 · confidence medium
Bobo, supra, 256 Ga. at 358 (2), 349 S.E.2d 690 .
discussed Cited as authority (rule) Commonwealth v. Barroso
Ky. · 2003 · confidence medium
E.g., 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 (2003); 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), overruled on other grounds as recognized by People v. Hamilton, 283 Ill.App.3d 854 , 219 Ill.Dec. 301 , 670 N.E.2d 1189, 1194 (1996); Commonwealth v. Stockhammer, 409 Mass. 867 , 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643 ,…
discussed Cited as authority (rule) State v. Peseti
Haw. · 2003 · confidence medium
Id. (some brackets added and some in original); see also Salazar v. State, 559 P.2d 66, 79 (Alaska 1976) (holding that “[w]hen ... the defendant’s right to confront effectively the witnesses against him by exploring their possible bias or prejudice is balanced against a rule based solely on policy grounds, the defendant’s constitutional rights must prevail”); Neku v. United States, 620 A.2d 259, 263 (D.C.1993) (holding that “when a defendant proffers evidence of prior inconsistent statements by a witness who is important to the government’s case and those statements otherwise would…
discussed Cited as authority (rule) Trammel v. Bradberry
Ga. Ct. App. · 2002 · confidence medium
Bobo v. State, 256 Ga. 357, 358 (2) ( 349 SE2d 690 ) (1986) (the personal psychiatrist who did not testify was privileged and his testimony was cumulative); cf. Kennestone Hosp. v. Hopson, supra at 148. *425 The privilege does not end with the death of the person with the privilege.
discussed Cited as authority (rule) Glass v. State
Ga. Ct. App. · 2002 · confidence medium
J., and Miller, J., concur. 1 248 Ga. App. 91 ( 545 SE2d 360 ) (2001). 2 Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). 3 Patterson v. State, 233 Ga. App. 776 (1) ( 505 SE2d 518 ) (1998). 4 Patterson v. State, 225 Ga. App. 515 ( 484 SE2d 317 ) (1997). 5 Dominguez-Vega v. State, 253 Ga. App. 562 (1) ( 560 SE2d 56 ) (2002); McIntosh v. State, 247 Ga. App. 640, 641 (1) ( 545 SE2d 61 ) (2001). 6 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 7 OCGA § 16-6-1 (a) (1). 8 OCGA § 16-6-22.2 (b). 9 Banks v. State, 250 Ga. App. 728, 731 (4) ( 552 SE2d 903 ) (200…
discussed Cited as authority (rule) Lucas v. State
Ga. · 2001 · confidence medium
Lucas filed a notice of appeal on March 14, 2001, and his appeal was docketed in this Court on April 18, 2001, and orally argued on June 11, 2001. 2 See OCGA § 17-10-30 (b) (2) and (7). 3 See OCGA § 17-10-30 (b) (2). 4 Id. 5 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 6 OCGA § 17-10-1.2 (a) (1) (emphasis supplied). 7 See Turner v. State, 268 Ga. 213, 214-215 (2) (a) ( 486 SE2d 839 ) (1997). 8 Payne v. Tennessee, 501 U. S. 808, 841 (111 SC 2597, 2608, 115 LE2d 720) (1991) (Souter, J., concurring). 9 Butts v. State, 273 Ga. 760, 767 (15) ( 546 SE2d 472 ) (2001). 10 Se…
discussed Cited as authority (rule) King v. State (2×)
Ga. · 2000 · confidence medium
Bobo v. State, 256 Ga. 357, 360 (4) ( 349 SE2d 690 ) (1986); OCGA § 24-9-21 (5).
cited Cited as authority (rule) Atkins v. State
Ga. Ct. App. · 2000 · confidence medium
Bobo v. State, 256 Ga. 357, 360 (4) ( 349 SE2d 690 ) (1986).
discussed Cited as authority (rule) Hopson v. Kennestone Hospital, Inc.
Ga. Ct. App. · 1999 · confidence medium
NOTES [1] OCGA § 24-9-21(5); Plunkett v. Ginsburg, 217 Ga.App. 20, 21 , 456 S.E.2d 595 (1995); Dynin v. Hall, 207 Ga.App. 337, 338 (1), 428 S.E.2d 89 (1993). [2] OCGA § 9-11-34(c)(2). [3] 235 Ga.App. 792, 793-794 (1), 510 S.E.2d 582 (1998). [4] OCGA § 24-9-21(5); Plunkett, supra; Dynin, supra. [5] Wiles v. Wiles, 264 Ga. 594, 596 (1), 448 S.E.2d 681 (1994); Griggs v. State, 241 Ga. 317, 318-319 (3), 245 S.E.2d 269 (1978); Fields v. State, 221 Ga. 307, 308-309 (2), 144 S.E.2d 339 (1965). [6] Bobo v. State, 256 Ga. 357, 358 (2), 349 S.E.2d 690 (1986). [7] Boggess v. Aetna Life Ins.
examined Cited as authority (rule) Hicks v. Talbott Recovery System, Inc. (5×) also: Cited "see"
11th Cir. · 1999 · confidence medium
Bobo, 349 S.E.2d at 691 (citations omitted). 26 Subpart C states the requisite elements of a written consent for a patient's release of treatment records: A written consent to a disclosure under these regulations must include: (1) The specific name or general designation of the program or person permitted to make the disclosure. (2) The name or title of the individual or the name of the organization to which disclosure is to be made. (3) The name of the patient. (4) The purpose of the disclosure. (5) How much and what kind of information is to be disclosed. (6) The signature of the patient . .…
cited Cited as authority (rule) Price v. State Farm Mutual Automobile Insurance
Ga. Ct. App. · 1998 · confidence medium
See Associated Grocers Co-Op v. Trust Co. of Columbus, 158 Ga. App. 115, 116 (3) ( 279 SE2d 248 ) (1981); Bobo v. State, 256 Ga. 357, 358 (2) ( 349 SE2d 690 ) (1986).
discussed Cited as authority (rule) Davidson v. State
Ga. Ct. App. · 1998 · confidence medium
Pope, P. J., and Ruffin, J., concur. 1 McFarren v. State, 210 Ga. App. 889, 891 (2) ( 437 SE2d 869 ) (1993). 2 Sweatman v. State, 181 Ga. App. 474 (1) ( 352 SE2d 796 ) (1987). 3 Todd v. State, 189 Ga. App. 538, 539 (1) ( 376 SE2d 917 ) (1988). 4 Willis v. State, 202 Ga. App. 447, 449 (2) ( 414 SE2d 681 ) (1992) (physical precedent only). 5 634 F2d 272 (5th Cir. 1981). 6 698 F2d 1154 (11th Cir. 1983). 7 249 Ga. 257, 259 (2) ( 290 SE2d 911 ) (1982). 8 See Bobo v. State, 256 Ga. 357, 359 (3) ( 349 SE2d 690 ) (1986). 9 698 F2d at 1160. 10 Miller v. State, 260 Ga. 191, 194 (6) ( 391 SE2d 642 ) (199…
discussed Cited as authority (rule) Plunkett v. Ginsburg
Ga. Ct. App. · 1995 · confidence medium
As noted in Bobo v. State, 256 Ga. 357, 358 (2) ( 349 SE2d 690 ) (1986), OCGA § 24-9-40, which waives the privilege of confidentiality of medical records to the extent that medical care and treatment are placed at issue, specifically exempts psychiatrists from its coverage.
discussed Cited as authority (rule) Goldsmith v. State
Md. · 1995 · confidence medium
Romley v. Superior Court, 172 Ariz. 232, 239 , 836 P.2d 445, 452 (App.Div. 1 1992); State v. Hufford, 205 Conn. 386 , 533 A.2d 866, 875-77 (1987); Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 691-92 (1986); People v. Bean, 137 Ill.2d 65 , 147 Ill.Dec. 891 , 560 N.E.2d 258, 270-75 (1990); Commonwealth v. Bishop, 416 Mass. 169 , 617 N.E.2d 990, 994-95 (1993); People v. Stanaway, 446 Mich. 643 , 521 N.W.2d 557, 577 (1994); People v. Adamski, 198 Mich.App. 133 , 497 N.W.2d 546, 548-50 (1993); State v. Hummel, 483 N.W.2d 68, 71-72 (Minn.1992); State v. Ramos, 115 N.M. 718 , 858 P.2d 94, 97-99 (1993…
discussed Cited as authority (rule) Ex Parte United Service Stations, Inc.
Ala. · 1993 · confidence medium
That court, construing a statute substantially identical to § 34-26-2, has held that the psychiatrist-patient privilege applies even when a party who claims it is "seeking to recover damages for injuries of a mental and emotional nature." Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690, 692 (1986), citing Wilson v. Bonner, 166 Ga.App. 9 , 303 S.E.2d 134 (1983).
examined Cited as authority (rule) Jones v. Abel (4×)
Ga. Ct. App. · 1993 · confidence medium
As to the "rare" instances in which a court order may override the privilege, see Bobo v. State, 256 Ga. 357, 360 ( 349 SE2d 690 ) and Aetna Cas. &c.
discussed Cited as authority (rule) Brown v. State
Ga. · 1991 · confidence medium
He relies upon Bobo v. State, 256 Ga. 357, 360 (3) ( 349 SE2d 690 ) (1986), where we held: [I]n a proper case a witness’ statutory privilege must give way where countervailing interests in the truth-seeking process demand such a result. [Emphasis in original.] In order to abrogate the psychiatrist-patient privilege, the defendant must make a showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is unavailable to him.
discussed Cited "see" State v. Dana Page Malick (2×)
Ga. Ct. App. · 2021 · signal: see · confidence high
See Bobo v. State, 256 Ga. 357 ( 349 SE2d 690 ) (1986) (plurality opinion).
discussed Cited "see" Karpowicz v. Hyles (2×)
Ga. Ct. App. · 2000 · signal: see · confidence high
See Bobo v. State, 256 Ga. 357, 359 (3) ( 349 SE2d 690 ) (1986).
discussed Cited "see" Thomas v. State (2×)
Ga. Ct. App. · 1999 · signal: see · confidence high
See Bobo v. State, 256 Ga. 357, 360 (4) ( 349 SE2d 690 ) (1986); see also Tiller v. State, 159 Ga. App. 557, 558 ( 284 SE2d 63 ) (1981). (e) Thomas states that “the outcome of this trial would have been different” had the defense been made aware of the victim’s alleged psychiatric history.
examined Cited "see" Sletto v. Hospital Authority of Houston County (8×)
Ga. Ct. App. · 1999 · signal: see · confidence high
See Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690 (1986).
discussed Cited "see" Commonwealth v. Kyle (2×)
Pa. · 1987 · signal: see · confidence high
See Bobo v. State, 256 Ga. 357 , 349 S.E.2d 690 (1986) (upon a showing of necessity, the accused may gain access to privileged information); State v. McBride, 213 N.J.Super. 255, 270 , 517 A.2d 152, 159 (1986) (although psychologist-patient privilege was co-extensive with attorney-client privilege, it may be defeated in the interest of fairness); State v. Farrow, 116 N.H. 731 , 366 A.2d 1177 (1976) (defendant’s right to confrontation required limited use of information protected by doctor/psychologist-patient privilege).
discussed Cited "see, e.g." Robinson v. State (2×)
Ga. Ct. App. · 1996 · signal: compare · confidence medium
Brown v. State, 261 Ga. 66, 71 (5) ( 401 SE2d 492 ) (1991); compare Bobo v. State, 256 Ga. 357, 359 (3) ( 349 SE2d 690 ) (1986). 4.
Bobo
v.
the State.
43237.
Supreme Court of Georgia.
Oct 29, 1986.
349 S.E.2d 690
Axam & Altman, Robert Altman, for appellant., Lewis R. Slaton, District Attorney, H. Allen Moye, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.
Hunt, Marshall, Smith, Weltner, Bell, Gregory.
Cited by 62 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 61%
Citer courts: Supreme Court of Connecticut (2)

Lead Opinion

Hunt, Justice.

Thomas Jerald Bobo was indicted for burglary, aggravated as[*358] sault, and murder arising from an incident in which the victim, Officer David Hagin, and the witness, Officer Colleen Sullivan, were shot while investigating a burglary in progress. Bobo’s original conviction was set aside by this court at 254 Ga. 146 (327 SE2d 208) (1985).

Prior to retrial, Bobo moved for the disclosure of the psychiatric history and examinations of Officer Sullivan, the state’s main witness. His defense continues to be that he was not the perpetrator. He sought to impeach her eyewitness identification testimony by showing that she suffered from “post-traumatic stress syndrome,” which affected her memory and perception. The trial court ruled the communications privileged and denied the motion. We granted Bobo’s application for interlocutory appeal.

OCGA § 24-9-21 provides: “There are certain admissions and communications excluded on grounds of public policy. Among these are ... . (5) Communications between psychiatrist and patient.”

1. Bobo contends that no privileged relationship existed between Sullivan and the psychiatrists whom she consulted. The record shows that Sullivan voluntarily sought assistance from the psychiatrists who examined her. The requisite confidential relationship of psychiatrist and patient is thus established. Kimble v. Kimble, 240 Ga. 100, 101 (239 SE2d 676) (1977).

2. He next contends that Sullivan waived the privilege by allowing psychiatric testimony to be made public in her workers’ compensation cases. That is not the law. OCGA § 24-9-40 provides that “the privilege [of confidentiality of medical records] shall be waived to the extent that the patient places his care and treatment or the nature and extent of his injuries at issue in any civil or criminal proceeding. This Code section shall not apply to psychiatrists.” The psychiatrist-patient privilege is not waived when a party who claims it is seeking to recover damages for injuries of a mental and emotional nature. Wilson v. Bonner, 166 Ga. App. 9, 16 (303 SE2d 134) (1983). The privilege is not waived when a third party is present, who is a necessary or customary participant in the consultation and treatment. Sims v. State, 251 Ga. 877 (5) (311 SE2d 161) (1984). Nor is the privilege waived when the person claiming it has made disclosures in separate, unrelated actions. See Associated Grocers Co-op v. Trust Co., 158 Ga. App. 115 (3) (279 SE2d 248) (1981), for the proposition that disclosures that are not made pursuant to litigation do not defeat the attorney-client privilege.

3. Bobo contends that the statutory privilege must yield to his right of confrontation, which he asserts is superior to the statutory privilege and the public policy that it enunciates.[1] He relies on[*359] United States v. Lindstrom, 698 F2d 1154 (11th Cir. 1983), which was a federal prosecution in the State of Florida. There the trial court had limited cross-examination of the key government witness about her prior psychiatric treatment, and had denied the defendants access to the witness’ psychiatric records. The Court of Appeals ruled that the psychiatric history and records provided critical impeachment evidence.

The state argues strenuously that United States v. Lindstrom, supra, is distinguishable because no statutory privilege was involved in that federal prosecution and indeed that court found no such privilege to exist. We note here, however, that the court in making its decision relied upon Fed. R. Evid. § 501: “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 [except in civil actions governed by state law].” This so called “rule of reason” is explored fully in In re Zuniga, 714 F2d 632 (6th Cir. 1983), where the Sixth Circuit recognized the psychiatrist-patient privilege, then balanced the interests protected by shielding the evidence with those advanced by disclosure and decided the privilege must yield.

Similarly, in Lindstrom, that court recognized all of the policy reasons for the privilege, but held such a “privilege” could not prevail where the privileged information was at the heart of the defendant’s case. While the privilege should be given the utmost deference, 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 must be tipped in favor of his constitutional rights and the search for the truth. See Hines v. State, 249 Ga. 257 (2) (290 SE2d 911) (1982). Compare Davis v. Alaska, 415 U. S. 308, 319 (94 SC 1105, 39 LE2d 347) (1974) (right of confrontation is paramount to a state policy protecting juvenile offenders); Greene v. Wainwright, 634 F2d 272 (5th Cir. 1981) (right of confrontation requires that defendant be allowed to cross-examine the prosecuting police officer about his mental condition and the bizarre criminal actions he was involved in at the time of an alleged drug sale); United States v. Society of Independent Gasoline Marketers of America, 624 F2d 461 (4th Cir. 1979) (error to deny access to hospital records revealing delusional and hallucinatory state of chief witness); In re Rob[*360] ert H., No. 12516 (54 USLW 2635) (May 20, 1986) (where defendant makes a proper showing, rape crisis counselor’s testimony is admissible) with Hanlon v. State, 162 Ga. App. 46 (3) (290 SE2d 285) (1982), where the evidence was not relevant.[2]

Thus, we must also conclude that in a proper case a witness’ statutory privilege must give way where countervailing interests in the truth-seeking process demand such a result.[3]

4. In order to abrogate the psychiatrist-patient privilege, the defendant must make a showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is otherwise unavailable to him.

The privilege established by OCGA § 24-9-21 (5) prohibits the defendant from engaging in a “fishing expedition” regarding a witness’ consultations with a psychiatrist. Therefore, a defendant may not explore such evidence unless he makes allegations sufficient to establish a prima facie need for its discovery by a proper motion for a pretrial hearing. At the ensuing inquiry, the psychiatrist would be available to the defendant for discovery of his findings and any statements made by the patient-witness to him material to the issues on trial. The trial court must, consistent with the demands of due process, then delineate those communications available to the defense for use at trial. Conversely, any communications not central to the defense must remain privileged and inadmissible at trial. State v. Pierson, 39 Cr.L.R. 2453 (Conn. Sup. Ct. 1986).[4] In the case before us, such a special pretrial hearing was held in which the psychiatrists testified as to what their testimony would be if called as witnesses at the trial.

One, Dr. Villaneuva, had treated the witness during her surgical recuperation from the shooting and had diagnosed her as suffering from traumatic depressive reaction. He testified that the dominant characteristic of her mental state at that time was depression and that difficulty in concentrating was also an aspect of this reaction, which could be ongoing.

The other two testifying psychiatrists had treated the witness in relation to her claims for workers’ compensation and pension benefits resulting from her disability to work as a police officer after undergo[*361] ing this stressful experience. Dr. Berry first saw the witness just after the first trial in March 1982, when she was referred to him by the police department chaplain, and Dr. Rolland examined her in July 1983. Both psychiatrists testified that their conversations with her did not focus on the details of her ability to identify the perpetrator, but on the experience itself as the stressful event which resulted in her suffering from post-traumatic stress syndrome, the predominating feature of which is extreme anxiety, which in turn prevented her from returning to police work.

Other characteristics of this syndrome include memory loss and constant reliving of the traumatic experience. The defendant urges therefore that her psychiatric condition greatly affects her credibility as the only eyewitness and her resulting identification of the defendant as the perpetrator. Thus, he contends, his constitutional right to explore her mental condition is central to his defense that she has mistakenly identified him.

The gravamen of the doctors’ testimony is that the witness suffers from post-traumatic stress syndrome which characteristically includes memory loss. No evidence was presented by them which directly shows that she is unable to identify or unsure of her identification of the defendant as the assailant.

On the other hand, other impeaching evidence is already available to the defendant. At the first trial a hypnotist, who was also a psychiatrist, at the request of the state, had attempted to hypnotize Officer Sullivan in order to enhance her ability to remember the perpetrator. The hypnotist testified that he was unsuccessful in this attempt in part because of her emotional state which he attributed to stress from the trauma of the incident. Because there is no psychiatrist-patient privilege where a witness agrees to be interviewed by an expert called by the state, Emmett v. Ricketts, 397 FSupp. 1025,1038 (N.D. Ga. 1975), the information now sought is and was already available to the defense.[5]

Likewise, at the first trial, Officer Sullivan was questioned about her statements to other state witnesses concerning her official reports and her lineup identification. Additionally, the trial court admitted the testimony of another psychiatrist who was hired by the police to help Sullivan recall the description of the perpetrator through the use of sodium pentothal. He and the hypnotist were examined concerning what she had disclosed to them. See 254 Ga. at 148 (3) (a).

We thus hold that the defendant has failed to show the necessity for the admission of this privileged information and the trial court[*362] properly refused to grant his request.

Judgment affirmed.

All the Justices concur, except Marshall, C. J., Smith and Weltner, JJ., who concur specially, Bell, J., who concurs in the judgment only and Gregory, J., who dissents.
1

Developments in the Law — Privileged Communications, 98 Harvard Law Review[*359] 1450, 1547 (1985). See generally 1545-1552. Four privacy interests are discussed as rationales for a physician-patient privilege: (1) control of private information that is disseminated about oneself; (2) the reasonable expectation of privacy in confidential communications; (3) freedom from government intrusion into important personal decisions; and (4) the inviolability of the individual’s body, which includes information conveyed during medical treatment. See also In re “B.,” 482 Pa. 471, 484 (394 A2d 419, 425) (1978), and In re Lifschutz, 85 Cal. 829 (467 P2d 557, 567) (1970).

2

Compare People v. Dist. Ct., #85SA343 (54 USLW 2633, Colo. Sp. Ct., June 2, 1986).

3

As McCormick has said: “[The] solution is to recognize .. . that the privilege is not an absolute, but a qualified one, which must yield if the trial judge finds that the evidence of the communication is required in the due administration of justice.” McCormick on Evidence 2d ed. at p. 174.

4

Under the Connecticut procedure, where the patient-witness refuses to waive the privilege as to matters ruled to be central to the defense, then that witness, whom the defendant seeks to impeach, may not testify against him at trial. We need not decide whether such a rule is necessary at this time.

5

Since this evidence of the fact that Officer Sullivan was then suffering from post-traumatic stress syndrome is available, the defendant may also offer expert testimony as to the characteristics of that condition.

Concurrence

Weltner, Justice,

concurring specially.

The majority opinion removes the absolute protection of privileges, which our law has recognized for many decades, and casts them upon the doubtful scales of another “balancing” test. By thus weakening the patient-psychiatrist privilege, we also diminish other established privileges, notably as to communications between husband and wife, between attorney and client, and among grand jurors.

All of this is done in the name of “confrontation.” Yet, it need not be. “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U. S._(106 SC 292, 295, 88 LE2d 15) (1985).

I would not inflate the concept of “confrontation” to admit of an inquisitorial scrutiny into private concerns that long have been shielded by the statutory law of our state. See OCGA § 24-9-21. Accord Tiller v. State, 159 Ga. App. 557 (1) (284 SE2d 63) (1981).

I am authorized to state that Chief Justice Marshall and Justice Smith join in this special concurrence.

Dissent

Gregory, Justice,

dissenting.

In my view the defendant will be denied the right of confrontation under the majority opinion. The witness will be allowed to give testimony identifying the defendant as the perpetrator of the crime, but the defendant will be denied what might prove to be critical cross-examination of the witness on that subject because the area he wishes to explore is shrouded in secrecy by the psychiatrist-patient privilege. A defendant must be afforded the right to confront the witnesses against him. At the same time there is a very great need in our society for protection of communications between psychiatrists and patients. There is a way to preserve both and I would follow that way here.

Where a witness testifies on direct examination about a given subject, but on cross-examination refuses to be further examined on that same subject, claiming his constitutional privilege against self-incrimination, the proper remedy is for the court to strike that witness’ direct testimony on the given subject. Smith v. State, 225 Ga. 328 (7) (168 SE2d 587) (1969); Emmett v. State, 232 Ga. 110 (1) (205 SE2d 231) (1974); Rasnake v. State, 164 Ga. App. 765 (2) (298 SE2d 42) (1982); United States v. Cardillo, 316 F2d 606, 610 (2nd Cir.[*363] 1963). While this case does not involve a constitutional privilege, it nonetheless involves a privilege which I consider essential to the proper rendering of psychiatric treatment. Thus, I would follow the rule used in cases of the privilfege against self-incrimination. The witness will be protected in that the privilege will prevent exposure of the confidential information. At the same time the defendant on trial will be protected in his right to be confronted by the witnesses against him because direct testimony which cannot be cross-examined due to the privilege will be eliminated.

Decided October 29, 1986. Axam & Altman, Robert Altman, for appellant. Lewis R. Slaton, District Attorney, H. Allen Moye, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.

I recognize the cases cited above would not follow the rule for eliminating direct testimony where the matter as to which the privilege is claimed is collateral only. But here the matter goes to the heart of the case and bears directly on the identification testimony given by the witness upon which the State’s case must stand or fall.

It is also necessary to provide further limitations on the application of the rule to the psychiatrist-patient privilege. If a witness claims the right against self-incrimination there is a way around the privilege by granting immunity from prosecution to the witness. That safety valve is missing in psychiatrist-patient privilege cases. Therefore, the trial judge should conduct an in-camera investigation into the privileged communications to allow disclosure of all relevant information not specifically objected to by the witness. Beyond that, I would afford the privilege but strike the direct testimony.