Defending CSC Allegations – Psychological Records and the Confrontation Clause
Criminal sexual conduct cases, including date rape or acquaintance rape allegations, frequently involve the classic “he said, she said” situation. A friend, co-worker, classmate, or another acquaintance claims “rape,” and the only defense you have is your word – usually either “I didn’t do it,” or, “we had sex, but she consented.” So, the Defense of CSC cases often focuses on what evidence can a defense lawyer uncover about the complainant – including information such as therapy or counseling records. However, Prosecutors frequently fight Defense access to such records, citing “Doctor/Client Privilege,” Rape Shield, or some other hyper-technical legal argument that they claim trumps a defendant’s State and Federal Constitutional right to confront and cross examine witnesses.
The right to confront your accuser in a criminal case was again in the forefront of a sexual assault case. In People v. Ring, the Michigan Court of Appeals recently affirmed a conviction for criminal sexual assault in the first degree (MCL 750.520b). The Court rejected numerous claims, including ineffective assistance of counsel and prosecutorial misconduct. Of special note was the defendant’s due process claim that he was denied access to his accuser’s psychological records.
In 2008, Daniel Arthur Ring encountered a woman at a bar, the mother of an old high school friend. According to the woman, Ring took her home and proceeded to rape her. Ring claimed the sex was consensual. As is common, it was a “he said-she said” case. The jury believed the woman, and found Ring guilty on the CSC-1 charge.
Following Ring’s sentencing, his attorney subpoenaed the woman’s insurance and psychological records. The attorney wanted to use this information in preparing a motion for a new trial and a hearing to determine what restitution Ring owed the woman. The insurance company refused to comply with the subpoena, citing the federal Health Insurance and Portability Accountability Act (42 U.S.C. § 1320d). The psychologist complied, however, and provided defense counsel with the woman’s psychological records.
At the restitution hearing, the Livingston Circuit Court ordered defense counsel to return the psychological records. After a later hearing, the Circuit Court again denied the defense access to the records, citing not just HIPAA but the Michigan Public Health Code and local court rules.
A three-judge panel of the Court of Appeals agreed with the Circuit Court’s actions. The panel noted that criminal defendants “do not have a general right to discovery,” only those limited rights provided by court rules. While a trial court may conduct an in-chambers review of privileged records to determine if evidence is “necessary to the defense,” the general rule is that a defendant may not have access to any information “protected from disclosure by constitution, statute, or privilege.”
In this case, the woman’s psychological records constituted “protected health information” protected from disclosure by HIPAA. They also constituted “privileged communications” under Michigan Health Code. (MCL 330.1750) Absent a waiver of privileged by the woman or a proper motion for in-chambers review by the trial court, King and his attorneys had no right to the psychological records.
The appeals panel further rejected King’s argument that denying him access to the psychological records for use in his restitution hearing violated his right to confront the witnesses against him guaranteed by the Sixth Amendment to the United States Constitution. The panel conceded that while “[n]either this Court nor our Supreme Court has determined whether the Confrontation Clause applies to a restitution hearing,” the U.S. Supreme Court, in Barber v. Page, noted that the “right to confrontation is basically a trial right,” which the trial court in this case correctly interpreted to mean, “not a pre- or post-trial right.” The panel cited additional case law from the Tenth U.S. Circuit Court of Appeals (U.S. v. Sunrhodes) and state appeals courts in Florida and Delaware to support the view that “a restitution hearing is part of the sentencing process where procedural protections are less stringent than the protections afforded a presumptively innocent defendant during trial.”
Left open by this case is the obviously question of what would have happened if the defendant’s lawyer had done his job, and filed a motion seeking disclosure of these records under MCR 6.201(C)(2) and People v Stanaway, 446 Mich 643 (1994), before trial, instead of waiting until his client had been (perhaps wrongfully) convicted at trial. After all, neither HIPAA nor Michigan’s statutes on privilege trump a criminal defendant’s rights to confront and cross examine witnesses. Depending on what information was in the records, it is certainly possible that the 6th Amendment and MCR 6.201 would compel disclosure of those records to the defense. Once again, inadequate investigation and preparation by a defense lawyer could have caused yet another person to be convicted of sexual assault, without the jury even hearing the entire story of who was making the accusation.
Do not let this happen to you or your loved one. Understanding the scope and limits of your constitutionally protected rights requires the assistance of an experienced defense attorney. If you or someone you know is charged with a date rape, child sexual assault, or any other sex offense-related offense, contact the offices of Satawa Law. We are experts in defending all sex crimes and related charges. The stakes are too high to settle for anything less than the absolute best.