Rules of Evidence – Comment Period Closed June 5, 2023

URE0506. Physician and Mental Health Therapist-Patient. Amend. The proposed amendments to Rule 506 seeks to find a proper balance between maintaining a strong privilege, respecting a criminal defendant’s constitutional rights, and clarifying when and how the exception applies.

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9 thoughts on “Rules of Evidence – Comment Period Closed June 5, 2023
  1. Monica Diaz

    The new (3)(e) says it only applies in criminal cases. Does this mean the rule does not apply in delinquency proceedings? Delinquency proceedings are considered civil proceeding but proceed under Title 76 and conducted akin to a criminal trial. It would be helpful to know if this rule is to apply in juvenile court or is being specifically excluded.

  2. Jennifer Foresta

    These amendments provide much-needed clarity and direction for all parties and the court in proceedings under the Rule, as this is a frequently litigated issue in criminal cases. Very pleased to see the recognition of the defendant’s constitutional rights, as relates to accessing this often highly-relevant information, while preserving the privilege-holder’s privacy rights. The guidance to the court about disclosures, re-evaluation of the records, and the use of protective orders is also welcome, as these concerns are frequently raised. These amendments are a significant improvement to the Rule, for all involved.

  3. Matt Morrise

    I am concerned that, without having access to the relevant communications (e.g., therapy records), a criminal defendant will not ever be able to show by a preponderance that an accusation was the product of suggestion or undue influence. Typically, the most a criminal defendant might have is good evidence to suggest that an accusation may have been the product of suggestion or undue influence (e.g., an alleged victim may tell a law enforcement interviewer that the allegations were first disclosed in therapy). Hopefully, this type of evidence will be enough to trigger an in camera review under this proposal if it is adopted.

    With that said, I think this proposal is a step in the right direction, and I applaud the committee for taking such a hard look at this.

  4. Susanne Gustin

    This amendment is definitely an improvement over the current version of Rule 506. That being said, I echo Mr. Morrise’s concerns that a criminal defendant, even under a preponderance standard, will rarely be able to make a showing that the accusation was the result of undue influence.or suggestion. It’s always a catch-22 in these cases. The defendant generally does not know what is in the records and would need to see the records to make the showing. I think any case where the accusation was first disclosed to a therapist should automatically trigger at least an in-camera review of the accuser’s records.

    I would guess that 98% of the sex cases I handle are “he said–she said” cases with no DNA, pictures, witnesses, etc. It would definitely be a travesty of justice if a defendant is convicted on an accusation made first to a therapist who uses improper techniques to help an accuser “remember” abuse. Or, to learn that the therapist also noted in the records that the alleged victim was diagnosed with borderline personality disorder (diagnosis includes lying), or hallucinates or has accused others of sexual abuse.

    Thank you for working on Rule 506. For years, it has been an insurmountable hurdle in the cases I have handled.

  5. Jeanne Campbell

    I wholeheartedly agree with Ms. Gustin and Mr. Morrise’s comments and concerns. The bulk of my cases are sex offense cases and I have had to deal with this very issue several times. I have a case pending right now involving allegations first made to a therapist and the therapist reported the alleged crime AND provided a letter to the State detailing the alleged victim’s account of abuse, her diagnosis, treatment protocol, etc. In this pending case, the alleged victim also signed a release of information. Yet, we still had multiple evidentiary hearings on the applicability of the Rule. The Judge ultimately decided that the alleged victim (upon hearing from the victim’s advocate atty) didn’t intend for the therapist to release all of the information that he did in the letter and did not intent for her therapy records to be provided. The Judge, nevertheless, granted my motion for an in-camera review, agreeing with my argument that the exception to the Rule applied.

    Even under a preponderance standard, I don’t see how a criminal defendant can show an accusation was the result of undue influence or suggestion without having the records to begin with. I think the Rule already protects the privacy of the privileged party by requiring an in-camera review by the Judge prior to any disclosure of the records. I agree with Ms. Gustin, I think if the accusations are first made to a therapist and not law enforcement, it should automatically trigger an in-camera review. A defendant is still left with relying on the Judge’s discretion as to which, if any, records are disclosed. These cases often involve mandatory prison sentences, and many individuals are convicted based only on the testimony of the accuser with no corroborating evidence. So, having access to the very records that could contain exculpatory evidence is vital to presenting a good defense.

    This amendment is definitely a step in the right direction and, as a defense attorney handling a huge number of these types of cases, I appreciate the hard work of the committee.

  6. David Ferguson

    I applaud the committee’s efforts to create a balance here, and I echo the concerns raised by Mr. Morrise and Ms. Gustin. Specifically, I’m trying to play out in my head how a defendant can show by a preponderance of the evidence that a communication “contains a recantation or material inconsistency” (2)(A) without having the communication to meet that burden.

    In some cases an alleged victim may have given one narrative to police and then an inconsistent narrative to a friend who then relays some of that conversation to the defendant. I just can’t picture a judge who would accept that proffer and conclude that a therapy disclosure is “more likely than not” to contain a recantation or material inconsistency. But I also can’t picture a realistic alternative scenario where a defendant could meet that burden.

    In civil procedure when one party claims a privilege that prohibits disclosure, the seeking-party can get an in-camera review by simply bearing its burden of showing that the documents may not be privileged, and that discovery of them meets proportionality and relevance. Allred v. Saunders, 2014 UT 43. Certainly there are important distinctions between a civil case in which a victim may be a party and a criminal case where they are not. But there’s an appreciation in that context that discovery of a document and admissibility of a document are two different things. A preponderance standard here effectively shields admissibility by making discovery highly onerous. I’m sure that’s not the goal, but it is the practical effect.

    My suggestion would be to lower the threshold for discovery. To the extent that there are concerns about a defendant seeing a victim’s sensitive documents, the rule could distinguish between a regular protective order and an attorney-eyes only protective order. This can include a requirement for limited purpose counsel for pro se individuals, and an appropriately declassifying of the records on a showing that they meet a preponderance threshold via a sealed hearing. I don’t believe that this would interfere with a defendant’s constitutional rights because if counsel cannot show that the evidence is as exculpatory as originally believed, then non-disclosure to the defendant wouldn’t raise constitutional issues because the information wouldn’t be relevant.

    Additionally, there are some minor fixes that should be addressed, such as the word “shall” where, I believe, the word “will” is consistent with the rule style guide.

  7. Tom Means

    I support the long-needed proposed additions of sub paragraphs (d)(2) and (e) to URE506.
    However, I agree with the observations of other commenters here that the “extrinsic indicators” required by State v Worthen often result in a defendant being unware of exculpatory evidence communicated to therapists. Perhaps this committee should further consider automatic in-camera review of disclosures made to therapists and/or protected discovery of such disclosures, as have been suggested.

  8. Will Carlson

    While the language of the proposed amendment appears facially neutral, as if either party could claim an exception to the privilege, the conditions all aim at divulging a crime victim’s communications with a physician or therapist (the requisites being recantation, influenced accusation, reliability of the means of communication, or protecting a defendant’s constitutional rights).

    And though the proposed amendment directs the court to consider a defendant’s constitutional rights, it doesn’t even gloss over the reality that the amendment will impair Utah’s Constitutional guarantee to victims “to be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process.” The rule offers no process for a victim/declarant, always a non-party to a criminal case, to have standing in court regarding releasing their previously privileged disclosures. This one-sided exception wrongly assumes that the interests of the prosecution and the patient are the same, ignoring that the state’s and a victim’s interests are, at best, a Venn diagram or, at worst, completely separate spheres.

    Just as defense counsel has expressed concern that this proposed amendment will be difficult for attorneys to establish by a preponderance of the evidence without having access to the records, prosecutors will feel compelled to seek the documents themselves to evaluate whether any of the requisites under Subsections (A) through (D) apply to argue the matter before the judge. The justice system will breach a patient’s private communications with a doctor or therapist. Several entities outside the doctor’s or therapist’s office will learn details about the communications even if the court ultimately decides the communications are inadmissible. This breach will have a chilling effect on traumatized victims seeking treatment or even contacting law enforcement. Victims exposed to this public dispute over their private records will inevitably share with friends, family, and social media how invasive their experience has been.

    The Utah Supreme Court tipped its hat to a more limited privilege in State v. Bell based on the defendant’s failed argument relying on the SCOTUS’ 1987 decision in Pennsylvania v. Ritchie. But the Ritchie decision was about disclosing records created by a government agency, Children and Youth Services (CYS). Utah’s statutory scheme already articulates a difference between a victim’s communications with a criminal justice system advocate and any other advocate. See Utah Code Title 77 Part 4, Privileged Communications with Victim Advocates Act. This proposed amendment goes far beyond government records. It invades private spaces where no criminal defendant, prosecutor, or court should have a right to go. Accordingly, the Supreme Court should reject this proposed amendment.

  9. William Hains & David Simpson

    The proposed amendment creates ambiguity as to the standard applicable to showing an exception under (d)(1) (condition as an element of a claim or defense). Under current case law, a party asserting the exception must show to a reasonable certainty that records exist that would meet the exception and that contain exculpatory information. See State v. Bell, 2020 UT 38, ¶15.

    The new committee note suggests that the amendment is not intended to change that standard. The committee minutes also suggest that the committee views the preponderance standard as identical to the reasonable-certainty standard, and the committee apparently decided on the preponderance language because it was more familiar to judges and litigants and would be easier to apply. The preponderance language is indeed preferable because it lends more clarity to the standard. And it likely is the same as the reasonable-certainty standard. But that’s not entirely clear from the caselaw.

    The reasonable-certainty standard is discussed in tort cases dealing with lost profits. Plaintiffs must prove damages by a preponderance of the evidence, but in satisfying that standard, lost profits need only be proved to a reasonable certainty—not with precision. Courts describe reasonable certainty as “sufficient certainty that reasonable minds might believe from a preponderance of the evidence that the damages were actually suffered.” Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107, ¶76. Because that statement arises in cases reviewing the sufficiency of the evidence for damages, that language is likely just a gloss on the preponderance standard. See Howarth v. Ostergaard, 515 P.2d 442 (Utah 1973). On the other hand, that language could be read to mean that reasonable certainty is greater than a reasonable likelihood, but less than a preponderance: to show something to a reasonable certainty, a party need not convince the trier of fact by a preponderance; rather, it need only convince the trier of fact that it would be reasonable for someone to conclude by a preponderance of the evidence that the fact has been established.

    Again, the better reading is likely that the reasonable-certainty standard is the same as the preponderance standard. And if there is a difference, it appears to be slight and would matter only in rare cases. But at the very least, the committee should consider adding a committee note indicating that it understands the preponderance standard to be synonymous with the reasonable-certainty standard applicable to subsection (d)(1). Otherwise, the amendment invites litigation over whether a different standard applies to (d)(1) and (d)(2).

    Criminal Appeals Division
    Office of the Utah Attorney General