State v. Fay , 326 Conn. 742 ( 2017 )

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STATE OF CONNECTICUT v. WILLIAM FAY
(SC 19350)
Rogers, C. J., and Palmer, Eveleigh, McDonald and Robinson, Js.*
Syllabus
Convicted of the crime of manslaughter in the second degree with a firearm
in connection with the shooting death of the victim, the defendant
appealed to this court, claiming that the trial court violated his federal
constitutional rights to present a defense and to compulsory process
when it declined to conduct an in camera review of the victim’s records,
which were protected by the statutory (§§ 52-146d and 52-146e) psychia-
trist-patient privilege, even though the defendant alleged that those
records may contain information relevant to his claim of self-defense.
At trial, the defendant did not deny shooting the victim, but claimed
that he acted in self-defense, and sought to bolster his self-defense claim
by presenting evidence of the victim’s psychological state at the time
of the shooting. The defendant filed motions seeking the victim’s psychi-
atric records and the testimony of the victim’s treating psychiatrist
concerning any diagnoses or prescriptions that the victim had received
relating to aggressive behavior, as well as the possible effects of any
prescription medications on the victim’s temperament at the time of
the shooting. The victim’s authorized representative declined to waive
the psychiatrist-patient privilege. The trial court held an evidentiary
hearing at which the defendant claimed that his right of confrontation
under the federal constitution outweighed any privilege that might exist
with respect to the victim’s records, and that the policies safeguarding
the psychiatrist-patient privilege are less compelling when the patient
is deceased. The court concluded that the victim’s records were privi-
leged, that the records did not fall under any of the statutory (§ 52-146f)
exceptions to the privilege, and that the court lacked the authority to
create a nonstatutory exception to the general rule of nondisclosure.
The court also concluded that, although State v. Esposito (192 Conn.
166) and other cases permit the court to strike a witness’ testimony to
protect a defendant’s right of confrontation if the witness does not allow
the court to conduct an in camera review of his privileged psychiatric
records, Esposito does not allow a defendant access to privileged
records without the patient’s consent. On appeal from the judgment of
conviction, held:
1. This court concluded that, when an accused makes a sufficient preliminary
showing that his constitutional right to present a defense can be pro-
tected only by an in camera inspection of a homicide victim’s privileged
psychiatric records that are material to the accused’s claim of self-
defense, the interests of the accused must prevail over the victim’s
psychiatrist-patient privilege, and the trial court must undertake such a
review; furthermore, in order to make the sufficient preliminary showing
required to trigger an in camera review, the accused must demonstrate
a compelling need for the trial court to undertake that review, and, in
assessing that need, trial courts should consider, among any other rele-
vant considerations, the centrality of the privileged material to the
accused’s claim of self-defense, the potential significance of those mate-
rials in establishing the defense, and the unavailability of less intrusive
sources for the same information; moreover, when, after an in camera
review, the court determines that the privileged information substan-
tially supports the accused’s claim of self-defense, it must disclose such
material to the accused.
2. The defendant was not entitled to review of his unpreserved constitutional
claims under State v. Golding (213 Conn. 233) because the record was
inadequate for such review: although the defendant expressed his dis-
agreement with the trial court’s refusal to review or disclose the victim’s
privileged psychiatric records, he did not bring before that court the
due process and right to present a defense claims that formed the
basis of this appeal, and those claims, therefore, were not preserved;
moreover, the defendant could not make the required preliminary show-
ing, without improperly supplementing the record on appeal, that he
was entitled to a review of those records, the defendant having provided
insufficient evidence to demonstrate that the victim’s psychiatric records
were necessary to his claim of self-defense, as he failed to demonstrate
that the victim suffered from a psychiatric disorder involving aggressive
behavior or that there was a link between the victim’s prescribed medica-
tions and aggressive behavior, and the defendant did not present any
testimony that the victim’s use of, or his failure to use, his prescribed
medications increased aggressiveness or that such medications were
sometimes prescribed to mitigate preexisting aggressive behavior.
Argued October 19, 2016—officially released September 12, 2017
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Ansonia-Milford, where the court,
Markle, J., denied the defendant’s motion for an eviden-
tiary hearing; thereafter, the matter was tried to the
jury before Markle, J.; verdict and judgment of guilty
of the lesser included offense of manslaughter in the
second degree with a firearm, from which the defendant
appealed to this court. Affirmed.
Allison M. Near, for the appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, was Kevin Lawlor, state’s
attorney, for the appellee (state).
Opinion
PALMER, J. In State v. Esposito, 192 Conn. 166, 179–
80, 471 A.2d 949 (1984), this court held that, in certain
circumstances, the privileged psychiatric records of a
witness testifying for the state are subject to in camera
review by the trial court so that the court can determine
whether the accused’s constitutional right of confronta-
tion entitles him to access to those records; if the wit-
ness refuses to authorize such review, the witness’
testimony generally must be stricken. In the present
case, the defendant, William Fay, was charged with
murder and, following a jury trial, was convicted of the
lesser included offense of manslaughter in the second
degree with a firearm in violation of General Statutes
§ 53a-56a. He claims that the trial court improperly
declined to extend our holding in Esposito and thereby
violated his constitutional right to present a defense
when it refused to conduct an in camera review of
certain records of the victim protected by the psychia-
trist-patient privilege; see General Statutes §§ 52-146d1
and 52-146e;2 even though the defendant alleged that-
those records may contain information pertinent to the
defendant’s claim of self-defense.3 Although we agree
with the defendant that the psychiatrist-patient privi-
lege may be surmounted when an accused makes a
sufficient showing that the privileged information is
material to a claim of self-defense, we conclude that
the record in the present case is inadequate for our
review of the defendant’s unpreserved claim of constitu-
tional error under State v. Golding, 213 Conn. 233, 239–
40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015). We therefore
affirm the judgment of the trial court.
The following facts that the jury could have found,
as well as the following procedural history, are relevant
to our resolution of this appeal. On July 8, 2010, while
at their shared apartment, the defendant shot the victim
twice with the victim’s own handgun, causing injuries
to which he later succumbed. At trial, the defendant
did not deny shooting the victim but claimed that he
acted in self-defense.4 The defendant sought to bolster
his self-defense claim by presenting evidence of the
victim’s underlying psychological state at the time of
the shooting. He testified that the victim had a history
of drinking and depression, both of which had worsened
in recent months following the death of the victim’s
dog. According to the defendant, these bouts of drinking
and depression had led to other violent encounters
between them. The defendant also testified that the
victim had been receiving treatment from a psychiatrist.
In reliance on this evidence, the defendant filed several
motions seeking records, as well as the testimony of
the victim’s treating psychiatrist, concerning any diag-
noses or prescriptions that the victim had received relat-
ing to aggressive behavior, as well as the possible effects
of any prescription medications on the victim’s temper-
ament at the time of the shooting.5 These motions are
the subject of the current appeal.
On February 1, 2013, the trial court held a hearing
to address the defendant’s motions. At the hearing, the
court expressed concern that it did not have sufficient
medical expertise to review the victim’s records in cam-
era to determine whether the information contained
therein was exculpatory. Nonetheless, the court granted
the motions and directed the defendant to subpoena
the victim’s psychiatric records to the clerk of the court,
promising to review the records prior to trial in anticipa-
tion of a subsequent motion to allow an expert to pre-
sent testimony pertaining thereto. By the time jury
selection commenced on March 21, 2013, the records
had been produced to the clerk, but the court indicated
that it was awaiting a motion by the defendant for the
admission of the privileged records before reviewing
them.6
Shortly before the commencement of the evidentiary
portion of the trial, the defendant filed a motion for
an evidentiary hearing to present the testimony of the
victim’s psychiatrist, and, the next day, the court con-
ducted a hearing on the defendant’s request. At the
hearing, the defendant argued that his right of confron-
tation under the sixth amendment to the United States
constitution outweighed any privilege that might exist
with respect to the victim’s psychiatric records, point-
ing out that the policies safeguarding the psychiatrist-
patient privilege are less compelling when the patient
is deceased. The state maintained that the right of con-
frontation was not implicated when, as in the present
case, the patient was deceased and, therefore, would
not be testifying. The state further argued that, without
a waiver of the privilege by the victim’s authorized
representative, the psychiatrist-patient privilege barred
even the court from reviewing the documents in cam-
era. Although several bottles of medication prescribed
for the victim were found at the victim’s home, the state
argued that information about the victim’s prescription
medication usage, without testimony from his psychia-
trist or corroboration from his psychiatric records,
would be either irrelevant or inadmissible as propen-
sity evidence.7
Reconsidering its prior ruling, the trial court agreed
with the state in concluding that ‘‘evidence relating to
communications and records concerning the diagnosis
or treatment of a patient’s mental condition’’ was privi-
leged by statute and did not fall under any applicable
statutory exception. The trial court further concluded
that it lacked the authority to create an extrastatutory
exception to the statutory psychiatrist-patient privilege,
relying, inter alia, on State v. Kemah, 289 Conn. 411,
428, 957 A.2d 852 (2008) (‘‘in the absence of express
consent by the patient, courts have no authority to
create nonstatutory exceptions to the general rule of
nondisclosure’’ [internal quotation marks omitted]).
Finally, the court observed that, although State v.
Esposito, supra, 192 Conn. 179–89, and several subse-
quent cases, permit the court to strike a witness’ testi-
mony to protect a defendant’s right of confrontation,
they do not allow the defendant to access privileged
information without the patient’s consent. Because the
defendant had been unable to procure consent from
the victim’s authorized representative; see footnote 6 of
this opinion; the court denied the motion. The defendant
subsequently was convicted and sentenced to ten years
incarceration, suspended after eight years, followed by
a five year term of probation.
For the first time on appeal, the defendant claims
that the trial court violated his sixth amendment right
to present a defense and to compulsory process by
refusing to examine the victim’s psychiatric records or
to consider testimony by the victim’s psychiatrist in
camera.8 The defendant contends that, contrary to the
determination of the trial court, the psychiatrist-patient
privilege is not so unyielding that psychiatric records
cannot be disclosed in the interest of justice—initially,
to the court only, for in camera inspection—when, as
here, the psychiatric records of a homicide victim are
alleged to be relevant to the accused’s claim of self-
defense.
The state argues that the defendant’s constitutional
claims are unpreserved and that the record is inade-
quate for review under Golding. We agree with the state
that the defendant’s claims are unpreserved because
he relies on different constitutional provisions in this
court than he did in the trial court. Nevertheless, as
we discuss more fully herein, because his claim is of
constitutional magnitude, he nevertheless is entitled to
review under Golding if the record is adequate for such
review. We agree with the state that it is not. Because,
however, the issue of reviewability turns on our assess-
ment of the relationship between the victim’s privilege
and the defendant’s constitutional right to present a
defense, we first address the question of whether, and,
if so, when, a defendant in a homicide case is entitled
to an in camera review of the victim’s psychiatric
records.9 For the reasons set forth herein, we conclude
that a trial court, in certain circumstances, may be con-
stitutionally required to review in camera the privileged
psychiatric records of a homicide victim to determine
whether information contained therein supports a claim
of self-defense. Mindful of the important policies under-
lying this state’s statutory psychiatrist-patient privilege,
however, we further conclude that, before a court may
undertake such an in camera review, the accused first
must demonstrate a compelling need for the privileged
records, a showing predicated on the relevance of the
records to the claim of self-defense, the potential signifi-
cance of the records in establishing that defense, and
the unavailability of alternative sources of similar infor-
mation.
The psychiatrist-patient privilege, which is codified
at § 52-146e (a), prohibits the disclosure of any commu-
nications and records that identify a person who has
communicated with a psychiatrist for the purpose of
diagnosis or treatment without the express prior con-
sent of the patient or his authorized representative.10
The privilege applies to ‘‘all oral and written communi-
cations and records thereof relating to diagnosis or
treatment of a patient’s mental condition between the
patient and a psychiatrist . . . .’’ General Statutes § 52-
146d (2). In general, we have interpreted the privilege
broadly and its exceptions narrowly. See Falco v. Insti-
tute of Living, 254 Conn. 321, 328, 757 A.2d 571 (2000).
Indeed, we have sometimes used language suggesting
that, when no statutory exception applies, the privilege
is absolute. See State v. Jenkins, 271 Conn. 165, 183,
856 A.2d 383 (2004) (‘‘in the absence of express consent
by the patient, courts have no authority to create non-
statutory exceptions to the general rule of nondisclo-
sure’’); Falco v. Institute of Living, supra, 330 (‘‘[T]he
legislature has narrowly drafted the exceptions to the
general rule against disclosure after carefully balancing
the important countervailing considerations . . . .
The inference that we draw is that the legislature did
not intend to save other cases from the general rule.’’
[Citations omitted; footnote omitted.]). ‘‘The broad
sweep of the statute covers not only disclosure to a
defendant or his counsel, but also disclosure to a court
even for the limited purpose of an in camera examina-
tion.’’ State v. Esposito, supra, 192 Conn. 178.
In Esposito, the defendant, Andrew Esposito, who
was accused of sexual assault and kidnapping; id., 167;
moved to have the complainant’s privileged mental
health records reviewed by the court in camera to deter-
mine whether they contained information concerning
the ability of the complainant to observe, recollect or
recount her experience. Id., 176. We concluded that an
accused is entitled to an in camera review of privileged
mental health records if he shows that ‘‘there is reason-
able ground to believe that the failure to produce the
information is likely to impair [his] right of confronta-
tion such that the witness’ direct testimony should be
stricken.’’ Id., 179. When a witness refuses to consent
to an in camera review following such a showing, ‘‘then
the court may be obliged to strike the testimony of the
witness.’’ Id., 179–80. In that case, however, the court
concluded that Esposito had failed to make ‘‘a threshold
showing that at any pertinent time [the complainant]
had a mental problem which affected her testimonial
capacity in any respect, let alone to a sufficient degree
to warrant further inquiry.’’ Id., 180. In reaching its
determination, the court noted that there was nothing
in the complainant’s testimony to indicate difficulty
recalling or narrating the events relating to the assault,
and that counsel for Esposito had not inquired about
the reason for an earlier psychiatric hospitalization. Id.
Subsequent to our decision in Esposito, we consid-
ered similar claims involving the right of access to privi-
leged records for the purpose of determining whether
they contained material relevant to the impeachment
of testifying witnesses. See, e.g., State v. Slimskey, 257
Conn. 842, 853–59, 779 A.2d 723 (2001) (sexual assault
victim’s privileged school records); State v. Pratt, 235
Conn. 595, 597, 606–608, 669 A.2d 562 (1995) (witness’
juvenile court psychological and psychiatric records);
State v. Kulmac, 230 Conn. 43, 56–59, 644 A.2d 887
(1994) (sexual assault victim’s Department of Children
and Youth Services records); State v. Joyner, 225 Conn.
450, 476–79, 625 A.2d 791 (1993) (mental health and
substance abuse records of victim); State v. Kelly, 208
Conn. 365, 377–79, 545 A.2d 1048 (1988) (complaining
witness’ psychiatric and counseling records). This
appeal, by contrast, involves the psychiatric records
of a homicide victim, and, therefore, the traditional
confrontation clause issues concerning the impeach-
ment of a state’s witness are not implicated. Conse-
quently, we are presented with an issue of first
impression for this court, namely, whether an accused
who raises a claim of self-defense is nonetheless enti-
tled to an in camera review of a homicide victim’s privi-
leged records.11
The conflicting interests in the present case are sub-
stantial. That the victim held a broad statutory privilege
is clear; but so, too, is our recognition that an accused
must be guaranteed ‘‘a meaningful opportunity to pre-
sent a complete defense.’’12 (Internal quotation marks
omitted.) State v. Cerreta, 260 Conn. 251, 260, 796 A.2d
1176 (2002), quoting California v. Trombetta, 467 U.S.
479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984). As
the United States Supreme Court has observed, ‘‘[t]he
right to the production of all evidence at a criminal trial
. . . has constitutional dimensions. The [s]ixth
[a]mendment explicitly confers upon every defendant
in a criminal trial the right ‘to be confronted with the
witnesses against him’ and ‘to have compulsory process
for obtaining witnesses in his favor.’ Moreover, the
[f]ifth [a]mendment also guarantees that no person shall
be deprived of liberty without due process of law. It
is the manifest duty of the courts to vindicate those
guarantees, and to accomplish that it is essential that all
relevant and admissible evidence be produced.’’ United
States v. Nixon, 418 U.S. 683, 711, 94 S. Ct. 3090, 41 L.
Ed. 2d 1039 (1974). The question posed by this appeal,
therefore, is whether the right to present such evidence
must be enforced to the detriment of a homicide victim’s
statutory privilege and, if so, under what circumstances.
Evidentiary privileges, unlike most other evidentiary
rules,13 were not conceived to advance the accuracy
and reliability of the privileged materials but, rather,
to safeguard certain desirable societal values. Falco v.
Institute of Living, supra, 254 Conn. 332 (‘‘Evidentiary
privileges exist for ‘the protection of interests and rela-
tionships which, rightly or wrongly, are regarded as of
sufficient social importance to justify some sacrifice of
availability of evidence relevant to the administration
of justice.’ 1 C. McCormick, Evidence [4th Ed. 1992]
§ 72, p. 269.’’). Thus, in recognizing a federal psychother-
apist-patient privilege, the United States Supreme Court
explained that ‘‘[e]ffective psychotherapy . . .
depends upon an atmosphere of confidence and trust
in which the patient is willing to make a frank and
complete disclosure of facts, emotions, memories, and
fears. Because of the sensitive nature of the problems
for which individuals consult psychotherapists, disclo-
sure of confidential communications made during coun-
seling sessions may cause embarrassment or disgrace.
For this reason, the mere possibility of disclosure may
impede development of the confidential relationship
necessary for successful treatment.’’ Jaffee v. Redmond,
518 U.S. 1, 10, 116 S. Ct. 1923, 135 L. Ed. 2d 337 (1996);
accord Falco v. Institute of Living, supra, 254 Conn.
328. In Jaffee, the plaintiff in a civil action claimed he
was entitled to access to the mental health records of
the defendant police officer, who had shot and killed
a member of the plaintiff’s family. Jaffee v. Redmond,
supra, 4. In rejecting the plaintiff’s claim, the court
observed that the policies underlying the psychothera-
pist-patient privilege were ‘‘sufficiently important’’ to
outweigh the probative value of the psychiatric evi-
dence in that case, noting, inter alia, that, ‘‘[w]ithout
a privilege, much of the desirable evidence to which
litigants such as [the plaintiff] seek access—for exam-
ple, admissions against interest by a party—is unlikely
to come into being.’’ Id., 9–10, 12.
Against the important public policy interests recog-
nized by the court in Jaffee stand the liberty interests
of a criminal defendant and the societal interest in a
fair adjudication of criminal causes. In weighing these
interests, the views of other courts have been decidedly
mixed.14 Some courts have found mental health privi-
leges virtually impenetrable. See, e.g., In re Crisis Con-
nection, Inc., 949 N.E.2d 789, 802 (Ind. 2011) (defendant
had no constitutional right to in camera review of child
molestation victim’s crisis center mental health
records). Others have been more receptive to the argu-
ments of criminal defendants, especially when in cam-
era review procedures are available to protect
witnesses’ privacy. See, e.g., People v. Stanaway, 446
Mich. 643, 649–50, 521 N.W.2d 557 (1994) (‘‘where a
defendant can establish a reasonable probability that
the privileged records are likely to contain material
information necessary to his defense, an in camera
review of those records must be conducted’’), cert.
denied sub nom. Michigan v. Caruso, 513 U.S. 1121,
115 S. Ct. 923, 130 L. Ed. 2d 802 (1995); see also E.
Imwinkelried & N. Garland, Exculpatory Evidence: The
Accused’s Constitutional Right to Introduce Favorable
Evidence (3d Ed. 2004) § 10-6, p. 389 (‘‘[w]hether the
privilege was a common-law creation . . . or of statu-
tory origin . . . given a compelling showing of defense
need for the evidence the courts have been willing to
surmount the privilege’’).
Only a very few cases, however, have addressed the
precise issue presented by this appeal: whether an
accused has a right to have the privileged mental health
records of a homicide victim examined in connection
with a self-defense claim.15 In United States v. Hansen,
955 F. Supp. 1225, 1226 (D. Mont. 1997), the United
States District Court concluded that a defendant’s rights
may prevail over a victim’s privilege in such circum-
stances. As in the present case, the defendant in Hansen
sought the psychiatric records of a homicide victim to
support a claim of self-defense. Id., 1225–26. The Dis-
trict Court ordered the records produced, emphasizing
the potential evidentiary benefit of psychiatric records
in cases in which the accused is charged with homicide
and the mental state of the victim is a key element of
the defense, and distinguishing such cases from Jaffee,
a civil case in which the court explicitly found that
the likely evidentiary benefit of overriding the privilege
would be ‘‘ ‘modest.’ ’’ Id., 1226, quoting Jaffee v. Red-
mond, supra, 518 U.S. 11.16 The District Court also noted
that a homicide victim’s interest in preventing disclo-
sure is greatly diminished by his death. United States
v. Hansen, supra, 1226. Thus, even though the court in
Hansen recognized that the public interest in pre-
venting disclosure persists after the patient’s death—
insofar as disclosure might dissuade others from seek-
ing treatment—it found that, in that case, ‘‘the defen-
dant’s need for the privileged material outweigh[ed]
this interest.’’ Id.; see also State v. Connor, 215 Ariz.
553, 558, 561, 161 P.3d 596 (App. 2007) (defendant claim-
ing self-defense failed to make heightened showing of
necessity required to overcome homicide victim’s psy-
chiatrist-patient privilege); State v. Heemstra, 721
N.W.2d 549, 563 (Iowa 2006) (requiring limited disclo-
sure of homicide victim’s mental health information
when information ‘‘might reasonably bear on the defen-
dant’s possibility of success in supporting his claim of
self-defense’’); but see State v. Neiderbach, 837 N.W.2d
180, 194–95 (Iowa 2013) (requiring in camera review
when defendant shows ‘‘reasonable probability’’ that
privileged records ‘‘may likely contain exculpatory
information that is not available from any other
source’’).17
We, too, are persuaded that, in certain exceptional
circumstances, the interests of an accused must prevail
over a homicide victim’s psychiatrist-patient privilege.
More specifically, when the accused’s right to present
a claim of self-defense is materially impeded by the
deceased victim’s psychiatrist-patient privilege, it is no
less important that we seek to vindicate that right than
it is in our confrontation clause cases, such as State v.
Esposito, supra, 192 Conn. 166. We believe, further-
more, that the in camera review procedure adopted in
Esposito for confrontation purposes also serves the
ends of justice in the present circumstances. See id.,
179–80.
We reach this conclusion for a number of reasons.
First, we agree with the court in Hansen that the bal-
ance of equities in criminal cases involving the psy-
chiatrist-patient privilege of a homicide victim is signifi-
cantly different than in civil cases like Jaffee. The inter-
ests of society and the accused in enabling the accused
to present evidence material to his defense, thereby
safeguarding the accused’s right to a fair adjudication
of guilt and innocence, reach their zenith in a murder
prosecution. See Ake v. Oklahoma, 470 U.S. 68, 78–79,
105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) (‘‘The private
interest in the accuracy of a criminal proceeding that
places an individual’s life or liberty at risk is almost
uniquely compelling. . . . The [s]tate’s interest in pre-
vailing at trial—unlike that of a private litigant—is nec-
essarily tempered by its interest in the fair and accurate
adjudication of criminal cases.’’). At the same time,
the personal interest of the victim in maintaining the
absolute secrecy of his or her psychiatric records is
diminished by the death of the victim. We find it
unlikely, moreover, that authorizing disclosure of those
records in such limited circumstances will significantly
reduce the number of individuals choosing to confide
in counselors and psychotherapists. An in camera
review is a relatively modest intrusion into a victim’s
mental health history, and that narrow exception to the
psychiatrist-patient privilege—an exception available
only when the court finds it clearly necessary in order
to safeguard the accused’s fair trial rights—is unlikely
to prove any more of a deterrent to persons seeking
mental health treatment than that already attributable
to existing statutory exceptions.18 Consequently, we
agree with the defendant that, when an accused makes
a sufficient preliminary showing that his constitutional
right to present a defense can be protected only by
an in camera examination of the victim’s psychiatric
records, a trial court must undertake such a review.19
We now turn to the nature of the preliminary showing
required to trigger an in camera review. In Esposito,
we determined that before an in camera review of psy-
chiatric records is conducted, ‘‘there must be a showing
that there is reasonable ground to believe that the fail-
ure to produce the information is likely to impair
the defendant’s right of confrontation such that the
witness’ direct testimony should be stricken.’’ (Empha-
sis added.) State v. Esposito, supra, 192 Conn. 179.20 In
applying this standard, we have ‘‘urged trial courts to
permit the defendant a certain latitude in his attempt
to make [the preliminary showing required to obtain an
in camera inspection of privileged records].’’ (Internal
quotation marks omitted.) State v. Bruno, 236 Conn.
514, 531, 637 A.2d 1117 (1996). We agree with the state,
however, that a more stringent standard should apply
when, as here, the psychiatric records being sought are
those of a homicide victim. As we explained previously,
our confrontation clause cases have not forced the dis-
closure, even in camera, of privileged information with-
out consent. Under Esposito, a witness may simply elect
not to waive the psychiatrist-patient privilege and not
to testify, thereby foreclosing any public disclosure of
the witness’ psychiatric records, while protecting the
accused from testimony that, because of the privilege,
would not be subject to constitutionally adequate cross-
examination. In the present case, however, no such
option exists because the information sought relates
not to the victim’s ability to observe, remember, and
recount an event but to his or her psychological state
during the fatal encounter, and, in some cases, the only
way to obtain that information is by surmounting the
victim’s privilege.
In light of the intrusiveness of this procedure relative
to the consent-driven approach to disclosure estab-
lished by Esposito, we believe that a defendant must
demonstrate a compelling need for the court to under-
take an in camera review of a deceased victim’s privi-
leged psychiatric records. In assessing the defendant’s
need, courts should consider, among any other relevant
considerations, the centrality of the privileged materials
to the defendant’s claim of self-defense, the potential
significance of those materials in establishing the
defense, and the unavailability of less intrusive sources
for the same information. See, e.g., State v. Saunders,
267 Conn. 363, 385, 838 A.2d 186 (‘‘[t]he primary consid-
eration in determining whether a trial court’s ruling
violated a defendant’s right to present a defense is the
centrality of the excluded evidence to the claim or
claims raised by the defendant at trial’’ [internal quota-
tion marks omitted]), cert. denied, 541 U.S. 1036, 124
S. Ct. 2113, 158 L. Ed. 2d 722 (2004); State v. Peeler,
265 Conn. 460, 474, 828 A.2d 1216 (2003) (‘‘When either
side in a criminal case seeks to call as a witness either
a prosecutor or a defense attorney who is or has been
professionally involved in the case, that party must dem-
onstrate that the testimony is necessary and not merely
relevant, and that all other available sources of compa-
rably probative evidence have been exhausted. . . .
This compelling need test strikes the appropriate bal-
ance between, on the one hand, the need for information
and, on the other hand, the potential adverse effects
on the attorney-client relationship and the judicial pro-
cess in general.’’ [Citation omitted; internal quotation
marks omitted.]), cert. denied, 541 U.S. 1029, 124 S. Ct.
2094, 158 L. Ed. 2d 710 (2004); State v. Slimskey, supra,
257 Conn. 859 (‘‘[h]aving determined that the evidence
in issue was especially probative and having concluded
that there was no other available means of inquiry into
the victim’s propensity to lie, we necessarily have con-
cluded that the confrontation clause requires the dis-
closure’’).21
When, after an in camera review, the court deter-
mines that the privileged information substantially—
that is, materially—supports the defendant’s claim of
self-defense, it must disclose such material to the defen-
dant. See State v. Santiago, 305 Conn. 101, 235–36, 49
A.3d 566 (2012) (after in camera review, trial court
must disclose ‘‘any records that are material to [the
defendant’s] case in mitigation’’), superseded in part on
other grounds, 318 Conn. 1, 122 A.3d 1 (2015); State v.
Esposito, supra, 192 Conn. 180 (‘‘relevant material’’
must be disclosed); Pennsylvania v. Ritchie, 480 U.S.
39, 58, 107 S. Ct. 989, 84 L. Ed. 2d 40 (1987) (information
‘‘ ‘material’ ’’ to defense must be disclosed); cf. C. Fish-
man, ‘‘Defense Access to a Prosecution Witness’s Psy-
chotherapy or Counseling Records,’’ 86 Or. L. Rev. 1,
51 (2007) (‘‘[a] judge must disclose information to the
defense that is otherwise protected by a patient-psycho-
therapist or similar privilege if the information casts
significant doubts upon the truthfulness or accuracy of
the [witness’] testimony’’ [footnote omitted]); but see
State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d 829
(1983) (requiring disclosure of ‘‘ ‘especially probative’ ’’
material). We believe that this procedure properly safe-
guards both the constitutional rights of criminal defen-
dants and, to the extent possible, the privacy of the
victim and the societal values underlying the psychia-
trist-patient privilege.
We turn now to the state’s claim that the defendant’s
constitutional claims were not adequately preserved at
trial and that the defendant is not entitled to review
under Golding because the record is inadequate for
such review. We agree with the state’s contention.22
Generally, this court is not required to consider a
claim ‘‘unless it was distinctly raised at the trial or arose
subsequent to the trial.’’ Practice Book § 60-5. A claim
must be ‘‘so stated as to bring to the attention of the
court the precise matter on which its decision is being
asked.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Carter, 198 Conn. 386, 396, 503 A.2d
576 (1986); id., 396–97 (objection to one aspect of
court’s definition of insanity did not preserve other
objections to definition). In the present case, although
the defendant clearly registered his disagreement with
the trial court’s refusal to review or disclose the victim’s
privileged records, he did not bring before the court the
‘‘precise issue’’—the due process and right to present
a defense claims—forming the basis of this appeal, and,
therefore, those claims are not preserved. It is well
established, however, that an unpreserved claim is
reviewable under Golding when ‘‘(1) the record is ade-
quate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of
a fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt.’’ (Footnote omitted.) State v. Golding, supra, 213
Conn. 239–40.
When reviewing claims under Golding, ‘‘we will not
attempt to supplement or reconstruct the record, or to
make factual determinations, in order to decide the
defendant’s claim.’’ Id., 240. Indeed, ‘‘[t]he first prong
of Golding was designed to avoid remands for the pur-
pose of supplementing the record.’’ State v. Stanley,
223 Conn. 674, 690, 613 A.2d 788 (1992). In State v.
Moye, 214 Conn. 89, 98–99, 570 A.2d 209 (1990), for
instance, the defendant argued that the trial court had
violated his right of confrontation, even though ‘‘[n]oth-
ing in the record suggest[ed] that the defendant
attempted to cross-examine the victim on the impact
of her arrest and detention.’’ Consequently, we held
that the record was inadequate for review, observing
that ‘‘[a] defendant cannot claim a confrontation clause
violation regarding an issue on which he chose not to
cross-examine the witness.’’ Id., 99. Similarly, in State
v. Roger B., 297 Conn. 607, 615, 999 A.2d 752 (2010),
this court concluded that the record ‘‘simply [did] not
contain a sufficient underlying set of facts for [the court]
to assess whether the defendant suffered actual preju-
dice as a result of [the] delay in seeking an arrest war-
rant,’’ an essential element of a due process claim,
because there was no evidence ‘‘indicating that the
defendant attempted to locate witnesses and was
unsuccessful in doing so.’’ As a result, we denied review
of the claimed due process violation. Id., 616.
We agree with the state that the defendant’s claims
in the present case are unreviewable for similar reasons.
Here, the alleged constitutional violations are based on
the trial court’s refusal to review the victim’s psychiatric
records in camera. The defendant contends that such
a review may have revealed a psychiatric diagnosis
relating to aggressive behavior, and also would have
enabled the defendant to present testimony about the
potential effects of certain prescription medications on
the victim’s behavior. We have concluded, however,
that, before the trial court is required to undertake an
in camera review of a homicide victim’s psychiatric
records, the defendant must show that a compelling
need exists for such review. The defendant in the pre-
sent case has failed to do so.
Although it is certainly possible that a psychiatric
disorder involving aggressive behavior would be rele-
vant to the defendant’s claim of self-defense, in this
case, the defendant presented insufficient evidence that
the victim suffered from such a condition, and, there-
fore, his evidence was insufficient to demonstrate that
the victim’s psychiatric records were necessary to his
defense. Although the defendant testified that the victim
suffered from depression and attended psychiatric
counseling, the mere existence of a mental condition,
without any showing of relevance, will not suffice to
justify intrusion into the victim’s privileged medical
records.23 Cf. State v. Joyner, 225 Conn. 450, 478–79,
625 A.2d 791 (1993) (‘‘[I]t was not enough for the defen-
dant to show merely that the victim had consumed
alcohol on the night of the assault and had undergone
alcohol treatment thereafter. We have never held that
a history of alcohol or drug abuse or treatment automat-
ically makes a witness fair game for disclosure of psy-
chiatric records to a criminal defendant.’’); see also
State v. Hubbard, Docket No. A14-1259, 2015 WL
4714802, *10 (Minn. App. August 10, 2015) (‘‘[b]ecause
[the] appellant made no specific showing connecting
the [mental-health] treatment records to a propensity
toward violence, did not provide information on the
dates of or reasons for treatment, and did not establish
a connection between the juvenile court records and
the treatment records, we cannot conclude that the
district court abused its discretion in denying in camera
review of the treatment records’’). Indeed, in Esposito,
we made in camera review explicitly contingent on the
existence of a relevant mental condition, observing that
Esposito had ‘‘failed to make a threshold showing that
at any pertinent time [the witness] had a mental problem
which affected her testimonial capacity in any respect,’’
when nothing in her testimony suggested any problems
with recall and the defendant presented no other evi-
dence that the records might bear on her testimonial
capacities. State v. Esposito, supra, 192 Conn. 180; see
also State v. Bruno, supra, 236 Conn. 527–28 (trial court
did not abuse its discretion in refusing to inspect
records in camera when defendant presented no evi-
dence, aside from certain ‘‘ ‘interpersonal problems,’ ’’
of any cognitive deficiency or any relationship between
earlier psychiatric hospitalization and witness’ testimo-
nial capacities at trial).
Similarly, nothing in the record establishes the neces-
sary link between the victim’s medications and aggres-
sive behavior.24 The defendant presented no testimony
that taking or not taking such medications could
increase aggressiveness; nor did he present evidence
that such medications are sometimes prescribed to miti-
gate preexisting aggressive behavior. Moreover, nothing
in the record suggests that the defendant was precluded
from offering such expert testimony as might have
established the desired connection. Indeed, the court
permitted the defendant to testify, over the state’s
objection, that the victim was taking certain medica-
tions, including Risperdal and Librium, and that those
medications were being used to treat the victim’s
depression.25 The defendant, however, failed to move
to introduce expert testimony on the potential effects
of those medications.26 In the absence of such evidence,
the record is inadequate to determine the relevance of
the victim’s medications to the defendant’s claim of
self-defense. We have no way of knowing whether they
could have increased his aggressiveness, or whether
they are even prescribed to treat aggressiveness.27 See,
e.g., State v. Brunetti, 279 Conn. 39, 63, 901 A.2d 1 (2006)
(‘‘[w]ithout the necessary factual and legal conclusions
furnished by the trial court . . . any decision made by
us respecting [the defendant’s claims] would be entirely
speculative’’ [internal quotations marks omitted]), cert.
denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d
85 (2007).
Because the defendant provided no other evidence
demonstrating that the victim’s psychiatric records
were necessary to his defense, he cannot make the
required preliminary showing, without improperly sup-
plementing the record on appeal, that he was entitled
to an in camera review of those records. Accordingly,
the defendant is not entitled to review of his unpre-
served claim that the trial court’s failure to conduct an
in camera review of the records deprived him of his
right to present a defense.
The judgment is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, and Robinson. Thereafter, Justice Zarella retired from this
court and did not participate in the consideration of this decision.
1
General Statutes § 52-146d provides in relevant part: ‘‘As used in sections
52-146d to 52-146i, inclusive:
‘‘(1) ‘Authorized representative’ means (A) a person empowered by a
patient to assert the confidentiality of communications or records which
are privileged under sections 52-146c to 52-146i, inclusive, or (B) if a patient
is deceased, his personal representative or next of kin, or (C) if a patient
is incompetent to assert or waive his privileges hereunder, (i) a guardian
or conservator who has been or is appointed to act for the patient, or (ii)
for the purpose of maintaining confidentiality until a guardian or conservator
is appointed, the patient’s nearest relative;
‘‘(2) ‘Communications and records’ means all oral and written communica-
tions and records thereof relating to diagnosis or treatment of a patient’s
mental condition between the patient and a psychiatrist, or between a mem-
ber of the patient’s family and a psychiatrist, or between any of such persons
and a person participating under the supervision of a psychiatrist in the
accomplishment of the objectives of diagnosis and treatment, wherever
made, including communications and records which occur in or are prepared
at a mental health facility;
‘‘(3) ‘Consent’ means consent given in writing by the patient or his author-
ized representative;
***
‘‘(6) ‘Patient’ means a person who communicates with or is treated by a
psychiatrist in diagnosis or treatment;
‘‘(7) ‘Psychiatrist’ means a person licensed to practice medicine who
devotes a substantial portion of his time to the practice of psychiatry, or a
person reasonably believed by the patient to be so qualified.’’
2
General Statutes § 52-146e provides: ‘‘(a) All communications and
records as defined in section 52-146d shall be confidential and shall be
subject to the provisions of sections 52-146d to 52-146j, inclusive. Except
as provided in sections 52-146f to 52-146i, inclusive, no person may disclose
or transmit any communications and records or the substance or any part
or any resume thereof which identify a patient to any person, corporation
or governmental agency without the consent of the patient or his author-
ized representative.
‘‘(b) Any consent given to waive the confidentiality shall specify to what
person or agency the information is to be disclosed and to what use it will
be put. Each patient shall be informed that his refusal to grant consent will
not jeopardize his right to obtain present or future treatment except where
disclosure of the communications and records is necessary for the treatment.
‘‘(c) The patient or his authorized representative may withdraw any con-
sent given under the provisions of this section at any time in a writing
addressed to the person or office in which the original consent was filed.
Withdrawal of consent shall not affect communications or records disclosed
prior to notice of the withdrawal.’’
3
The records sought were not covered by any exception to the psychiatrist-
patient privilege. Those exceptions are set forth in General Statutes § 52-
146f, which provides in relevant part: ‘‘Consent of the patient shall not be
required for the disclosure or transmission of communications or records
of the patient in the following situations as specifically limited:
‘‘(1) Communications or records may be disclosed to other persons
engaged in the diagnosis or treatment of the patient or may be transmitted
to another mental health facility to which the patient is admitted for diagnosis
or treatment if the psychiatrist in possession of the communications or
records determines that the disclosure or transmission is needed to accom-
plish the objectives of diagnosis or treatment. . . .
‘‘(2) Communications or records may be disclosed when the psychiatrist
determines that there is substantial risk of imminent physical injury by the
patient to himself or others or when a psychiatrist, in the course of diagnosis
or treatment of the patient, finds it necessary to disclose the communications
or records for the purpose of placing the patient in a mental health facility,
by certification . . . .
‘‘(3) . . . the name, address and fees for psychiatric services to a patient
may be disclosed to individuals or agencies involved in the collection of
fees for such services. . . .
‘‘(4) Communications made to or records made by a psychiatrist in the
course of a psychiatric examination ordered by a court or made in connection
with the application for the appointment of a conservator by the Probate
Court for good cause shown may be disclosed at judicial or administrative
proceedings in which the patient is a party, or in which the question of his
incompetence because of mental illness is an issue, or in appropriate pretrial
proceedings . . . .
‘‘(5) Communications or records may be disclosed in a civil proceeding
in which the patient introduces his mental condition as an element of his
claim or defense, or, after the patient’s death, when his condition is intro-
duced by a party claiming or defending through or as a beneficiary of the
patient and the court or judge finds that it is more important to the interests
of justice that the communications be disclosed than that the relationship
between patient and psychiatrist be protected.
‘‘(6) Communications or records may be disclosed to (A) the Commis-
sioner of Public Health in connection with any inspection, investigation or
examination of an institution . . . or (B) the Commissioner of Mental Health
and Addiction Services in connection with any inspection, investigation or
examination authorized . . . .
‘‘(7) Communications or records may be disclosed to a member of the
immediate family or legal representative of the victim of a homicide commit-
ted by the patient where such patient has, on or after July 1, 1989, been
found not guilty of such offense by reason of mental disease or defect . . .
provided . . . such communications shall only be available during the pen-
dency of, and for use in, a civil action relating to such person found not
guilty . . . .
‘‘(8) If a provider of behavioral health services that contracts with the
Department of Mental Health and Addiction Services requests payment, the
name and address of the person, a general description of the types of services
provided, and the amount requested shall be disclosed to the department
. . . .’’
4
The state contested the defendant’s claim of self-defense claiming, inter
alia, that the evidence demonstrated that the defendant engaged in conduct
after the shooting for the sole purpose of creating the impression of a
struggle.
5
Two of the motions sought to compel production of psychiatric records
from the Veterans Administration Hospital in West Haven for in camera
inspection, and a third motion sought to compel testimony from the victim’s
treating psychiatrist.
6
Prior to trial, the defendant sought to have the victim’s authorized repre-
sentative waive the psychiatrist-patient privilege on behalf of the victim as
permitted under §§ 52-146d (1) and 52-146e (a). The authorized representa-
tive, however, declined to waive the privilege on the victim’s behalf.
7
On April 18, 2013, the state also filed a motion in limine seeking to
preclude any expert testimony regarding the effects of medications found
at the scene of the crime, arguing that those medications themselves were
protected by the psychiatrist-patient privilege and that, in any case, such
testimony would be speculative without evidence of ingestion by the victim.
The court declined to issue a blanket ruling on the motion, however, prefer-
ring to address the issue, if it arose, in the specific context in which the
defendant sought to introduce testimony or other evidence concerning
the prescriptions.
8
In his brief, the defendant asserts that the court’s ruling also implicates
his right of confrontation. At oral argument, however, he conceded that his
claim is predicated on the right to present a defense, to due process, and
to compulsory process. We agree and, consequently, do not address the
defendant’s confrontation clause rights.
9
The defendant’s claim that he has a constitutional right to in camera
review of the victim’s psychiatric records insofar as those records are mate-
rial to his claim of self-defense gives rise to a pure question of law, over
which our review is plenary. See State v. Kemah, supra, 289 Conn. 421–22
(exercising plenary review to determine whether privilege was waived by
disclosure of records to police).
10
For purposes of this appeal, the parties do not contest the applicability
of the statute to the victim’s psychiatric records; nor do they claim error
in the trial court’s ruling that none of the statutory exceptions to the privi-
lege applies.
11
In State v. Santiago, 305 Conn. 101, 49 A.3d 566 (2012), superseded in
part on other grounds, 318 Conn. 1, 122 A.3d 1 (2015), this court also
endorsed an in camera review procedure for materials outside the scope
of the confrontation right. In that case, this court held that, once an accused
in a death penalty case establishes reasonable grounds to believe that privi-
leged records contain information material to his case in mitigation, a trial
court is required to conduct an in camera review of the records, noting that
we had used such a procedure in Esposito. Id., 222 and n.109, 235. As in
the present case, Santiago presented no confrontation clause concerns, so
the usual remedy of striking the witness’ testimony would not vindicate the
defendant’s constitutional rights. Id., 225 and n.111. The holding in Santiago,
however, implicated not only the fourteenth amendment due process right,
but also the eighth amendment right to have a jury consider mitigation
evidence in a death penalty case. Id., 226. Thus, although Santiago suggests
a possible alternative constitutional basis for an accused’s constitutional
right to present exculpatory evidence, it does not definitively resolve the
issues presented by this case.
12
The right to present a defense, though deeply rooted, rests on somewhat
indeterminate grounds—at times, its existence has been attributed to the
fourteenth amendment and, at times, to various clauses of the sixth amend-
ment. See, e.g., Williams v. Lord, 996 F.2d 1481, 1483 (2d Cir. 1993)
(‘‘Although the source of [the] right [to present a defense] is somewhat
unclear, its existence is well established. As the Supreme Court explained:
Whether rooted directly in the [d]ue [p]rocess [c]lause of the [f]ourteenth
[a]mendment or in the [c]ompulsory [p]rocess or [c]onfrontation [c]lauses of
the [s]ixth [a]mendment, the [c]onstitution guarantees criminal defendants
a meaningful opportunity to present a complete defense.’’ [Internal quotation
marks omitted.]), cert. denied, 510 U.S. 1120, 114 S. Ct. 1073, 127 L. Ed. 2d
391 (1994). Nonetheless, we have held that the right to present a defense
is, essentially, ‘‘the right to present the defendant’s version of the facts as
well as the prosecution’s to the jury so that it may decide where the truth
lies.’’ (Internal quotation marks omitted.) State v. Carter, 228 Conn. 412,
422, 636 A.2d 821 (1994). As a result, we have recognized that the exclusion
of evidence relating to a homicide victim’s violent character may deprive a
defendant of his right to fairly present a claim of self-defense. Id., 417
(concluding that defendant was entitled to new trial because trial court
improperly excluded evidence of victim’s convictions for crimes material
to defendant’s claim of self-defense); State v. Miranda, 176 Conn. 107, 114,
405 A.2d 622 (1978) (‘‘in a homicide prosecution where the accused has
claimed self-defense, the accused may show that the deceased was the
aggressor by proving the deceased’s alleged character for violence’’); see
also United States v. Chee, Docket No. 2:14-CR-00033 (KJD) (CWH), 2016
WL 3397683, *6 (D. Nev. June 14, 2016) (right to fair trial and to present
defense required in camera review of witness’ privileged records); State v.
Osimanti, 299 Conn. 1, 17, 6 A.3d 790 (2010) (trial court ‘‘did not deprive
the defendant of his constitutional right to present his claim of self-defense
and, specifically, to support it with evidence of the victim’s violent character,
as the defendant was able to introduce evidence to that effect in the form
of the victim’s lengthy criminal record and gang affiliations’’).
13
We have observed that ‘‘[a] defendant is . . . bound by the rules of
evidence in presenting a defense. . . . Although exclusionary rules of evi-
dence cannot be applied mechanistically to deprive a defendant of his rights,
the constitution does not require that a defendant be permitted to present
every piece of evidence he wishes.’’ (Internal quotation marks omitted.)
State v. Santana, 313 Conn. 461, 470, 97 A.3d 963 (2014); id., 471 (defendant
precluded from cross-examining witness on hearsay statements); see also
Nevada v. Jackson, U.S. , 133 S. Ct. 1990, 1992–93, 186 L. Ed. 2d 62
(2013) (defendant precluded from presenting evidence of specific instances
of conduct for purpose of attacking credibility); State v. Cerreta, supra, 260
Conn. 261 (exclusion of irrelevant evidence does not violate defendant’s
right to present defense); State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992)
(petitioner was not entitled to in camera review of confidential medical
records when he made no showing that file was relevant to defense theory).
14
See C. Fishman, ‘‘Defense Access to a Prosecution Witness’s Psychother-
apy or Counseling Records,’’ 86 Or. L. Rev. 1, 17–23 (2007) (identifying
different approaches taken by lower courts to resolve conflict between
criminal defendant’s right to obtain exculpatory evidence and witness’ right
to bar disclosure of such evidence under facially unconditional statutory
privilege).
15
This may be, in part, because a number of legislatures have created
statutory exceptions to mental health privileges in such circumstances.
See, e.g., Ind. Code Ann. § 25-33-1-17 (LexisNexis 2016) (‘‘[a] psychologist
licensed under this article may not disclose any information acquired from
persons with whom the psychologist has dealt in a professional capacity,
except under the following circumstances: [1] Trials for homicide when the
disclosure relates directly to the fact or immediate circumstances of said
homicide’’); Iowa Code Ann. § 622.10 (4) (a) (2) (a) (West Supp. 2017)
(communications with mental health professionals absolutely privileged
except when ‘‘[t]he defendant seeking access to privileged records under
this section files a motion demonstrating in good faith a reasonable probabil-
ity that the information sought is likely to contain exculpatory information
that is not available from any other source and for which there is a compelling
need for the defendant to present a defense in the case’’); Wis. Stat. Ann.
§ 905.04 (4) (d) (West 2016) (‘‘[t]here is no privilege in trials for homicide
when the disclosure relates directly to the facts or immediate circumstances
of the homicide’’); see also Utah Ct. R. Ann. 506 (d) (1) (A) and (B) (Lex-
isNexis 2013) (no privilege exists ‘‘[f]or communications relevant to an issue
of the physical, mental, or emotional condition of the patient . . . in any
proceeding in which that condition is an element of any claim or defense,
or . . . after the patient’s death, in any proceedings in which any party
relies upon the condition as an element of the claim or defense’’).
16
Although some courts have interpreted Jaffee as a strict bar to the
disclosure of privileged mental health records; see, e.g., United States v.
Shrader, 716 F. Supp. 2d 464, 472–73 (S.D. W. Va. 2010) (holding that stalking
victim’s psychotherapist-patient privilege is not subordinate to sixth amend-
ment because ‘‘[e]xceptions to the privilege, even in the [s]ixth [a]mendment
context, would . . . eviscerate the effectiveness of the privilege’’ [internal
quotation marks omitted]), aff’d, 675 F.3d 300 (4th Cir. 2012), cert. denied,
568 U.S. 1049, 133 S. Ct. 757, 184 L. Ed. 2d 500 (2012); other courts have
found the Supreme Court’s decision in Jaffe to allow for more flexibility.
See, e.g., United States v. Chee, 191 F. Supp. 3d 1150, 1154 (D. Nev. 2016)
(‘‘Jaffe left the lower courts with the task of reconciling this privilege with
the constitutional rights of a criminal accused, noting that there are situations
in which the privilege must give way’’).
17
Some courts have also explicitly held that the accused’s constitutional
rights may prevail over the statutory privilege of a testifying witness, without
requiring that the court give the witness the option to have her testimony
stricken rather than divulge the privileged information. See, e.g., Common-
wealth v. Barroso, 122 S.W.3d 554, 564–65 (Ky. 2003).
18
Similarly, in breaching the executive privilege, the United States
Supreme Court has observed that ‘‘[t]he interest in preserving confidentiality
is weighty indeed and entitled to great respect. However, we cannot conclude
that advisers will be moved to temper the candor of their remarks by the
infrequent occasions of disclosure because of the possibility that such con-
versations will be called for in the context of a criminal prosecution.’’ United
States v. Nixon, supra, 418 U.S. 712. We believe that individuals seeking
counseling will find the prospect of a trial in which their records are
requested by their murderer similarly remote. See E. Imwinkelried & N.
Garland, supra, § 10-4, p. 363 (‘‘When the courts [weigh the constitutional
right to present a defense against an exclusionary rule of evidence], they
see clear, indisputable costs: the suppression of relevant exculpatory evi-
dence. The alleged benefits of evidentiary privileges, however, are much
more speculative. A large number of laypersons do not realize that the
privileges exist. Others would be willing to communicate even without a
legal assurance of confidentiality. In this light, it is hardly surprising that
many courts have invoked the accused’s constitutional right to present
evidence to surmount privileges.’’)
19
In the circumstances of a criminal case, in which the public and the
accused have a strong interest in ensuring that the accused receives a fair
trial, we do not believe that our limited holding conflicts with the court’s
rejection in Jaffe of a ‘‘balancing component’’ that would make ‘‘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 . . . .’’ Jaffee v. Redmond, supra, 518 U.S. 17.
20
See also State v. Pierson, 201 Conn. 211, 228, 514 A.2d 724 (1986)
(requiring voir dire of expert ‘‘[w]here there is any reasonable basis in the
evidence for believing that psychiatric personnel may have information
relating to the mental condition of a witness that might affect his testimony’’).
Other courts have articulated a rather wide variety of standards such that
there is ‘‘no clear consensus’’ as to the necessary showing required to prompt
an in camera inspection of privileged records. C. Fishman, ‘‘Defense Access
to a Prosecution Witness’s Psychotherapy or Counseling Records,’’ 86 Or.
L. Rev. 1, 50 (2007).
21
See also Bobo v. State, 256 Ga. 357, 360, 349 S.E.2d 690 (1986) (‘‘[i]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’’); State v. Peseti, 101 Haw. 172, 182, 65 P.3d 119 (2003) (‘‘[a]lthough
it stands to reason that the right of confrontation via cross-examination
. . . will not trump a statutory privilege in every case in which a conflict
arises between the two, we believe that fundamental fairness entitles a
defendant to adduce evidence of a statutorily privileged confidential commu-
nication at trial when the defendant demonstrates that: (1) there is a legiti-
mate need to disclose the protected information; (2) the information is
relevant and material to the issue before the court; and (3) the party seeking
to pierce the privilege shows by a preponderance of the evidence that no
less intrusive source for that information exists’’ [internal quotation marks
omitted]); R. Weisberg, Note, ‘‘Defendant v. Witness: Measuring Confronta-
tion and Compulsory Process Rights Against Statutory Communications
Privileges,’’ 30 Stan. L. Rev. 935, 967 (1978) (‘‘First, the defendant must
prove that the privileged evidence sought, considered within the context of
all other evidence, probably would create a reasonable doubt as to the
defendant’s guilt. Second, the defense must show that no other available
evidence could effectively accomplish the same evidentiary purpose.’’ [Foot-
notes omitted.]).
22
We disagree with the state, however, insofar as it maintains that the
defendant induced the error complained of on appeal by invoking only the
right of confrontation at trial. See State v. Cruz, 269 Conn. 97, 106, 848 A.2d
445 (2004). We agree that a finding of induced error is supportable when a
party’s claim on appeal will result in an inappropriate ambush of the trial
court by, for instance, claiming error in an instruction that the party itself
requested; see id.; or by expressly advising the court that it should not
consider certain claims; see State v. Brunetti, 279 Conn. 39, 59 n.32, 901
A.2d 1 (2006) (stating, in dictum, that presenting claim on appeal that is
directly contrary to express claim at trial may constitute induced error),
cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). In the
present case, the defendant did not prompt or otherwise induce the court to
make an erroneous ruling. Rather, in the midst of an unsettled constitutional
landscape, he simply relied on a weak argument. Nor has the trial court
been ambushed on appeal. Indeed, the defendant presented that court with
cases suggesting alternative grounds for providing in camera review, and
the trial court’s ruling broadly addressed the issue of statutory privilege
itself, not the specific constitutional grounds abutting it. Indeed, the court
having stated unreservedly that it ‘‘does not have the authority to grant an
extrastatutory exception,’’ there is little reason to believe that its ruling
would have been different had the defendant explicitly directed the court
to alternative constitutional provisions.
The state also claims that the defendant induced any error by changing
his request for relief. More specifically, the state maintains that, at trial, the
defendant requested that the victim’s psychiatrist be permitted to testify
regarding the victim’s mental health records, and that only on appeal did
he request that the court review the privileged materials in camera. We
think it is clear, however, that the trial court considered the issue of in
camera review of the privileged records together with the issue of expert
testimony. In fact, prior to reconsidering its decision at the hearing shortly
before the commencement of evidence, the trial court granted the defen-
dant’s motion for an in camera review of the privileged records, and the
state declared that the documents themselves were ‘‘the subject of the
[evidentiary] hearing.’’ In any event, both in camera review of privileged
records and voir dire of mental health professionals concerning privileged
unrecorded statements are rooted in the same concerns and both require
the patient’s consent. See State v. Pierson, 201 Conn. 211, 228, 514 A.2d 724
(1986). Thus, the absence of consent, combined with the death of the patient,
presents the same essential problem in either case. As a result, whatever
confusion prevailed at trial, the defendant’s actions do not amount to an
ambuscade on appeal.
23
The defendant also testified that the victim’s depression had become
more pronounced in recent months and that he and the victim occasionally
fought as a result. We acknowledge the possibility that such testimony might,
in the absence of other available evidence about the victim’s psychological
condition, be sufficient to trigger an in camera review in the exercise of
the trial court’s discretion. Here, however, the failure to provide testimony
regarding the effects of the victim’s psychiatric medications, as explained
hereinafter, renders the record inadequate to determine whether the defen-
dant had a compelling need for the victim’s psychological records or whether
that need, if any, would have been met by expert testimony regarding the
victim’s medications.
24
The defendant asserts that his own testimony about the victim’s increas-
ing aggressiveness, coupled with testimony that the victim was being treated
by a psychiatrist, satisfies the preliminary showing required for in camera
review. See footnote 23 of this opinion. He does not assert that evidence
that the victim was taking medication, by itself, provides a sufficient showing.
Indeed, in his brief to this court, he acknowledges that, although the medica-
tions prescribed to the victim are known, ‘‘[t]he unknowns are numerous,
including the reasons why the medication was prescribed, and the impact
those medications would have had on [the victim’s] behavior, particularly
when mixed with alcohol and marijuana.’’
25
The transcript reveals the following exchange:
‘‘[Defense Counsel]: Did you have occasion to accompany your brother
for some of his visits to see [the psychiatrist]?
‘‘[The Defendant]: Yes, I did.
‘‘[Defense Counsel]: Now, did you ever see with your own eyes, okay,
any of the medications that were prescribed by [the psychiatrist] for your
brother?
‘‘[The Defendant]: Yes.
‘‘[Defense Counsel]: What were those medications?
‘‘[The Defendant]: At first it was Prozac and Valium and then—that’s what
[a former psychiatrist] had had him on for a long time, the whole time he
saw her, and then [the psychiatrist] continued that for—I don’t want to say
a short period of time, but he changed it from those two to Risperdal
and Librium.
‘‘[Defense Counsel]: Okay. And these are medications to treat his
depression?
‘‘[The Defendant]: Correct.
‘‘[The Prosecutor]: Objection. I don’t know what the foundation is, what
he’s being treated for and for being hearsay.
‘‘The Court: No. I’ll allow that in. He said that he knew the prescription.
I’ll allow it in at this point.’’
Defense counsel reiterated and underscored this testimony during his
closing argument to the jury.
26
The trial court reserved judgment on the state’s motion in limine to
preclude such testimony.
27
This is precisely the kind of information that the defendant attempts
to convey on appeal through the use of materials from various Internet
sources describing these medications. Such information, however, generally
must be presented at trial, ordinarily via expert testimony. See State v.
Santos, 146 Conn. App. 537, 557, 78 A.3d 230 (2013) (Borden, J., dissenting)
(‘‘It should go without saying that, simply because a search on the Internet
[or in a medical dictionary, for that matter] would disclose to defense counsel
what a particular medical term may mean, does not mean that counsel
would be in a position to use that meaning in a trial without presenting an
expert witness to explain it. Counsel, having learned from the disclosed
records that the witness had been diagnosed with schizoaffective disorder,
and having consulted the Internet to learn what that means, cannot simply
stand up and ask something like, ‘Isn’t it true, [witness], that your diagnosis
of schizoaffective disorder bipolar type means that you may experience
hallucinations, which means seeing, hearing or sensing things that are not
there?’ If challenged on the grounds that he is basing his question on matters
not in evidence, what is he supposed to say? ‘It’s on the Internet’? And even
if he could ask such a question, how could the witness answer credibly?’’
[Footnote omitted.]), aff’d, 318 Conn. 412, 121 A.3d 697 (2015). In the present
case, because the defendant was not precluded from offering such expert
testimony at trial, it would be inappropriate for this court to consider the
proffered materials on appeal. See, e.g., State v. Edwards, 314 Conn. 465,
478, 102 A.3d 52 (2014) (‘‘[i]t is well established that this court does not
find facts’’); State v. Rizzo, 303 Conn. 71, 97 n.16, 31 A.3d 1094 (2011) (‘‘[t]his
court cannot, as the defendant requests, rely on excerpts from social science
texts or journal articles that were not recognized as authoritative by an
expert and admitted into evidence during the penalty phase proceeding . . .
to make factual findings regarding the defendant’s state of mind for the first
time on direct appeal’’ [citations omitted]), cert. denied, 568 U.S. 836, 133
S. Ct. 133, 184 L. Ed. 2d 64 (2012).