State Of Iowa Vs. Ross Ian Cashen , 2010 Iowa Sup. LEXIS 63 ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 07–2109
Filed July 2, 2010
STATE OF IOWA,
Appellant,
vs.
ROSS IAN CASHEN,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Marshall County,
William J. Pattinson, Judge.
The State seeks further review of a court of appeals decision
allowing a defendant to gain access to a victim’s privileged mental health
records. DECISION OF COURT OF APPEALS VACATED; JUDGMENT
OF DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED WITH INSTRUCTIONS.
Thomas J. Miller, Attorney General, Jean C. Pettinger and Mary
Tabor (until withdrawal), Assistant Attorneys General, Jennifer A. Miller,
County Attorney, and Suzanne M. Lampkin, Assistant County Attorney,
for appellant.
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Jennifer L. Steffens of Steffens & Grife, P.C., Marshalltown, Kelly T.
Bennett, Newton, and Christopher A. Clausen of Boliver, Clausen &
Bidwell Law Firm, Marshalltown, for appellee.
3
WIGGINS, Justice.
In this appeal, we review a district court order and court of appeals
decision allowing a criminal defendant to gain access to a victim’s
privileged mental health records. The district court and the court of
appeals allowed the defendant access without restriction. We now adopt
a protocol that balances a patient’s right to privacy in his or her mental
health records against a defendant’s right to present evidence to a jury
that might influence the jury’s determination of guilt. Accordingly, we
vacate the decision of the court of appeals, affirm in part and reverse in
part the judgment of the district court, and remand the case for further
proceedings consistent with this opinion.
I. Background Facts and Proceedings.
This case involves a domestic dispute between Ross Cashen and
Jane Doe. 1 As a result of the dispute, on April 18, 2007, the State
charged Cashen with the offenses of domestic abuse assault, third
offense, and willful injury, class “D” felonies.
On July 3 Cashen filed a notice that he intended to rely on the
defense of self-defense. On July 25 Cashen asked the court to enter an
order authorizing him to hire an expert to review and aid in the
interpretation of Doe’s mental health records as well as to present expert
testimony to the jury regarding Doe’s credibility and propensity for
violence. The district court denied the motion, finding it was premature
because the court had not made a determination as to whether the
records would be admissible at trial.
Cashen then proceeded to depose Doe. In her deposition, Doe
acknowledged she had been involved in past abusive relationships with
other men. She also testified she had been diagnosed with posttraumatic
1We have changed the name of the victim to protect her privacy.
4
stress disorder, anxiety, depression, and had been in counseling and
therapy since she was fifteen years old. She indicated she had displayed
impulsive and reactive behavior in the past and became easily frustrated
when she was in her relationship with Cashen. Doe also said she was
taking a prescription antidepressant. She said she was taking the
medication because she was nervous about the safety and welfare of her
boyfriend, who was serving in the armed services. She also believed
Cashen was a very violent man, and she worried about retribution from
him.
Cashen also employed a private investigator who acquired some of
Doe’s mental health records from a medical office and a hospital. After
the State learned Cashen had acquired these records, it filed a motion in
limine to exclude the records, as well as other matters, from trial. The
State also sought to preclude admission of Doe’s prior mental health
history revealed in her deposition.
The district court denied the motion in limine. It found the mental
health history of Doe, specifically her propensities for violence and
explosive behavior, was relevant to Cashen’s defense of self-defense. It
also determined the records could be relevant to Doe’s credibility as a
witness to accurately observe and recall the events leading to the charges
and may be helpful to impeach her at trial. The court continued the trial
to allow Cashen the opportunity to secure an expert to review the records
and testify, if necessary, on the issues of Doe’s propensity for violence
and her credibility.
On November 29 Cashen filed two separate motions, the first to
reconvene Doe’s deposition and the second to obtain Doe’s mental health
records. On December 11 the court ordered Doe to execute a patient
waiver form in favor of Cashen’s counsel and, upon receipt of the
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records, permit Cashen’s counsel to reconvene the deposition of Doe to
explore those areas connected to the records.
The State responded by filing an application for discretionary
review. We granted the application and transferred the case to the court
of appeals. The only issue argued on appeal was whether the district
court erred in allowing the disclosure of Doe’s mental health records.
The court of appeals affirmed the district court’s order in part and
reversed in part. It found Cashen had demonstrated a compelling need
for the mental health records and affirmed the decision of the district
court ordering disclosure of the records and admission of expert
testimony on the issues of Doe’s propensity for violence and her
credibility. It additionally found the district court had no authority to
order the State to secure and produce the patient waiver of a witness,
but failed to further address the procedure for the production of the
records. We granted further review.
II. Standard of Review.
Ordinarily, we review discovery orders for an abuse of discretion.
State v. Schuler, 774 N.W.2d 294, 297 (Iowa 2009). However, to the
extent the issues in this case involve constitutional claims, our review is
de novo. State v. Reyes, 744 N.W.2d 95, 99 (Iowa 2008). Because the
issues in this case rest on constitutional claims involving Cashen’s due
process right to present a defense, our review is de novo. See
Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S. Ct. 989, 1001, 94
L. Ed. 2d 40, 57 (1987) (holding a due process analysis applies in
determining whether to disclose a child protective service agency’s
privileged records for purposes of a defendant presenting a defense).
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III. Analysis.
A. The State’s Claims. In State v. Heemstra, 721 N.W.2d 549,
563 (Iowa 2006), we allowed a defendant to obtain the medical records of
a homicide victim to assist the defendant in presenting his defense.
There, the defendant was facing a first-degree murder charge that carried
a sentence of life in prison without the possibility of parole. Heemstra,
721 N.W.2d at 551, 563. In this appeal, the State argues this case is
distinguishable from our decision in Heemstra because it “does not
present any ‘unique facts’ warranting abrogation of the psychotherapist
privilege and intrusion into the victim’s mental health records.” The only
real difference between this case and Heemstra is the severity of the
penalty. If convicted, Cashen can be deprived of his liberty and
potentially sentenced to ten years in prison. See Iowa Code § 902.9(5)
(2005) (stating a defendant’s conviction for a class “D” felony subjects the
defendant to possible confinement for no more than five years).
Regardless of the charge or the penalty, all defendants have a right to a
fair trial. See generally Gentile v. State Bar of Nev., 501 U.S. 1030, 1075,
111 S. Ct. 2720, 2745, 115 L. Ed. 2d 888, 923 (1991) (Rehnquist, C.J.,
dissenting in part) (“Few, if any, interests under the Constitution are
more fundamental than the right to a fair trial.”). Thus, there is no
reason to apply the law regarding the disclosure of privileged records
differently based on the severity of a defendant’s sentence.
The State’s fallback position is that if the records are made
available to the defendant’s attorney, the records should only be
disclosed on a limited basis. We agree that if privileged records are to be
made available in a criminal proceeding, a certain protocol must be
followed to balance the patient’s right to privacy with the defendant’s
right to present evidence to a jury that might influence the jury’s
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determination of guilt. Today, we set forth the proper protocol to be used
by a court to determine when and how a defendant’s attorney can gain
access to a victim’s privileged mental health records.
B. Prior Case Law. We have previously applied a balancing test
to determine if a party to a proceeding is entitled to review the
confidential medical records of a nonparty. Chidester v. Needles, 353
N.W.2d 849, 853 (Iowa 1984). The first decision to adopt and apply this
test was Chidester. Id. In Chidester, the county attorney sought thirteen
patients’ medical records in connection with his investigation into
Medicaid fraud. Id. at 851. The first issue we considered was the nature
of the patients’ right in keeping the records private. Id. at 851–53. We
rejected the patients’ claim that Iowa Code section 622.10, the statutory
physician-patient privilege, protected the records from the county
attorney’s subpoena because section 622.10 only protects the giving of
testimony. Id. at 852–53. Instead, we determined the patients’
constitutional right to privacy protected the patients’ interests in
avoiding disclosure of personal matters and maintaining independence
when making certain kinds of important decisions. Id. at 853.
Although we recognized the patients had a constitutional right to
privacy in their medical records, we acknowledged this privilege was not
absolute, but qualified. Id. Thus, we adopted a balancing test and
stated, “The privacy interest must always be weighed against such public
interests as the societal need for information, and a compelling need for
information may override the privacy interest.” Id. In weighing the
interests, we said, “[S]ociety has a strong interest in allowing official
investigators of criminal activity broad authority to conduct thorough
investigations.” Id. We also declared, “[T]he privacy interest must be
balanced against society’s interest in securing information vital to the fair
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and effective administration of criminal justice.” Id. (emphasis added).
We then concluded the patients’ privacy interest in their records yielded
to “the State’s interest in well-founded criminal charges and the fair
administration of criminal justice” and allowed the county attorney to
subpoena the records. Id. at 854.
The next case to discuss the balancing test was McMaster v. Iowa
Board of Psychology Examiners, 509 N.W.2d 754, 759 (Iowa 1993).
There, the board of psychology examiners subpoenaed a patient’s records
from a psychologist who was not under investigation. McMaster, 509
N.W.2d at 755. The patient filed a petition to quash the subpoena. Id. at
756. In concluding the patient’s constitutional privacy interest in her
records is not absolute, we applied the balancing test. Id. at 759.
In applying the balancing test, we found the board’s public interest
was its statutory duty to police mental health professionals. Id. After
recognizing this public interest, we adopted a protocol for determining
whether a patient’s privacy interest in his or her mental health records
must yield to a competing interest of the State. Id. at 759–60. The
protocol first required the party seeking access to the records must
“make a minimal showing that the complaint reasonably justifies the
issuance of a subpoena in furtherance of the investigation.” Id. at 759.
Second, the party seeking access to the records must show the records
are necessary as evidence in the disciplinary proceedings. Id. This
requirement can be satisfied by an in camera review of the records by the
district court. Id. Third, the party seeking access to the records must
notify the patient and request a waiver from the patient prior to issuing
the subpoena. Id. at 760. Fourth, the party seeking access to the
records should establish the existence of adequate safeguards to avoid
unauthorized disclosure. Id. Last, the patient’s privacy interest in the
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records will yield to a competing interest of the State only if there is an
articulated public policy, recognized public interest, or an express
statutory mandate “ ‘militating toward access.’ ” Id. (quoting United
States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980)).
Our most recent case to apply the balancing test was Heemstra. In
Heemstra, we allowed “limited disclosure” of the victim’s medical records
based on the unique facts presented in the case. Heemstra, 721 N.W.2d
at 563. We held “the records [should] be made available to defense and
prosecution counsel . . . under a protective order prohibiting any further
dissemination without court order.” Id.C. Third Party’s Right to Privacy in her Mental Health
Records. We recognize a patient’s right to privacy in his or her mental
health records because
“[p]sychotherapy probes the core of the patient’s personality.
The patient’s most intimate thoughts and emotions are
exposed during the course of the treatment. The psychiatric
patient confides [in his therapist] more utterly than anyone
else in the world. . . . [H]e lays bare his entire self, his
dreams, his fantasies, his sin, and his shame. The patient’s
innermost thoughts may be so frightening, embarrassing,
shameful or morbid that the patient in therapy will struggle
to remain sick, rather than to reveal those thoughts even to
himself. The possibility that the psychotherapist could be
compelled to reveal those communications to anyone . . . can
deter persons from seeking needed treatment and destroy
treatment in progress.”
McMaster, 509 N.W.2d at 758 (quoting Haw. Psychiatric Soc’y v. Ariyoshi,
481 F. Supp. 1028, 1038 (D. Haw. 1979) (citations omitted)).
Accordingly, these reasons are important in our application of the
balancing test.
D. Public Interest in Allowing the Defendant to Obtain the
Records. Excluding evidence from a criminal trial for some purpose
other than enhancing the truth-seeking process of the proceeding
10
increases the danger of convicting an innocent person. Under the United
States Constitution, a criminal defendant has a due process right to
present evidence to a jury that might influence the jury’s determination
of guilt. Ritchie, 480 U.S. at 56, 107 S. Ct. at 1000–01, 94 L. Ed. 2d at56–57. The Supreme Court has also said that “disclosure, rather than
suppression, of relevant materials ordinarily promotes the proper
administration of criminal justice.” Dennis v. United States, 384 U.S.
855, 870, 86 S. Ct. 1840, 1849, 16 L. Ed. 2d 973, 984 (1966). Thus, a
defendant’s right to produce evidence that is relevant to his or her
innocence is an important public interest that we must consider in
applying the balancing test.
E. The Proper Protocol for Requesting the Privileged Mental
Health Records of a Victim. The purpose of providing a defendant with
the privileged records of a victim is to lessen the chance of wrongfully
convicting an innocent person. Society shares this interest. In fact, the
Federal and Iowa Constitutions include numerous safeguards to prevent
the wrongful conviction of the innocent. See, e.g., U.S. Const. amend. VI
(guaranteeing an accused the right to a speedy and public trial by an
impartial jury, to be informed of the accusations against him or her, to
confront witnesses, to have compulsory process, and to have the
assistance of counsel in a criminal prosecution); Iowa Const. art. I, § 10
(same). On the other hand, the interest in preventing wrongful
convictions does not justify giving defendants access to all of a victim’s
privileged records from the time of birth.
We continue to adhere to a balancing test, and now take the
opportunity to articulate a standard that judges can consistently apply to
identify those circumstances when the defendant’s right to a fair trial
outweighs the victim’s right to privacy. This standard allows a defendant
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to obtain the records necessary to put forth evidence tending to show the
defendant’s innocence, but does not permit the defendant to go on a
fishing expedition into a victim’s privileged records. Because of the
importance of the public interest in not convicting an innocent person of
a crime, any standard should resolve doubts in favor of disclosure.
In McMaster, we developed a protocol that balanced the interest of
the State against the privacy interest of the patient when an agency
sought to obtain the patient’s privileged mental health records.
McMaster, 509 N.W.2d at 759–60. Today, we formulate a similar protocol
when a criminal defendant, who is represented by counsel, requests the
privileged mental health records of a victim. 2 The protocol we adopt
today strikes the proper balance between a victim’s right to privacy in his
or her mental health records and a defendant’s right to produce evidence
that is relevant to his or her innocence.
First, we want to emphasize that a defendant is not entitled to
engage in a fishing expedition when seeking a victim’s mental health
records. Before a subpoena may issue for a victim’s privileged records,
the defendant must make a showing to the court that the defendant has
a reasonable basis to believe the records are likely to contain exculpatory
evidence tending to create a reasonable doubt as to the defendant’s guilt.
Ritchie, 480 U.S. at 58 n.15, 107 S. Ct. at 1002 n.15, 94 L. Ed. 2d at 58
n.15. In doing so, the defendant need not show the records actually
contain information for establishing the unreliability of a charge or
witness. Commonwealth v. Bishop, 617 N.E.2d 990, 996–97 (Mass.
1993), abrogated by Commonwealth v. Dwyer, 859 N.E.2d 400, 414, 417–
19 (Mass. 2006). A defendant need only advance some good faith factual
2We express no opinion as to the applicability of this protocol when the
defendant is self-represented.
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basis indicating how the records are relevant to the defendant’s
innocence. Id. Thus, to begin this process, a defendant’s counsel must
file a motion with the court demonstrating a good faith factual basis that
the records sought contain evidence relevant to the defendant’s
innocence. The motion shall be marked confidential, filed under seal,
and set forth specific facts establishing a reasonable probability the
records sought contain exculpatory evidence tending to create a
reasonable doubt as to the defendant’s guilt. The motion shall also
request the court issue a subpoena requiring the custodian of the
records to produce the records sought by the defendant. Defendants or
their attorneys shall not subpoena a victim’s privileged records without a
court order.
Second, the county attorney shall notify the victim that the
defendant has made a request for the victim’s privileged records. After
conferring with the victim, the county attorney shall provide the court
with an affidavit signed by the victim stating the victim either consents to
or opposes the disclosure of the records. If the victim consents to the
disclosure, the court shall issue a subpoena for the records to be
produced under seal to the court. If the victim opposes the disclosure,
the court shall hold a hearing to determine if a reasonable probability
exists that the records contain exculpatory evidence tending to create a
reasonable doubt as to the defendant’s guilt. If the court determines a
reasonable probability exists that the records contain such evidence, the
court shall issue a subpoena for the records to be produced under seal to
the court.
Before issuing the subpoena, the court shall enter a protective
order containing stringent nondisclosure provisions. The protective
order shall prohibit any attorney, county attorney, or third party who is
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allowed to inspect or review the records under this protocol from copying,
disclosing, or disseminating the information contained in the records to
any person, including the defendant, unless otherwise authorized by this
protocol or the court. In addition, the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) requires the Secretary of the
Department of Health and Human Services to issue regulations to insure
the privacy of health care records. 42 U.S.C. § 1320d-2(d)(2) (2003). To
comply with the privacy and security rules enacted by the Secretary, the
protective order shall also contain provisions: (1) prohibiting the parties
from using or disclosing the records or the information contained in the
records for any purpose other than the criminal proceeding for which the
records were sought, and (2) requiring an attorney, county attorney, or
third party who is allowed to inspect or review the records under this
protocol to destroy the records (including all copies made) at the end of
the proceeding. 45 C.F.R. § 164.512(e)(1)(ii)(B), .512(e)(1)(v) (2010). The
subpoena shall contain language stating that prior to the court issuing
the subpoena, the court has entered a protective order complying with
the requirements of HIPAA’s privacy and security rules. A copy of the
protective order shall be served with the subpoena. Id.§ 164.512(e)(1)(ii)(B), .512(e)(1)(iv).
Third, if the records are produced, the attorney for the defendant
who obtained the subpoena shall have the right to inspect the records at
the courthouse. An in camera review of the records by the court is
insufficient. Only the attorneys representing the parties know what they
are looking for in the records. The court cannot foresee what may or may
not be important to the defendant. Heemstra, 721 N.W.2d at 563; see
also Dwyer, 859 N.E.2d at 418 (“Despite their best intentions and
dedication, trial judges examining records before a trial lack complete
14
information about the facts of a case or a defense . . . and are all too
often unable to recognize the significance, or insignificance, of a
particular document to a defense.”).
Fourth, after the attorney for the defendant has identified the
records he or she believes contain exculpatory evidence, the attorney
shall notify the county attorney and the court of the specific records the
defendant desires and ask that the matter be set for hearing. Prior to the
hearing, the county attorney may review the designated records at the
courthouse. If the county attorney reviews the records, he or she is
subject to the protective order entered by the court.
Fifth, the court shall hold a hearing to determine if the designated
records contain exculpatory evidence. The court shall close the hearing
to the public to protect the victim’s privacy. The court shall give notice of
the hearing to the defendant’s attorney and the county attorney. If the
court determines the designated records contain such evidence, the court
shall provide a copy of any such records to the defendant’s attorney and
the county attorney. Before providing these records to counsel, the court
shall order that all non-exculpatory matters in the records provided be
redacted prior to the records being removed from the courthouse. In
order to protect the privacy rights of the victim, these records will
continue to be subject to the protective order entered by the court.
Before either attorney can disclose the records to a third party, including
potential expert witnesses, the attorney must obtain an order from the
court allowing such disclosure and requiring the person to whom the
records are disclosed to be bound to the same nondisclosure provisions
imposed on the attorneys. A copy of the protective order shall be given to
the third party when the party receives copies of the records.
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The protocol we have outlined for discovery purposes does not
necessarily mean the victim’s mental health records are admissible at
trial. Whether the records meet the requirements for admission under
our rules of evidence is a separate determination that the court will make
at trial or in ruling on a motion in limine. If the court ultimately decides
the records are admissible, the court shall consider alternatives to the
introduction of the records as proffered. These alternatives may include
stipulations by the parties or the introduction of redacted portions of the
records.
All records produced under seal to the court pursuant to a
subpoena shall be preserved for appeal purposes. After completion of the
appeal, all persons who have copies of the records shall destroy their
copies and certify to the court that the records in their possession have
been destroyed.
In formulating this protocol, we have considered whether a
defendant should be required to make a showing that the information
sought in the records could not be obtained from another source, such
as the victim’s testimony, before the defendant is allowed to seek
production of the victim’s mental health records. We reject such a
requirement because we do not believe a patient’s rendition of his or her
medical condition and treatment is necessarily reliable. For example,
without examining Doe’s records, Cashen cannot be sure the information
provided in Doe’s deposition testimony accurately reflects her true
mental health condition. Sometimes individuals are less than candid
concerning their condition when talking to others. In other instances,
individuals may not fully understand their condition, notwithstanding
their health care providers’ efforts to explain it to them. Finally, such
records often contain information not given to a patient or information
16
forgotten by a patient. The only way to assure that Cashen has adequate
and accurate information to defend properly against the criminal charges
is to give him access to those portions of Doe’s records that are relevant
to Cashen’s innocence. By using the protocol outlined above, the
invasion of Doe’s right to privacy in her mental health records is
minimized.
F. Application of the Protocol. In her deposition, Doe admitted
punching the defendant. On two prior instances, she has been charged
with domestic abuse against her ex-husband. She admits to having
posttraumatic stress disorder for which she has sought counseling. She
also admitted to being frustrated easily and having difficulty controlling
impulsive behavior. Based on this testimony, the district court found the
mental health history of Doe, relating to her propensities for violence and
explosive behavior, was relevant to Cashen’s defense of self-defense and
to Doe’s credibility as a witness. This evidence is exculpatory because it
tends to create a reasonable doubt as to Cashen’s guilt.
We agree with the district court that Doe’s deposition testimony
satisfies Cashen’s requirement to establish a reasonable probability
exists that the records contain exculpatory evidence. On remand, the
court shall issue a subpoena for the records to be produced under seal to
the court. Thereafter, the court and the parties shall comply with the
remaining requirements of the protocol.
IV. Disposition.
We affirm the district court decision to the extent it allowed
Cashen’s attorney to inspect the mental health records of Doe. We
reverse that part of the decision requiring Doe to execute a patient’s
waiver in favor of Cashen’s attorney. Therefore, we vacate the decision of
the court of appeals and remand the case to the district court to follow
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the protocol contained in this opinion pertaining to the disclosure of a
victim’s privileged records.
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF
DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED WITH INSTRUCTIONS.
All justices concur except Cady, J., who dissents.
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#95/07–2109, State v. Cashen
CADY, Justice (dissenting).
I respectfully dissent. The majority announces and professes to
apply a balancing test to reach its conclusion that Doe must turn over
her confidential counseling records for examination by Cashen and his
attorney (and others) under a protocol directed by the trial court. In
truth, the majority has abandoned the balancing test without
acknowledgement. In its place, the majority has substituted a policy
judgment that all defendants in a criminal case are entitled to view
confidential medical and counseling records of a victim to an alleged
crime when the defendant asserts a legal claim or issue that makes the
contents of the confidential records relevant to the claim or issue in the
case. The balancing test is unceremoniously abandoned because
confidential records must now be disclosed once relevance is shown
regardless of any particular surrounding circumstances of the case that
may reveal a diminished need for the particular records by the defendant
and regardless of a heightened need to protect the confidentiality of the
records. The majority adopts one of the weakest tests known to the law
in an area of the law that deals with the clash of two of the most
compelling and venerable interests known to the law. This is a step
backwards. It gives the defendant more power than necessary to protect
the right to a fair trial, while presenting a serious risk of a different form
of abuse for victims of domestic violence. This new test may also
ultimately cause victims to decline to report domestic abuse in order to
protect themselves from being required to disclose very personal and
private information to the alleged abusers and other parties to the
prosecution.
19
One fundamental interest at stake in this case involves a belief of
most Iowans that information communicated by a patient to a doctor or
counselor will be confidential. For over 150 years, Iowa has recognized
that confidential communications between a physician and a patient
constitute privileged information. See Iowa Code § 622.10 (2007)
(establishing current privilege of confidentiality between physician and
patient); 7 Laurie Kratky Dorè, Iowa Practice Series: Evidence § 5.504:2,
at 365 & n.2 (2009) (tracing the root of the physician-patient privilege
statute to the 1851 Iowa Code) [hereinafter Dorè]. Although this privilege
did not exist at common law, it has been a cornerstone of the
professional ethics of physicians for over a century. 3 See 1 Kenneth S.
Broun et al., McCormick on Evidence § 98, at 446–47 (6th ed. 2006)
[hereinafter McCormick]. The privilege surfaced in Iowa as an enactment
by our legislature in 1851, shortly after we became a state. Iowa Code
§ 2393 (1851). Today, the venerable statutory privilege not only
precludes physicians from disclosing through testimony any confidential
communication by a patient, but also prohibits the disclosure of medical
records containing confidential communications. State v. Heemstra, 721
N.W.2d 549, 560 (Iowa 2006). The rationale for a law protecting
3The American Medical Association (AMA) was the first national professional
medical organization in the world. American Medical Association, History of AMA
Ethics, http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-
medical-ethics/history-ama-ethics.shtml (last visited June 22, 2010). The AMA
promulgated the first code of ethics for physicians in 1847. Id. The current version of
the ethical code still remains the authority governing physicians’ conduct. Id. In its
first version of the code, the AMA declared that the “obligation of secrecy” should be
observed by all physicians. See American Medical Association, Code of Medical Ethics of
the American Medical Association ch. 1, art. I § 2, at 93 (1847), available at
http://www.ama-assn.org/ama/upload/mm/369/1847code.pdf. The AMA also
pointed out in this early ethics code, “[t]he force and necessity of this obligation [of
confidentiality to patients] are indeed so great, that professional men have, under
certain circumstances, been protected in their observance of secrecy, by courts of
justice.” Id. Over 160 years later, this ethical rule of confidentiality still governs
practicing physicians.
20
information acquired by a physician from disclosure is to promote
complete and open communication by a patient to enable the physician
to make a proper diagnosis and render appropriate treatment. State v.
Deases, 518 N.W.2d 784, 787 (Iowa 1994). If patients know or fear the
information they tell their doctor may be disclosed in the future, they
may be reluctant to disclose information embarrassing to them but
needed by the doctor to render proper care.
While our rules and cases applying Iowa Code section 622.10
generally reflect “great solicitude for the physician-patient privilege,” the
privilege is deemed to be even more important in the treatment of mental
health. Heemstra, 721 N.W.2d at 560–61. The greater protections in the
area of mental health treatment are justified primarily because of the
enhanced need for a strong relationship of trust and confidence between
the patient and provider and the extremely personal and sensitive
information frequently disclosed in the course of mental health
counseling. See id. at 561. Any threat of disclosure of such information
would obstruct, if not bar, successful treatment. See McCormick § 98, at
447. Moreover, unwanted disclosure of highly personal information
separately implicates one of the most fundamental tenets of all law—the
right to privacy. Heemstra, 721 N.W.2d at 561. Thus, we are not just
dealing with a strong belief recognized by statute, but a right with roots
found in our constitution. The privilege necessarily recognizes a right to
protect the privacy interests of the individual to keep private information
from public disclosure, independent from the need for optimum medical
treatment recognized by statute. See McMaster v. Bd. of Psychology
Exam’rs, 509 N.W.2d 754, 758–59 (Iowa 1993) (recognizing a
constitutional right of privacy in mental health records). Nevertheless,
all fifty states and the District of Columbia have statutes that protect the
21
communication between patients and their therapists. Jaffee v.
Redmond, 518 U.S. 1, 12, 116 S. Ct. 1923, 1929, 135 L. Ed. 2d 337, 346
(1996). Our legislature has separately considered the special interest
involved in mental health and psychological information and has
provided comprehensive rules prohibiting disclosure except under very
limited circumstances. 4 See generally Iowa Code ch. 228 (providing rules
of limited disclosure for a patient’s mental health records). These rules,
however, do not specifically address the disclosure of mental health
information in a criminal proceeding, but the right to privacy derived
from our constitution remains a forceful protection against disclosure.
I recognize the privilege expressed in section 622.10 does not
expressly apply to discovery disputes. Yet, the purpose and rationale of
the statute unmistakably applies to pretrial discovery in a criminal case
with the same vigor and importance as to the testimonial stage of trial.
See Newman v. Blom, 249 Iowa 836, 844, 89 N.W.2d 349, 354–55 (1958)
(recognizing medical records contain the same protected confidential
information as a physician’s direct testimony about the
communications). Discovery of witness records is a predicate step to
trial testimony and is guarded by the same basic underlying
considerations. Moreover, it is important to discuss the privilege in the
context of the statute because the statute has been the forum largely
responsible for the development of the law, even though the privilege also
has its roots in the broad constitutional right to privacy. See McMaster,
509 N.W.2d at 758 (recognizing the roots of the right to privacy in mental
4Forexample, Cashen’s access to the records obtained in this case would
presumably violate Iowa Code section 228.2, as the disclosure of the records to
Cashen’s private detective does not appear to qualify under any of the five listed
exceptions stated in section 228.2(1). Furthermore, under this record, there is no
evidence that the custodians of Doe’s medical records complied with the mandatory
procedures associated with disclosure. See Iowa Code § 228.2(2).
22
health records). Nevertheless, our legislature has left discovery disputes
over confidential records for the courts to resolve, and it is incumbent on
courts to develop a workable standard and resolve each dispute. The
statutory privilege is not a legal defense to a discovery dispute, but the
rationale of the privilege provides an important perspective in gaining a
full understanding of the privacy interest at stake.
The competing fundamental interest at stake in this case is derived
from constitutional protections provided to an accused to confront
witnesses in a criminal trial and to be given a fair trial. A defendant in a
criminal case not only has a right to confront witnesses with effective
cross-examination, but due process and the right to a fair trial also
demand an accused be given a full and fair opportunity to present a
claim of self-defense. See Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct.
1105, 1110, 39 L. Ed. 2d 347, 353 (1974) (recognizing defendant’s right
to confront witnesses with adequate cross-examination); see also
Chambers v. Mississippi, 410 U.S. 284, 297–98, 93 S. Ct. 1038, 1047, 35
L. Ed. 2d 297, 310 (1973) (recognizing defendant’s right to due process
includes the right to present a defense by cross-examining witnesses).
Although a defendant’s constitutional right of confrontation is not
limitless, a decision denying a defendant access to “ ‘a certain class of
evidence, even for the purpose of preventing a witness from suffering
embarrassment on the stand, should not limit the Sixth Amendment
right of a defendant to confront the witness against him.’ ” State v.
Howard, 426 A.2d 457, 460 (N.H. 1981) (quoting State of
New Hampshire’s appellate brief); see also Chambers, 410 U.S. at 295,
93 S. Ct. at 1046, 35 L. Ed. 2d at 309 (“Of course, the right to confront
and to cross-examine is not absolute and may, in appropriate cases, bow
to accommodate other legitimate interests in the criminal trial process.”).
23
Moreover, despite the power vested in state legislatures to protect the
privacy rights of victims, “[c]riminal defendants have been guaranteed
numerous rights by the fourth, fifth, and sixth amendments, and states
may not infringe upon them regardless of general legislative power.”
J. Alexander Tanford & Anthony J. Bocchino, Rape Victim Shield Laws
and the Sixth Amendment, 128 U. Pa. L. Rev. 544, 554–55 (1980).
The clash between the two fundamental constitutional interests
occurs in this case largely due to the presence of the self-defense claim.
Normally, mental health information of a victim is not admissible as
character evidence in a criminal proceeding. See generally State v.
Jacoby, 260 N.W.2d 828, 837 (Iowa 1977) (noting the general
inadmissibility of evidence relating to homicide victim’s character). When
the defense of self-defense is raised, however, evidence of a victim’s
quarrelsome or violent disposition may become relevant to help establish
the victim as the initial aggressor or the state of mind of the defendant.
Dorè § 5.404:3, at 206–08. Such evidence of the victim’s character may
be introduced through testimony concerning the victim’s reputation or by
opinion testimony of a witness familiar with the victim. Iowa R. Evid.
5.405(a). It may also be shown by specific conduct. Iowa R. Evid.
5.405(b). In this case, Cashen asserts the mental health records of Doe
are relevant to help formulate his self-defense claim through an expert
witness and to impeach Doe on cross-examination in the event she is
inconsistent or untruthful in her testimony on direct examination. There
is also a suggestion that the records may help determine if Doe’s ability
to accurately recall the incident is impaired. Cashen asserts his right to
a fair trial demands discovery of the records.
In Heemstra, we developed a compelling-need test to resolve the
clash between the competing interests of confidentiality and a fair trial in
24
the context of a criminal prosecution. 5 721 N.W.2d at 563. The test is
based on the premise that a point exists when even the strong interest of
confidentiality of mental health information must give way to a
defendant’s right to confront witnesses and the right to present a defense
in a criminal case. Id. at 562–63. In other words, this case involves a
clash of two constitutional rights, and each case must be carefully
examined to determine the point where one right must give way to the
other. See Chidester v. Needles, 353 N.W.2d 849, 853 (Iowa 1984).
We relied on four factors in Heemstra in balancing the interests at
stake to conclude limited disclosure of confidential mental health records
was required in that case. First, disclosure was not only sought in the
course of a criminal case, but the defendant faced the most severe
penalty possible under the law. Heemstra, 721 N.W.2d at 563. This
factor indicated the weight of the consequential harm of nondisclosure to
the accused. Second, the person who was the subject of the medical
records was deceased. Id. Although the physician-patient privilege
continues after death, this factor tended to diminish the importance of
protecting the records from disclosure because the fear of disclosure for a
patient after death is not as compelling for the patient as the fear of
5The seeds of this test were planted in Chidester v. Needles, 353 N.W.2d 849(Iowa 1984), a contempt proceeding involving the issuance of a county attorney
subpoena seeking medical records in the course of an investigation into suspected
criminal activity. We recognized the issue involved a clash between the privacy
interests of patients and the public interests in the fair administration of justice, and
indicated the issue was resolved by balancing the two competing interests. Chidester,
353 N.W.2d at 853. We subsequently amplified this test in McMaster, where we
imposed the burden on the entity seeking the confidential records to show the interests
in disclosure were greater than the interests of confidentiality. 509 N.W.2d at 759. We
also developed a five-factor test for an administrative agency to follow in attempting to
satisfy the burden to obtain confidential records to investigate a complaint made to the
agency. Id. at 759–60. Thus, the balancing test took root in the context of investigative
proceedings and was adopted in Heemstra as the test in the context of criminal
proceedings.
25
disclosure before death. See McCormick § 102, at 462 (recognizing
privilege continues after the patient’s death); see also United States v.
Hansen, 955 F. Supp. 1225, 1226 (D. Mont. 1997) (“The holder of the
privilege has little private interest in preventing disclosure, because he is
dead.”). Third, some of the information subject to disclosure in the case
had been voluntarily placed in the public domain during the pendency of
the case by virtue of a civil lawsuit filed by the executor of the victim’s
estate. Heemstra, 721 N.W.2d at 563. This factor tended to diminish the
need to protect the confidential interests of the particular patient.
Finally, the nature of the confidential information was such that it could
reasonably be viewed as an aid to the defendant in his self-defense claim.
Id. This factor was considered to be the most important criteria in the
case because it not only placed the constitutional right to a fair trial into
play, but it identified the specific need for the information and the
particular prejudice that would be suffered by the accused without the
information. See United States v. Alperin, 128 F. Supp. 2d 1251, 1255
(N.D. Cal. 2001) (recognizing records material to self-defense claim
outweigh victim’s interest in confidentiality).
The factors we identified in Heemstra were not exhaustive, but
instructive of the general approach courts should take in applying a
balancing test in criminal cases. This test focuses on all the facts and
circumstances of each case to fully assess a compelling need for the
information. The burden to establish a need for the victim’s records is on
the defendant. See McMaster, 509 N.W.2d at 759 (imposing burden on
entity seeking the records). The relevant factors essentially allow the
strength of the competing interests to be compared within the context of
each individual case. This is the best method to achieve a just result.
26
The problem with the decision of the majority is the important
case-specific balancing of the competing interests is discarded. As a
clash between constitutional rights, this approach seems inconceivable.
The majority claims to adhere to the balancing process through the use
of protocol, but the protocol requires the disclosure of the confidential
records based merely on a showing of relevancy. This new test does not
consider any particular need for the victim to maintain privacy, nor does
the test allow any particular circumstances of the defendant to be
identified that may militate against full disclosure. More importantly, it
fails to balance the competing interests by flushing out a compelling
need for the confidential records. Instead, the new test presumes mere
relevancy satisfies the compelling need and uses the protocol to realign
the interests of the victim from preventing disclosure to minimizing
disclosure. The right of the victim to keep records private from the court,
defendant, attorneys, and various court and attorney employees is
completely ignored.
In this case, the majority orders Doe to turn over all her medical
and counseling records from the time she was a young teenager because
Cashen has asserted a claim of self-defense and Doe has admitted she
has a history of counseling that includes impulsive behavior and that she
becomes frustrated easily due to posttraumatic stress disorder. Absent
from the analysis is any consideration that could diminish Cashen’s need
for the confidential reports.
First, Doe is available to testify at trial, and she has already
provided Cashen with an abundance of testimony under oath relevant to
the claim of self-defense. Second, Cashen was married to Doe and likely
possesses personal knowledge of the propensity and character of Doe to
assist him in his claim of self-defense, including any propensity for
27
aggression or violence, based on his past relationship with her. Third,
there was no proof by Cashen that relevant evidence of Doe’s character
could not be obtained from other witnesses familiar with her
background, disposition, and general reputation. Finally, although
Cashen may utilize an expert witness to assist him to present his claim
of self-defense, there was no proof that such assistance would not be
available without additional medical records. Cashen has not argued, let
alone established, his expert could not effectively present the desired
opinion testimony about Doe’s character and propensities derived from
her various medical diagnoses without first reviewing the medical records
he seeks. Importantly, Cashen has failed to articulate specific grounds
to explain how the records would aid in his self-defense claim in light of
the evidence he possesses and the evidence available to him without the
records.
Conversely, the public policy embedded in the battle against
domestic abuse should heighten the need to protect the confidentiality of
medical and counseling records of victims in domestic-abuse cases.
While domestic abuse was rarely prosecuted as a crime in the not-too-
distant past, it is now a common subject of civil and criminal
enforcement in this state and nationwide. 6 Moreover, it is not
uncommon for victims of domestic abuse to suffer from anxiety,
depression, and posttraumatic stress disorder. Evan Stark, Re-
6Domestic violence is recognized almost universally as “an ever-widening
epidemic” for which the legal system has continued to work towards a cure. See Betsy
Tsai, Note, The Trend Towards Specialized Domestic Violence Courts: Improvements on
an Effective Innovation, 68 Fordham L. Rev. 1285, 1287 (2000). While domestic abuse
was generally socially and legally acceptable for centuries, the trend to end such
violence has progressed substantially. In Iowa, statistics show that from 1990 to 1993,
domestic abuse civil filings rose from 188 to 2677. Supreme Court Task Force on
Courts’ and Communities’ Response to Domestic Abuse, Final Report 6 (1994), available
at http://www.iowacourts.gov/wfdata/frame9830-1152/File9.pdf.
28
Presenting Woman Battering: From Battered Women Syndrome to Coercive
Control, 58 Albany L. Rev. 973, 997 (1995). Consequently, as the
number of domestic-abuse prosecutions increases, so does the threat of
disclosure of confidential records of prosecuting witnesses. Likewise, as
the threat of disclosure of confidential records of victims increases, the
public policy responsible for the greater reporting and prosecution of
domestic abuse that is part of the overall effort to address domestic
violence is likely to suffer. If victims of domestic violence must suffer the
embarrassing and debilitating loss of their physician-patient privilege
once they become a witness in a criminal domestic-abuse prosecution, a
chilling effect will be cast over the reporting of domestic abuse, the
disclosure of information to treatment providers by victims, the ability of
physicians and psychotherapists to treat psychological disorders arising
from domestic abuse, and the willingness of victims to testify against
their abusers. The relevancy test of the majority fails to consider the
impact of simple relevancy-based disclosure on society in general.
Finally, the holding of the majority deprives victims of domestic
abuse crimes, and perhaps other victims of crimes, of a constitutional
right of privacy without an opportunity to show how the deprivation of
the right will impact their privacy interest. The victim is treated as if the
right to privacy does not apply to judges, court staff, attorneys,
defendants, and other people connected to the court system.
The majority has, without explanation, decided to paint with broad
brushstrokes by making an implicit judgment that the presence of
potentially relevant records trumps confidentiality in the context of a
criminal prosecution. Even though this judgment may be justified in
many cases, it is not a justification to paint with a broad brush. Justice
within a case involving strong competing constitutional interests requires
29
a careful analysis of the particular facts and circumstances. Experience
reveals that a one-size-fits-all test can present a serious risk of injustice
in a particular case. This case may very well be one. Sadly, without an
opportunity to fully explore all the compelling interests at stake, this will
never be known.
The new test developed by the majority may be easy and beneficial
to defendants, but it is a step back both for victims and for the progress
made in addressing domestic violence over the last decade. The only way
victims of domestic abuse with a history of counseling will be able to
ensure the confidentiality of their private counseling records is to not
report domestic abuse. The law should be able to do better.