Criminal Justice Section  


Criminal Justice Magazine
Spring 2004
Volume 19 Number 1

Trial Tactics

Privilege versus Compulsory Process

Stephen A. Saltzburg

Stephen A. Saltzburg is the Howrey Professor of Trial Advocacy, Litigation, and Professional Responsibility at George Washington University School of Law in Washington, D.C. He is also a contributing editor to Criminal Justice magazine and a section delegate to the ABA House of Delegates.

The question of when a claim of privilege might be trumped by a defendant's compulsory process right to seek and introduce exculpatory evidence has been discussed for decades. Still, there are no clear answers. A recent decision of the Kentucky Supreme Court, Commonwealth v. Barroso, 122 S.W.3d 554 (2003), highlights the conflict between claims of privilege and a defendant's Sixth Amendment compulsory process right.

The facts

Francisco Barroso was charged with and convicted of first-degree rape and second-degree robbery. The victim of both crimes was his then-girlfriend, who was 16 years old. The prosecutor provided defense counsel with copies of the records of Kosair Children's Hospital, where the victim was medically examined on the day of the offenses and shortly after she told police about the rape and robbery. The medical records revealed that, when the victim was examined, she told a nurse that she had been previously hospitalized for depression and was taking antidepressant medications. The hospital records also contained a report that the victim had been admitted to Baptist East Hospital for depression "some time ago" after she "broke up" with a boyfriend and her best friend moved out of town.When the trial started, defense counsel moved that the records of the victim's treatment at Baptist East Hospital be subpoenaed and examined by the trial judge "in the presence of the prosecutor and defense counsel." The trial judge responded to the motion by ordering the victim to give sworn testimony concerning her treatment at Baptist East Hospital.

The victim testified that she was admitted to Baptist East a little more than six months before the rape and robbery, after she attempted suicide by ingesting an overdose of over-the-counter pain medication. She also testified that she had received treatment for depression after she was admitted to the hospital. Defense counsel again moved for production of the hospital records. Although the trial judge characterized the request as a "fishing expedition," he entered an order requiring Baptist East Hospital to produce the records. The records were available on the second day of trial, and the trial judge inspected them in camera during a recess and concluded that they contained no exculpatory or impeachment evidence. The judge rejected defense counsel's request to inspect the records.

The privilege

Kentucky has a psychotherapist-patient privilege that recognizes three exceptions, but otherwise is absolute. The Kentucky Supreme Court observed that the state privilege rule was akin to that adopted by the United States Supreme Court in Jaffee v. Redmond, 518 U.S. 1, 17-18 (1996), and quoted from Jaffee: "Making 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 would eviscerate the effectiveness of the privilege." The Kentucky Supreme Court distinguished the psychotherapist-patient privilege from other "qualified privileges." (122 S.W.3d at 558.) The court offered two examples of qualified privileges: the Kentucky counselor-client and work product privilege. (Id.)

The open question

The Kentucky Supreme Court analyzed several United States Supreme Court cases and concluded that those cases left open the question whether a criminal defendant has the right to compel a third party to produce exculpatory information protected by an absolute privilege. Noting that Jaffee was not a criminal case, the Kentucky Supreme court also stated that Jaffee acknowledged that "although it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way. . . . " (518 U.S. at 18 n.19.) Although the U.S. Supreme Court has not decided whether an absolute privilege must yield to a compulsory process claim, the Kentucky Supreme Court reviewed a number of state court decisions. It summed them up by saying: "A majority of the state courts that have addressed this issue have held that a criminal defendant, upon a preliminary showing that the records likely contain exculpatory evidence, is entitled to some form of pretrial discovery of a prosecution witness's mental health treatment records that would otherwise be subject to an 'absolute' privilege." (122 S.W.3d at 561.)

Kentucky precedent

Nine years earlier, the Kentucky Supreme Court held in Eldred v. Commonwealth, 906 S.W.2d 694 (Ky. 1994), that a criminal defendant was entitled to discover exculpatory evidence contained in the psychiatric treatment records of a witness for the prosecution, and that a subpoena or court order should be used to obtain such records when they are not in the possession of the government. In Eldred, the court did not specifically rely on the right to compulsory process, and instead suggested that its holding was grounded in confrontation and due process rights. The Eldred case set a relatively low threshold for a defendant to compel production of psychiatric records. A defendant was only required to adduce "articulable evidence that raises a reasonable inquiry of a witness's mental health history" and the defendant's showing "does not have to establish the relevance and materiality of the records sought, which would be impossible without access to the records." (Id. at 702.) Once a defendant made the requisite showing, Eldred required the trial judge to conduct an in camera hearing "in the presence of the prosecutor and defense counsel."


The Barroso court reaffirmed the right of a defendant to compel production of psychiatric records, but for the first time grounded that right in the Sixth Amendment's Compulsory Process Clause:

If the psychotherapy records of a crucial prosecution witness contain evidence probative of the witness's ability to recall, comprehend, and accurately relate the subject matter of the testimony, the defendant's right to compulsory process must prevail over the witness's psychotherapist-patient privilege. Upon a proper preliminary showing, . . . the witness's psychotherapy records are subject to production for an in camera inspection to determine whether the records contain exculpatory evidence, including evidence relevant to the witness's credibility. . . .

(122 S.W.2d at 563.)

At the same time the court recognized the compulsory process right, it took another look at the procedural requirements set forth in Eldred and concluded that they should be modified in two respects. First, the court, expressing the same concern about "fishing expeditions" as the trial judge, decided that the preliminary showing by a defendant must be greater than Eldred required. The defendant must do more than simply show "articulable evidence that raises a reasonable inquiry of a witness's mental health history." Instead, the court held that in camera review of a witness's psychotherapy records is authorized only upon receipt of evidence sufficient to establish a reasonable belief that the records contain exculpatory evidence. In other words, the defendant must demonstrate that there is reason to believe that the records will be helpful to the defense, not just that they might be helpful.

Second, the court held that the in camera inspection may be done by the trial judge alone without the presence of the prosecutor and defense counsel. A limited in camera inspection preserves the privilege for information that is not helpful to the defense. The court added that the records can be placed under seal and made a part of the record, so an appellate court can review them. The court conducted such a review in Barroso and affirmed the trial judge.

The victim's rights

The Barroso court noted that some other courts have given the victim a say in whether the privileged information should be inspected and disclosed: "Some jurisdictions hold that because the privilege belongs to the witness, the trial judge must obtain a limited waiver from the witness before conducting the in camera inspection, and an additional waiver with respect to any exculpatory evidence discovered during the inspection. If the witness refuses to waive the privilege, the witness is precluded from testifying, or, if the witness has already testified, the testimony is stricken from the record." (122 S.W.2d at 564.) But the court was unwilling to follow these decisions. It cited the U.S. Supreme Court decision in United States v. Nixon, 418 U.S. 683, 708-09 (1974) (enforcing grand jury subpoena against the president), and asked "what of 'the fair administration of justice' and the aim 'that guilt shall not escape'?" (Id. at 565.) In the end, the court concluded "that a defendant's constitutional right to compulsory process prevails over a witness's statutory claim of privilege obviates the need to further complicate the procedure by placing the fate of the prosecution in the hands of a witness." (Id.)


The Barroso decision is an interpretation of the Sixth Amendment Compulsory Process Clause by just one court. It demonstrates, however, a familiarity with the many decisions pitting claims of privilege against Sixth Amendment confrontation and compulsory process claims. Barroso places great importance on ensuring that a defendant obtains all exculpatory evidence and impeachment evidence that will ensure a fair trial. At the same time, the decision recognizes the burdens on trial courts and the risk that privileged information will be disclosed for no good reason. It does so by raising the standard that a defendant must meet before a trial court must subpoena or order the production of privileged psychiatric records, and by permitting the trial judge to conduct an in camera review without the presence of the prosecutor and defense counsel.

The defendant's right to exculpatory evidence is protected by the decision. The government's right to charge and punish wrongdoers is also protected. The privilege and the interests of a victim in protecting privileged information give way in Barroso to the perceived needs for a fair administration of justice.

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