State v. Kevin Roberson
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH
DISTRICT
JANUARY TERM 2004
STATE OF FLORIDA,
Petitioner,
CASE NO. 5D04-426
v.
KEVIN ROBERSON,
Respondent.
___________________________________/
Opinion filed April 23, 2004
Petition for Certiorari Review of
Order from the Circuit Court
for Seminole County,
Kenneth R. Lester, Jr., Judge.
Charles J. Crist, Jr., Attorney General, Tallahassee,
and Belle B. Schumann, Assistant Attorney General,
Daytona Beach, for Petitioner.
Vincent W. Howard, Jr., of Howard & Reyes,
Chartered, Sanford, for Respondent.
MONACO, J.
The State of Florida seeks certiorari review of a pre-trial discovery order compelling
the production of the mental health records of the purported victim of sex crimes for which the
Respondent, Kevin Roberson, is charged. Because we conclude that the psychotherapistpatient privilege applies, we grant certiorari and quash the discovery order.
Mr. Roberson is charged with one count of lewd or lascivious battery with a person 12
years of age or older but less than 16 years of age in violation of section 800.04(4)(a), Florida
Statutes (2003), and two counts of lewd or lascivious molestation in violation of section
800.04(5), Florida Statutes (2003). In each instance the alleged victim is K.A. While taking
depositions, Mr. Roberson learned that K.A. had a history of mental health difficulties,
including a prior commitment pursuant to the Baker Act, and was taking various medications
as part of her treatment. Mr. Roberson sought to obtain K.A.'s mental health records,
asserting that discovery was necessary to evaluate her capacity to observe, remember and
recount the events that gave rise to the criminal charges. The original trial judge denied the
requested discovery. After a successor judge was assigned to his case, Mr. Roberson
renewed his motion, and the successor judge ordered an in camera inspection of these
records to determine if their disclosure was warranted. The State seeks certiorari review of
this order.
Section 90.503(2), Florida Statutes (2003), which defines the psychotherapist-patient
privilege, states that the patient "has a privilege to refuse to disclose, and prevent any other
person from disclosing confidential communications or records made for the purpose of
diagnosis or treatment of the patient's mental or emotional condition. . ." The State argues
that the statute prohibits the disclosure of K.A.'s records. Mr. Roberson asserts that his Sixth
Amendment right of confrontation of witnesses, and his Fifth Amendment right to due process
compel disclosure of K.A.'s mental health records for an in camera review, despite the
language of the statute.
This very question was considered en banc by the Third District Court of Appeal in
State v. Famiglietti, 817 So. 2d 901 (Fla. 3d DCA 2002). The plurality opinion authored by
Judge Cope concluded that neither the Evidence Code, nor any applicable constitutional
principle allows the invasion of a victim's privileged communications with her psychotherapist.
2
Accordingly, the court declined to allow disclosure of the victim's mental health records, even
if those records were first screened by the trial court in camera. We fully agree with Judge
Cope's reasoning and conclusion.1
The opinion of the United States Supreme Court in Jaffee v. Redmond, 518 U.S. 1
(1996), supports this conclusion. The Court there pointed out that the psychotherapist-patient
privilege serves the public interest "by facilitating the provision of appropriate treatment for
individuals suffering the effects of a mental or emotional problem." Id. at 11. The opinion says
further:
Effective 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, disclosure of confidential
communications made during counseling 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.
Id. at 10. The Court endorsed the concept that confidentiality is the sine qua non for
successful psychiatric treatment. Id. at 10. The lead opinion also rejected the use of in
1
We observe that there appears to be significant support for the proposition that the confrontation
clause of the Sixth Amendment deals with trial rights, as opposed to pre-trial rights. In Pennsylvania v. Ritchie,
480 U.S. 39 (1987), the high court addressed certain issues concerning whether a criminal defendant charged
with child molestation could obtain pre-trial discovery of files from Pennsylvania's children and youth services
agency to determine if the information contained within them would assist his defense at trial. While no
majority emerged with respect to whether the confrontation clause applies to pre-trial activities, four justices
expressed the view in the lead opinion that the right to confrontation is a trial right that is designed to prevent
improper restrictions on questioning by the defense. The plurality wrote that "The ability to question adverse
witnesses . . . does not include the power to require the pretrial disclosure of any and all information that might
be useful in contradicting unfavorable testimony." Id. at 52-53; see also, People v. Hammon, 938 P.2d 986
(Cal. 1997). Cf., Goldsmith v. State, 651 A.2d 866 (Md. 1995). While we need not deal with this issue in the
present case, we do note that our opinion concerns only pre-trial discovery of mental health records, and does
not address what questioning on mental health matters may be permitted at trial. We leave that for another
day.
3
camera inspections as a means to balance the competing interests of the criminal defendant
and the witness, saying that "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." Jaffee,
518 U.S. at 17-18.
The importance of the psychotherapist-patient privilege in modern society is confirmed
by the fact that all fifty states, the District of Columbia, and the federal courts have enacted or
adopted some form of the privilege into their jurisprudence. The Florida legislature has
engrafted three exceptions to the privilege, which basically are that there is no privilege
associated with involuntary commitment proceedings; or when there is a court ordered mental
examination; or when the patient raises and relies on the issue of his or her mental condition
in litigation as part of a claim or defense. See ยง 90.503(4), Fla. Stat. (2003). If there are
going to be other exceptions - - such as the use of an in camera inspection - - then the
legislature should first define them so that persons seeking the aid of a psychotherapist will
know what the rules are going in.
Accordingly, we grant the petition for certiorari and quash the order of the trial court
granting discovery into the mental health records of K.A. As the Famiglietti court did, and for
the reasons stated in Famiglietti, we disagree with State v. Pinder, 678 So. 2d 410 (Fla. 4th
DCA 1996), to the extent that it approves the in camera inspection procedure for mental
health records.2
2
In Pinder the Fourth District held that records or communications between a sexual assault counselor
and a victim made confidential by section 90.5035, Florida Statutes, are subject to an in camera review, and
4
WRIT GRANTED.
PALMER and ORFINGER, JJ., concur.
are ultimately subject to discovery if the defendant establishes a reasonable probability that the privileged
matters contain material information necessary to the defense. In the final analysis, however, the court
concluded that the defendant failed to make the requisite factual showing, and quashed the discovery order.
5
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