What Is a Motion to Obtain Privileged Psychiatric Records?

In many of our cases, our clients are interested in telling us how the victim or a witness has a bad reputation, a criminal history or a reputation for dishonesty.  The client is keen to have our office explain this to the judge or the prosecutor as a way to, our clients hope, having the case dismissed.

We have to be exceedingly careful in how to handle such information, as it could be valuable impeachment if introduced later in the case before a jury.  So bringing it to the attention of the prosecutor early may be counterproductive because the prosecution will be alerted to the issue and file a motion in limine to exclude such information at time of trial.

Nevertheless, such information, if documented in psychiatric records of the witness or victim, can be useful in other contexts.  This article will not address the admissibility issues of a witness’ prior felony convictions or misdemeanor convictions for crimes of dishonesty or introducing impeachment evidence gathered for the defense by private investigators.

This article will address having a court order the production of privileged psychiatric records of a victim or witness.  Such a motion is known as a Hammon-Reber motion.  People v. Hammon (1997) 15 Cal.4th 1117, 65 Cal.Rptr.2d 1; People v. Reber (1986) 177 Cal.App.3d 523, 223 Cal.Rptr. 139; see Penal Code § 1054(3).

The first step in considering such a motion is establishing good cause for discovery of the records.  People v. Gurule (2002) 28 Cal.4th 557, 592, 123 Cal.Rptr.2d 345; see generally Davis v. Alaska (1974) 415 U.S. 308, 39 L.Ed. 2d 347, 354, 94 S.Ct. 1105.

Good cause must start with establishing to the judge why the content of such records would be relevant and helpful to a defendant.  If the victim or the witness was under care of a psychiatrist or psychologist as a patient at the time of the incident, the patient’s description of the alleged crime would be relevant.  The absence of such a description may establish that the alleged victim or witness lied to the police.  When mistaken identity of the defendant is a defense, the records may be relevant toward developing this defense.
 
The records could be relevant if the witness or the victim had a history of psychotic or hallucinatory behavior.  People v. Reber (1986) 177 Cal.App.3d 523, 223 Cal.Rptr. 139.

To establish this, a private investigator report may be useful.

When the case is a sex offense and the victim claims repeated sexual trauma, the records may rebut the victim’s claims of when such conduct started.  Such records may also undermine a restitution claim in a sex case for mental suffering.

It is critical that defendant appreciate that judges are reluctant to grant such motions, as the attempt to gain such information may be a “fishing expedition.”  It is also important to understand that the records cannot be used in a generalized way to suggest poor character.  A mere contention that the victim received some mental health treatment for some mental problem is not good cause for production.  People v. Pack (1988) 201 Cal.App.3d 679, 248 Cal.Rptr.240; see also Farrell L. v. Superior Court (1988) 203 Cal.App.3d 521, 250 Cal.Rptr. 25 (magistrate properly refused to compel production of names of members of a victim’s counseling group because information was too tangential).

Before the hearing on the motion, defense counsel should have a subpoena duces tecum for the records served on the person who has the records.  The records would then arrive at the court before the hearing so the judge can rule on the motion.
 
As trial proceeds, it will then be necessary to determine the admissibility of the records, based on the purpose for which defendant seeks to disclose the information and admit the records.  Hammon, at 1127.  Only records that are essential to vindicate the defendant’s constitutional right to confront a witness may be disclosed.  People v. Reber (1986) 177 Cal.App.3d 523, 223 Cal.Rptr. 139, disapproved on other grounds in Hammon, at 1123.

For more information about witness credulity issues, please click on the following articles:
  1. Court May Not Involuntarily Commit a Mentally Retarded Person without a     Showing That Violence Is Related to Retardation
  2. Restitution Proper in Sex Offense Case for Mental Suffering
  3. Sex Crime- Defendant Has Right at Trial to Present Evidence of Alleged Victim’s Prior False Sexual Assault Claims
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