Metropolitan News-Enterprise


Monday, August 25, 2005


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Ninth Circuit Declines to Find Exception to Therapist Privilege

En Banc Panel Rules ‘Dangerous Patient’ Theory Does Not Permit Testimony


By DAVID WATSON, Staff Writer


The federal evidentiary privilege for statements made by a patient to a therapist survives disclosure of the statements to protect someone threatened with harm, an en banc panel of the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel said it was declining to create a “dangerous patient” exception to the testimonial privilege, even where the threats had already been properly disclosed to authorities.

Three judges on the 11-judge panel disagreed, arguing the ruling was inconsistent with dictum in the U.S. Supreme Court’s 1996 opinion in Jaffee v. Redmond, 518 U.S. 1, which resolved a circuit split by recognizing the psychotherapist-patient privilege.

All 11 judges said Steven Gene Chase’s conviction for threatening an FBI agent should be affirmed. Chase was arrested after his Kaiser Permanente psychiatrist, Kay Dieter, reported his threats against FBI agents to authorities.

Threat Outside Sessions

A federal jury in Oregon convicted him only of a single threat made outside of the therapy sessions, acquitting him of the threats Dieter testified he had made while she was treating him.

A three-judge panel of the Ninth Circuit ruled in September 2001 that Chief U.S. District Judge Michael R. Hogan of the District of Oregon acted properly in allowing Dieter’s testimony.

That testimony was unlikely to have affected his conviction, the 11 en banc panel members agreed, but eight judges said Hogan should have excluded it.

Writing for the majority, Judge Susan P. Graber acknowledged the existence of a split in the circuits on the issue.

Circuits Split

The 10th Circuit ruled in 1998 in United States v. Glass, 133 F.3d 1356, that once a threat is properly disclosed under a state law exception to patient-therapist confidentiality provisions, the federal evidentiary privilege no longer applies. But in 2000 the Sixth Circuit in United States v. Hayes, 227 F.3d 578, took the opposite position.

Noting that the duty to disclose threats is generally associated with the 1975 California Supreme Court decision recognizing it, Tarasoff v. Regents of University of California, 17 Cal. 3d 425, she observed:

“[A]nalytically there is little connection between a psychotherapist’s state-imposed obligation to report a dangerous patient at the time the patient makes a threat, on the one hand, and the later operation of the federal testimonial privilege, on the other. The Tarasoff duty is justified on the ground of protection; the societal benefit from disclosing the existence of a dangerous patient outweighs the private and public cost of the deleterious effect on the psychotherapist-patient relationship. By contrast, ordinarily testimony at a later criminal trial focuses on establishing a past act. There is not necessarily a connection between the goals of protection and proof. If a patient was dangerous at the time of the Tarasoff disclosure, but by the time of trial the patient is stable and harmless, the protection rationale that animates the exception to the states’ confidentiality laws no longer applies.”

Graber said the “strongest argument” for abrogating the privilege after disclosure was that the patient has no expectation of confidentiality as to matters, like threats, that the therapist is obligated to report to others.

But she declared:

“We are unpersuaded by this argument for two reasons. First, it relies to some extent on a fiction that the patient knows that a disclosure for one purpose (warning a potential target of violence) is a disclosure for all purposes (including incriminating testimony in a federal criminal trial). Such a conclusion is not a logical necessity; a communication can be ‘not confidential’ under state law, but still ‘privileged’ under the Federal Rules of Evidence. Second, to the extent that a patient actually does know the law and the rules of evidence, the legal rule itself, whatever it may be, will govern the patient’s expectations. If, for example, the operative legal rule is that a therapist may disclose threats in order to warn intended victims, but may not testify to the threats in federal court—the analogue to the rule in most states—that is the rule that the patient will assume is in effect.”

Of the states covered by the Ninth Circuit, Graber said, only California provides by statute that disclosure of threats under the Tarasoff rationale also operates to abrogate the evidentiary privilege.

Judges Harry Pregerson, Sidney R. Thomas, M. Margaret McKeown, William A. Fletcher, Raymond C. Fisher, and Ronald M. Gould and Chief Judge Mary M. Schroeder joined in Graber’s opinion.

Judge Andrew J. Kleinfeld, joined by Judges Thomas G. Nelson and Richard R. Clifton, concurred in affirming the conviction but said he would have found the testimony admissible.

Kleinfeld noted that in recognizing the evidentiary privilege in Jaffee the Supreme Court added a footnote saying there are “situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.”

Citing Jaffee and United States v. Baird (9th Cir. 1996) 85 F.3d 450, Kleinfeld declared:

“The Supreme Court has said in the plainest English that in cases such as the one before us, ‘the privilege must give way.’ We ordinarily treat Supreme Court dicta with ‘due deference’ even though they are not binding. Because we are to interpret those decisions ‘in the light of reason and experience,’ the Supreme Court’s dictum should speak even more persuasively than usual, since, dictum or not, what the Court says reflects its ‘reason and experience.’”

The Jaffee dictum, Kleinfeld said, has “the look of a footnote added to avert a risk that someone in the majority perceived were the opinion published without it.” He added:

“Artificial respiration of a privilege dead under Supreme Court language that speaks directly to it takes a miracle. I do not think the majority brings it off.”

The case is United States v. Chase, 01-30200.


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