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25.16 Exercise Of Privilege By Witness

    25.16.1 Cautionary Instruction When Witness Exercises Privilege Outside Of The Presence Of The Jury
    25.16.2 Exercise Of Privilege By Witness: No Cautionary Instruction When Witness Seeks To Conceal Falsity Of Prior Testimony
    25.16.3 Exercise Of Privilege: No Adverse Inference Or Presumption As To Any Matter At Issue
    25.16.4 No Adverse Inference From Exercise Of Marital Privilege
    25.16.5 Improper To Require Witness To Invoke Privilege In Front Of Jury
    25.16.6 Whether Jury May Consider 5th Amendment Privilege Against Self Incrimination On Issue Of Credibility
    25.16.7 Unprivileged Refusal Of Witness To Answer Questions: Consideration As To Credibility
    25.16.8 Cautionary Instruction Regarding Invocation Of 5th Amendment In Front Of The Jury
    25.16.9 Assertion of Privilege by Witness: Duty of Court to Inform Defendant If Witness Decides to Testify
    25.16.10 Prosecution Witness Precluded From Claiming Privilege Against Self Incrimination In Front Of Jury
    25.16.11 Prosecution Witness Claim Of 5th Amendment Privilege On Cross-Examination
    25.16.12 Claim Of Privilege Against Self Incrimination By Defense Witness: Strategy For Defeating Privilege Claim
    25.16.13 Improper For Prosecutor To Call Witness For Purpose Of Forcing Exercising Of Privilege Against Self Incrimination In Front Of Jury
    25.16.14 Psychotherapist-Patient Privilege: No "Dangerous Patient" Exception
    25.16.15 Marital Privilege: Communications That Contravene Marital Harmony Are Not Shielded

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RATIONALE: When an obviously material witness does not testify the jury may speculate that the testimony or that witness would have been adverse to the defendant. Therefore, it may be appropriate to limit such speculation by informing the jury that the witness was unavailable.

POINTS AND AUTHORITIES: See People v. Gearns (MI 1998) 577 NW2d 422, 437 [instruction that jury may not draw an inference from the absence of certain witnesses or engage in speculation about the possible nature of their testimony should be given upon request]; Bowles v. U.S. (DC Cir. 1970) 439 F2d 536, 542, fn 6 [observing that it would be error to refuse a request for such an instruction].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

STRATEGY NOTE: There may be a tactical reason not to request the above instruction as illustrated by the following passage from Bowles:

    "Had either counsel requested the court to instruct the jury that they should draw no inference from Smith's absence because he was unavailable to either side, it would have been error to refuse this instruction. Appellant's trial counsel did not request such an instruction. There are meaningful tactical reasons why a defense counsel might elect not to seek such an instruction."

    "Defense trial counsel might well conclude that while a jury would readily understand for itself that defendant couldn't be expected to produce as a witness a man (Smith) who would testify that he had killed the deceased, it might have expected -- in terms of inquiring whether there was a reasonable doubt of guilt, -- that the Government would have called Smith to testify that he had not killed the deceased. The possibility for arousal of a reasonable doubt in the minds of the jurors would have been removed by a neutralizing instruction from the court." (Bowles, 439 F2d at 542, fn 6.)

See Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

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RATIONALE: When the witness takes the 5th Amendment to conceal prior false testimony, the jury should be permitted to consider this.

POINTS AND AUTHORITIES: Some standard pattern instructions inform the jury that when a witness refuses to testify based upon assertion of his 5th Amendment privilege against self incrimination, the jury must not draw any inference from the exercise of the privilege as to the believability of the witness or the guilt or innocence of the defendant.

    Such an instruction is appropriate in the ordinary circumstances where the witness fears his own potential prosecution and, therefore, refuses to testify. However, "it is entirely unwarranted" when the witness refuses to testify because his testimony would show his prior testimony to have been untruthful. (People v. Garner (CA 1989) 207 CA3d 935, 938 [255 CR 257]; see also Commonwealth v. Melson (PA 1994) 637 A2d 633, 639-640 [prosecution may use prior testimony only if trial court informs jury that refusal of witness to testify is based on fear that he will be prosecuted for perjury in the prior testimony].)

    In Garner, the witness refused to respond to questioning at trial upon the express averment that to do so would reveal the falsity of his earlier testimony at the preliminary hearing -- which implicated the defendant -- and would thus subject the witness to prosecution for perjury. Under such circumstances, the jury should be allowed to draw an unfavorable inference regarding the witness' credibility based upon his assertion of the 5th Amendment privilege. (Garner, 207 CA3d at 935.)

    Furthermore, "where the witness' earlier avowedly false testimony provides a basis for determining the accused's guilt, the jury ought properly to be instructed that it should, rather than it should not, draw all appropriate inferences regarding the defendant's actual guilt or innocence from the witness' refusal to speak." (Id. at 939.)

    Accordingly, under such circumstances the standard instruction should be modified to allow the jury to draw whatever inferences it deems appropriate from the witness' exercise of the privilege.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 7.1].

Annotation, Inferences Arising From Refusal Of Witness Other Than Accused To Answer Question On The Ground That Answer Would Tend To Incriminate Him, 24 ALR2d 895.

See also Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

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RATIONALE: There may be a natural tendency for the jury to give some consideration to the fact that a witness refused to testify by exercising a privilege. In such circumstances, a curative instruction may be necessary to assure that the jury understands that it must not consider the matter for any purpose.

POINTS AND AUTHORITIES: The jury should not draw any inferences favorable to either party from the decision of a witness to exercise a privilege not to testify. (See U.S. v. Gallego (S.D. NY 1996) 913 FSupp 209, 214; see also State v. Dennison (CT 1991) 600 A2d 1343, 1347-48; State v. McGriff (HI 1994) 871 P2d 782, 793 [no prejudice because privilege invoked when jury was absent]; People v. Paasche (MI 1994) 525 NW2d 914, 919; People v. Siegel (NY 1995) 663 NE2d 872, 876; People v. Vargas (NY 1995) 654 NE2d 1221, 1224-26; State v. Butler (TN 1994) 880 SW2d 395, 398-99.)

    But see FORECITE National™ 25.16.6 [View That Jury May Consider 5th Amendment Privilege Against Self Incrimination On Issue Of Credibility].

    But see FORECITE National™ 25.16.2 [Exercise Of Privilege By Witness: No Cautionary Instruction When Witness Seeks To Conceal Falsity Of Prior Testimony].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

See Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

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    25.16.4    No Adverse Inference From Exercise Of Marital Privilege

RATIONALE: Without a limiting instruction the jury may not understand that the exercise of a marital privilege is a matter of right and no speculation or inference should arise from the exercise of the privilege.

POINTS AND AUTHORITIES: See FORECITE National™ 25.16.3 [Exercise Of Privilege: No Adverse Inference Or Presumption As To Any Matter At Issue].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

See Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

    Under the marital privilege husbands and wives are not requried to testify against each other. In this case the defendant's [husband] [wife] has decided not to testify.  Do not draw any inference adverse to the defendant from the exercise of the marital privilege by [his] [her] [wife] [husband].  Also, do not speculate about what [his] [her] testimony might have been.

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PRACTICE NOTE: See U.S. v. Gallego (S.D. NY 1996) 913 FSupp 209, 214; State v. Dennison (CT 1991) 600 A2d 1343, 1347-48; Adkins v. State (MD 1989) 557 A2d 203, 208-10; People v. Paasche (MI 1994) 525 NW2d 914, 919; Bush v. Commonwealth (KY 1992) 839 SW2d 550, 553-54; People v. Vargas (NY 1995) 654 NE2d 1221, 1222.

See Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

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RATIONALE: If a jurisdiction decides that the exercise of a privilege is relevant to the credibility of a witness, special instruction may be appropriate.

POINTS AND AUTHORITIES: The First Circuit permits the jury to consider the exercise of the privilege against self incrimination by a witness in assessing the credibility of the witness. (See U.S. v. Berrio-Londono (1st Cir. 1991) 946 F2d 158, 160-62; U.S. v. Kaplan (1st Cir. 1987) 832 F2d 676, 683-85; see also FORECITE National™ 25.16.2 [Exercise Of Privilege By Witness: No Cautionary Instruction When Witness Seeks To Conceal Falsity Of Prior Testimony].)

    Other circuits disagree. (See e.g., U.S. v. Lizza Industries, Inc. (2nd Cir. 1985) 775 F2d 492, 496-97 fn 2; U.S. v. Nunez (10th Cir. 1981) 668 F2d 1116, 1123; see also FORECITE National™ 25.16.3 [Exercise Of Privilege: No Adverse Inference Or Presumption As To Any Matter At Issue].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

See Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See also Manual On Recurring Problems In Criminal Trials [5th Amendment Privilege Against Self Incrimination: General Principles].

    You heard _______________ [witness] refuse to answer certain questions on the ground that it might violate [his] [her] right to incriminate [himself] [herself]. You may, if you choose, draw adverse inferences from this refusal to answer and may take the refusal into account in assessing this witness's credibility and motives, but you are not required to draw that inference.

[1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.12 [Witness (Not The Defendant) Who Takes The Fifth Amendment] (2002).]

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RATIONALE: If a witness refuses to answer a question without having a valid privilege it may be reasonable for the jury to conclude that this impairs the credibility of the testimony of that witness.

POINTS AND AUTHORITIES: When a witness validly invokes the 5th Amendment most courts do not permit the jury to draw any adverse inferences from the invocation of the privilege. (See e.g., U.S. v. Lizza Indus., Inc. (2d Cir. 1985) 775 F2d 492, 496-97; U.S. v. Nunez (10th Cir. 1981) 668 F2d 1116, 1123; see also FORECITE National™ 25.16.3 [Exercise Of Privilege: No Adverse Inference Or Presumption As To Any Matter At Issue]; but see FORECITE National™ 25.16.6 [Whether Jury May Consider 5th Amendment Privilege Against Self Incrimination On Issue Of Credibility].)

    On the other hand, when the refusal to answer is made without any assertion of privilege the jury may draw inferences from the refusal. (See Lawson v. Murray (4th Cir. 1988) 837 F2d 653; U.S. v. Doddington (8th Cir. 1987) 822 F2d 818; see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 15.11 [The Refusal Of Witness Or Defendant To Answer] p. 444 (West, 5th ed. 2000).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

USE NOTE: Jury consideration of an unprivileged refusal to answer must be limited to the credibility of the witness. (See Sample Instructions below; see also FORECITE National™ 26.2.1 [Failure Of Witness To Answer: Limited To Issue Of Credibility Of Witness].)

PRACTICE NOTE: An alternative to this instruction would be to strike all or a portion of the testimony of the refusing witness. (See e.g., Lawson v. Murray,  837 F2d at 656; U.S. v. Doddington, 822 F2d at 822.) However, if the testimony of the witness is stricken in response to an unprivileged refusal to answer questions, it may implicate the defendant’s federal constitutional rights to compulsory process and to present a defense. (See generally FORECITE National™ 25.16.8 [Cautionary Instruction Regarding Invocation Of 5th Amendment In Front Of The Jury]; FORECITE National™ 300.23 [Privilege Against Self Incrimination (5th Amendment)].)  On the other hand, if the witness is a prosecution witness, an instruction may not be sufficient since the defendant will have been denied his or her federal constitutional right to confrontation and cross-examination. (See generally FORECITE National™ 300.29 [Reliability Of Trial And Verdict].)

CAVEAT: This instruction is not appropriate if the witness refuses to answer the question based on a valid privilege. However, the witness should not be permitted to claim the privilege in front of the jury. (See FORECITE National™ 25.16.8 [Cautionary Instruction Regarding Invocation Of 5th Amendment In Front Of The Jury].)

USE NOTE: Failure Of Witness To Answer: Limited To Issue Of Credibility Of Witness. See FORECITE National™ 26.2.1 [Failure Of Witness To Answer: Limited To Issue Of Credibility Of Witness].

See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 22:14 [Witness Unexpectedly Claims Privilege].

See Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See also generally, FORECITE National™ 305.18.2 [Refusal Of Witness To Testify].

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

    If a witness refuses to answer a question after being instructed by the court, consider that refusal in deciding whether you believe the witness and the weight, if any, the testimony should be given.  However, you must not speculate as to what the witness may have said had the witness answered the question.

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PRACTICE NOTE: If the witness does invoke the 5th Amendment inadvertently in the presence of the jury, a cautionary instruction should be given informing the jury not to consider the witness’ assertion of the privilege in any way against the witness or against any party. The instruction should further state that the assertion of the privilege by the witness does not mean that the witness has done anything wrong or that the testimony should not be believed. (CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.31, comment [Effect of Refusal of Witness To Answer Proper Question] (Bar Association of the District of Columbia, 4th ed. 1993).)

See Benchbook For U.S. District Court Judges [5.04 Handling The Recalcitrant Witness].

See also Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

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PRACTICE NOTE: The trial judge has a duty to inform the parties if a witness, who had previously asserted a privilege, informs the judge that the privilege will no longer be asserted and the witness will testify. (See Virgin Islands v. Mills (3rd Cir. 1991) 956 F2d 443, 446-48.)

STRATEGY NOTE: Counsel may wish to make a standing or continuing request for such notification.

See Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

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    25.16.10    Prosecution Witness Precluded From Claiming Privilege Against Self Incrimination In Front Of Jury

RATIONALE: If a prosecution witness asserts his or her privilege against self incrimination in front of the jury, the jury may improperly rely on this fact in evaluating the evidence.

POINTS AND AUTHORITIES: The applicable rule regarding a witness’s refusal to answer based on the 5th Amendment privilege against self incrimination depends on whether the privilege relates to "substantive" issues or collateral issues. (See CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 7.14, comment [Witness Claiming Privilege Against Self Incrimination: Instruction To Jury] (New York Office of Court Administration, 1983) .) In the case of substantive issues, if the witness has stated his or her intent to refuse to answer and claim the privilege against self incrimination in advance, it is serious error to allow the witness to claim the privilege in front of the jury. (See e.g., People v. Pollack (NY 1967) 234 NE2d 223; see also FORECITE National™ 25.16.11 [Prosecution Witness Claim Of 5th Amendment Privilege On Cross Examination].)

 CAVEAT:  When no advance warning is given, any previous testimony of the witness should be stricken because the defendant has been denied his constitutional right to cross-examination (confrontation, 6th and 14th Amendments). (See Fountain v. U.S. (5th Cir. 1967) 384 F2d 624, 628; U.S. v. Norman (9th Cir. 1968) 402 F2d 73, 77 [no sua sponte duty to strike, but implies that court will strike if motion to do so is made]; People v. Schneider (NY 1975) 325 NE2d 877. (This, of course, assumes that the error is not so prejudicial as to require mistrial. See e.g., U.S. v. Quinn (8th Cir. 1976) 543 F2d 640, 650-51; State v. Allen (IA 1974) 224 NW2d 237, 241.)

    Additionally, it has been held that a special instruction may be appropriate. (See e.g., U.S. v. Maloney (2nd Cir. 1959) 262 F2d 535, 538-39; U.S. v. Gernie (2nd Cir. 1958) 252 F2d 664, 669; DeGesualdo v. People (CO 1961) 364 P2d 374, 377; State v. Moynahan (CT 1973) 325 A2d 199, 215.)

    See also FORECITE National™ 25.16.13 [Improper For Prosecutor To Call Witness For Purpose Of Forcing Exercising Of Privilege Against Self Incrimination In Front Of Jury].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].

See Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See also Manual On Recurring Problems In Criminal Trials [5th Amendment Privilege Against Self Incrimination: General Principles].

See also Manual On Recurring Problems In Criminal Trials [1g. 5th Amendment Privilege Against Self Incrimination: Prosecution Witness May Invoke Privilege On Cross-Examination].

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

SAMPLE INSTRUCTION # 1:

    ______________ (insert name of witness) refused to testify [answer certain questions] based on [his] [her] constitutional privilege against self incrimination.  This right is absolute and [he] [she] cannot be forced to testify but the court or the parties.  You must not consider this refusal for any purpose or draw any inferences from the refusal as to whether or not the defendant has been proven guilty beyond a reasonable doubt.

    Do not draw any inference adverse to the defendant from the fact that a witness refused to testify, based on the constitutional privilege against self-incrimination.

    When a witness refuses to answer a question because of a legal privilege, no inference may be drawn from that refusal.

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PRACTICE NOTE: If a prosecution witness exercises the 5th Amendment so as to prevent cross-examination, the defendant's federal constitutional right to cross-examination and confrontation (6th and 14th Amendments) is implicated. (See e.g., Davis v. Alaska (1974) 415 US 308, 315 [94 SCt 1105; 39 LEd2d 347].) However, such a constitutional violation does not occur if the witness has exercised the privilege only as to collateral matters. (See U.S. v. Berrio-Londono (1st Cir. 1991) 946 F2d 158, 160-6; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West 6/99) § 53:1.)

See Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See also Manual On Recurring Problems In Criminal Trials [1g. 5th Amendment Privilege Against Self Incrimination: Prosecution Witness May Invoke Privilege On Cross-Examination].

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

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PRACTICE NOTE: If the defendant needs the testimony of a witness who is exercising the 5th Amendment, there are several things which may be done.

    1.  Consider arguments that the witness does not have a valid 5th Amendment privilege. "As to each question, the test is whether the witness is confronted with substantial and 'real,' and not merely trifling or imaginary hazards of incrimination." (U.S. v. Melchor Moreno (5th Cir. 1976) 536 F2d 1042, 1049; see also Marchetti v. U.S. (1968) 390 US 39, 53 [88 SCt 697; 19 LEd2d 889]; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 6/99) § 51:3.)

    2.  Consider whether the witness has waived the privilege by already voluntarily revealing incriminating facts. (See Rogers v. U.S. (1951) 340 US 367, 373 [71 SCt 438, 95 LEd 344]; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West 6/99) § 51:3.)

    3.  Consider arguments to limit the privilege claim. "Even if the court determines the witness has a privilege as to certain subjects, remember that a witness may not refuse to answer all questions -- only those questions which may incriminate him. Insist that the court conduct a careful inquiry into the proper scope of the privilege. The court ‘may not permit the witness to refuse to testify where a narrower privilege will adequately protect him.’ [Citation.]" (Hollander & Bergman, Everytrial Criminal Defense Resource Book (West 6/99) § 51:4, p. 51-3; see also U.S. v. Melchor Moreno (5th Cir. 1976) 536 F2d 1042, 1049 [court "must make a particularized inquiry, deciding, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well-founded"].)

    4.  Attempt to get immunity for the witness. There may be situations where the defendant’s federal constitutional right to due process (5th and 14th Amendments) may be violated by the failure of the prosecution to abide by a defense request for immunity for a defense witness.  (See U.S. v. Morrison (3rd Cir. 1976) 535 F2d 223, 229 ["The key question...is whether [the defendant will be] denied a fair trial because of the government’s refusal to seek immunity for defense witnesses"]; U.S. v. Alessio (9th Cir. 1976) 528 F2d 1079, 1082; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West 6/99) § 51:5.)

    5.  Consider cautionary instructions. In circumstances where the jury may be aware of the witness and draw an adverse inference from the fact that the witness has not testified, it may be beneficial to instruct the jury to not speculate as to that witness’s testimony and inform the jury that the witness was not available to either side. (See Bowles v. U.S. (DC Cir. 1970) 439 F2d 536, 542 [such an instruction should be given upon request]; see also FORECITE National™ 25.16.1 [Cautionary Instruction When Witness Exercises Privilege Outside Of The Presence Of The Jury].)

    Additionally, consideration may be given as to whether to request an instruction specifically informing the jury regarding the prosecution’s failure to grant immunity for the witness and the inability of the defense to give such a grant of immunity to the witness. (See FORECITE National™ 257.5.2 [Denial Of Immunity By Prosecution: Explanatory Instruction].)

See Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See also Manual On Recurring Problems In Criminal Trials [5th Amendment Privilege Against Self Incrimination: General Principles].

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

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PRACTICE NOTE: See U.S. v. Deutsch (2nd Cir. 1993) 987 F2d 878, 883-84 ["Most of the circuits which have addressed this issue have held it not to be error for a district court to bar [a witness who will invoke their privilege against self incrimination] from testifying"]; see also U.S. v. Gallego (S.D. NY 1996) 913 FSupp 209, 214; State v. Dennison (CT 1991) 600 A2d 1343, 1347-48; Adkins v. State (MD 1989) 557 A2d 203, 208-10; People v. Paasche (MI 1994) 525 NW2d 914, 919; Bush v. Commonwealth (KY 1992) 839 SW2d 550, 553-54; People v. Vargas (NY 1995) 654 NE2d 1221, 1222].)

RESEARCH NOTE:

Wharton’s Criminal Law (West, 15th Ed. 1993) § 38, pp. 240, 243.

See also Manual On Recurring Problems In Criminal Trials [Recalcitrant Witness: General Principles].

See also Manual On Recurring Problems In Criminal Trials [1k. 5th Amendment Privilege Against Self Incrimination: Witness Not To Be Called If It Is Known He Or She Will Claim Privilege].

See 1st Circuit Pattern Jury Instructions - Criminal 2.12.

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PRACTICE NOTE:  All 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege. (See Jaffee v. Redmond (1996) 518 US 1, 12 [116 SCt 1923; 135 LEd2d 337].) However, the Jaffee court recognized "that 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." (Id. at 18 n.19.) (emphasis added). In United States v. Glass (10th Cir. 1998)133 F3d 1356, the district court held that a psychotherapist may testify as to otherwise privileged statements of threats allegedly made by a patient only where such "disclosure was the only means of averting harm to the [federal official] when the disclosure was made." (Id. at 1356.)

    The "duty to protect" now imposed on psychotherapists throughout the country began with Tarasoff v. Regents of the University of California (CA 1976) 17 C3d 425, 437 [131 CR 14]. In Tarasoff, the California Supreme Court held that "once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger." (Id. at 345.) The obvious rationale behind this rule is that the preservation and protection of the health and safety of innocent third parties outweighs the good achieved by maintaining the confidentiality of life-threatening communications. After Tarasoff, most other states, codified the psychotherapist's "duty to protect" third parties from serious threats. (See, e.g., Tenn. Code Ann. § 33-10-302.)

    U.S. v. Hayes (6th Cir. 2000) 227 F3d 578 held that there is no "dangerous patient" exception to the Federal Psychotherapist-Patient Privilege (FRE 501). "[R]ecognition of a ‘dangerous patient’ exception surely would have a deleterious effect on the ‘atmosphere of confidence and trust’ in the psychotherapist/patient relationship. While early advice to the patient that, in the event of the disclosure of a serious threat of harm to an identifiable victim, the therapist will have a duty to protect the intended victim, may have a marginal effect on a patient's candor in therapy sessions, an additional warning that the patient's statements may be used against him in a subsequent criminal prosecution would certainly chill and very likely terminate open dialogue. [Citation.]  Thus, if our Nation's mental health is indeed as valuable as the Supreme Court has indicated, and we think it is, the chilling effect that would result from the recognition of a ‘dangerous patient’ exception and its logical consequences is the first reason to reject it."  (Id. at 585.)

RESEARCH NOTES:  See Gregory B. Leong, et al., The Psychotherapist as Witness for the Prosecution: The Criminalization of Tarasoff, AM. J. PSYCHIATRY 149:8, at 1011, 1014 (Aug. 1992).

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