CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1995
Syllabus
JAFFEE, SPECIAL ADMINISTRATOR FOR ALLEN, DECEASED
v.
REDMOND ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 95-266. Argued February 26, 1996-Decided June 13, 1996
Petitioner, the administrator of decedent Allen's estate, filed
this action alleging that Allen's constitutional rights were
violated when he was killed by respondent Redmond, an on-duty
police officer employed by respondent village. The court ordered
respondents to give petitioner notes made by Karen Beyer, a
licensed clinical social worker, during counseling sessions with
Redmond after the shooting, rejecting their argument that a
psychotherapist-patient privilege protected the contents of the
conversations. Neither Beyer nor Redmond complied with the order.
At trial, the jury awarded petitioner damages after being
instructed that the refusal to turn over the notes was legally
unjustified and the jury could presume that the notes would have
been unfavorable to respondents. The Court of Appeals reversed and
remanded, finding that "reason and experience," the touchstones for
acceptance of a privilege under Federal Rule of Evidence 501,
compelled recognition of a psychotherapist-patient privilege.
However, it found that the privilege would not apply if, in the
interests of justice, the evidentiary need for disclosure
outweighed the patient's privacy interests. Balancing those
interests, the court concluded that Beyer's notes should have been
protected.
2
Syllabus
Held: The conversations between Redmond and her therapist
and the notes taken during their counseling sessions are protected
from compelled disclosure under Rule 501. Pp.8-18.
(a) Rule 501 authorizes federal courts to define new privileges
by interpreting "the principles of the common law ... in the light
of reason and experience." The Rule thus did not freeze the law
governing privileges at a particular point in history, but rather
directed courts to "continue the evolutionary development of
testimonial privileges."
Trammel v.
United States,
445 U. S. 40, 47.
An exception from the general rule disfavoring testimonial
privileges is justified when the proposed privilege "promotes
sufficiently important interests to outweigh the need for probative
evidence .... "
Id., at 51. Pp.8-1O.
(b) Significant private interests support recognition of a
psychotherapist privilege. Effective psychotherapy depends upon an
atmosphere of confidence and trust, and therefore the mere
possibility of disclosure of confidential communications may impede
development of the relationship necessary for successful treatment.
The privilege also serves the public interest, since the mental
health of the Nation's citizenry, no less than its physical health,
is a public good of transcendent importance. In contrast, the
likely evidentiary benefit that would result from the denial of the
privilege is modest. That it is appropriate for the federal courts
to recognize a psychotherapist privilege is confirmed by the fact
that all 50 States and the District of Columbia have enacted into
law some form of the privilege, see
Trammel v.
United
States, 445 U. S., at 48-50, and reinforced by the fact that
the privilege was among the specific privileges recommended in the
proposed privilege rules that were rejected in favor of the more
open-ended language of the present Rule 501. Pp. 10-15.
(c) The federal privilege, which clearly applies to
psychiatrists and psychologists, also extends to confidential
communications made to licensed social workers in the course of
psychotherapy. The reasons for recognizing the privilege for
treatment by psychiatrists and psychologists apply with equal force
to clinical social workers, and the vast majority of States
explicitly extend a testimonial privilege to them. The balancing
component implemented by the Court of Appeals and a few States is
rejected, for it would eviscerate the effectiveness of the
privilege by making it impossible for participants to predict
whether their confidential conversations will be protected. Because
this is the first case in which this Court has recognized a
psychotherapist privilege, it is neither necessary nor feasible to
delineate its full contours in a way that would govern all future
questions. Pp. 15-18.
51 F.3d
1346, affirmed.
3
STEVENS, J., delivered the opinion of the Court, in which
O'CONNOR, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ.,
joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST,
C. J., joined as to Part III,
post, p. 18.
Kenneth N.
Flaxman argued the cause for
petitioner.
With him on the briefs were Ronald L. Futterman and Craig B.
Futterman.
Gregory E. Rogus argued the cause for respondents.
With him on the brief were Paul E. Wojcicki, Robert E. Wilens,
and Richard N. Williams.
James A. Feldman argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were
Solicitor General Days and Deputy Solicitor General Bender. *
JUSTICE STEVENS delivered the opinion of the Court. After a
traumatic incident in which she shot and killed a man, a police
officer received extensive counseling from a
*Briefs of
amici curiae urging affirmance were filed for
the American Association of State Social Work Boards by
John
F.
Atkinson; for the American Civil Liberties Union et al.
by
Steven R. Shapiro, Harvey Grossman, Leonard S.
Rubenstein, Bruce J. Winick, and
Daniel W
Shuman; for the American Counseling Association by
Lee H.
Simowitz; for the American Psychiatric Association et al. by
Richard G.
Taranto; for the American Psychoanalytic
Association et al. by
Carter G.
Phillips, Rex E. Lee,
and
Joseph R. Guerra; for the American Psychological
Association by
Paul M. Smith, Robert M. Portman, and
James L. McHugh, Jr.; for the Employee Assistance
Professionals Association, Inc., by
Peter J.
Rubin; for the Menninger Foundation by
James C.
Geoly, Michael T. Zeller, and
Kevin R. Gustafson; for
the National Association of Police Organizations, Inc., by
William J. Johnson; for the National
Association of Social Workers et al. by
Michael B. Trister,
Carolyn I. Polowy, Sandra G.
Nye, Kenneth L. Adams, James
van R. Springer, and
Peter M. Brody; and for George R.
Caesar et al. by
Kurt W Melchior.
Briefs of
amici curiae were filed for the International
Union of Police Associations, AFL-CIO, by
Michael T. Leibig;
and for the National Network to End Domestic Violence et al. by
William C.
Brashares.
4
licensed clinical social worker. The question we address is
whether statements the officer made to her therapist during the
counseling sessions are protected from compelled disclosure in a
federal civil action brought by the family of the deceased. Stated
otherwise, the question is whether it is appropriate for federal
courts to recognize a "psychotherapist privilege" under Rule 501 of
the Federal Rules of Evidence.
I
Petitioner is the administrator of the estate of Ricky Allen.
Respondents are Mary Lu Redmond, a former police officer, and the
Village of Hoffman Estates, Illinois, her employer during the time
that she served on the police force.1 Petitioner commenced this
action against respondents after Redmond shot and killed Allen
while on patrol duty.
On June 27,1991, Redmond was the first officer to respond to a
"fight in progress" call at an apartment complex. As she arrived at
the scene, two of Allen's sisters ran toward her squad car, waving
their arms and shouting that there had been a stabbing in one of
the apartments. Redmond testified at trial that she relayed this
information to her dispatcher and requested an ambulance. She then
exited her car and walked toward the apartment building. Before
Redmond reached the building, several men ran out, one waving a
pipe. When the men ignored her order to get on the ground, Redmond
drew her service revolver. Two other men then burst out of the
building, one, Ricky Allen, chasing the other. According to
Redmond, Allen was brandishing a butcher knife and disregarded her
repeated commands to drop the weapon. Redmond shot Allen when she
believed he was about to stab the man he was chasing. Allen died at
the scene. Redmond testified that before other officers
1 Redmond left the police department after the events at issue
in this lawsuit.
5
arrived to provide support, "people came pouring out of the
buildings," App. 134, and a threatening confrontation between her
and the crowd ensued.
Petitioner filed suit in Federal District Court alleging that
Redmond had violated Allen's constitutional rights by using
excessive force during the encounter at the apartment complex. The
complaint sought damages under Rev. Stat. § 1979, 42 U. S. C. §
1983, and the Illinois wrongful-death statute, Ill. Compo Stat.,
ch. 740, § 180/1
et seq. (1994). At trial, petitioner
presented testimony from members of Allen's family that conflicted
with Redmond's version of the incident in several important
respects. They testified, for example, that Redmond drew her gun
before exiting her squad car and that Allen was unarmed when he
emerged from the apartment building.
During pretrial discovery petitioner learned that after the
shooting Redmond had participated in about 50 counseling sessions
with Karen Beyer, a clinical social worker licensed by the State of
Illinois and employed at that time by the Village of Hoffman
Estates. Petitioner sought access to Beyer's notes concerning the
sessions for use in crossexamining Redmond. Respondents vigorously
resisted the discovery. They asserted that the contents of the
conversations between Beyer and Redmond were protected against
involuntary disclosure by a psychotherapist-patient privilege. The
district judge rejected this argument. Neither Beyer nor Redmond,
however, complied with his order to disclose the contents of
Beyer's notes. At depositions and on the witness stand both either
refused to answer certain questions or professed an inability to
recall details of their conversations.
In his instructions at the end of the trial, the judge advised
the jury that the refusal to turn over Beyer's notes had no "legal
justification" and that the jury could therefore presume that the
contents of the notes would have been un-
6
favorable to respondents.2 The jury awarded petitioner $45,000
on the federal claim and $500,000 on her state-law claim.
The Court of Appeals for the Seventh Circuit reversed and
remanded for a new trial. Addressing the issue for the first time,
the court concluded that "reason and experience," the touchstones
for acceptance of a privilege under Rule 501 of the Federal Rules
of Evidence, compelled recognition of a psychotherapist-patient
privilege.3
51 F.3d
1346, 1355 (1995). "Reason tells us that psychotherapists and
patients share a unique relationship, in which the ability to
communicate freely without the fear of public disclosure is the key
to successful treatment."
Id., at 1355-1356. As to
experience, the court observed that all 50 States have adopted some
form of the psychotherapist-patient privilege.
Id., at 1356.
The court attached particular significance to the fact that
Illinois law expressly extends such a privilege to social workers
like Karen Beyer.4
Id., at 1357. The court also noted that,
with one exception, the federal decisions rejecting the privilege
were more than five years old and that the "need and demand for
counseling services has skyrocketed during the past several years."
Id., at 1355-1356.
2 App. to Pet. for Cert. 67.
3 Rule 501 provides as follows: "Except as otherwise required by
the Constitution of the United States or provided by Act of
Congress or in rules prescribed by the Supreme Court pursuant to
statutory authority, the privilege of a witness, person,
government, State, or political subdivision thereof shall be
governed by the principles of the common law as they may be
interpreted by the courts of the United States in the light of
reason and experience. However, in civil actions and proceedings,
with respect to an element of a claim or defense as to which State
law supplies the rule of decision, the privilege of a witness,
person, government, State or political subdivision thereof shall be
determined in accordance with State law."
4 See Illinois Mental Health and Developmental Disabilities
Confidentiality Act, Ill. Compo Stat., ch. 740, §§ 110/1-110/17
(1994).
7
The Court of Appeals qualified its recognition of the privilege
by stating that it would not apply if, "in the interests of
justice, the evidentiary need for the disclosure of the contents of
a patient's counseling sessions outweighs that patient's privacy
interests."
Id., at 1357. Balancing those conflicting
interests, the court observed, on the one hand, that the
evidentiary need for the contents of the confidential conversations
was diminished in this case because there were numerous
eyewitnesses to the shooting, and, on the other hand, that Officer
Redmond's privacy interests were substantial.5
Id., at 1358.
Based on this assessment, the court concluded that the trial court
had erred by refusing to afford protection to the confidential
communications between Redmond and Beyer.
The United States Courts of Appeals do not uniformly agree that
the federal courts should recognize a psychotherapist privilege
under Rule 501. Compare
In re Doe, 964
F.2d 1325 (CA2 1992) (recognizing privilege);
In re
Zuniga, 714 F.2d
632 (CA6) (same), cert. denied, 464 U. S. 983 (1983), with
United States v.
Burtrum, 17 F.3d
1299 (CAlO) (declining to recognize privilege), cert. denied,
513 U. S. 863 (1994);
In re Grand Jury Proceedings,
867 F.2d
562 (CA9) (same), cert. denied
sub nom. Doe v.
United
States, 493 U. S.
906 (1989); United States v.
Corona, 849 F.2d
562 (CAll 1988) (same), cert. denied, 489 U. S. 1084 (1989);
United States v.
Meagher, 531 F.2d
752 (CA5) (same), cert. denied, 429 U. S. 853 (1976). Because
of the conflict among the Courts of
5 "Her ability, through counseling, to work out the pain and
anguish undoubtedly caused by Allen's death in all probability
depended to a great deal upon her trust and confidence in her
counselor Karen Beyer. Officer Redmond, and all those placed in her
most unfortunate circumstances, are entitled to be protected in
their desire to seek counseling after mortally wounding another
human being in the line of duty. An individual who is troubled as
the result of her participation in a violent and tragic event, such
as this, displays a most commendable respect for human life and is
a person well-suited 'to protect and to serve.''' 51 F. 3d, at
1358.
8
Appeals and the importance of the question, we granted
certiorari. 516 U. S. 930 (1995). We affirm.
II
Rule 501 of the Federal Rules of Evidence authorizes federal
courts to define new privileges by interpreting "common law
principles ... in the light of reason and experience." The authors
of the Rule borrowed this phrase from our opinion in
Wolfle
v.
United States, 291 U. S. 7, 12 (1934),6
which in turn referred to the oft-repeated observation that "the
common law is not immutable but flexible, and by its own principles
adapts itself to varying conditions."
Funk v.
United
States, 290 U. S.
371, 383 (1933). See also
Hawkins v.
United
States, 358 U. S.
74, 79 (1958) (changes in privileges may be "dictated by
'reason and experience' "). The Senate Report accompanying the 1975
adoption of the Rules indicates that Rule 501 "should be understood
as reflecting the view that the recognition of a privilege based on
a confidential relationship ... should be determined on a
case-by-case basis." S. Rep. No. 93-1277, p. 13 (1974).7 The Rule
thus
6 "[T]he rules governing the competence of witnesses in criminal
trials in the federal courts are not necessarily restricted to
those local rules in force at the time of the admission into the
Union of the particular state where the trial takes place, but are
governed by common law principles as interpreted and applied by the
federal courts in the light of reason and experience.
Funk
v.
United States, 290 U. S. 371."
Wolfie v.
United States, 291 U. S., at 12-13.
7 In 1972 the Chief Justice transmitted to Congress proposed
Rules of Evidence for United States Courts and Magistrates. 56 F.
R. D. 183 (hereinafter Proposed Rules). The Rules had been
formulated by the Judicial Conference Advisory Committee on Rules
of Evidence and approved by the Judicial Conference of the United
States and by this Court.
Trammel v.
United States,
445 U. S. 40, 47
(1980). The Proposed Rules defined nine specific testimonial
privileges, including a psychotherapist-patient privilege, and
indicated that these were to be the exclusive privileges absent
constitutional mandate, Act of Congress, or revision of the Rules.
Proposed Rules 501-513, 56 F. R. D., at 230-261. Congress rejected
this recommendation in favor of Rule 501's general mandate.
Trammel, 445 U. S., at 47.
9
did not freeze the law governing the privileges of witnesses in
federal trials at a particular point in our history, but rather
directed federal courts to "continue the evolutionary development
of testimonial privileges."
Trammel v.
United States,
445 U. S. 40, 47
(1980); see also
University of Pennsylvania v.
EEOC,
493 U. S. 182,
189 (1990).
The common-law principles underlying the recognition of
testimonial privileges can be stated simply. "'For more than three
centuries it has now been recognized as a fundamental maxim that
the public ... has a right to every man's evidence. When we come to
examine the various claims of exemption, we start with the primary
assumption that there is a general duty to give what testimony one
is capable of giving, and that any exemptions which may exist are
distinctly exceptional, being so many derogations from a positive
general rule.'"
United States v.
Bryan, 339 U. S. 323, 331 (1950)
(quoting 8 J. Wigmore, Evidence § 2192, p. 64 (3d ed. 1940)).8 See
also
United States v.
Nixon, 418 U. S. 683, 709
(1974). Exceptions from the general rule disfavoring testimonial
privileges may be justified, however, by a "'public good
transcending the normally predominant principle of utilizing all
rational means for ascertaining truth.'"
Trammel, 445 U. S.,
at 50 (quoting
Elkins v.
United States, 364 U. S.
206, 234 (1960) (Frankfurter, J., dissenting)).
Guided by these principles, the question we address today is
whether a privilege protecting confidential communications between
a psychotherapist and her patient "promotes sufficiently important
interests to outweigh the need for
8The familiar expression "every man's evidence" was a well-known
phrase as early as the mid-18th century. Both the Duke of Argyll
and Lord Chancellor Hardwicke invoked the maxim during the May 25,
1742, debate in the House of Lords concerning a bill to grant
immunity to witnesses who would give evidence against Sir Robert
Walpole, first Earl of Orford. 12 T. Hansard, Parliamentary History
of England 643, 675, 693, 697 (1812). The bill was defeated
soundly.
Id., at 711.
10
probative evidence .... " 445 U. S., at 51. Both "reason and
experience" persuade us that it does.
III
Like the spousal and attorney-client privileges, the
psychotherapist-patient privilege is "rooted in the imperative need
for confidence and trust."
Ibid. Treatment by a physician
for physical ailments can often proceed successfully on the basis
of a physical examination, objective information supplied by the
patient, and the results of diagnostic tests. Effective
psychotherapy, by contrast, 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.9 As the Judicial Conference
Advisory Committee observed in 1972 when it recommended that
Congress recognize a psychotherapist privilege as part of the
Proposed Federal Rules of Evidence, a psychiatrist's ability to
help her patients
"'is completely dependent upon [the patients'] willingness and
ability to talk freely. This makes it difficult if not impossible
for [a psychiatrist] to function without being able to assure ...
patients of confidentiality and, indeed, privileged communication.
Where there may be exceptions to this general rule ... , there is
wide agreement that confidentiality is a sine qua non for
successful psychiatric treatment.'" Advisory Committee's
9 See studies and authorities cited in the Brief for American
Psychiatric Association et al. as
Amici Curiae 14-17 and the
Brief for American Psychological Association as
Amicus Curiae
12-17.
11
Notes to Proposed Rules, 56 F. R. D. 183, 242 (1972) (quoting
Group for Advancement of Psychiatry, Report No. 45, Confidentiality
and Privileged Communication in the Practice of Psychiatry 92 (June
1960)).
By protecting confidential communications between a
psychotherapist and her patient from involuntary disclosure, the
proposed privilege thus serves important private interests.
Our cases make clear that an asserted privilege must also
"serv[e] public ends."
Upjohn Co. v.
United States,
449 U. S. 383,
389 (1981). Thus, the purpose of the attorney-client privilege is
to "encourage full and frank communication between attorneys and
their clients and thereby promote broader public interests in the
observance of law and administration of justice."
Ibid. And
the spousal privilege, as modified in
Trammel, is justified
because it "furthers the important public interest in marital
harmony," 445 U. S., at 53. See also
United States v.
Nixon, 418 U. S., at 705;
Wolfle v.
United
States, 291 U. S., at 14. The psychotherapist privilege serves
the public interest by facilitating the provision of appropriate
treatment for individuals suffering the effects of a mental or
emotional problem. The mental health of our citizenry, no less than
its physical health, is a public good of transcendent
importance.1o
In contrast to the significant public and private interests
supporting recognition of the privilege, the likely evidentiary
benefit that would result from the denial of the privilege is
modest. If the privilege were rejected, confidential conver-
10 This case amply demonstrates the importance of allowing
individuals to receive confidential counseling. Police officers
engaged in the dangerous and difficult tasks associated with
protecting the safety of our communities not only confront the risk
of physical harm but also face stressful circumstances that may
give rise to anxiety, depression, fear, or anger. The entire
community may suffer if police officers are not able to receive
effective counseling and treatment after traumatic incidents,
either because trained officers leave the profession prematurely or
because those in need of treatment remain on the job.
12
sations between psychotherapists and their patients would surely
be chilled, particularly when it is obvious that the circumstances
that give rise to the need for treatment will probably result in
litigation. Without a privilege, much of the desirable evidence to
which litigants such as petitioner seek access-for example,
admissions against interest by a party-is unlikely to come into
being. This unspoken "evidence" will therefore serve no greater
truth-seeking function than if it had been spoken and
privileged.
That it is appropriate for the federal courts to recognize a
psychotherapist privilege under Rule 501 is confirmed by the fact
that all 50 States and the District of Columbia have enacted into
law some form of psychotherapist privilege.ll We have previously
observed that the policy decisions of the States bear on the
question whether federal courts should
11 Ala. Code § 34-26-2 (1975); Alaska Rule Evid. 504; Ariz. Rev.
Stat.
Ann. § 32-2085 (1992); Ark. Rule Evid. 503; Cal. Evid. Code Ann.
§§ 1010, 1012, 1014 (West 1995); Colo. Rev. Stat. § 13-90-107(g)
(Supp. 1995); Conn. Gen. Stat. § 52-146c (1995); Del. Uniform Rule
Evid. 503; D. C. Code Ann. § 14-307 (1995); Fla. Stat. § 90.503
(Supp. 1992); Ga. Code Ann. § 24-9-21 (1995); Haw. Rules Evid. 504,
504.1; Idaho Rule Evid. 503; Ill. Compo Stat., ch. 225, § 15/5
(1994); Ind. Code § 25-33-1-17 (1993); Iowa Code § 622.10 (1987);
Kan. Stat. Ann. § 74-5323 (1985); Ky. Rule Evid. 507; La. Code
Evid. Ann., Art. 510 (West 1995); Me. Rule Evid. 503; Md. Cts.
& Jud. Proc. Code Ann. § 9-109 (1995); Mass. Gen. Laws §
233:20B (1995); Mich. Compo Laws Ann. § 333.18237 (West Supp.
1996); Minn. Stat. § 595.02 (1988 and Supp. 1996); Miss. Rule Evid.
503; Mo. Rev. Stat. § 491.060 (1994); Mont. Code Ann. §26-1-807
(1994); Neb. Rev. Stat. §27-504 (1995); Nev. Rev. Stat. § 49.215
(1993); N. H. Rule Evid. 503; N. J. Stat. Ann. § 45: 14B-28 (West
1995); N. M. Rule Evid. 11-504; N. Y. Civ. Prac. Law §4507
(McKinney 1992); N. C. Gen. Stat. § 8-53.3 (Supp. 1995); N. D. Rule
Evid. § 503; Ohio Rev. Code Ann. §2317.02 (1995); Okla. Stat., Tit.
12, §2503 (1991); Ore. Rules Evid. 504, 504.1; 42 Pa. Cons. Stat. §
5944 (1982); R. I. Gen. Laws §§ 5-37.3-3, 5-37.3-4 (1995); S. C.
Code Ann. § 19-11-95 (Supp. 1995); S. D. Codified Laws §§ 19-13-6
to 19-13-11 (1995); Tenn. Code Ann. §24-1-207 (1980); Tex. Rules
Civ. Evid. 509, 510; Utah Rule Evid. 506; Vt. Rule Evid. 503; Va.
Code Ann. §8.01-400.2 (1992); Wash. Rev. Code § 18.83.110 (1994);
W. Va. Code § 27-3-1 (1992); Wis. Stat. § 905.04 (19931994); Wyo.
Stat. §33-27-123 (Supp. 1995).
13
recognize a new privilege or amend the coverage of an existing
one. See
Trammel, 445 U. S., at 48-50;
United States
v.
Gillock, 445 U. S. 360, 368, n. 8
(1980). Because state legislatures are fully aware of the need to
protect the integrity of the factfinding functions of their courts,
the existence of a consensus among the States indicates that
"reason and experience" support recognition of the privilege. In
addition, given the importance of the patient's understanding that
her communications with her therapist will not be publicly
disclosed, any State's promise of confidentiality would have little
value if the patient were aware that the privilege would not be
honored in a federal court. 12 Denial of the federal privilege
therefore would frustrate the purposes of the state legislation
that was enacted to foster these confidential communications.
It is of no consequence that recognition of the privilege in the
vast majority of States is the product of legislative action rather
than judicial decision. Although common-law rulings may once have
been the primary source of new developments in federal privilege
law, that is no longer the case. In
Funk v.
United
States, 290 U. S.
371 (1933), we recognized that it is appropriate to treat a
consistent body of policy determinations by state legislatures as
reflecting both "reason" and "experience."
Id., at 376-381.
That rule is properly respectful of the States and at the same time
reflects the fact that once a state legislature has enacted a
privilege there is no longer an opportunity for common-law creation
of the protection. The history of the psychotherapist privilege
illustrates the latter point. In 1972 the members of the
12 At the outset of their relationship, the ethical therapist
must disclose to the patient "the relevant limits on
confidentiality." See American Psychological Association, Ethical
Principles of Psychologists and Code of Conduct, Standard 5.01
(Dec. 1992). See also National Federation of Societies for Clinical
Social Work, Code of Ethics yea) (May 1988); American Counseling
Association, Code of Ethics and Standards of Practice A.3.a
(effective July 1995).
14
Judicial Conference Advisory Committee noted that the common law
"had indicated a disposition to recognize a psychotherapist-patient
privilege when legislatures began moving into the field." Proposed
Rules, 56 F. R. D., at 242 (citation omitted). The present
unanimous acceptance of the privilege shows that the state
lawmakers moved quickly. That the privilege may have developed
faster legislatively than it would have in the courts demonstrates
only that the States rapidly recognized the wisdom of the rule as
the field of psychotherapy developed.13
The uniform judgment of the States is reinforced by the fact
that a psychotherapist privilege was among the nine specific
privileges recommended by the Advisory Committee in its proposed
privilege rules. In
United States v.
Gillock, 445 U.
S., at 367-368, our holding that Rule 501 did not include a state
legislative privilege relied, in part, on the fact that no such
privilege was included in the Advisory Commit-
13 Petitioner acknowledges that all 50 state legislatures favor
a psychotherapist privilege. She nevertheless discounts the
relevance of the state privilege statutes by pointing to divergence
among the States concerning the types of therapy relationships
protected and the exceptions recognized. A small number of state
statutes, for example, grant the privilege only to psychiatrists
and psychologists, while most apply the protection more broadly.
Compare Haw. Rules Evid. 504, 504.1 and N. D. Rule Evid. 503
(privilege extends to physicians and psychotherapists), with Ariz.
Rev. Stat. Ann. § 32-3283 (1992) (privilege covers "behavioral
health professional[s]"); Tex. Rule Civ. Evid. 510(a)(1) (privilege
extends to persons "licensed or certified by the State of Texas in
the diagnosis, evaluation or treatment of any mental or emotional
disorder" or "involved in the treatment or examination of drug
abusers"); Utah Rule Evid. 506 (privilege protects confidential
communications made to marriage and family therapists, professional
counselors, and psychiatric mental health nurse specialists). The
range of exceptions recognized by the States is similarly varied.
Compare Ark. Code Ann. § 17-46-107 (1987) (narrow exceptions); Haw.
Rules Evid. 504, 504.1 (same), with Cal. Evid. Code Ann. §§
10161027 (West 1995) (broad exceptions); R. 1. Gen. Laws § 5-37.3-4
(1995) (same). These variations in the scope of the protection are
too limited to undermine the force of the States' unanimous
judgment that some form of psychotherapist privilege is
appropriate.
15
tee's draft. The reasoning in
Gillock thus supports the
opposite conclusion in this case. In rejecting the proposed draft
that had specifically identified each privilege rule and
substituting the present more open-ended Rule 501, the Senate
Judiciary Committee explicitly stated that its action "should not
be understood as disapproving any recognition of a
psychiatrist-patient ... privileg[e] contained in the [proposed]
rules." S. Rep. No. 93-1277, at 13.
Because we agree with the judgment of the state legislatures and
the Advisory Committee that a psychotherapistpatient privilege will
serve a "public good transcending the normally predominant
principle of utilizing all rational means for ascertaining truth,"
Trammel, 445 U. S., at 50, we hold that confidential
communications between a licensed psychotherapist and her patients
in the course of diagnosis or treatment are protected from
compelled disclosure under Rule 501 of the Federal Rules of
Evidence.14
IV
All agree that a psychotherapist privilege covers confidential
communications made to licensed psychiatrists and psychologists. We
have no hesitation in concluding in this case that the federal
privilege should also extend to confidential communications made to
licensed social workers in the course of psychotherapy. The reasons
for recognizing a privilege for treatment by psychiatrists and
psychologists apply with equal force to treatment by a clinical
social worker such as Karen Beyer. 15 Today, social workers
pro-
14 Like other testimonial privileges, the patient may of course
waive the protection.
15 If petitioner had filed her complaint in an Illinois state
court, respondents' claim of privilege would surely have been
upheld, at least with respect to the state wrongful-death action.
An Illinois statute provides that conversations between a therapist
and her patients are privileged from compelled disclosure in any
civil or criminal proceeding. Ill. Compo Stat., ch. 740, § 110/10
(1994). The term "therapist" is broadly defined to encompass a
number of licensed professionals including social work-
16
vide a significant amount of mental health treatment. See,
e. g., U. S. Dept. of Health and Human Services,
Center for Mental Health Services, Mental Health, United States,
1994, pp. 85-87, 107-114; Brief for National Association of Social
Workers et al. as
Amici Curiae 5-7 (citing authorities).
Their clients often include the poor and those of modest means who
could not afford the assistance of a psychiatrist or psychologist,
id., at 6-7 (citing authorities), but whose counseling
sessions serve the same public goals.16 Perhaps in recognition of
these circumstances, the vast majority of States explicitly extend
a testimonial privilege to licensed
ers. Ch. 740, § 110/2. Karen Beyer, having satisfied the strict
standards for licensure, qualifies as a clinical social worker in
Illinois.
51 F.3d
1346, 1358, n. 19
(CA7 1995).
Indeed, if only a state-law claim had been asserted in federal
court, the second sentence in Rule 501 would have extended the
privilege to that proceeding. We note that there is disagreement
concerning the proper rule in cases such as this in which both
federal and state claims are asserted in federal court and relevant
evidence would be privileged under state law but not under federal
law. See C. Wright & K. Graham, 23 Federal Practice and
Procedure § 5434 (1980). Because the parties do not raise this
question and our resolution of the case does not depend on it, we
express no opinion on the matter.
16 The Judicial Conference Advisory Committee's proposed
psychotherapist privilege defined psychotherapists as psychologists
and medical doctors who provide mental health services. Proposed
Rules, 56 F. R. D., at 240. This limitation in the 1972
recommendation does not counsel against recognition of a privilege
for social workers practicing psychotherapy. In the quarter century
since the Committee adopted its recommendations, much has changed
in the domains of social work and psychotherapy. See generally
Brief for National Association of Social Workers et al. as
Amici
Curiae 5-13 (and authorities cited). While only 12 States
regulated social workers in 1972, all 50 do today. See American
Association of State Social Work Boards, Social Work Laws and Board
Regulations: A State Comparison Study 29, 31 (1996). Over the same
period, the relative portion of therapeutic services provided by
social workers has increased substantially. See U. S. Dept. of
Health and Human Services, Center for Mental Health Services,
Mental Health, United States, 1994, pp. 85-87, 107-114.
17
social workersP We therefore agree with the Court of Appeals
that "[d]rawing a distinction between the counseling provided by
costly psychotherapists and the counseling provided by more readily
accessible social workers serves no discernible public purpose." 51
F. 3d, at 1358, n. 19.
We part company with the Court of Appeals on a separate point.
We reject the balancing component of the privilege implemented by
that court and a small number of States.18 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. As
17 See Ariz. Rev. Stat. Ann. §32-3283 (1992); Ark. Code Ann. §
17-46-107 (1995); Cal. Evid. Code Ann. §§ 1010, 1012, 1014 (West
1995); Colo. Rev. Stat. § 13-90-107 (1987); Conn. Gen. Stat. §
52-146q (1995); Del. Code Ann., Tit. 24, § 3913 (1987); D. C. Code
Ann. § 14-307 (1995); Fla. Stat. § 90.503 (1991); Ga. Code Ann. §
24-9-21 (1995); Idaho Code § 54-3213 (1994); Ill. Compo Stat., ch.
225, §20/16 (1994); Ind. Code §25-23.6-6-1 (1993); Iowa Code §
622.10 (1987); Kan. Stat. Ann. § 65-6315 (Supp. 1990); Ky. Rule
Evid. 507; La. Code Evid. Ann., Art. 510 (West 1995); Me. Rev.
Stat. Ann., Tit. 32, § 7005 (1988); Md. Cts. & Jud. Proc. Code
Ann. § 9-121 (1995); Mass. Gen. Laws § 112:135A (1994); Mich. Compo
Laws Ann. § 339.1610 (West 1992); Minn. Stat. § 595.02(g) (1994);
Miss. Code Ann. § 73-53-29 (1995); Mo. Rev. Stat. § 337.636 (Supp.
1996); Mont. Code Ann. § 37-22-401 (1995); Neb. Rev. Stat.
§71-1,335 (1995); Nev. Rev. Stat. §§49.215, 49.225, 49.235 (1993);
N. H. Rev. Stat. Ann. § 330-A:19 (1995); N. J. Stat. Ann.
§45:15BB-13 (West 1995); N. M. Stat. Ann. § 61-31-24 (Supp. 1995);
N. Y. Civ. Prac. Law §4508 (McKinney 1992); N. C. Gen. Stat.
§8-53.7 (1986); Ohio Rev. Code Ann. §2317.02 (1995); Okla. Stat.,
Tit. 59, § 1261.6 (1991); Ore. Rev. Stat. § 40.250 (1991); R. I.
Gen. Laws §§ 5-37.3-3, 5-37.3-4 (1995); S. C. Code Ann. § 19-11-95
(Supp. 1995); S. D. Codified Laws §3626-30 (1994); Tenn. Code Ann.
§ 63-23-107 (1990); Tex. Rule Civ. Evid. 510; Utah Rule Evid. 506;
Vt. Rule Evid. 503; Va. Code Ann. §8.01-400.2 (1992); Wash. Rev.
Code § 18.19.180 (1994); W. Va. Code §30-30-12 (1993); Wis. Stat.
§905.04 (1993-1994); Wyo. Stat. §33-38-109 (Supp. 1995).
18 See,
e. g., Me. Rev. Stat. Ann., Tit. 32, §
7005 (1964); N. H. Rev. Stat.
Ann. §330-A:19 (1995); N. C. Gen. Stat. §8-53.7 (1986); Va. Code
Ann. § 8.01-400.2 (1992).
18
we explained in
Upjohn, if the purpose of the privilege
is to be served, the participants in the confidential conversation
"must be able to predict with some degree of certainty whether
particular discussions will be protected. An uncertain privilege,
or one which purports to be certain but results in widely varying
applications by the courts, is little better than no privilege at
all." 449 U. S., at 393.
These considerations are all that is necessary for decision of
this case. A rule that authorizes the recognition of new privileges
on a case-by-case basis makes it appropriate to define the details
of new privileges in a like manner. Because this is the first case
in which we have recognized a psychotherapist privilege, it is
neither necessary nor feasible to delineate its full contours in a
way that would "govern all conceivable future questions in this
area."
Id., at 386.19
v
The conversations between Officer Redmond and Karen Beyer and
the notes taken during their counseling sessions are protected from
compelled disclosure under Rule 501 of the Federal Rules of
Evidence. The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins as to Part
III, dissenting.
The Court has discussed at some length the benefit that will be
purchased by creation of the evidentiary privilege in this case:
the encouragement of psychoanalytic counseling. It has not
mentioned the purchase price: occasional injustice. That is the
cost of every rule which excludes reliable and
19 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, 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.
19
probative evidence-or at least everyone categorical enough to
achieve its announced policy objective. In the case of some of
these rules, such as the one excluding confessions that have not
been properly "Mirandized," see
Miranda v.
Arizona,
384 U. S. 436
(1966), the victim of the injustice is always the impersonal State
or the faceless "public at large." For the rule proposed here, the
victim is more likely to be some individual who is prevented from
proving a valid claim-or (worse still) prevented from establishing
a valid defense. The latter is particularly unpalatable for those
who love justice, because it causes the courts of law not merely to
let stand a wrong, but to become themselves the instruments of
wrong.
In the past, this Court has well understood that the particular
value the courts are distinctively charged with
preserving-justice-is severely harmed by contravention of "the
fundamental principle that '''the public ... has a right to every
man's evidence."'"
Trammel v.
United States, 445 U. S. 40, 50 (1980)
(citation omitted). Testimonial privileges, it has said,
"are
not lightly created nor expansively construed, for they are in
derogation of the search for truth."
United States v.
Nixon, 418 U.
S. 683, 710 (1974) (emphasis added). Adherence to that
principle has caused us, in the Rule 501 cases we have considered
to date, to reject new privileges, see
University of
Pennsylvania v.
EEOC, 493 U. S. 182 (1990) (privilege
against disclosure of academic peer review materials);
United
States v.
Gillock, 445 U. S. 360 (1980)
(privilege against disclosure of "legislative acts" by member of
state legislature), and even to construe narrowly the scope of
existing privileges, see,
e. g., United States v.
Zolin, 491 U.
S. 554, 568-570 (1989) (permitting
in camera review of
documents alleged to come within crime-fraud exception to
attorney-client privilege);
Trammel, supra (holding that
voluntary testimony by spouse is not covered by husband-wife
privilege). The Court today ignores this traditional judicial
preference for the truth, and ends up creat-
20
ing a privilege that is new, vast, and ill defined. I
respectfully dissent.
I
The case before us involves confidential communications made by
a police officer to a state-licensed clinical social worker in the
course of psychotherapeutic counseling. Before proceeding to a
legal analysis of the case, I must observe that the Court makes its
task deceptively simple by the manner in which it proceeds. It
begins by characterizing the issue as "whether it is appropriate
for federal courts to recognize a 'psychotherapist privilege,'"
ante, at 4, and devotes almost all of its opinion to that
question. Having answered that question (to its satisfaction) in
the affirmative, it then devotes
less than a page of text to
answering in the affirmative the small remaining question whether
"the federal privilege should also extend to confidential
communications made to licensed social workers in the course of
psychotherapy,"
ante, at 15.
Of course the prototypical evidentiary privilege analogous to
the one asserted here-the lawyer-client privilege-is not identified
by the broad area of advice giving practiced by the person to whom
the privileged communication is given, but rather by the
professional status of that person. Hence, it seems a long
step from a lawyer-client privilege to a tax advisor-client or
accountant-client privilege. But if one recharacterizes it as a
"legal advisor" privilege, the extension seems like the most
natural thing in the world. That is the illusion the Court has
produced here: It first frames an overly general question ("Should
there be a psychotherapist privilege?") that can be answered in the
negative only by excluding from protection office consultations
with professional psychiatrists (i.
e., doctors) and
clinical psychologists. And then, having answered that in the
affirmative, it comes to the
only question that the facts of
this case present ("Should there be a social worker-client
privilege with regard to psychotherapeutic counseling?") with the
answer
21
seemingly a foregone conclusion. At that point, to conclude
against the privilege one must subscribe to the difficult
proposition, "Yes, there is a psychotherapist privilege, but not if
the psychotherapist is a social worker."
Relegating the question actually posed by this case to an
afterthought makes the impossible possible in a number of wonderful
ways. For example, it enables the Court to treat the Proposed
Federal Rules of Evidence developed in 1972 by the Judicial
Conference Advisory Committee as strong support for its holding,
whereas they in fact counsel clearly and directly against it. The
Committee did indeed recommend a "psychotherapist privilege" of
sorts; but more precisely, and more relevantly, it recommended a
privilege for psychotherapy conducted by "a person authorized to
practice medicine" or "a person licensed or certified as a
psychologist," Proposed Rule of Evidence 504, 56 F. R. D. 183, 240
(1972), which is to say that
it recommended against the
privilege at issue here. That condemnation is obscured, and
even converted into an endorsement, by pushing a "psychotherapist
privilege" into the center ring. The Proposed Rule figures
prominently in the Court's explanation of why that privilege
deserves recognition,
ante, at 13-15, and is ignored in the
single page devoted to the sideshow which happens to be the issue
presented for decision,
ante, at 15-16.
This is the most egregious and readily explainable example of
how the Court's misdirection of its analysis makes the difficult
seem easy; others will become apparent when I give the
social-worker question the fuller consideration it deserves. My
initial point, however, is that the Court's very methodology-giving
serious consideration only to the more general, and much easier,
question-is in violation of our duty to proceed cautiously when
erecting barriers between us and the truth.
II
To say that the Court devotes the bulk of its opinion to the
much easier question of psychotherapist-patient privilege is
22
not to say that its answer to that question is convincing. At
bottom, the Court's decision to recognize such a privilege is based
on its view that "successful [psychotherapeutic] treatment" serves
"important private interests" (namely, those of patients undergoing
psychotherapy) as well as the "public good" of "[t]he mental health
of our citizenry."
Ante, at lOll. I have no quarrel with
these premises. Effective psychotherapy undoubtedly is beneficial
to individuals with mental problems, and surely serves some larger
social interest in maintaining a mentally stable society. But
merely mentioning these values does not answer the critical
question: Are they of such importance, and is the contribution of
psychotherapy to them so distinctive, and is the application of
normal evidentiary rules so destructive to psychotherapy, as to
justify making our federal courts occasional instruments of
injustice? On that central question I find the Court's analysis
insufficiently convincing to satisfy the high standard we have set
for rules that "are in derogation of the search for truth."
Nixon, 418 U. S., at 710.
When is it, one must wonder, that
the psychotherapist
came to play such an indispensable role in the maintenance of the
citizenry's mental health? For most of history, men and women have
worked out their difficulties by talking to,
inter alios,
parents, siblings, best friends, and bartendersnone of whom was
awarded a privilege against testifying in court. Ask the average
citizen: Would your mental health be more significantly impaired by
preventing you from seeing a psychotherapist, or by preventing you
from getting advice from your mom? I have little doubt what the
answer would be. Yet there is no mother-child privilege.
How likely is it that a person will be deterred from seeking
psychological counseling, or from being completely truthful in the
course of such counseling, because of fear of later disclosure in
litigation? And even more pertinent to today's decision, to what
extent will the evidentiary privilege reduce that deterrent? The
Court does not try to answer the first of
23
these questions; and it
cannot possibly have any notion
of what the answer is to the second, since that depends entirely
upon the scope of the privilege, which the Court amazingly finds it
"neither necessary nor feasible to delineate,"
ante, at 18.
If, for example, the psychotherapist can give the patient no more
assurance than "A court will not be able to make me disclose what
you tell me, unless you tell me about a harmful act," I doubt
whether there would be much benefit from the privilege at all. That
is not a fanciful example, at least with respect to extension of
the psychotherapist privilege to social workers. See Del. Code
Ann., Tit. 24, § 3913(2) (1987); Idaho Code § 54-3213(2)
(1994).
Even where it is certain that absence of the psychotherapist
privilege will inhibit disclosure of the information, it is not
clear to me that that is an unacceptable state of affairs. Let us
assume the very worst in the circumstances of the present case:
that to be truthful about what was troubling her, the police
officer who sought counseling would have to confess that she shot
without reason, and wounded an innocent man. If (again to assume
the worst) such an act constituted the crime of negligent wounding
under Illinois law, the officer would of course have the absolute
right not to admit that she shot without reason in criminal court.
But I see no reason why she should be enabled
both not to
admit it in criminal court (as a good citizen should),
and
to get the benefits of psychotherapy by admitting it to a therapist
who cannot tell anyone else. And even less reason why she should be
enabled to
deny her guilt in the criminal trial-or in a
civil trial for negligence-while yet obtaining the benefits of
psychotherapy by confessing guilt to a social worker who cannot
testify. It seems to me entirely fair to say that if she wishes the
benefits of telling the truth she must also accept the adverse
consequences. To be sure, in most cases the statements to the
psychotherapist will be only marginally relevant, and one of the
purposes of the privilege (though not one relied upon by the Court)
may be simply to spare
24
patients needless intrusion upon their privacy, and to spare
psychotherapists needless expenditure of their time in deposition
and trial. But surely this can be achieved by means short of
excluding even evidence that is of the most direct and conclusive
effect.
The Court confidently asserts that not much truth-finding
capacity would be destroyed by the privilege anyway, since
"[w]ithout a privilege, much of the desirable evidence to which
litigants such as petitioner seek access ... is unlikely to come
into being."
Ante, at 12. If that is so, how come
psychotherapy got to be a thriving practice before the
"psychotherapist privilege" was invented? Were the patients paying
money to lie to their analysts all those years? Of course the
evidence-generating effect of the privilege (if any) depends
entirely upon its scope, which the Court steadfastly declines to
consider. And even if one assumes that scope to be the broadest
possible, is it really true that most, or even many, of those who
seek psychological counseling have the worry of litigation in the
back of their minds? I doubt that, and the Court provides no
evidence to support it.
The Court suggests one last policy justification: since
psychotherapist privilege statutes exist in all the States, the
failure to recognize a privilege in federal courts "would frustrate
the purposes of the state legislation that was enacted to foster
these confidential communications."
Ante, at 13. This is a
novel argument indeed. A sort of inverse preemption: The
truth-seeking functions of
federal courts must be adjusted
so as not to conflict with the policies
of the States. This
reasoning cannot be squared with
Gillock, which declined to
recognize an evidentiary privilege for Tennessee legislators in
federal prosecutions, even though the Tennessee Constitution
guaranteed it in state criminal proceedings.
Gillock, 445 U.
S., at 368. Moreover, since, as I shall discuss, state policies
regarding the psychotherapist privilege vary considerably from
State to State,
no uniform federal policy can possibly honor
most of them. If further-
25
ance of state policies is the name of the game, rules of
privilege in federal courts should vary from State to State,
a la Erie R. Co. v.
Tompkins, 304 U. S. 64 (1938).
The Court's failure to put forward a convincing justification of
its own could perhaps be excused if it were relying upon the
unanimous conclusion of state courts in the reasoned development of
their common law. It cannot do that, since
no State has such
a privilege apart from legislation.1
1 The Court observes: "In 1972 the members of the Judicial
Conference Advisory Committee noted that the common law 'had
indicated a disposition to recognize a psychotherapist-patient
privilege when legislatures began moving into the field.' Proposed
Rules, 56 F. R. D., at 242 (citation omitted)."
Ante, at
13-14. The sole support the Committee invoked was a student Note
entitled Confidential Communications to a Psychotherapist:
A New Testimonial Privilege, 47 Nw. U. L. Rev. 384 (1952). That
source, in turn, cites (and discusses) a single case recognizing a
common-law psychotherapist privilege: the unpublished opinion of a
judge of the Circuit Court of Cook County, Illinois,
Binder
v.
Ruvell, No.
52-C-2535 (June 24, 1952)-which, in
turn, cites no other cases.
I doubt whether the Court's failure to provide more substantial
support for its assertion stems from want of trying. Respondents
and all of their
amici pointed us to only four other
state-court decisions supposedly adopting a common-law
psychotherapist privilege. See Brief for American Psychiatric
Association et al. as
Amici Curiae 8, n. 5; Brief for
American Psychoanalytic Association et al. as
Amici Curiae
15-16; Brief for American Psychological Association as
Amicus
Curiae 8. It is not surprising that the Court thinks it not
worth the trouble to cite them: (1) In
In re "B," 482 Pa.
471, 394 A. 2d 419 (1978), the opinions of four of the seven
justices
explicitly rejected a nonstatutory privilege; and
the two justices who did recognize one recognized, not a common-law
privilege, but rather
(mirabile dictu) a privilege
"constitutionally based," "emanat[ing] from the penumbras of the
various guarantees of the Bill of Rights, ... as well as from the
guarantees of the Constitution of this Commonwealth."
Id.,
at 484, 394 A. 2d, at 425. (2)
Allred v.
State, 554
P. 2d 411 (Alaska 1976), held that no privilege was available in
the case before the court, so what it says about the existence of a
common-law privilege is the purest dictum.
(3) Falcon
v.
Alaska Pub. Offices Comm'n, 570 P. 2d 469 (1977), a later
Alaska Supreme Court case, proves the last statement. It
rejected the claim by a physician that he did not have to
disclose the names of his patients, even though some of the
physician's practice consisted of psycho-
26
What it relies upon, instead, is "the fact that all 50 States
and the District of Columbia have [1]
enacted into law [2] some
form of psychotherapist privilege."
Ante, at 12
(emphasis added). Let us consider both the verb and its object:
The fact [1] that all 50 States have
enacted this
privilege argues not
for, but
against, our adopting
the privilege judicially. At best it suggests that the matter has
been found not to lend itself to judicial treatment-perhaps because
the pros and cons of adopting the privilege, or of giving it one or
another shape, are not that clear; or perhaps because the rapidly
evolving uses of psychotherapy demand a flexibility that only
legislation can provide. At worst it suggests that the privilege
commends itself only to decisionmaking bodies in which reason is
tempered, so to speak, by political pressure from organized
interest groups (such as psychologists and social workers), and
decisionmaking bodies that are not overwhelmingly concerned (as
courts of law are and should be) with justice.
And the phrase [2] "some form of psychotherapist privilege"
covers a multitude of difficulties. The Court concedes that there
is "divergence among the States concerning the types of therapy
relationships protected and the exceptions recognized."
Ante, at 14, n. 13. To rest a newly announced federal
common-law psychotherapist privilege, assertable
therapy; it made no mention of
Allred's dictum that there
was a commonlaw psychiatrist-patient privilege (though if that
existed it would seem relevant), and cited
Allred only for
the proposition that there was no
statutory privilege, 570
P. 2d, at 473, n. 12. And finally, (4)
State v.
Evans,
104 Ariz. 434, 454 P. 2d 976 (1969), created a limited
privilege, applicable to court-ordered examinations to determine
competency to stand trial,
which tracked a privilege that had
been legislatively created after the defendant's
examination.
In light of this dearth of case support-from all the courts of
50 States, down to the county-court level-it seems to me the
Court's assertion should be revised to read: "The common law had
indicated
scant disposition to recognize a
psychotherapist-patient privilege when
(or even after)
legislatures began moving into the field."
27
from this day forward in all federal courts, upon "the States'
unanimous judgment that some form of psychotherapist
privilege is appropriate,"
ibid. (emphasis added), is rather
like announcing a new, immediately applicable, federal common law
of torts, based upon the States' "unanimous judgment" that
some form of tort law is appropriate. In the one case as in
the other, the state laws vary to such a degree that the parties
and lower federal judges confronted by the new "common law" have
barely a clue as to what its content might be.
III
Turning from the general question that was not involved in this
case to the specific one that is: The Court's conclusion that a
social-worker psychotherapeutic privilege deserves recognition is
even less persuasive. In approaching this question, the fact that
five of the state legislatures that have seen fit to enact "some
form" of psychotherapist privilege have elected not to extend
any form of privilege to social workers, see
ante, at
17, n. 17, ought to give one pause. So should the fact that the
Judicial Conference Advisory Committee was similarly discriminating
in its conferral of the proposed Rule 504 privilege, see
supra, at 21. The Court, however, has "no hesitation in
concluding ... that the federal privilege should also extend" to
social workers,
ante, at 15and goes on to prove that by
polishing off the reasoned analysis with a topic sentence and two
sentences of discussion, as follows (omitting citations and
nongermane footnote):
"The reasons for recognizing a privilege for treatment by
psychiatrists and psychologists apply with equal force to treatment
by a clinical social worker such as Karen Beyer. Today, social
workers provide a significant amount of mental health treatment.
Their clients often include the poor and those of modest means who
could not afford the assistance of a psychiatrist or psy-
28
chologist, but whose counseling sessions serve the same public
goals." Ante, at 15-16.
So much for the rule that privileges are to be narrowly
construed.
Of course this brief analysis-like the earlier, more extensive,
discussion of the general psychotherapist privilegecontains no
explanation of why the psychotherapy provided by social workers is
a public good of such transcendent importance as to be purchased at
the price of occasional injustice. Moreover, it considers only the
respects in which social workers providing therapeutic services are
similar to licensed psychiatrists and psychologists; not a
word about the respects in which they are different. A licensed
psychiatrist or psychologist is an expert in psychotherapy-and that
may suffice (though I think it not so clear that this Court should
make the judgment) to justify the use of extraordinary means to
encourage counseling with him, as opposed to counseling with one's
rabbi, minister, family, or friends. One must presume that a social
worker does
not bring this greatly heightened degree of
skill to bear, which is alone a reason for not encouraging that
consultation as generously. Does a social worker bring to bear at
least a significantly heightened degree of skill-more than a
minister or rabbi, for example? I have no idea, and neither does
the Court. The social worker in the present case, Karen Beyer, was
a "licensed clinical social worker" in Illinois, App. 18, a job
title whose training requirements consist of a "master's degree in
social work from an approved program," and "3,000 hours of
satisfactory, supervised clinical professional experience." Ill.
Compo Stat., ch. 225, § 20/9 (1994). It is not clear that the
degree in social work requires
any training in
psychotherapy. The "clinical professional experience" apparently
will impart some such training, but only of the vaguest sort,
judging from the Illinois Code's definition of "[c]linical social
work practice," viz., "the providing of mental health services for
the evaluation, treatment, and prevention of mental and
29
emotional disorders in individuals, families and groups based on
knowledge and theory of psychosocial development, behavior,
psychopathology, unconscious motivation, interpersonal
relationships, and environmental stress." Ch. 225, § 20/3(5). But
the rule the Court announces today-like the Illinois evidentiary
privilege which that rule purports to respect, ch. 225, § 20/16
2-is not limited to "licensed clinical social workers," but
includes all "licensed social worker[s]." "Licensed social
worker[s]" may also provide "mental health services" as described
in § 20/3(5), so long as it is done under supervision of a licensed
clinical social worker. And the training requirement for a
"licensed social worker" consists of either (a) "a degree from a
graduate program of social work" approved by the State, or (b) "a
degree in social work from an undergraduate program" approved by
the State, plus "3 years of supervised professional experience."
Ch. 225, § 20/9A. With due respect, it does not seem to me that any
of this training is comparable in its rigor (or indeed in the
precision of its subject) to the training of the other experts
(lawyers) to whom this Court has accorded a privilege, or even of
the experts (psychiatrists and psychologists) to whom the Advisory
Committee and this Court proposed extension of a privilege in 1972.
Of course these are only
Illinois' requirements for "social
workers." Those of
2 Section 20/16 is the provision of the Illinois statutes cited
by the Court to show that Illinois has "explicitly extend[ed] a
testimonial privilege to licensed social workers."
Ante, at
16-17, and n. 17. The Court elsewhere observes that Redmond's
communications to Beyer would have been privileged in state court
under another provision of the Illinois statutes, the Mental Health
and Developmental Disabilities Confidentiality Act, Ill. Compo
Stat., ch. 740, § 110/10 (1994).
Ante, at 15-16, n. 15. But
the privilege conferred by § 110/10 extends to an even more
ill-defined class: not only to
licensed social workers, but
to
all social workers, to nurses, and indeed to "any other
person not prohibited by law from providing [mental health or
developmental disabilities] services or from holding himself out as
a therapist if the recipient reasonably believes that such person
is permitted to do so." Ch. 740, § 110/2.
30
other States, for all we know, may be even less demanding.
Indeed, I am not even sure there is a nationally accepted
definition of "social worker," as there is of psychiatrist and
psychologist. It seems to me quite irresponsible to extend the
so-called "psychotherapist privilege" to all licensed social
workers, nationwide, without exploring these issues.
Another critical distinction between psychiatrists and
psychologists, on the one hand, and social workers, on the other,
is that the former professionals, in their consultations with
patients,
do nothing but psychotherapy. Social workers, on
the other hand, interview people for a multitude of reasons. The
Illinois definition of "[l]icensed social worker," for example, is
as follows:
"Licensed social worker" means a person who holds a license
authorizing the practice of social work, which includes social
services to individuals, groups or communities in anyone or more of
the fields of social casework, social group work, community
organization for social welfare, social work research, social
welfare administration or social work education." Ch. 225, §
20/3(9).
Thus, in applying the "social worker" variant of the
"psychotherapist" privilege, it will be necessary to determine
whether the information provided to the social worker was provided
to him
in his capacity as a psychotherapist, or in his
capacity as an administrator of social welfare, a community
organizer, etc. Worse still, if the privilege is to have its
desired effect (and is not to mislead the client), it will
presumably be necessary for the social caseworker to advise, as the
conversation with his welfare client proceeds, which portions are
privileged and which are not.
Having concluded its three sentences of reasoned analysis, the
Court then invokes, as it did when considering the psychotherapist
privilege, the "experience" of the States-once again an experience
I consider irrelevant (if not counterindicative) because it
consists entirely of legislation rather
31
than common-law decision. It says that "the vast majority of
States explicitly extend a testimonial privilege to licensed social
workers."
Ante, at 16-17. There are two elements of this
impressive statistic, however, that the Court does not reveal.
First-and utterly conclusive of the irrelevance of this supposed
consensus to the question before us-the majority of the States that
accord a privilege to social workers do
not do so as a
subpart of a "psychotherapist" privilege. The privilege applies to
all confidences imparted to social workers, and not just
those provided in the course of psychotherapy.3 In Oklahoma, for
example, the social-worker-privilege statute prohibits a licensed
social worker from disclosing, or being compelled to disclose,
"any information acquired from persons consulting the
licensed social worker in his or her professional capacity" (with
certain exceptions to be discussed
infra, at 33). Okla.
Stat., Tit. 59, § 1261.6 (1991) (emphasis added). The social
worker's "professional capacity" is expansive, for the "[P]ractice
of social work" in Oklahoma is defined as:
"[T]he professional activity of helping individuals, groups, or
communities enhance or restore their capacity for physical, social
and economic functioning and the
3 See Ariz. Rev. Stat. Ann. § 32-3283 (1992); Ark. Code Ann. §
17-46-107 (1995); Del. Code Ann., Tit. 24, § 3913 (1987); Idaho
Code § 54-3213 (1994); Ind. Code §25-23.6-6-1 (1993); Iowa Code §§
154C.5 and 622.10 (1987); Kan. Stat. Ann. § 65-6315 (Supp.
1990); Me. Rev. Stat. Ann., Tit. 32, § 7005 (1988); Mass. Gen. Laws
§ 112:135A (1994); Mich. Compo Laws Ann. § 339.1610 (West 1992);
Miss. Code Ann. § 73-53-29 (1995); Mo. Rev. Stat. §337.636 (1994);
Mont. Code Ann. §37-22-401 (1995); Neb. Rev. Stat. §71-1,335 (Supp.
1994); N. J. Stat. Ann. §45:15BB-13 (West 1995); N. M. Stat. Ann. §
61-31-24 (1993); N. Y. Civ. Prac. Law § 4508 (McKinney 1992); N. C.
Gen. Stat. §8-53.7 (1986); Ohio Rev. Code Ann. §2317.02(G)(I)
(1995); Okla. Stat., Tit. 59, § 1261.6 (1991); Ore. Rev. Stat. §
40.250 (1991); S. D. Codified Laws § 36-26-30 (1994); Tenn. Code
Ann. § 63-23-107 (1990); Wash. Rev. Code § 18.19.180 (1994); W. Va.
Code §30-30-12 (1993); Wyo. Stat. §33-38-109 (Supp. 1995).
32
professional application of social work values, principles and
techniques in areas such as clinical social work, social service
administration, social planning, social work consultation and
social work research to one or more of the following ends: Helping
people obtain tangible services; counseling with individuals,
families and groups; helping communities or groups provide or
improve social and health services; and participating in relevant
social action. The practice of social work requires knowledge of
human development and behavior; of social economic and cultural
institutions and forces; and of the interaction of all of these
factors. Social work practice includes the teaching of relevant
subject matter and of conducting research into problems of human
behavior and conflict." Tit. 59, § 1250.1(2).
Thus, in Oklahoma, as in most other States having a socialworker
privilege, it is not a subpart or even a derivative of the
psychotherapist privilege, but rather a piece of special
legislation similar to that achieved by many other groups, from
accountants, see,
e. g., Miss. Code Ann. §
73-33-16(2) (1995) (certified public accountant "shall not be
required by any court of this state to disclose, and shall not
voluntarily disclose," client information), to private detectives,
see,
e. g., Mich. Compo Laws § 338.840(2) (1979)
("Any communications ... furnished by a professional man or client
to a [licensed private detective], or any information secured in
connection with an assignment for a client, shall be deemed
privileged with the same authority and dignity as are other
privileged communications recognized by the courts of this
state").4 These social-worker statutes give no support, therefore,
to
4 These ever-multiplying evidentiary-privilege statutes, which
the Court today emulates, recall us to the original meaning of the
word "privilege." It is a composite derived from the Latin words
"privus" and "lex"; private law.
33
the theory (importance of psychotherapy) upon which the Court
rests its disposition.
Second, the Court does not reveal the enormous degree of
disagreement among the States as to the scope of the privilege. It
concedes that the laws of four States are subject to such gaping
exceptions that they are "'little better than no privilege at
all,'"
ante, at 17, 18, and n. 18, so that they should more
appropriately be categorized with the five States whose laws
contradict the action taken today. I would add another State to
those whose privilege is illusory. See Wash. Rev. Code § 18.19.180
(1994) (disclosure of inform ation required "[i]n response to a
subpoena from a court of law"). In adopting
any sort of a
social-worker privilege, then, the Court can at most claim that it
is following the legislative "experience" of 40 States, and
contradicting the "experience" of 10.
But turning to those States that do have an appreciable
privilege of some sort, the diversity is vast. In Illinois and
Wisconsin, the social-worker privilege does not apply when the
confidential information pertains to homicide, see Ill. Compo
Stat., ch. 740, § 1l0/10(a)(9) (1994); Wis. Stat. § 905.04(4)(d)
(1993-1994), and in the District of Columbia when it pertains to
any crime "inflicting injuries" upon persons, see D. C. Code Ann. §
14-307(a)(1) (1995). In Missouri, the privilege is suspended as to
information that pertains to a criminal act, see Mo. Rev. Stat. §
337.636(2) (1994), and in Texas when the information is sought in
any criminal prosecution, compare Tex. Rule Civ. Evid. 510(d) with
Tex. Rule Crim. Evid. 501
et seq. In Kansas and Oklahoma,
the privilege yields when the information pertains to "violations
of any law," see Kan. Stat. Ann. § 65-6315(a)(2) (Supp. 1990);
Okla. Stat., Tit. 59, § 1261.6(2) (1991); in Indiana, when it
reveals a "serious harmful act," see Ind. Code § 25-23.6-6-1(2)
(1993); and in Delaware and Idaho, when it pertains to any "harmful
act," see Del. Code Ann., Tit. 24, § 3913(2) (1987); Idaho Code §
54-3213(2) (1994). In Oregon, a state-
34
employed social worker like Karen Beyer loses the privilege
where her supervisor determines that her testimony "is necessary in
the performance of the duty of the social worker as a public
employee." See Ore. Rev. Stat. § 40.250(5) (1991). In South
Carolina, a social worker is forced to disclose confidences "when
required by statutory law or by court order for good cause shown to
the extent that the patient's care and treatment or the nature and
extent of his mental illness or emotional condition are reasonably
at issue in a proceeding." See S. C. Code Ann. § 19-11-95(D)(1)
(Supp. 1995). The majority of social-worker-privilege States
declare the privilege inapplicable to information relating to child
abuse.5 And the States that do not fall into any of the above
categories provide exceptions for commitment proceedings, for
proceedings in which the patient relies on his mental or emotional
condition as an element of his claim or defense, or for
communications made in the course of a court-ordered examination of
the mental or emotional condition of the patient.6
5 See,
e. g., Ariz. Rev. Stat. Ann. § 32-3283
(1992); Ark. Code Ann. § 1746-107(3) (1995); Cal. Evid. Code Ann. §
1027 (West 1995); Colo. Rev. Stat. § 19-3-304 (Supp. 1995); Del.
Rule Evid. 503(d)(4); Ga. Code Ann. § 19-75(c)(1)(G) (1991); Idaho
Code § 54-3213(3) (1994); La. Code Evid. Ann., Art. 510(B)(2)(k)
(West 1995); Md. Cts. & Jud. Proc. Code Ann. § 9-121(e)(4)
(1995); Mass. Gen. Laws § 119:51A (1994); Mich. Compo Laws Ann. §
722.623 (West 1992 Supp. Pamph.); Minn. Stat. § 595.02.2(a) (1988);
Miss. Code Ann. § 73-53-29(e) (1995); Mont. Code Ann. §
37-22-401(3) (1995); Neb. Rev. Stat. §28-711 (1995); N. M. Stat.
Ann.
§61-31-24(C) (Supp. 1995); N. Y. Civ. Prac. Law §
4508(a)(3) (McKinney 1992); Ohio Rev. Code Ann. §2317.02(G)(1)(a)
(1995); Ore. Rev. Stat. §40.250(4) (1991); R. I. Gen. Laws §
5-37.3-4(b)(4) (1995); S. D. Codified Laws § 36-26-30(3) (1994);
Tenn. Code Ann. § 63-23-107(b) (1990); Vt. Rule Evid. 503(d)(5); w.
Va. Code §30-30-12(a)(4) (1993); Wyo. Stat. § 14-3-205 (1994).
6 See,
e. g., Fla. Stat. § 90.503(4) (Supp. 1992)
(all three exceptions); Ky.
Rule Evid. 507(c) (all three); Nev. Rev. Stat. § 49.245 (1993)
(all three); Utah Rule Evid. 506(d) (all three); Conn. Gen. Stat. §
52-146q(c)(1) (1995) (commitment proceedings and proceedings in
which patient's mental condition at issue); Iowa Code § 622.10
(1987) (proceedings in which patient's mental condition at
issue).
35
Thus, although the Court is technically correct that "the vast
majority of States explicitly extend a testimonial privilege to
licensed social workers,"
ante, at 16-17, that uniformity
exists only at the most superficial level. No State has adopted the
privilege without restriction; the nature of the restrictions
varies enormously from jurisdiction to jurisdiction; and 10 States,
I reiterate, effectively reject the privilege entirely. It is fair
to say that there is scant national consensus even as to the
propriety of a social-worker psychotherapist privilege, and none
whatever as to its appropriate scope. In other words, the state
laws to which the Court appeals for support demonstrate most
convincingly that adoption of a social-worker psychotherapist
privilege is a job for Congress.
***
The question before us today is not whether there should be an
evidentiary privilege for social workers providing therapeutic
services. Perhaps there should. But the question before us is
whether (1) the need for that privilege is so clear, and (2) the
desirable contours of that privilege are so evident, that it is
appropriate for this Court to craft it in common-law fashion, under
Rule 501. Even if we were writing on a clean slate, I think the
answer to that question would be clear. But given our extensive
precedent to the effect that new privileges "in derogation of the
search for truth" "are not lightly created,"
United States
v.
Nixon, 418 U. S., at 710, the answer the Court gives
today is inexplicable.
In its consideration of this case, the Court was the beneficiary
of no fewer than 14
amicus briefs supporting respondents,
most of which came from such organizations as the American
Psychiatric Association, the American Psychoanalytic Association,
the American Association of State Social Work Boards, the Employee
Assistance Professionals Association, Inc., the American Counseling
Association, and the National Association of Social Workers. Not a
single
ami-
36
cus brief was filed in support of petitioner. That is no
surprise. There is no self-interested organization out there
devoted to pursuit of the truth in the federal courts. The
expectation is, however, that
this Court will have that
interest prominently-indeed, primarily-in mind. Today we have
failed that expectation, and that responsibility. It is no small
matter to say that, in some cases, our federal courts will be the
tools of injustice rather than unearth the truth where it is
available to be found. The common law has identified a few
instances where that is tolerable. Perhaps Congress may conclude
that it is also tolerable for the purpose of encouraging
psychotherapy by social workers. But that conclusion assuredly does
not burst upon the mind with such clarity that a judgment in favor
of suppressing the truth ought to be pronounced by this honorable
Court. I respectfully dissent.
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