When rights collide

In September 2014, Colorado authorities charged Robert Perez with murdering his wife, Dennielle Leichtle. At trial, expert witnesses disagreed on whether the physical evidence was more consistent with homicide or suicide. The crime scene analyst retained by the defense testified that Leichtle was killed by a self-inflicted gunshot wound. Colorado’s medical examiner concluded that she was more likely the victim of a homicide—though he added that suicide could not be ruled out.

The prosecution argued that Perez killed Leichtle because he was angry about her extramarital affair, which he had discovered three days prior to Leichtle’s death. Perez claimed that his wife died by suicide because she was depressed and ashamed that he was planning to distribute sexually explicit photos that he had taken of her. Both the prosecution and defense presented evidence that Leichtle appeared sad and depressed to her friends and family. Leichtle’s brother testified that a few days before her death, she had taken a handful of sleeping pills. Other witnesses said that Leichtle had discussed suicide, but that she said she would never go through with it. Perez also knew that Leichtle was in therapy, but he did not know whether she had been diagnosed with depression or had sought help for suicidal ideation.

Prior to trial, the defense served a subpoena on Leichtle’s therapist to attempt to determine whether Leichtle’s mental health records would support Perez’s defense. However, the prosecution persuaded the court to quash the subpoena on the grounds that the records were protected by Colorado’s therapist-patient privilege. Perez was then convicted of murdering Leichtle.

Such exclusions of mental health records are not uncommon. Statements made by patients during psychotherapy do enjoy some form of privilege, or protection from disclosure in court, in all 50 states and in federal courts. This privilege is intended to help "secure 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, an essential component of effective treatment" (Colorado v. Perez [2019], No. 16CA1180, at para. 14). Yet criminal defendants have constitutional rights that can be difficult to reconcile with this privilege. For example, defendants have a due process right to put before a jury evidence that could influence the determination of guilt. Defendants also have a right under the Sixth Amendment’s confrontation clause to question any witnesses who are testifying against them, but when defendants cannot access privileged psychotherapy records, they cannot use those records in cross-examination.

How do courts reconcile the therapist-patient privilege against criminal defendants’ constitutional rights? Unfortunately, they do not do so consistently. In seven states, mental health records are inaccessible to defendants. In Colorado and Utah, defendants must somehow show that the records they are seeking are exculpatory—could prove their defense—before they can access them. Eleven states have a more relaxed rule that permits review of mental health records when the defendant shows that the records either probably or plausibly contain exculpatory information. It should also be noted that if the standard for review is met in any of these jurisdictions, the court—not the defendant—will first review the records to determine whether they must be made available to the defense.

In short, criminal defendants’ ability to gain review of mental health records varies significantly by state. Robert Perez has petitioned the U.S. Supreme Court to review his case in the next term and, if his case is heard, it could possibly add more uniformity to the current patchwork of rules.

"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).