CECIL ALAN JONES, PETITIONER V. UNITED STATES OF AMERICA No. 90-6290 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A15-A20) is unreported. JURISDICTION The judgment of the court of appeals was entered on July 18, 1990. A petition for rehearing was denied on September 14, 1990 (Pet. App. C). The petition for a writ of certiorari was filed on November 20, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a psychotherapist-patient privilege precluded the admission at trial of testimony from petitioner's psychiatrist concerning petitioner's threats to kill the President. STATEMENT After a jury trial in the United States District Court for the Southern District of Texas, petitioner was convicted on one count of making threats against President-elect, and then President, George Bush, in violation of 21 U.S.C. 871. Petitioner was sentenced to 12 months' imprisonment, to be followed by a three-year term of supervised release. The court of appeals affirmed. Pet. App. A15-A20. 1. Between May 1987 and February 1989, petitioner received regular psychiatric counselling from Dr. Marian Worthington at the Veterans Administration Medical Center in Houston, Texas. In June 1988, petitioner began making threats during the counselling sessions to kill then Vice-President Bush. At first, Dr. Worthington considered these to be idle threats. Pet. App. A15-A16. During a counselling session soon after the November 1988 election, petitioner threatened to convert his M-1 rifle to fire in fully automatic mode and use it to kill then President-elect Bush. Another doctor overheard this threat and reported it to hospital officials, who in turn reported the incident to the United States Secret Service. Pet. App. A16. Petitioner made further threats against President Bush during counselling sessions in January and February 1989, and was generally becoming increasingly hostile. At this point, Dr. Worthington began to take the threats seriously. She subsequently provided the United States Secret Service with an affidavit recounting petitioner's threats against the President. Pet. App. A16. 2. Petitioner was indicted on one count of making threats against President-elect and then President Bush, in violation of 21 U.S.C. 871. At trial, over petitioner's objection, Dr. Worthington was allowed to testify concerning the threats made by petitioner. On cross-examination of Dr. Worthington, petitioner's counsel sought to develop a diminished-capacity defense by eliciting testimony that petitioner suffered from post-traumatic stress disorder arising from his involvement in the Vietnam conflict. Gov't C.A. Br. 5. 2. The court of appeals affirmed petitioner's conviction. Pet. App. A15-A20. The court rejected petitioner's argument that the threats he made during the course of his psychiatric treatment were protected by a psychiatrist-patient privilege. The court relied on two decisions in which the Fifth Circuit had refused to recognize such a privilege. Id. at A17 (citing United States v. Meagher, 531 F.2d 752, 753, cert. denied, 429 U.S. 853 (1976), and United States v. Burzynski Cancer Research Inst., 819 F.2d 1301, 1311 (1987), cert. denied, 484 U.S. 1065 (1988)). ARGUMENT Petitioner contends (Pet. 8-13) that there is a conflict among the circuits as to the existence of a psychotherapist-patient privilege, and that review by this Court is necessary to clarify the varying positions adopted by the circuits. This Court, however, declined review of two recent decisions in which the petitions, like the petition here, presented the question of the existence of a psychotherapist-therapist privilege. In re Grand Jury Proceedings, 867 F.2d 562 (9th Cir.), cert. denied, 110 S. Ct. 265 (1989); United States v Corona, 849 F.2d 562 (11th Cir. 1988), cert. denied, 489 U.S. 1084 (1989). There is no more reason for the Court to address that issue in the present case than there was in those cases. The only circuit that has squarely recognized a psychotherapist-patient privilege is the Sixth Circuit. See In re Zuniga, 714 F.2d 632, 637, cert. denied, 464 U.S. 983 (1983). /1/ However, as we explained in our briefs in opposition to certiorari in Corona and In re Grand Jury Proceedings, the conflict between the Sixth Circuit and those circuits that refuse to recognize the privilege is more a matter of approach than of outcome. Although Zuniga did recognize a qualified psychotherapist-patient privilege, neither the Sixth Circuit nor any other court of appeals has ever defined the scope of that privilege or applied it to exclude evidence. In the meantime, courts that have refused to recognize a psychotherapist-patient privilege have almost without exception allowed the disclosure of materials reflecting psychiatric treatment only after giving close attention to the privacy interests of any affected patients. The difference in practical terms between the two approaches remains obscure. Under these circumstances, the conflict among the circuits does not warrant this Court's review. Under Fed. R. Evid. 501, claims of privilege in federal courts that are not based on the Constitution or a statute are "governed by the principles of the common law as they may be interpreted * * * in the light of reason and experience." See Trammel v. United States, 445 U.S. 40, 47 (1980); United States v. Gillock, 445 U.S. 360, 367 (1980). The Court has made clear that new privileges should be recognized very sparingly. "Testimonial * * * privileges contravene the fundamental principle that 'the public . . . has a right to every man's evidence.'" Trammel v. United States, 445 U.S. at 50 (quoting United States v. Bryan, 330 U.S. 323, 331 (1950)). A testimonial privilege is appropriate only if it "promotes sufficiently important interests to outweight the need for probative evidence in the administration of criminal justice." Trammel, 445 U.S. at 51. See also Branzburg v. Hayes, 408 U.S. 665, 690-691 (1972). Many cases have noted that neither the common law nor federal law recognizes a privilege for physician-patient communications. Whalen v. Roe, 429 U.S. 589, 602 n.28 (1977); In re Grand Jury Proceedings, 867 F.2d at 564-565; United States v. Bercier, 848 F.2d 917, 920 (8th Cir. 1988); United States v. Burzynski Cancer Research Institute, 819 F.2d at 1311 & n.33; In re Grand Jury Proceedings, 801 F.2d 1164, 1169 (9th Cir. 1986); United States v. Lindstrom, 698 F.2d 1154, 1167 n.9 (11th Cir. 1983); United States v. Meagher, 531 F.2d at 753; United States v. Harper, 450 F.2d 1032, 1065 (5th Cir. 1971). See also United States v. Friedman, 854 F.2d 535, 571 (2d Cir. 1988), cert. denied, 490 U.S. 1004 (1989) (declining to decide whether to recognize a psychotherapist-patient privilege); United States v. Crews, 781 F.2d 826, 831 (10th Cir. 1986) (same). With the exception of the Zuniga decision, the courts have not distinguished between psychotherapists and other physicians. See United States v. Lindstrom, supra; United States v. Meagher, supra. In Zuniga, two psychiatrists were held in civil contempt for refusing to respond to grand jury subpoenas seeking patient records relating to an investigation into health insurance fraud. The Sixth Circuit found that a guarantee of confidentiality was critical to successful psychotherapy and that a number of States had recognized such a privilege by statute. On that ground, the court concluded that a psychotherapist-patient privilege was "mandated by 'reason and experience.'" 714 F.2d at 639. The court held that the scope of the privilege was to be "determined by balancing the interests protected by shielding the evidence sought with those advanced by disclosure." Id. at 640. Weighing the competing interests in the case before it, the court found that the balance tipped in favor of disclosure of the records involved in that case -- records showing only the identity of the psychiatrists' patients and the dates and duration of treatment sessions -- and it upheld the contempt judgments. Ibid. /2/ Significantly, the panel in Zuniga made "no attempt * * * to define the appropriate perimeters of the privilege." 714 F.2d at 639. That task, it said, "must be undertaken on a case-by-case basis." Ibid. In the eight years since that case was decided, neither the Sixth Circuit nor any other court of appeals has either defined the scope of the psychotherapist-patient privilege posited in Zuniga or applied it to exclude any evidence. In the meantime, those courts that have not recognized a psychotherapist-patient privilege as such have shown sensitivity to the interest that patients have in the confidentiality of their psychiatric records. In a variety of contexts, courts have indicated that the disclosure of such records should be limited, and that the interests of patients in confidentiality should be carefully considered. See, e.g., In re Grand Jury Proceedings, 867 F.2d at 565 ("the right (of privacy that extends to psychotherapist-patient communications) is substantial," but "it is conditional rather than absolute and limited impairment of the right may be allowed if properly justified"); In re Pebsworth, 705 F.2d 261, 264 (7th Cir. 1983) (observing, after concluding that disclosure of records like those in Zuniga was required, "(w)e trust * * * that the grand jury, related investigatory bodies, and, if an indictment is returned, the trial court, will take scrupulous measures to ensure that there occurs no unnecessary disclosure of the patients' names or diagnoses"); id. at 264-265 (Gray, J., concurring); In re Grand Jury Subpoenas Duces Tecum, 638 F. Supp. 794, 796-799 (D. Me. 1986); United States v. Brown, 479 F. Supp. 1247, 1253-1254 (D. Md. 1979); United States v. Layton, 90 F.R.D. 520, 525-526 (N.D. Ca. 1981); Garrity v. Thomson, 81 F.R.D. 633, 636 (D.N.H. 1979). The approach of these cases is quite similar to that adopted by this Court in Pennsylvania v. Ritchie, 480 U.S. 39 (1987). In Ritchie, the Court acknowledged that a criminal defendant had a right, under the Due Process Clause, to have his daughter's treatment records reviewed for evidence that might tend to exculpate him in a prosecution charging him with child abuse. However, recognizing the interests of the child and the State in the confidentiality of these records, the Court held that the review should be conducted in camera by the trial court. Id. at 60-61. The Court's analysis is entirely consistent with the view that such records are not privileged in a formal sense, but must nevertheless be handled with care. At this juncture, therefore, Zuniga, Ritchie, and the decisions that do not recognize a formal psychotherapist-patient privilege are in agreement on two broad propositions: (1) there is no absolute privilege that forecloses all use of psychiatric records by the government or a defendant in a criminal case, and (2) disclosures of such records should be handled with sensitivity, giving attention to both the need for the evidence and affected patients' privacy interests. Beyond this, however, it remains a matter of conjecture as to whether the results in particular cases will be affected by the difference in approach between Zuniga and the other cases -- i.e., between a qualified privilege whose scope is to be defined on a case-by-case basis and an approach that urges attention to the interests of patients and the need for their records on the same case-by-case basis. In any event, under either approach petitioner's privilege claim was properly rejected in this case. Although the court of appeals did not explicitly conduct the sort of balancing of interests that is commonly undertaken by those courts that have refused to recognize a psychotherapist-patient privilege, its failure to do so was clearly harmless on the facts of this case. Even under the approach adopted by the Sixth Circuit in Zuniga, the threats against President Bush's life made by petitioner to Dr. Worthington clearly would not have fallen within the scope of any psychotherapist-patient privilege. Those threats constituted a violation of criminal law. Moreover, under the policies adopted by the American Psychiatric Association, a psychotherapist has a duty to report credible threats made by patients against third parties. Gov't C.A. Br. 16-17. Since Dr. Worthington believed that petitioner's threats were credible and she therefore had a professional duty to report them, a balancing of the competing interests in this case clearly favored disclosure. The privilege posited in Zuniga would not encompass petitioner's criminal threats against the President for an additional reason. Before the district court ruled on the privilege claim, petitioner had indicated his intention to raise a diminished-capacity defense. Thereafter, petitioner's counsel sought to develop this defense on cross-examination of Dr. Worthington, by eliciting testimony that petitioner suffered from post-traumatic stress disorder from his involvement in the Vietnam conflict. Gov't C.A. Br. 13-14 & n.8. An exception to a psychotherapist-patient privilege applies when the defendant puts in issue his mental state. See United States v. Meagher, 531 F.2d at 753. Thus, petitioner's presentation of the defense of diminished capacity opened the door to Dr. Worthington's testimony. Under these circumstances, that testimony was properly admitted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General DEBORAH WATSON Attorney JANUARY 1991 /1/ Petitioner asserts (Pet. 10) that the Tenth Circuit has recognized the existence of a psychotherapist-patient privilege. However, the case upon which he relies, Pesce v. J. Sterling Morton High School Dist., 830 F.2d 789 (7th Cir. 1987), is inapposite. At issue there was whether a state statute providing for confidentiality of communications between a psychologist and patient provided a defense to a school psychologist who had failed to report to school officials allegations made by a student concerning sexual misconduct of a male faculty member. Pesce did not purport to address the existence of a federal psychotherapist-patient privilege. /2/ Several district courts have adopted an approach similar to that taken by the Sixth Circuit in Zuniga. See In re Grand Jury Subpoena (Psychological Treatment Records), 710 F. Supp. 999 (D.N.J.), aff'd mem., 879 F.2d 857 (3d Cir. 1989); United States v. Friedman, 636 F. Supp. 462 (S.D.N.Y. 1986); Jennings v. D.H.L. Airlines, 101 F.R.D. 549 (N.D. Ill. 1984); In re Doe, 97 F.R.D. 640, 643-644 (S.D.N.Y. 1982); Lora v. Board of Educ., 74 F.R.D. 565 (E.D.N.Y. 1977).