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The Kobe Bryant Case:
The Court May Have Been Right to Withhold His Accuser's Psychiatric History, But The Law on This Issue Is Wrong

Tuesday, Apr. 27, 2004

On Wednesday, April 21, after a closed hearing, the Colorado trial judge in the Kobe Bryant criminal case ruled that the psychiatric history of Bryant's accuser, who says he raped her, will remain off limits. Reportedly, the issue the hearing addressed was whether the accuser had waived her physician-patient privilege by discussing this information with her mother, friends, and the police.

In this column, I will argue that under current law, the judge was right to hold that she did not waive that right.

But I will also argue that current law should be changed: In a criminal case such as this one, in which the accuser's testimony will be crucial, the jury ought to be entitled to hear all relevant psychiatric evidence, even if it would ordinarily fall within the physician-patient privilege.

The Physician-Patient Privilege, and How It Can Be Waived

Like the attorney-client privilege, the physician-patient privilege protects the secrecy of information -- even when it is sought in court proceedings. Just as attorneys generally cannot subpoena records of their adversaries' attorney-client privileged conversations, they also generally cannot subpoena the psychiatric (or the other medical) records of the party on the opposite side.

But under current law, for patients to invoke this privilege, they have to respect it themselves. Otherwise, courts can hold that they have "waived" the privilege, or "opened the door" to the relevant evidence being introduced.

For example, suppose a patient begins to testify on the stand about what she says were the symptoms of her psychiatric condition. She then "opens the door" to being cross-examined on the same issue -- and the other side may now also be able now to seek documents that previously would have been covered by the physician-patient privilege. .

Similarly, suppose a patient brings a lawsuit that puts her psychiatric condition directly at issue. For instance, suppose she brings a libel suit challenging reports that her career has been hurt by the fact she has bipolar disorder - then she has to provide documents (even privileged ones) that are relevant to her claim. In that event, she has waived her right to assert the privilege simply by bringing the lawsuit.

Finally, the patient can also waive the privilege by simply giving her consent to the release of the relevant information. This happened during the Starr Independent Counsel investigation, when Monica Lewinsky reportedly waived her physician-patient privilege to give prosecutors access to her prior consultations with her therapist.

Under Current Law, Was the Physician-Patient Privilege Waived in the Kobe Bryant Case?

Sometimes a patient can also waive a privilege simply by talking too much, to too many people, about the topic at issue -- so that it is no longer private.

Suppose a person has appeared on "Oprah" to discuss her depression, and along the way, she admits that it sometimes impedes her judgment. That public admission might mean that when she later testifies in a court case, not only will these statements be admissible, but her psychiatric records might be admissible, too. Her public admission may "open the door" to further inquiry.

In the Kobe Bryant case, however, no such public disclosures were made. Reportedly, the accuser discussed her psychiatric history only with her mother, friends, and the police.

If those were the only conversations she had, then under current law, the judge was right to hold that she did not waive her privacy -- and thus, her physician-patient privilege -- in the same sense that the "Oprah" guest might have. Going on "Oprah" is a far cry from chatting with your mom.

For these reasons, given current law, the Kobe Bryant judge was probably right to hold that the accuser did not waive her physician-patient privilege.

If she had discussed her psychological state with prosecutors, however, it would be a different matter. That discussion wouldn't be about aiding the accuser's health, but about furthering the prosecution's case. Given that context, even under current law, the conversations ought to be disclosed to the defense, and the defense ought to be able to use them at trial if necessary.

Why a Criminal Complaint Should Open the Door to Even Privileged Evidence as to Mental State

But that raises a larger question: Shouldn't filing a criminal complaint, in itself, waive the physician-patient privilege?

Current law says no. But I believe current law is wrong. Instead, in a "he said, she said" case like the case against Bryant -- where the testimony of the accuser is so crucial -- my view is that all evidence relating to the accuser's mental state should be fair game.

Suppose, for example, that Bryant's accuser indeed -- as has been reported -- attempted suicide twice in the recent past. That evidence should be admissible -- if it can plausibly be argued that her experience may affect the credibility of any of her testimony.

Of course, that evidence may or may not mean the accuser is less credible; that's for the jury to decide. Other information would be necessary to judge credibility: Why did the accuser (if reports are correct) attempt suicide? What was the underlying psychiatric condition? Had it been fully treated? Did she take medication, and was it effective? Did it affect her perception or judgment? Does it affect her testimony?

The point is that Bryant's defense ought to at least be able to use it to try to persuade the jury that the accuser's psychiatric history does have an effect on her credibility. It will be up to the jury, of course, to decide whether or not it actually is persuaded. But it must hear the evidence in order to make that decision.

Keeping this kind of evidence from the jury could result in a wrongful conviction -- and that's too high a price to pay.

The Chilling Effect: Real, But Necessary to Avoid Wrongful Conviction

What about the fear, though, that if we change the law in this way, then some people - those who haven't been a victim of any crime, but need psychological help -- may not seek psychiatric care at all, in order to preserve their ability to testify in the future?

To some extent, I think this fear is unrealistic: Will those who need treatment now, decide not to get it because of the modest likelihood that they might someday be victim to a crime to which that treatment would be relevant? I don't think so.

But what about the much more realistic fear that some crime victims may not file criminal complaints because the result will be to reveal their psychiatric histories?

Obviously, the revelation of psychiatric information, in the course of a public trial can be embarrassing, and can itself be traumatic. Some crime victims may not file complaints because they fear their psychiatric histories will be revealed. And that is a serious cost.

But it may also be the case that generally, the more embarrassing the information is, the more important it is for the jury to hear.

Suppose a given accuser, at a criminal trial, recently suffered from multiple-personality disorder. That could be a very embarrassing, even traumatic, revelation -- but, at the same time, it might be a crucial one for a jury weighing the credibility of his testimony. It is worth embarrassing the accuser, to avoid the risk of a wrongful conviction and possibly spare an innocent defendant years in prison.

In the end, it's a brutal balancing act, but the balance must favor the accused -- who, we must remember, is presumed innocent until proven guilty. If that proof is only partial -- omitting relevant information about the accuser's mental state -- can we really trust that it is accurate enough to base a conviction upon?

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes MP3 and text downloads of the novel's first chapter.

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