Cite as 2020 Ark. 313 SUPREME COURT OF ARKANSAS No. CR-19-591
Opinion Delivered: October 8, 2020
TRACY WILL VAUGHN APPELLANT APPEAL FROM THE WHITE COUNTY CIRCUIT COURT V. [NO. 73CR-18-151]
STATE OF ARKANSAS HONORABLE ROBERT EDWARDS, APPELLEE JUDGE
AFFIRMED; COURT OF APPEALS OPINION VACATED.
SHAWN A. WOMACK, Associate Justice
Tracy Will Vaughn was convicted of second-degree sexual assault and sentenced to
sixty months’ imprisonment. This appeal centers on his victim’s therapy records. We hold
that the records are protected from disclosure by the absolute psychotherapist-patient
privilege in Arkansas Rule of Evidence 503. The conviction is affirmed.
I.
In February 2018, Vaughn was charged with sexually assaulting nine-year-old K.H. He
was also charged with three counts of sexual indecency with a child, which involved K.H.
and her friend, B.W. The White County Sheriff’s Office initiated an investigation in June
2016 following a report from B.W.’s father. The girls were interviewed at the Child Safety Center in Searcy.1 During the interview, B.W. stated that Vaughn made the girls touch each
other inappropriately while they were nude in his pool. At that time, K.H. denied any sexual
contact by Vaughn. When Vaughn was interviewed by police, he admitted that he touched
K.H.’s genitals three times and that she had touched his penis once through clothing.
Vaughn stated that K.H. had crawled on top of him in bed and “hunched” him. He also
admitted to becoming aroused when K.H. danced “provocatively” near him.
The investigator’s affidavit, attached to the criminal information, recounted the
admissions from the June 2016 investigation. The affidavit noted that K.H. “recently
disclosed during her therapy session that [Vaughn] exposed his penis and made her touch it
[and] that she touched his penis multiple times while she was swimming in his pool.” Citing
the reference to K.H.’s therapy sessions, Vaughn moved for disclosure of her medical and
counseling records on April 18, 2018. He asserted a right to the records under the state and
federal constitutions. He also argued that the psychotherapist-patient privilege did not apply
and had been waived or estopped by the prosecution. Citing Pennsylvania v. Ritchie, 480 U.S.
39 (1987), and Brady v. Maryland, 373 U.S. 83 (1963), Vaughn sought to compel the State to
disclose the records or, alternatively, requested the court to conduct an in camera review for
exculpatory or impeachment material.
1 Child Safety Centers are part of a statewide program to provide a comprehensive and coordinated response to child abuse investigations. See Ark. Code Ann. § 9-5-102 (Repl. 2016). The Center conducts forensic interviews that are not subject to the privilege at issue here.
2 At a pretrial hearing on May 16, the circuit court stated the records would be
submitted for an in camera review under Ritchie. The record is unclear on when or how this
decision arose and whether the court ordered the prosecution to obtain the records. In any
event, the State arrived at the hearing with K.H.’s therapy records spanning from 2011
through 2018. The first set of records were timestamped on May 15—the day before the
hearing. The second set of records included a subpoena dated May 10. At Vaughn’s request,
the State was instructed to determine whether B.W. had any therapy records. Her records,
dating before and after the alleged incident with Vaughn, were obtained a week later
following a subpoena from the prosecutor.
At the next hearing, Vaughn argued the records were not privileged because the
therapy was conducted at the insistence or sponsorship of the State. In response, the
prosecutor informed the court that the girls had previously been treated by the same
providers and returned to their therapists after the alleged incidents on their own accord.
The prosecutor also stated that “up until the Court asked the State to get the records, we did
not have access, we did not seek to admit those records[.] . . . And we would argue [K.H. and
B.W.] have not waived that privilege that allows them to get assistance that they need, other
than if there is something exculpatory to the Defendant.”
The court rejected the claim that the victims were sent to therapy for investigative
purposes because many of the records were created years before the allegations against
Vaughn arose. Ruling from the bench, the court held that the therapy records were
absolutely privileged under Arkansas Rule of Evidence 501 and Arkansas Code Annotated
3 § 17-27-311 (Repl. 2018).2 It made no determination regarding the existence of any
exculpatory material, but noted it read the records and tabbed significant pages for appellate
review. The therapy records were entered into the record as sealed court exhibits. The jury
subsequently convicted Vaughn of sexually assaulting K.H. in the second degree and
sentenced him to sixty months’ imprisonment. He was acquitted of two counts of sexual
indecency; the third was dismissed on directed verdict. 3
Vaughn’s appeal was initially considered by the Arkansas Court of Appeals. See
Vaughn v. State, 2020 Ark. App. 185, 598 S.W.3d 549. It determined that Arkansas privilege
law did not absolutely shield the records in this case and that the circuit court should have
conducted an in camera review for favorable evidence under Brady. The court of appeals
nevertheless affirmed the conviction after reviewing the records and finding they did not
satisfy Brady’s materiality requirement. This was not an in camera review. Instead, the court
of appeals gave the parties full access to the sealed records prior to briefing. We cannot
condone the court of appeals’ troubling approach to the victims’ records.4 As the Ritchie
Court explained:
2 The circuit court cited Rule 501 but ruled that the records fell under the patient and psychotherapist privilege. That privilege is found within Rule 503 and is the privilege at issue in this case. 3 Because Vaughn was acquitted of the count involving B.W., we will refer only to K.H.’s records going forward. However, the same analysis applies to B.W.’s records. 4 The court of appeals recently cited its decision in an order granting a defendant access to his victim’s sealed records. See Turnbo v. State, No. CR-20-505 (Order, Sept. 9, 2020). For the reasons explained by Ritchie, infra, such orders are inappropriate and can no longer stand.
4 To allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the [State’s] compelling interest in protecting its child abuse information. If the [] records were made available to defendants, even through counsel, it could have a seriously adverse effect on [Arkansas’s] efforts to uncover and treat abuse. . .. The [State’s] purpose would be frustrated if this confidential material had to be disclosed upon demand to a defendant charged with criminal child abuse, simply because a trial court may not recognize exculpatory evidence. Neither precedent nor common sense requires such a result.
Ritchie, 480 U.S. at 60–61 (emphasis added).
We granted Vaughn’s petition for review and now consider this appeal as though it
was originally filed in this court. See Martin v. Smith, 2019 Ark. 232, at 2, 576 S.W.3d 32. A
circuit court’s ruling on the admissibility of evidence will be reviewed for abuse of discretion.
See Vidos v. State, 367 Ark. 296, 304, 239 S.W.3d 467, 474 (2006). Questions involving the
interpretation of law will be reviewed de novo. See Holt v. McCastlain, 357 Ark. 455, 460–61,
182 S.W.3d 112, 116 (2004).
II.
Vaughn alleges two overarching errors in the circuit court’s determination that K.H.’s
therapy records were protected from disclosure by the psychotherapist-patient privilege. He
first contends the privilege was waived. Vaughn next argues that his constitutional rights of
confrontation, compulsory process, and due process warrant provision of all confidential
records for an in camera examination under Ritchie. The State objects to the waiver argument
and insists that K.H. did not waive the privilege. We agree with the circuit court that the
psychotherapist-patient privilege bars Vaughn’s access to the records and reject the assertion
that an in camera evaluation is required.
5 A.
All fifty states, the District of Columbia, and the United States Supreme Court have
recognized some form of a psychotherapist-patient privilege. See Jaffee v. Redmond, 518 U.S.
1, 12 (1996). The policy behind the privilege is to encourage patients to communicate openly
with their therapists and to prevent disclosure of the patient’s infirmities. See State v. Sypult,
304 Ark. 5, 8, 800 S.W.2d 402, 403 (1990). Indeed, “[e]ffective psychotherapy . . . depends
upon an atmosphere of confidence and trust.” Jaffee, 518 U.S. at 10. The privilege serves the
greater public interest by facilitating effective mental health care, which is “a public good of
transcendent importance.” Id. at 11. In Arkansas, the privilege is provided in Arkansas Rule
of Evidence 503(b):
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
This privilege governs in both criminal and civil state court proceedings. See Holland v. State,
2015 Ark. 341, at 14, 471 S.W.3d 179, 188; Ark. R. Evid. 101. In addition to the evidentiary
privilege, Arkansas statutes also provide that “confidential relations and communications”
between a therapist and client “are placed upon the same basis as those between an attorney
and a client.” Ark. Code Ann. § 17-27-311(a) (counselors); Ark. Code Ann. § 17-97-105(a)
(Repl. 2018) (psychologists).
6 The parties do not dispute that K.H.’s therapy records fall within the scope of Rule
503. Vaughn instead challenges whether the privilege was waived. The patient may of course
waive the privilege by voluntarily disclosing or consenting to disclosure of any significant part
of the privileged matter. See Ark. R. Evid. 510. But as the prosecution emphasized at the
second pretrial hearing, K.H. did not waive the privilege. Vaughn nevertheless argues the
privilege was waived by the affidavit’s reference to details K.H. disclosed during therapy and
by the child’s testimony during cross-examination. In our view, the privilege was not waived
by these acts.
Rule 503 gives the patient the privilege. See McKenzie v. Pierce, 2012 Ark. 190, at 7,
403 S.W.3d 565, 570; Ark. R. Evid. 503(b). In other words, the State cannot waive K.H.’s
privilege. Id. Though Vaughn makes the conclusory assertion that mandated reporter laws
waive the patient’s privilege, we decline to make such a ruling in this case. We simply find
no basis to conclude that the affidavit’s reference in this case waives K.H.’s privilege.
We are similarly unpersuaded by the assertion that K.H. waived the privilege in
response to cross-examination. It is well settled that a witness in a criminal case does not
waive the privilege by testifying because the State, not the witness, is the party in a criminal
proceeding.5 See Collins v. State, 2019 Ark. 110, at 6, 571 S.W.3d 469, 472; Ark. R. Evid.
503(d). As the Fifth Circuit has explained, a “defendant does not get to crack open every
5 Vaughn argues in his supplemental brief that the State can waive the privilege for a victim because the victim is a de facto party to the criminal proceeding. We will not consider this argument as it was not briefed at the court of appeals. See Fuson v. State, 2011 Ark. 374, at 8–9, 383 S.W.3d 848, 854.
7 confidential communication with a victim’s psychotherapist simply because that victim may
have discussed facts with her psychotherapist that are relevant to the issues at trial.” United
States v. Murra, 879 F.3d 669, 680 (5th Cir. 2008). “[A]lthough a patient may not refuse to
disclose any relevant fact within her knowledge merely because she discussed those facts in a
confidential communication with her psychotherapist, she cannot be compelled to answer
the question, ‘What did you say to your psychotherapist?’” Id. (citing Upjohn Co. v. United
States, 449 U.S. 383, 395–96 (1981)).
K.H. was forthcoming with factual responses to Vaughn’s cross-examination, but she
did not reveal any confidential communications. She admitted that she attended therapy
following the sexual assault, but she did not testify to any privileged communications
discussed with her therapists. Vaughn was aware of K.H.’s non-privileged statements to the
Child Safety Center denying any sexual assault. He also knew that K.H. disclosed details of
sexual assault to a therapist that were mentioned in the criminal affidavit. When asked, K.H.
provided the names of her new providers and an estimate of how many times she discussed
the sexual assault with them. She also admitted to the discrepancy between the affidavit and
the initial Child Safety Center interviews. K.H. explained that she was too scared to admit
the abuse at the interviews immediately following the assault.
We do not find that the disclosure to the circuit court waived the privilege in this
case. Though the record is not clear on how or when the records were compelled from K.H.’s
providers, the prosecution clearly stated that K.H. did not waive the privilege. It likewise
emphasized that it did not have access to the records until the court ordered production.
8 Indeed, the dates of the subpoenas and timestamps indicate that the records were obtained
near the time of the in camera review and well after the criminal information was filed. A
claim of privilege is not defeated by a disclosure which was compelled erroneously or made
without opportunity to claim the privilege. See Ark. R. Evid. 511. We conclude the therapy
records and communications are privileged under Rule 503.
B.
We must now consider whether Vaughn is constitutionally entitled to disclosure of
the privileged records. He contends this issue implicates the rights to confrontation and
compulsory process under the Sixth Amendment and due process under the Fourteenth
Amendment. He also asserts violation of our analogous provisions in Article 2, Sections 8
and 10 of the Arkansas Constitution.
Relying on Jaffee, we previously held that the psychotherapist privilege preempts the
need to discover all admissible evidence. See Johnson v. State, 342 Ark. 186, 196–97, 27
S.W.3d 405, 412 (2000). In other words, the privilege is paramount to the need to gain
access to the privileged material for evidentiary purposes. Id.; see also Kinder v. White, 609
Fed. App’x 126, 130 (4th Cir. 2015) (“the public benefit produced by the recognition of the
psychotherapist-patient privilege is sufficiently weighty to trump the cost to the
administration of justice of precluding the use of relevant evidence”). Vaughn seeks to
distinguish Johnson on the basis that the prosecution had access to K.H.’s records. See Johnson,
342 Ark. at 197–98, 27 S.W.3d at 413. Given that the State cannot waive the patient’s
9 privilege—and K.H. did not waive the privilege here—we do not find that distinction
persuasive. See supra.
Under Ritchie, due process and compulsory process would require the State to turn
over the evidence in its possession that is both favorable to Vaughn and material to guilt or
punishment if the Arkansas statute allowed for disclosure. See Holland, 2015 Ark. 341, at 17,
471 S.W.3d at 189 (citing Ritchie, 480 U.S. at 52). Unlike the statute in Ritchie, however, the
privilege of private psychotherapy records has not been qualified by the legislature. Indeed,
it remains absolute. See Ark. R. Evid. 503; compare Taffner v. State, 2018 Ark. 99, at 12, 541
S.W.3d 430, 437 (statute allowing disclosure of certain DHS records requires in camera
review under Ritchie). Moreover, the record does not show that the State truly had access to
the records. Indeed, the prosecution stated it obtained the records only to comply with the
court’s disclosure order for in camera review. As the State points out, this assertion was
unopposed by Vaughn below.
The right to confrontation under the Sixth Amendment guarantees a defendant an
opportunity for effective cross-examination and the right to face those who testify against
him. See Ritchie, 480 U.S. at 51 (plurality opinion). The Ritchie Court flatly rejected the claim
that a defendant is entitled to access confidential records simply to aid in cross-examination:
“[T]he Confrontation Clause only guarantees ‘an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to whatever extent the defense
might wish.’” Id. at 53, (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in
original)). The Court specifically noted the ability to question adverse witnesses does not
10 include the power to require the pretrial disclosure of any and all information that might be
useful in contradicting unfavorable testimony. Id. at 53. Indeed, the Confrontation Clause
has never been recognized as an independent method of enforcing pretrial disclosure of
impeachment information. United States v. Wright, 866 F.3d 899, 912 n.3 (8th Cir. 2017)
(citing Ritchie, 480 U.S. at 52). Vaughn contends he needed access to the records to show
that K.H. did not initially disclose the abuse and in fact denied it. He essentially seeks to
bootstrap the trial right to confront witnesses into a pretrial discovery right. This claim does
not place the right to confrontation at issue and thus we reject Vaughn’s argument.
In sum, we reject Vaughn’s argument that Ritchie requires an in camera examination
of records and communications shielded by the absolute psychotherapist-patient privilege.
HART and WYNNE, JJ., dissent.
JOSEPHINE LINKER HART, Justice, dissenting. I dissent. In sum, where a charge of
sexual assault only comes after nearly a year of prompting and pruning by the victim’s
counselor, before which the victim had specifically and repeatedly denied that any sexual
assault had ever occurred, there is no fair trial for the defendant unless he has access to the
victim’s counselor and related counseling records.
I. Background
Tracy Vaughn stands convicted of a sex crime based on the allegation that he touched
K.H.’s vagina for purposes of “sexual gratification” while he was giving her a bath. This
11 allegation against Vaughn did not come from K.H., at least not initially. The State’s pursuit
of Vaughn began after the father of one of K.H.’s friends, upset after learning his daughter
had been skinny-dipping with K.H. in the pool at Vaughn’s residence, made a report to
police. Vaughn submitted to an interview with police on June 13, 2016—an interview which
quickly turned into an interrogation. Despite the interrogation continuing for hours on end,
with the officers repeatedly accusing Vaughn and baiting him to acknowledge some form of
guilt,1 Vaughn admitted to no criminal activity. One of the many things that came up during
Vaughn’s interrogation was the aforementioned incident in the bathtub. Vaughn
acknowledged giving K.H. a bath, but he denied that any touching was for the purpose of
sexual gratification.
K.H. was also interviewed by State investigators. Whatever the substance of that
interview was, the State apparently deemed K.H.’s account insufficient to commence a
criminal prosecution, as no charges were filed against Vaughn at that time. However, K.H.
was then sent to a private counselor, and the records from those counseling sessions are
contained in the record on appeal.
As did the dissent in Johnson v. State, I find the content of these counseling records
too important to ignore. 342 Ark. 186, 204–05, 27 S.W.3d 405, 417 (2000) (Brown, J.,
dissenting). Vaughn’s theory of defense at trial was that K.H.’s allegations of sexual contact
were false and spurred by other adults in the wake of the skinny-dipping revelation. The
1 The trial judge noted from the recording that the interrogating officer was “making somewhat of a fool of himself.”
12 contents of these counseling records reveal a great deal of evidence that would have been
relevant to and supportive of Vaughn’s theory.
The records show that for the first several months of counseling, K.H. specifically and
repeatedly denies that Vaughn had ever touched her inappropriately. They also show that by
around the six-month mark, the counselor had begun prodding K.H. and her mother to let
the counselor know about any “new memories” K.H. may have. After nearly another six
months of this treatment, K.H. reportedly tells her counselor, “I’m going to come clean,”
reporting what the counselor describes as “three new parts” of her sexual abuse, one of which
is apparently the bathtub incident. The counselor notes, “Client was scared to tell mom 3
new parts of the sexual abuse. With my help, client told mom about ‘Meany’ … Mom reacted
appropriately and praised client for sharing with her and being brave.” The counselor then
helps K.H. turn her account into a written “trauma narrative” from which she could deliver
these allegations to State authorities. On February 21, 2018, nearly two years after Vaughn
and K.H. were initially interviewed, the State filed one count of second-degree sexual assault
and three counts of sexual indecency against Vaughn, with the supporting affidavit
specifically noting that the allegations were “recently disclosed during [K.H.’s] therapy
session.”
True or not—it appears that K.H.’s sexual-contact allegations against Vaughn were
born, grown, and pruned during these sessions with the counselor. At trial, the defense
should have been able to present this information to the jury to aid in its assessment of the
truth.
13 Specifically, the defense should have been able to use prior inconsistent statements
contained in the counseling records to test the credibility of K.H.’s allegations of sexual
contact. The defense should have been able to illustrate the specific timing and evolution of
K.H.’s allegations, and to show alternative sources where the information contained in those
allegations may have come from. Importantly, the defense (who was prohibited from even
knowing the identity of K.H.’s counselor) should have been able to subpoena the counselor
to the courtroom, and to examine the counselor about her continuing requests for “new
memories” from K.H. and her mother. The defense should have been able to ask about the
counselor’s methodology, and to potentially bring in an expert of his own to show whether
the counselor’s methodology might have led to a false accusation.
The jury should have heard all this information, but it didn’t. All it heard about the
counseling was that K.H. had previously denied the allegations. The rest of the evidence was
kept from both the defense and the jury based on an assertion of K.H.’s psychotherapist
privilege. But even without his best evidence, Vaughn successfully defended against three of
the four charges at trial, and the jury gave Vaughn the minimum sentence for the one charge
he was convicted of. If Vaughn had been able to use the information from the counseling to
support his defense, the jury may very well have acquitted him.
II. Federal Constitutional Rights
Withholding this information from Vaughn and from the jury violated Vaughn’s
constitutional rights. As the Supreme Court of the United States has observed, Vaughn has
a constitutional right to present a complete defense at trial:
14 Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi, [410 U.S. 284 (1973)], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, Washington v. Texas, 388 U.S. 14, 23 (1967); Davis v. Alaska, 415 U.S. 308, (1974), the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S., at 485; cf. Strickland v. Washington, 466 U.S. 668, 684–685 (1984) (“The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment”). We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard. In re Oliver, 333 U.S. 257, 273 (1948); Grannis v. Ordean, 234 U.S. 385 (1914). That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence. In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor’s case encounter and “survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656, (1984). See also Washington v. Texas, supra, 388 U.S., at 22–23.
Crane v. Kentucky, 476 U.S. 683, 690–91 (1986) (parallel citations omitted). Further,
Vaughn has a constitutional right to exculpatory and impeachment material within the
State’s possession. Brady v. Maryland, 373 U.S. 83, 87 (1963) (“We now hold that the
suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution.”). He also has a constitutional right to an in
camera hearing to determine whether information subject to State confidentiality law
contains any such exculpatory or impeachment material. Pennsylvania v. Ritchie, 480 U.S. 39
(1987).
15 Haling Vaughn to trial on these allegations while denying him access to any of the
related counseling information violates the aforementioned constitutional guarantees.
Vaughn has not even received the in camera review contemplated by Ritchie, or at least he
did not receive a ruling on whether there was any exculpatory or impeaching material
contained in the counseling records. The trial judge did note that there were “significant
pages” that would be of interest to the defense contained in the counseling records, and
placed them under seal for the record on appeal.
Note that there was no physical or medical evidence of any sex crime in this case. The
only direct evidence was the allegation of sexual contact by K.H., and that allegation only
came after a year’s worth of undying efforts from K.H.’s counselor. If what the counselor
finally procured from K.H. is the version of events that is to be believed, after K.H. had so
repeatedly denied those very same allegations, then the substance of the counselor’s actions
should have been part of the evidence presented to the jury. Without that, there is no fair
trial in a case like this one. Put simply, the State’s case against Vaughn has not withstood the
“crucible of meaningful adversarial testing.” Crane, supra. There is no valid state justification
for withholding this evidence from the defense in this case, and refusing to remedy this
violation invites the State to use private counseling as an inaccessible surrogate for a proper
law enforcement investigation.
For these reasons, Vaughn’s conviction cannot stand. Procedurally, because the trial
judge never ruled as to whether the records contained any exculpatory or impeaching
information, we should reverse and remand for further proceedings from that point in the
16 litigation. Surely Vaughn is at least entitled to the constitutional protection afforded to the
appellant in Ritchie.
III. Psychotherapist Privilege under Arkansas State Law
As a matter of state law, there are problems with the assertion and acknowledgement
of privilege over K.H.’s counseling records.
A. Attachment
First, there is at least a question of fact as to whether privilege attached to the
communications between K.H. and the counselor in the first place. Rule 503 of the Arkansas
Rules of Evidence, which details the physician-patient privilege and connected rules, states:
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
Ark. R. Evid. 503(b). The privilege may be claimed by the patient, his guardian or
conservator, or the personal representative of a deceased patient, and a patient has a privilege
to prevent any other person from disclosing confidential communications made for the
purpose of diagnosis or treatment of his mental or emotional condition. Ark. R. Evid. 503(c);
White v. State, 367 Ark. 595, 242 S.W.3d 240 (2006). However, Rule 503(b) does not grant
a privilege to “any information,” only “communications” between the patient and doctor,
and confidential ones at that. Id.
Rule 503 further provides in pertinent part:
17 (a)(4) A communication is “confidential” if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
Note that privilege is only available for confidential communications “made for the purpose
of diagnosis or treatment,” and communications are only confidential where they are “not
intended to be disclosed to third persons[.]”
Here, it challenges reason to simply accept that K.H.’s communications with the
counselor are privileged. In light of K.H.’s initial and continued denials of any wrongdoing
by Vaughn, there is a very real question as to whether K.H. was sent to counseling for
purposes of “diagnosis or treatment,” or whether she was sent there to be groomed into a
complaining witness. Further, one cannot say that the communications between K.H. and
Vaughn were confidential, as there is every indication that the communications were
intended to be disclosed to State investigators. K.H. interviewed with State investigators
about these very same allegations, then she was sent to counseling, and then eventually she
was sent back to State investigators after she “came clean” during counseling. These are
factual issues into which the defense, especially in a case like this one, must be able to inquire.
B. Waiver
To the extent the communications between K.H. and the counselor were privileged,
the privilege was waived by the time Vaughn was charged and brought to trial. Ark. R. Evid.
510 provides as follows:
18 A person upon whom these rules confer a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.
The supporting affidavit from Vaughn’s charging document makes it plain: the State
charged Vaughn after being presented with allegations by K.H. that were “recently disclosed
during her therapy session.” The information developed during the counseling sessions is
the same information the State used to charge Vaughn—certainly a “significant part of the
privileged matter.” Accordingly, any privilege over the evidence in question was waived, and
the circuit court’s withholding of the evidence on that basis was erroneous.
IV. Conclusion
For the reasons set forth above, we should reverse and remand for further
proceedings. In the meantime, perhaps the Supreme Court of the United States could
address what seems to be an increasingly prevalent situation: Where allegations against a
defendant were developed in a purportedly privileged setting, does the defendant (and the
jury) get to know how those allegations developed, or does the assertion of privilege defeat
the defendant’s right to support his defense?
I dissent.
ROBIN F. WYNNE, Justice, dissenting. Because I believe that a criminal defendant’s
constitutional right to present a complete defense must outweigh the psychotherapist-patient
privilege, I respectfully dissent. Of course, it is well settled that the government has the
obligation to turn over evidence in its possession that is both favorable to the accused and
19 material to guilt or punishment. Brady v. Maryland, 373 U.S. 83 (1963). In Pennsylvania v.
Ritchie, 480 U.S. 39 (1987), the plurality expressed no opinion on whether the result “would
have been different if the statute had protected the CYS files from disclosure to anyone,
including law-enforcement and judicial personnel.” Ritchie, 480 U.S. at 57, n.14. The result
should be the same. The privilege must yield to a criminal defendant’s constitutional rights.
I would reverse and remand for the circuit court to conduct an in camera review of the
counseling records.
Jeff Rosenzweig, for appellant.
Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Sr. Ass’t Att’y Gen., for appellee.