                 IN THE SUPREME COURT OF IOWA
                               No. 07–2109

                           Filed July 2, 2010


STATE OF IOWA,

      Appellant,

vs.

ROSS IAN CASHEN,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Marshall County,

William J. Pattinson, Judge.



      The State seeks further review of a court of appeals decision

allowing a defendant to gain access to a victim’s privileged mental health

records. DECISION OF COURT OF APPEALS VACATED; JUDGMENT

OF DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED WITH INSTRUCTIONS.



      Thomas J. Miller, Attorney General, Jean C. Pettinger and Mary

Tabor (until withdrawal), Assistant Attorneys General, Jennifer A. Miller,

County Attorney, and Suzanne M. Lampkin, Assistant County Attorney,

for appellant.
                                     2

      Jennifer L. Steffens of Steffens & Grife, P.C., Marshalltown, Kelly T.

Bennett, Newton, and Christopher A. Clausen of Boliver, Clausen &

Bidwell Law Firm, Marshalltown, for appellee.
                                           3
WIGGINS, Justice.
      In this appeal, we review a district court order and court of appeals

decision allowing a criminal defendant to gain access to a victim’s

privileged mental health records.          The district court and the court of

appeals allowed the defendant access without restriction. We now adopt

a protocol that balances a patient’s right to privacy in his or her mental

health records against a defendant’s right to present evidence to a jury

that might influence the jury’s determination of guilt. Accordingly, we

vacate the decision of the court of appeals, affirm in part and reverse in

part the judgment of the district court, and remand the case for further

proceedings consistent with this opinion.

      I. Background Facts and Proceedings.

      This case involves a domestic dispute between Ross Cashen and

Jane Doe. 1     As a result of the dispute, on April 18, 2007, the State

charged Cashen with the offenses of domestic abuse assault, third

offense, and willful injury, class “D” felonies.

      On July 3 Cashen filed a notice that he intended to rely on the

defense of self-defense. On July 25 Cashen asked the court to enter an

order authorizing him to hire an expert to review and aid in the

interpretation of Doe’s mental health records as well as to present expert

testimony to the jury regarding Doe’s credibility and propensity for

violence. The district court denied the motion, finding it was premature

because the court had not made a determination as to whether the

records would be admissible at trial.

      Cashen then proceeded to depose Doe.                 In her deposition, Doe

acknowledged she had been involved in past abusive relationships with

other men. She also testified she had been diagnosed with posttraumatic

      1We   have changed the name of the victim to protect her privacy.
                                      4

stress disorder, anxiety, depression, and had been in counseling and

therapy since she was fifteen years old. She indicated she had displayed

impulsive and reactive behavior in the past and became easily frustrated

when she was in her relationship with Cashen. Doe also said she was

taking a prescription antidepressant.     She said she was taking the

medication because she was nervous about the safety and welfare of her

boyfriend, who was serving in the armed services.       She also believed

Cashen was a very violent man, and she worried about retribution from

him.

       Cashen also employed a private investigator who acquired some of

Doe’s mental health records from a medical office and a hospital. After

the State learned Cashen had acquired these records, it filed a motion in

limine to exclude the records, as well as other matters, from trial. The

State also sought to preclude admission of Doe’s prior mental health

history revealed in her deposition.

       The district court denied the motion in limine. It found the mental

health history of Doe, specifically her propensities for violence and

explosive behavior, was relevant to Cashen’s defense of self-defense. It

also determined the records could be relevant to Doe’s credibility as a

witness to accurately observe and recall the events leading to the charges

and may be helpful to impeach her at trial. The court continued the trial

to allow Cashen the opportunity to secure an expert to review the records

and testify, if necessary, on the issues of Doe’s propensity for violence

and her credibility.

       On November 29 Cashen filed two separate motions, the first to

reconvene Doe’s deposition and the second to obtain Doe’s mental health

records.   On December 11 the court ordered Doe to execute a patient

waiver form in favor of Cashen’s counsel and, upon receipt of the
                                      5

records, permit Cashen’s counsel to reconvene the deposition of Doe to

explore those areas connected to the records.

      The State responded by filing an application for discretionary

review. We granted the application and transferred the case to the court

of appeals.   The only issue argued on appeal was whether the district

court erred in allowing the disclosure of Doe’s mental health records.

      The court of appeals affirmed the district court’s order in part and

reversed in part. It found Cashen had demonstrated a compelling need

for the mental health records and affirmed the decision of the district

court ordering disclosure of the records and admission of expert

testimony on the issues of Doe’s propensity for violence and her

credibility. It additionally found the district court had no authority to

order the State to secure and produce the patient waiver of a witness,

but failed to further address the procedure for the production of the

records. We granted further review.

      II. Standard of Review.

      Ordinarily, we review discovery orders for an abuse of discretion.

State v. Schuler, 774 N.W.2d 294, 297 (Iowa 2009).        However, to the

extent the issues in this case involve constitutional claims, our review is

de novo. State v. Reyes, 744 N.W.2d 95, 99 (Iowa 2008). Because the

issues in this case rest on constitutional claims involving Cashen’s due

process right to present a defense, our review is de novo.               See

Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S. Ct. 989, 1001, 94

L. Ed. 2d 40, 57 (1987) (holding a due process analysis applies in

determining whether to disclose a child protective service agency’s

privileged records for purposes of a defendant presenting a defense).
                                     6

      III. Analysis.

      A. The State’s Claims. In State v. Heemstra, 721 N.W.2d 549,

563 (Iowa 2006), we allowed a defendant to obtain the medical records of

a homicide victim to assist the defendant in presenting his defense.

There, the defendant was facing a first-degree murder charge that carried

a sentence of life in prison without the possibility of parole. Heemstra,

721 N.W.2d at 551, 563. In this appeal, the State argues this case is

distinguishable from our decision in Heemstra because it “does not

present any ‘unique facts’ warranting abrogation of the psychotherapist

privilege and intrusion into the victim’s mental health records.” The only

real difference between this case and Heemstra is the severity of the

penalty.   If convicted, Cashen can be deprived of his liberty and

potentially sentenced to ten years in prison. See Iowa Code § 902.9(5)

(2005) (stating a defendant’s conviction for a class “D” felony subjects the

defendant to possible confinement for no more than five years).

Regardless of the charge or the penalty, all defendants have a right to a

fair trial. See generally Gentile v. State Bar of Nev., 501 U.S. 1030, 1075,

111 S. Ct. 2720, 2745, 115 L. Ed. 2d 888, 923 (1991) (Rehnquist, C.J.,

dissenting in part) (“Few, if any, interests under the Constitution are

more fundamental than the right to a fair trial.”).     Thus, there is no

reason to apply the law regarding the disclosure of privileged records

differently based on the severity of a defendant’s sentence.

      The State’s fallback position is that if the records are made

available to the defendant’s attorney, the records should only be

disclosed on a limited basis. We agree that if privileged records are to be

made available in a criminal proceeding, a certain protocol must be

followed to balance the patient’s right to privacy with the defendant’s

right to present evidence to a jury that might influence the jury’s
                                      7

determination of guilt. Today, we set forth the proper protocol to be used

by a court to determine when and how a defendant’s attorney can gain

access to a victim’s privileged mental health records.

      B. Prior Case Law. We have previously applied a balancing test

to determine if a party to a proceeding is entitled to review the

confidential medical records of a nonparty.      Chidester v. Needles, 353

N.W.2d 849, 853 (Iowa 1984). The first decision to adopt and apply this

test was Chidester. Id. In Chidester, the county attorney sought thirteen

patients’ medical records in connection with his investigation into

Medicaid fraud. Id. at 851. The first issue we considered was the nature

of the patients’ right in keeping the records private. Id. at 851–53. We

rejected the patients’ claim that Iowa Code section 622.10, the statutory

physician-patient privilege, protected the records from the county

attorney’s subpoena because section 622.10 only protects the giving of

testimony.    Id. at 852–53.        Instead, we determined the patients’

constitutional right to privacy protected the patients’ interests in

avoiding disclosure of personal matters and maintaining independence

when making certain kinds of important decisions. Id. at 853.

      Although we recognized the patients had a constitutional right to

privacy in their medical records, we acknowledged this privilege was not

absolute, but qualified.     Id.   Thus, we adopted a balancing test and

stated, “The privacy interest must always be weighed against such public

interests as the societal need for information, and a compelling need for

information may override the privacy interest.”       Id.   In weighing the

interests, we said, “[S]ociety has a strong interest in allowing official

investigators of criminal activity broad authority to conduct thorough

investigations.”   Id.   We also declared, “[T]he privacy interest must be

balanced against society’s interest in securing information vital to the fair
                                     8

and effective administration of criminal justice.”   Id. (emphasis added).

We then concluded the patients’ privacy interest in their records yielded

to “the State’s interest in well-founded criminal charges and the fair

administration of criminal justice” and allowed the county attorney to

subpoena the records. Id. at 854.

       The next case to discuss the balancing test was McMaster v. Iowa

Board of Psychology Examiners, 509 N.W.2d 754, 759 (Iowa 1993).

There, the board of psychology examiners subpoenaed a patient’s records

from a psychologist who was not under investigation.       McMaster, 509

N.W.2d at 755. The patient filed a petition to quash the subpoena. Id. at

756.   In concluding the patient’s constitutional privacy interest in her

records is not absolute, we applied the balancing test. Id. at 759.

       In applying the balancing test, we found the board’s public interest

was its statutory duty to police mental health professionals. Id. After

recognizing this public interest, we adopted a protocol for determining

whether a patient’s privacy interest in his or her mental health records

must yield to a competing interest of the State.      Id. at 759–60.   The

protocol first required the party seeking access to the records must

“make a minimal showing that the complaint reasonably justifies the

issuance of a subpoena in furtherance of the investigation.” Id. at 759.

Second, the party seeking access to the records must show the records

are necessary as evidence in the disciplinary proceedings.       Id.   This

requirement can be satisfied by an in camera review of the records by the

district court. Id. Third, the party seeking access to the records must

notify the patient and request a waiver from the patient prior to issuing

the subpoena.     Id. at 760.   Fourth, the party seeking access to the

records should establish the existence of adequate safeguards to avoid

unauthorized disclosure. Id. Last, the patient’s privacy interest in the
                                        9

records will yield to a competing interest of the State only if there is an

articulated public policy, recognized public interest, or an express

statutory mandate “ ‘militating toward access.’ ”           Id. (quoting United

States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980)).

      Our most recent case to apply the balancing test was Heemstra. In

Heemstra, we allowed “limited disclosure” of the victim’s medical records

based on the unique facts presented in the case. Heemstra, 721 N.W.2d

at 563. We held “the records [should] be made available to defense and

prosecution counsel . . . under a protective order prohibiting any further

dissemination without court order.” Id.

      C. Third Party’s Right to Privacy in her Mental Health

Records. We recognize a patient’s right to privacy in his or her mental

health records because

      “[p]sychotherapy probes the core of the patient’s personality.
      The patient’s most intimate thoughts and emotions are
      exposed during the course of the treatment. The psychiatric
      patient confides [in his therapist] more utterly than anyone
      else in the world. . . . [H]e lays bare his entire self, his
      dreams, his fantasies, his sin, and his shame. The patient’s
      innermost thoughts may be so frightening, embarrassing,
      shameful or morbid that the patient in therapy will struggle
      to remain sick, rather than to reveal those thoughts even to
      himself. The possibility that the psychotherapist could be
      compelled to reveal those communications to anyone . . . can
      deter persons from seeking needed treatment and destroy
      treatment in progress.”

McMaster, 509 N.W.2d at 758 (quoting Haw. Psychiatric Soc’y v. Ariyoshi,

481   F.   Supp.   1028,   1038   (D.       Haw.   1979)   (citations   omitted)).

Accordingly, these reasons are important in our application of the

balancing test.

      D. Public Interest in Allowing the Defendant to Obtain the

Records.    Excluding evidence from a criminal trial for some purpose

other than enhancing the truth-seeking process of the proceeding
                                    10

increases the danger of convicting an innocent person. Under the United

States Constitution, a criminal defendant has a due process right to

present evidence to a jury that might influence the jury’s determination

of guilt. Ritchie, 480 U.S. at 56, 107 S. Ct. at 1000–01, 94 L. Ed. 2d at

56–57. The Supreme Court has also said that “disclosure, rather than

suppression, of relevant materials ordinarily promotes the proper

administration of criminal justice.”     Dennis v. United States, 384 U.S.

855, 870, 86 S. Ct. 1840, 1849, 16 L. Ed. 2d 973, 984 (1966). Thus, a

defendant’s right to produce evidence that is relevant to his or her

innocence is an important public interest that we must consider in

applying the balancing test.

      E. The Proper Protocol for Requesting the Privileged Mental

Health Records of a Victim. The purpose of providing a defendant with

the privileged records of a victim is to lessen the chance of wrongfully

convicting an innocent person. Society shares this interest. In fact, the

Federal and Iowa Constitutions include numerous safeguards to prevent

the wrongful conviction of the innocent. See, e.g., U.S. Const. amend. VI

(guaranteeing an accused the right to a speedy and public trial by an

impartial jury, to be informed of the accusations against him or her, to

confront witnesses, to have compulsory process, and to have the

assistance of counsel in a criminal prosecution); Iowa Const. art. I, § 10

(same).   On the other hand, the interest in preventing wrongful

convictions does not justify giving defendants access to all of a victim’s

privileged records from the time of birth.

      We continue to adhere to a balancing test, and now take the

opportunity to articulate a standard that judges can consistently apply to

identify those circumstances when the defendant’s right to a fair trial

outweighs the victim’s right to privacy. This standard allows a defendant
                                      11

to obtain the records necessary to put forth evidence tending to show the

defendant’s innocence, but does not permit the defendant to go on a

fishing expedition into a victim’s privileged records.       Because of the

importance of the public interest in not convicting an innocent person of

a crime, any standard should resolve doubts in favor of disclosure.

        In McMaster, we developed a protocol that balanced the interest of

the State against the privacy interest of the patient when an agency

sought to obtain the patient’s privileged mental health records.

McMaster, 509 N.W.2d at 759–60. Today, we formulate a similar protocol

when a criminal defendant, who is represented by counsel, requests the

privileged mental health records of a victim. 2      The protocol we adopt

today strikes the proper balance between a victim’s right to privacy in his

or her mental health records and a defendant’s right to produce evidence

that is relevant to his or her innocence.

        First, we want to emphasize that a defendant is not entitled to

engage in a fishing expedition when seeking a victim’s mental health

records. Before a subpoena may issue for a victim’s privileged records,

the defendant must make a showing to the court that the defendant has

a reasonable basis to believe the records are likely to contain exculpatory
evidence tending to create a reasonable doubt as to the defendant’s guilt.

Ritchie, 480 U.S. at 58 n.15, 107 S. Ct. at 1002 n.15, 94 L. Ed. 2d at 58

n.15.    In doing so, the defendant need not show the records actually

contain information for establishing the unreliability of a charge or

witness.    Commonwealth v. Bishop, 617 N.E.2d 990, 996–97 (Mass.

1993), abrogated by Commonwealth v. Dwyer, 859 N.E.2d 400, 414, 417–

19 (Mass. 2006). A defendant need only advance some good faith factual


       2We express no opinion as to the applicability of this protocol when the

defendant is self-represented.
                                    12

basis indicating how the records are relevant to the defendant’s

innocence. Id. Thus, to begin this process, a defendant’s counsel must

file a motion with the court demonstrating a good faith factual basis that

the records sought contain evidence relevant to the defendant’s

innocence.     The motion shall be marked confidential, filed under seal,

and set forth specific facts establishing a reasonable probability the

records sought contain exculpatory evidence tending to create a

reasonable doubt as to the defendant’s guilt.       The motion shall also

request the court issue a subpoena requiring the custodian of the

records to produce the records sought by the defendant. Defendants or

their attorneys shall not subpoena a victim’s privileged records without a

court order.

      Second, the county attorney shall notify the victim that the

defendant has made a request for the victim’s privileged records. After

conferring with the victim, the county attorney shall provide the court

with an affidavit signed by the victim stating the victim either consents to

or opposes the disclosure of the records. If the victim consents to the

disclosure, the court shall issue a subpoena for the records to be

produced under seal to the court. If the victim opposes the disclosure,

the court shall hold a hearing to determine if a reasonable probability

exists that the records contain exculpatory evidence tending to create a

reasonable doubt as to the defendant’s guilt. If the court determines a

reasonable probability exists that the records contain such evidence, the

court shall issue a subpoena for the records to be produced under seal to

the court.

      Before issuing the subpoena, the court shall enter a protective

order containing stringent nondisclosure provisions.        The protective

order shall prohibit any attorney, county attorney, or third party who is
                                          13

allowed to inspect or review the records under this protocol from copying,

disclosing, or disseminating the information contained in the records to

any person, including the defendant, unless otherwise authorized by this

protocol or the court. In addition, the Health Insurance Portability and

Accountability Act of 1996 (HIPAA) requires the Secretary of the

Department of Health and Human Services to issue regulations to insure

the privacy of health care records. 42 U.S.C. § 1320d-2(d)(2) (2003). To

comply with the privacy and security rules enacted by the Secretary, the

protective order shall also contain provisions: (1) prohibiting the parties

from using or disclosing the records or the information contained in the

records for any purpose other than the criminal proceeding for which the

records were sought, and (2) requiring an attorney, county attorney, or

third party who is allowed to inspect or review the records under this

protocol to destroy the records (including all copies made) at the end of

the proceeding. 45 C.F.R. § 164.512(e)(1)(ii)(B), .512(e)(1)(v) (2010). The

subpoena shall contain language stating that prior to the court issuing

the subpoena, the court has entered a protective order complying with

the requirements of HIPAA’s privacy and security rules. A copy of the

protective    order    shall    be   served    with   the   subpoena.   Id.

§ 164.512(e)(1)(ii)(B), .512(e)(1)(iv).

       Third, if the records are produced, the attorney for the defendant

who obtained the subpoena shall have the right to inspect the records at

the courthouse.       An in camera review of the records by the court is

insufficient. Only the attorneys representing the parties know what they

are looking for in the records. The court cannot foresee what may or may

not be important to the defendant. Heemstra, 721 N.W.2d at 563; see

also Dwyer, 859 N.E.2d at 418 (“Despite their best intentions and

dedication, trial judges examining records before a trial lack complete
                                     14

information about the facts of a case or a defense . . . and are all too

often unable to recognize the significance, or insignificance, of a

particular document to a defense.”).

      Fourth, after the attorney for the defendant has identified the

records he or she believes contain exculpatory evidence, the attorney

shall notify the county attorney and the court of the specific records the

defendant desires and ask that the matter be set for hearing. Prior to the

hearing, the county attorney may review the designated records at the

courthouse.   If the county attorney reviews the records, he or she is

subject to the protective order entered by the court.

      Fifth, the court shall hold a hearing to determine if the designated

records contain exculpatory evidence. The court shall close the hearing

to the public to protect the victim’s privacy. The court shall give notice of

the hearing to the defendant’s attorney and the county attorney. If the

court determines the designated records contain such evidence, the court

shall provide a copy of any such records to the defendant’s attorney and

the county attorney. Before providing these records to counsel, the court

shall order that all non-exculpatory matters in the records provided be

redacted prior to the records being removed from the courthouse.          In

order to protect the privacy rights of the victim, these records will

continue to be subject to the protective order entered by the court.

Before either attorney can disclose the records to a third party, including

potential expert witnesses, the attorney must obtain an order from the

court allowing such disclosure and requiring the person to whom the

records are disclosed to be bound to the same nondisclosure provisions

imposed on the attorneys. A copy of the protective order shall be given to

the third party when the party receives copies of the records.
                                    15

      The protocol we have outlined for discovery purposes does not

necessarily mean the victim’s mental health records are admissible at

trial. Whether the records meet the requirements for admission under

our rules of evidence is a separate determination that the court will make

at trial or in ruling on a motion in limine. If the court ultimately decides

the records are admissible, the court shall consider alternatives to the

introduction of the records as proffered. These alternatives may include

stipulations by the parties or the introduction of redacted portions of the

records.

      All records produced under seal to the court pursuant to a

subpoena shall be preserved for appeal purposes. After completion of the

appeal, all persons who have copies of the records shall destroy their

copies and certify to the court that the records in their possession have

been destroyed.
      In formulating this protocol, we have considered whether a
defendant should be required to make a showing that the information
sought in the records could not be obtained from another source, such
as the victim’s testimony, before the defendant is allowed to seek
production of the victim’s mental health records.       We reject such a
requirement because we do not believe a patient’s rendition of his or her
medical condition and treatment is necessarily reliable.      For example,
without examining Doe’s records, Cashen cannot be sure the information
provided in Doe’s deposition testimony accurately reflects her true
mental health condition.    Sometimes individuals are less than candid
concerning their condition when talking to others. In other instances,
individuals may not fully understand their condition, notwithstanding
their health care providers’ efforts to explain it to them. Finally, such
records often contain information not given to a patient or information
                                    16

forgotten by a patient. The only way to assure that Cashen has adequate
and accurate information to defend properly against the criminal charges
is to give him access to those portions of Doe’s records that are relevant
to Cashen’s innocence.      By using the protocol outlined above, the
invasion of Doe’s right to privacy in her mental health records is
minimized.
      F. Application of the Protocol. In her deposition, Doe admitted
punching the defendant. On two prior instances, she has been charged
with domestic abuse against her ex-husband.        She admits to having
posttraumatic stress disorder for which she has sought counseling. She
also admitted to being frustrated easily and having difficulty controlling
impulsive behavior. Based on this testimony, the district court found the
mental health history of Doe, relating to her propensities for violence and
explosive behavior, was relevant to Cashen’s defense of self-defense and
to Doe’s credibility as a witness. This evidence is exculpatory because it
tends to create a reasonable doubt as to Cashen’s guilt.
      We agree with the district court that Doe’s deposition testimony
satisfies Cashen’s requirement to establish a reasonable probability
exists that the records contain exculpatory evidence.      On remand, the
court shall issue a subpoena for the records to be produced under seal to
the court. Thereafter, the court and the parties shall comply with the
remaining requirements of the protocol.
      IV. Disposition.
      We affirm the district court decision to the extent it allowed
Cashen’s attorney to inspect the mental health records of Doe.         We
reverse that part of the decision requiring Doe to execute a patient’s
waiver in favor of Cashen’s attorney. Therefore, we vacate the decision of
the court of appeals and remand the case to the district court to follow
                                   17

the protocol contained in this opinion pertaining to the disclosure of a
victim’s privileged records.
      DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF
DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED WITH INSTRUCTIONS.
      All justices concur except Cady, J., who dissents.
                                       18
                                               #95/07–2109, State v. Cashen
CADY, Justice (dissenting).

         I respectfully dissent.   The majority announces and professes to

apply a balancing test to reach its conclusion that Doe must turn over

her confidential counseling records for examination by Cashen and his

attorney (and others) under a protocol directed by the trial court.           In

truth,    the   majority   has     abandoned   the   balancing    test   without

acknowledgement.        In its place, the majority has substituted a policy

judgment that all defendants in a criminal case are entitled to view

confidential medical and counseling records of a victim to an alleged

crime when the defendant asserts a legal claim or issue that makes the

contents of the confidential records relevant to the claim or issue in the

case.      The balancing test is unceremoniously abandoned because

confidential records must now be disclosed once relevance is shown

regardless of any particular surrounding circumstances of the case that

may reveal a diminished need for the particular records by the defendant

and regardless of a heightened need to protect the confidentiality of the

records. The majority adopts one of the weakest tests known to the law

in an area of the law that deals with the clash of two of the most

compelling and venerable interests known to the law.             This is a step

backwards. It gives the defendant more power than necessary to protect

the right to a fair trial, while presenting a serious risk of a different form

of abuse for victims of domestic violence.           This new test may also

ultimately cause victims to decline to report domestic abuse in order to

protect themselves from being required to disclose very personal and

private information to the alleged abusers and other parties to the

prosecution.
                                          19

       One fundamental interest at stake in this case involves a belief of

most Iowans that information communicated by a patient to a doctor or

counselor will be confidential. For over 150 years, Iowa has recognized

that confidential communications between a physician and a patient

constitute privileged information.             See Iowa Code § 622.10 (2007)

(establishing current privilege of confidentiality between physician and

patient); 7 Laurie Kratky Dorè, Iowa Practice Series: Evidence § 5.504:2,

at 365 & n.2 (2009) (tracing the root of the physician-patient privilege

statute to the 1851 Iowa Code) [hereinafter Dorè]. Although this privilege

did not exist at common law, it has been a cornerstone of the

professional ethics of physicians for over a century. 3 See 1 Kenneth S.

Broun et al., McCormick on Evidence § 98, at 446–47 (6th ed. 2006)

[hereinafter McCormick]. The privilege surfaced in Iowa as an enactment

by our legislature in 1851, shortly after we became a state. Iowa Code

§ 2393 (1851).        Today, the venerable statutory privilege not only

precludes physicians from disclosing through testimony any confidential

communication by a patient, but also prohibits the disclosure of medical

records containing confidential communications. State v. Heemstra, 721

N.W.2d 549, 560 (Iowa 2006).               The rationale for a law protecting

       3The   American Medical Association (AMA) was the first national professional
medical organization in the world. American Medical Association, History of AMA
Ethics, http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-
medical-ethics/history-ama-ethics.shtml (last visited June 22, 2010).        The AMA
promulgated the first code of ethics for physicians in 1847. Id. The current version of
the ethical code still remains the authority governing physicians’ conduct. Id. In its
first version of the code, the AMA declared that the “obligation of secrecy” should be
observed by all physicians. See American Medical Association, Code of Medical Ethics of
the American Medical Association ch. 1, art. I § 2, at 93 (1847), available at
http://www.ama-assn.org/ama/upload/mm/369/1847code.pdf.               The AMA also
pointed out in this early ethics code, “[t]he force and necessity of this obligation [of
confidentiality to patients] are indeed so great, that professional men have, under
certain circumstances, been protected in their observance of secrecy, by courts of
justice.” Id. Over 160 years later, this ethical rule of confidentiality still governs
practicing physicians.
                                     20

information acquired by a physician from disclosure is to promote

complete and open communication by a patient to enable the physician

to make a proper diagnosis and render appropriate treatment. State v.

Deases, 518 N.W.2d 784, 787 (Iowa 1994). If patients know or fear the

information they tell their doctor may be disclosed in the future, they

may be reluctant to disclose information embarrassing to them but

needed by the doctor to render proper care.

       While our rules and cases applying Iowa Code section 622.10

generally reflect “great solicitude for the physician-patient privilege,” the

privilege is deemed to be even more important in the treatment of mental

health. Heemstra, 721 N.W.2d at 560–61. The greater protections in the

area of mental health treatment are justified primarily because of the

enhanced need for a strong relationship of trust and confidence between

the patient and provider and the extremely personal and sensitive

information frequently disclosed in the course of mental health

counseling. See id. at 561. Any threat of disclosure of such information

would obstruct, if not bar, successful treatment. See McCormick § 98, at

447.   Moreover, unwanted disclosure of highly personal information

separately implicates one of the most fundamental tenets of all law—the

right to privacy. Heemstra, 721 N.W.2d at 561. Thus, we are not just

dealing with a strong belief recognized by statute, but a right with roots

found in our constitution. The privilege necessarily recognizes a right to

protect the privacy interests of the individual to keep private information

from public disclosure, independent from the need for optimum medical

treatment recognized by statute.      See McMaster v. Bd. of Psychology

Exam’rs,   509   N.W.2d    754,   758–59    (Iowa   1993)    (recognizing   a

constitutional right of privacy in mental health records). Nevertheless,

all fifty states and the District of Columbia have statutes that protect the
                                       21

communication between patients and their therapists.                    Jaffee v.

Redmond, 518 U.S. 1, 12, 116 S. Ct. 1923, 1929, 135 L. Ed. 2d 337, 346

(1996).    Our legislature has separately considered the special interest

involved in mental health and psychological information and has

provided comprehensive rules prohibiting disclosure except under very

limited circumstances. 4 See generally Iowa Code ch. 228 (providing rules

of limited disclosure for a patient’s mental health records). These rules,

however, do not specifically address the disclosure of mental health

information in a criminal proceeding, but the right to privacy derived

from our constitution remains a forceful protection against disclosure.

        I recognize the privilege expressed in section 622.10 does not

expressly apply to discovery disputes. Yet, the purpose and rationale of

the statute unmistakably applies to pretrial discovery in a criminal case

with the same vigor and importance as to the testimonial stage of trial.

See Newman v. Blom, 249 Iowa 836, 844, 89 N.W.2d 349, 354–55 (1958)

(recognizing medical records contain the same protected confidential

information     as    a    physician’s      direct     testimony      about   the

communications).      Discovery of witness records is a predicate step to

trial   testimony    and   is   guarded     by   the   same   basic    underlying

considerations. Moreover, it is important to discuss the privilege in the

context of the statute because the statute has been the forum largely

responsible for the development of the law, even though the privilege also

has its roots in the broad constitutional right to privacy. See McMaster,

509 N.W.2d at 758 (recognizing the roots of the right to privacy in mental

        4Forexample, Cashen’s access to the records obtained in this case would
presumably violate Iowa Code section 228.2, as the disclosure of the records to
Cashen’s private detective does not appear to qualify under any of the five listed
exceptions stated in section 228.2(1). Furthermore, under this record, there is no
evidence that the custodians of Doe’s medical records complied with the mandatory
procedures associated with disclosure. See Iowa Code § 228.2(2).
                                      22

health records). Nevertheless, our legislature has left discovery disputes

over confidential records for the courts to resolve, and it is incumbent on

courts to develop a workable standard and resolve each dispute.           The

statutory privilege is not a legal defense to a discovery dispute, but the

rationale of the privilege provides an important perspective in gaining a

full understanding of the privacy interest at stake.

      The competing fundamental interest at stake in this case is derived

from constitutional protections provided to an accused to confront

witnesses in a criminal trial and to be given a fair trial. A defendant in a

criminal case not only has a right to confront witnesses with effective

cross-examination, but due process and the right to a fair trial also

demand an accused be given a full and fair opportunity to present a

claim of self-defense. See Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct.

1105, 1110, 39 L. Ed. 2d 347, 353 (1974) (recognizing defendant’s right

to confront witnesses with adequate cross-examination); see also

Chambers v. Mississippi, 410 U.S. 284, 297–98, 93 S. Ct. 1038, 1047, 35

L. Ed. 2d 297, 310 (1973) (recognizing defendant’s right to due process

includes the right to present a defense by cross-examining witnesses).

Although a defendant’s constitutional right of confrontation is not

limitless, a decision denying a defendant access to “ ‘a certain class of

evidence, even for the purpose of preventing a witness from suffering

embarrassment on the stand, should not limit the Sixth Amendment

right of a defendant to confront the witness against him.’ ” State v.

Howard,    426   A.2d    457,   460    (N.H.   1981)   (quoting   State    of

New Hampshire’s appellate brief); see also Chambers, 410 U.S. at 295,

93 S. Ct. at 1046, 35 L. Ed. 2d at 309 (“Of course, the right to confront

and to cross-examine is not absolute and may, in appropriate cases, bow

to accommodate other legitimate interests in the criminal trial process.”).
                                    23

Moreover, despite the power vested in state legislatures to protect the

privacy rights of victims, “[c]riminal defendants have been guaranteed

numerous rights by the fourth, fifth, and sixth amendments, and states

may not infringe upon them regardless of general legislative power.”

J. Alexander Tanford & Anthony J. Bocchino, Rape Victim Shield Laws

and the Sixth Amendment, 128 U. Pa. L. Rev. 544, 554–55 (1980).

      The clash between the two fundamental constitutional interests

occurs in this case largely due to the presence of the self-defense claim.

Normally, mental health information of a victim is not admissible as

character evidence in a criminal proceeding.       See generally State v.

Jacoby, 260    N.W.2d 828, 837 (Iowa 1977) (noting             the general

inadmissibility of evidence relating to homicide victim’s character). When

the defense of self-defense is raised, however, evidence of a victim’s

quarrelsome or violent disposition may become relevant to help establish

the victim as the initial aggressor or the state of mind of the defendant.

Dorè § 5.404:3, at 206–08. Such evidence of the victim’s character may

be introduced through testimony concerning the victim’s reputation or by

opinion testimony of a witness familiar with the victim. Iowa R. Evid.

5.405(a).   It may also be shown by specific conduct.        Iowa R. Evid.

5.405(b). In this case, Cashen asserts the mental health records of Doe

are relevant to help formulate his self-defense claim through an expert

witness and to impeach Doe on cross-examination in the event she is

inconsistent or untruthful in her testimony on direct examination. There

is also a suggestion that the records may help determine if Doe’s ability

to accurately recall the incident is impaired. Cashen asserts his right to

a fair trial demands discovery of the records.

      In Heemstra, we developed a compelling-need test to resolve the

clash between the competing interests of confidentiality and a fair trial in
                                          24

the context of a criminal prosecution. 5 721 N.W.2d at 563. The test is

based on the premise that a point exists when even the strong interest of

confidentiality of mental health information must give way to a

defendant’s right to confront witnesses and the right to present a defense

in a criminal case. Id. at 562–63. In other words, this case involves a

clash of two constitutional rights, and each case must be carefully

examined to determine the point where one right must give way to the

other. See Chidester v. Needles, 353 N.W.2d 849, 853 (Iowa 1984).

       We relied on four factors in Heemstra in balancing the interests at

stake to conclude limited disclosure of confidential mental health records

was required in that case. First, disclosure was not only sought in the

course of a criminal case, but the defendant faced the most severe

penalty possible under the law.           Heemstra, 721 N.W.2d at 563.             This

factor indicated the weight of the consequential harm of nondisclosure to

the accused.      Second, the person who was the subject of the medical

records was deceased.          Id.    Although the physician-patient privilege

continues after death, this factor tended to diminish the importance of

protecting the records from disclosure because the fear of disclosure for a

patient after death is not as compelling for the patient as the fear of


       5The  seeds of this test were planted in Chidester v. Needles, 353 N.W.2d 849
(Iowa 1984), a contempt proceeding involving the issuance of a county attorney
subpoena seeking medical records in the course of an investigation into suspected
criminal activity. We recognized the issue involved a clash between the privacy
interests of patients and the public interests in the fair administration of justice, and
indicated the issue was resolved by balancing the two competing interests. Chidester,
353 N.W.2d at 853. We subsequently amplified this test in McMaster, where we
imposed the burden on the entity seeking the confidential records to show the interests
in disclosure were greater than the interests of confidentiality. 509 N.W.2d at 759. We
also developed a five-factor test for an administrative agency to follow in attempting to
satisfy the burden to obtain confidential records to investigate a complaint made to the
agency. Id. at 759–60. Thus, the balancing test took root in the context of investigative
proceedings and was adopted in Heemstra as the test in the context of criminal
proceedings.
                                     25

disclosure before death.      See McCormick § 102, at 462 (recognizing

privilege continues after the patient’s death); see also United States v.

Hansen, 955 F. Supp. 1225, 1226 (D. Mont. 1997) (“The holder of the

privilege has little private interest in preventing disclosure, because he is

dead.”). Third, some of the information subject to disclosure in the case

had been voluntarily placed in the public domain during the pendency of

the case by virtue of a civil lawsuit filed by the executor of the victim’s

estate. Heemstra, 721 N.W.2d at 563. This factor tended to diminish the

need to protect the confidential interests of the particular patient.

Finally, the nature of the confidential information was such that it could

reasonably be viewed as an aid to the defendant in his self-defense claim.

Id. This factor was considered to be the most important criteria in the

case because it not only placed the constitutional right to a fair trial into

play, but it identified the specific need for the information and the

particular prejudice that would be suffered by the accused without the

information. See United States v. Alperin, 128 F. Supp. 2d 1251, 1255

(N.D. Cal. 2001) (recognizing records material to self-defense claim

outweigh victim’s interest in confidentiality).

      The factors we identified in Heemstra were not exhaustive, but

instructive of the general approach courts should take in applying a

balancing test in criminal cases. This test focuses on all the facts and

circumstances of each case to fully assess a compelling need for the

information. The burden to establish a need for the victim’s records is on

the defendant. See McMaster, 509 N.W.2d at 759 (imposing burden on

entity seeking the records).    The relevant factors essentially allow the

strength of the competing interests to be compared within the context of

each individual case. This is the best method to achieve a just result.
                                    26

      The problem with the decision of the majority is the important

case-specific balancing of the competing interests is discarded.      As a

clash between constitutional rights, this approach seems inconceivable.

The majority claims to adhere to the balancing process through the use

of protocol, but the protocol requires the disclosure of the confidential

records based merely on a showing of relevancy. This new test does not

consider any particular need for the victim to maintain privacy, nor does

the test allow any particular circumstances of the defendant to be

identified that may militate against full disclosure. More importantly, it

fails to balance the competing interests by flushing out a compelling

need for the confidential records. Instead, the new test presumes mere

relevancy satisfies the compelling need and uses the protocol to realign

the interests of the victim from preventing disclosure to minimizing

disclosure. The right of the victim to keep records private from the court,

defendant, attorneys, and various court and attorney employees is

completely ignored.

      In this case, the majority orders Doe to turn over all her medical

and counseling records from the time she was a young teenager because

Cashen has asserted a claim of self-defense and Doe has admitted she

has a history of counseling that includes impulsive behavior and that she

becomes frustrated easily due to posttraumatic stress disorder. Absent

from the analysis is any consideration that could diminish Cashen’s need

for the confidential reports.

      First, Doe is available to testify at trial, and she has already

provided Cashen with an abundance of testimony under oath relevant to

the claim of self-defense. Second, Cashen was married to Doe and likely

possesses personal knowledge of the propensity and character of Doe to

assist him in his claim of self-defense, including any propensity for
                                          27

aggression or violence, based on his past relationship with her. Third,

there was no proof by Cashen that relevant evidence of Doe’s character

could    not   be   obtained     from    other   witnesses     familiar    with    her

background, disposition, and general reputation.                 Finally, although

Cashen may utilize an expert witness to assist him to present his claim

of self-defense, there was no proof that such assistance would not be

available without additional medical records. Cashen has not argued, let

alone established, his expert could not effectively present the desired

opinion testimony about Doe’s character and propensities derived from

her various medical diagnoses without first reviewing the medical records

he seeks. Importantly, Cashen has failed to articulate specific grounds

to explain how the records would aid in his self-defense claim in light of

the evidence he possesses and the evidence available to him without the

records.

        Conversely, the public policy embedded in the battle against

domestic abuse should heighten the need to protect the confidentiality of

medical and counseling records of victims in domestic-abuse cases.

While domestic abuse was rarely prosecuted as a crime in the not-too-

distant past, it is now a common subject of civil and criminal

enforcement in this state and nationwide. 6                  Moreover, it is not

uncommon for victims of domestic abuse to suffer from anxiety,

depression, and posttraumatic stress disorder.                   Evan Stark, Re-


        6Domestic  violence is recognized almost universally as “an ever-widening
epidemic” for which the legal system has continued to work towards a cure. See Betsy
Tsai, Note, The Trend Towards Specialized Domestic Violence Courts: Improvements on
an Effective Innovation, 68 Fordham L. Rev. 1285, 1287 (2000). While domestic abuse
was generally socially and legally acceptable for centuries, the trend to end such
violence has progressed substantially. In Iowa, statistics show that from 1990 to 1993,
domestic abuse civil filings rose from 188 to 2677. Supreme Court Task Force on
Courts’ and Communities’ Response to Domestic Abuse, Final Report 6 (1994), available
at http://www.iowacourts.gov/wfdata/frame9830-1152/File9.pdf.
                                     28

Presenting Woman Battering: From Battered Women Syndrome to Coercive

Control, 58 Albany L. Rev. 973, 997 (1995).          Consequently, as the

number of domestic-abuse prosecutions increases, so does the threat of

disclosure of confidential records of prosecuting witnesses. Likewise, as

the threat of disclosure of confidential records of victims increases, the

public policy responsible for the greater reporting and prosecution of

domestic abuse that is part of the overall effort to address domestic

violence is likely to suffer. If victims of domestic violence must suffer the

embarrassing and debilitating loss of their physician-patient privilege

once they become a witness in a criminal domestic-abuse prosecution, a

chilling effect will be cast over the reporting of domestic abuse, the

disclosure of information to treatment providers by victims, the ability of

physicians and psychotherapists to treat psychological disorders arising

from domestic abuse, and the willingness of victims to testify against

their abusers.   The relevancy test of the majority fails to consider the

impact of simple relevancy-based disclosure on society in general.

      Finally, the holding of the majority deprives victims of domestic

abuse crimes, and perhaps other victims of crimes, of a constitutional

right of privacy without an opportunity to show how the deprivation of

the right will impact their privacy interest. The victim is treated as if the

right to privacy does not apply to judges, court staff, attorneys,

defendants, and other people connected to the court system.

      The majority has, without explanation, decided to paint with broad

brushstrokes by making an implicit judgment that the presence of

potentially relevant records trumps confidentiality in the context of a

criminal prosecution.    Even though this judgment may be justified in

many cases, it is not a justification to paint with a broad brush. Justice

within a case involving strong competing constitutional interests requires
                                     29

a careful analysis of the particular facts and circumstances. Experience

reveals that a one-size-fits-all test can present a serious risk of injustice

in a particular case. This case may very well be one. Sadly, without an

opportunity to fully explore all the compelling interests at stake, this will

never be known.

      The new test developed by the majority may be easy and beneficial

to defendants, but it is a step back both for victims and for the progress

made in addressing domestic violence over the last decade. The only way

victims of domestic abuse with a history of counseling will be able to

ensure the confidentiality of their private counseling records is to not

report domestic abuse. The law should be able to do better.
