                This opinion is subject to revision before final
                       publication in the Pacific Reporter

                                2020 UT 38


                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH,
                               Respondent,
                                      v.
                         CALVIN ROGER BELL,
                             Petitioner.

                           No. 20190043
                      Heard December 11, 2019
                        Filed June 23, 2020

            On Certiorari to the Utah Court of Appeals

                    Third District, Salt Lake
               The Honorable Richard D. McKelvie
                        No. 141905701

                                Attorneys:
  Sean D. Reyes, Att’y Gen., Jonathan S. Bauer, Asst. Solic. Gen.,
                  Salt Lake City, for respondent
          Herschel Bullen, Salt Lake City, for petitioner

  CHIEF JUSTICE DURRANT authored the opinion of the Court, in
     which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
          JUSTICE PEARCE, and JUSTICE PETERSEN joined.

   CHIEF JUSTICE DURRANT, opinion of the Court:
                              Introduction
    ¶1 This case concerns a criminal defendant’s request to view
a sexual abuse victim’s privileged mental health therapy records.
Mr. Calvin Roger Bell was accused of sexually abusing his
girlfriend’s three-year-old child (Child). Before trial, he requested
                           STATE v. BELL
                       Opinion of the Court

limited access to Child’s privileged mental health therapy records,
which request the district court denied.1 We affirm because
Mr. Bell fails to demonstrate that an exception to the mental
health therapist-patient privilege exists under Utah Rule of
Evidence 506. But even though we affirm the denial of Mr. Bell’s
request, we do note that Mr. Bell raises important constitutional
and policy concerns regarding a criminal defendant’s access to
records that may contain exculpatory evidence, and so we refer
rule 506 to our rules committee for review.
                           Background
   ¶2 When Child was three years old, Mr. Bell dated Child’s
mother (Mother). Mr. Bell moved in with Mother and Child in
November 2011, and the three lived together intermittently until
January 2013, when Child was placed in a foster home. At that
time, Mother entered a residential substance abuse treatment
center at House of Hope. Child joined Mother there in May 2013.
   ¶3 While living at House of Hope, Child disclosed to a staff
member that Mr. Bell, whom she referred to as “dad,” “was
playing sexy” with her. The director reported this to Mother, and
together they contacted Child Protective Services (CPS) to report
the alleged abuse. After Mother reported the alleged abuse, in
August 2013, a detective interviewed Child about her statement to
the House of Hope staff member. As part of interview protocol, a
detective asked Child if she would “promise to tell [him] the truth
today?” Child told the detective that “no, she didn’t want to talk.”
The detective then ended the interview and informed Mother it
was not uncommon for children to refuse to talk. He encouraged
Mother to have Child continue therapy. And he told Mother that

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   1  Mr. Bell specifically requested that the district court review
Child’s records in camera and disclose all material information
that would support his defense. In camera review is a process by
which a judge reviews privileged documents privately and
decides what, if any, information may be disclosed to the criminal
defendant. The limited disclosure of privileged records to a judge
for review “represents the most effective and sensitive balance
between” a patient’s privacy and a “defendant’s trial rights.” State
v. Cramer, 2002 UT 9, ¶ 22, 44 P.3d 690 (quoting State v. Slimskey,
779 A.2d 723, 732 n.9 (Conn. 2001)). We refer to Mr. Bell’s request
as a limited review of Child’s records throughout this opinion.


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he would schedule another interview with Child if Child became
more comfortable and wanted to talk about the alleged sexual
abuse.
    ¶4 Mother arranged sexual abuse counseling for Child at
House of Hope. About five months after the initial interview with
the detective, Child informed Mother that Mr. Bell had shown her
a pornographic video. Mother contacted CPS again, and Child
agreed to talk to the detective in January 2014. During the second
interview, Child told the detective about details of the
pornographic video, and described two incidents of sexual
abuse—first, she stated that Mr. Bell put his “weenie” on her “no-
no” where “pee” comes out, and second, she stated that, while on
Mr. Bell’s lap, he pulled down Child’s pants and put his finger
“under [her] bum.”
    ¶5 Based on Child’s allegations, the State charged Mr. Bell
with (1) rape of a child;2 (2) aggravated sexual abuse of a child;3
and (3) dealing in materials harmful to a minor by an adult.4
Before trial, Mr. Bell filed a motion to produce Child’s mental
health therapy records under Utah Rule of Criminal Procedure
14(b)(1). He specifically asked the district court to “order the
[S]tate to produce for [in] camera review the therapy records of
[Child] from the House of Hope or any collateral agencies
addressing therapy related to neglect and/or abuse of [Child]
from January 1, 2010 to May 8, 2014.” He sought documentation
of “therapeutic techniques and strategies used in treating [Child],
names and contact information of all therapist[s] and case
manager[]s working with [Child from January 1, 2010 to May 8,
2014] and all progress notes and statements regarding abuse.”
    ¶6 Mr. Bell made two arguments in support of his assertion
that he was entitled to Child’s mental health therapy records
under the Due Process Clause of the Fourteenth Amendment.
First, he argued that the “records sought cont[ain] exculpatory
evidence which would be favorable to the defense.” Second, he
argued the records are “material” because the case turns on
Child’s “credibility” due to her “age” and “suggestibility.”

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   2   UTAH CODE § 76-5-402.1.
   3   Id. § 76-5-404.1(4).
   4   Id. § 76-10-1206.


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                         Opinion of the Court

Mr. Bell alleged that he needed the records to determine if the
“therapeutic intervention” between her initial interview with
Detective (when Child would not discuss the sexual abuse), and
her second interview (when Child discussed the sexual abuse that
resulted in charges against Mr. Bell), “tainted [Child’s]
testimony.”
    ¶7 The State opposed Mr. Bell’s motion for production of
Child’s mental health therapy records. It argued that not only did
the State not possess the records, but that the mental health
therapy records sought by Mr. Bell were privileged under Utah
Rule of Evidence 506. In addition, the State argued that Mr. Bell
failed to provide sufficient evidence that the exception under rule
506(d)(1)(A) applied to the facts of his case. To establish an
exception to the mental health therapist-patient privilege, the
State argued Mr. Bell needed to convince the district court that
Child had (1) a “physical, mental or emotional condition” that
was (2) “an element of any claim or defense.”5 And, the State
argued, even if Mr. Bell had shown the exception applied, he still
failed to establish Child’s mental health therapy records “contain
exculpatory evidence to a reasonable certainty” as required by our
case law.
    ¶8 The district court denied Mr. Bell’s motion for production
of Child’s mental health therapy records. It concluded he failed to
make the “particular showings regarding relevance,” or that the
records were “reasonably certain to contain exculpatory
information.” The court of appeals affirmed. It held that even if
Mr. Bell had established that Child suffers from a physical,
mental, or emotional condition and that the condition is an
element of a claim or defense,6 dismissal was proper because he
failed to meet the “‘reasonable certainty’ requirement” under our
case law.7
    ¶9 We granted Mr. Bell’s petition for certiorari. We have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).




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   5   UTAH R. EVID. 506(d)(1).
   6   State v. Bell, 2018 UT App 230, ¶ 13, 438 P.3d 104.
   7   Id. ¶ 13–14.


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                          Opinion of the Court

                          Standard of Review
    ¶10 Mr. Bell asks us to determine whether the court of
appeals erred in affirming the district court’s denial of his request
for limited review of Child’s privileged mental health therapy
records. “When the existence of a privilege [(or an exception to a
privilege)] turns on a question of law, we review for correctness.”8
If “the existence of a privilege [(or exception)] turns on questions
of fact, we give deference to the district court’s underlying fact
finding and do not set those findings aside unless they are clearly
erroneous.”9 “On certiorari, we review the decision of the court of
appeals . . . for correctness[,] and give its conclusions of law no
deference.”10
                                  Analysis
    ¶11 Mr. Bell argues that the court of appeals erred in
affirming the district court’s denial of his request for limited
review of Child’s privileged therapy records. The crux of his
argument is that the “reasonable certainty” test we use to
determine whether privileged therapy records should be
reviewed violates his due process rights under the rule
established in the United States Supreme Court decision in
Pennsylvania v. Ritchie.11 But Mr. Bell fails to demonstrate that the
therapy records in question are subject to an exception under
Utah Rule of Evidence 506(d)(1)(A).12 And because establishing an
__________________________________________________________
   8   State v. Vallejo, 2019 UT 38, ¶ 34, 449 P.3d 39.
   9   Id.
   10 Bluemel v. State, 2007 UT 90, ¶ 9, 173 P.3d 842 (quoting Bear
River Mut. Ins. Co. v. Wall, 1999 UT 33, ¶ 4, 978 P.2d 460).
   11   480 U.S. 39 (1987).
   12  The State points out that Mr. Bell, for the first time on
certiorari, alleges some of the requested records were not
privileged because Child’s therapist did not qualify as a “mental
health therapist” under the rule. We decline to address this issue
because it “is beyond the scope of the question on which we
granted certiorari” and “was not addressed by the court of
appeals.” State v. Loveless, 2010 UT 24, ¶ 1 n.1, 232 P.3d 510
(citations omitted). Additionally, Mr. Bell does not address why
we should reach this issue despite his failure to raise the issue
below.


                                      5
                             STATE v. BELL
                         Opinion of the Court

exception under the evidentiary rule is a threshold determination,
we need not decide whether Mr. Bell has satisfied our “reasonable
certainty” test or whether that test is unconstitutional.13 As a
result, we affirm the court of appeals.
    ¶12 But even though we affirm the court of appeals without
addressing Mr. Bell’s constitutional argument, we note that he
raises significant constitutional and policy concerns. As a result,
we refer rule 506 to our rules committee for review.
              I. Mr. Bell Failed to Establish an Exception
           to the Mental Health Therapist-Patient Privilege
    ¶13 Mr. Bell argues that the district court’s refusal to allow
limited review of Child’s privileged mental health therapy records
violated his right to due process. His primary argument is that the
“reasonable certainty” test, which requires a criminal defendant to
make an independent showing that the requested records will
contain exculpatory evidence, is overly stringent and should be
repudiated. But our “reasonable certainty” test applies only after a
criminal defendant has established that an exception to the
privilege under rule 506 of the Utah Rules of Evidence applies.
Because Mr. Bell has failed to show that an exception to the
privilege under rule 506 applies, his request for limited review of
Child’s mental health therapy records fails even if he were able to
satisfy the “reasonable certainty” test.14 As a result, we affirm the
court of appeals on this alternative basis.15
   ¶14 Under Utah Rule of Evidence 506(b), a patient has the
privilege “to refuse to disclose . . . information that is
communicated in confidence to a physician or mental health



__________________________________________________________
   13  State v. Worthen, 2009 UT 79, ¶ 39 n.8, 222 P.3d 1144 (“We
emphasize that a defendant must meet the plain language of rule
506(d)(1) independently of meeting the reasonable certainty
test.”).
   14   See UTAH R. EVID. 506(d)(1).
   15 See Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225 (stating
that an appellate court can affirm “on any legal ground or theory
apparent on the record, even though . . . [it] was not considered or
passed on by the lower court” (citation omitted)).


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therapist for the purpose of diagnosing or treating the patient.”16
This privilege has three enumerated exceptions, one of which is at
issue in this appeal.17 Rule 506(d)(1)(A) provides that a patient
cannot assert the privilege “[f]or communications relevant to an
issue of the physical, mental, or emotional condition of the patient
. . . in any proceeding in which that condition is an element of any
claim or defense.”
   ¶15 In other words, rule 506(d)(1)(A) creates an exception to
the general rule that a patient’s therapy records are privileged
when the criminal defendant can show (1) that the patient has a
“physical, mental, or emotional condition” and (2) that this
condition “is an element” of his or her defense. Additionally, in
our previous cases, we have explained that after a criminal
defendant satisfies the first two threshold requirements, the
defendant must also demonstrate that, with reasonable certainty,
“exculpatory evidence exists [in the mental health therapy record]
which would be favorable to [the] defense.”18 This third
requirement is referred to as the “reasonable certainty” test under
our case law.19

__________________________________________________________
   16 UTAH R. EVID. 506(b). The rule further defines the scope of
the privilege by defining “[p]atient” and “[m]ental health
therapist.” Id. 506(a)(1), (3). Additionally, it extends the privilege
to the entire diagnostic process by the provider, including patient
examinations, communications with third parties in furthering the
patient’s interest, and appropriate treatment plans following
diagnosis. Id. 506(b)(1)–(3).
   17   Id. 506(d).
   18 State v. Blake, 2002 UT 113, ¶ 19, 63 P.3d 56 (second alteration
in original) (quoting State v. Cardall, 1999 UT 51, ¶ 30, 982 P.2d 79).
   19 State v. J.A.L., 2011 UT 27, ¶ 48, 262 P.3d 1. Even though the
Utah Rules of Evidence apply equally in both civil and criminal
cases, we have never required a party in a civil case to meet the
“reasonable certainty” test and have only applied the test to
criminal defendants seeking limited review of privileged records.
Generally, when we are applying a rule of evidence, we refer to a
party’s request for privileged records. But because we have
limited the “reasonable certainty” test to criminal defendants, we
refer only to a criminal defendant’s request for limited review of
privileged records throughout this opinion.


                                  7
                            STATE v. BELL
                         Opinion of the Court

    ¶16 This three-part showing is a sequential test.20 In other
words, a court must not proceed to the next step in the analysis if
it determines the criminal defendant failed to meet his or her
burden of proof at a previous point.21 So the first step in a criminal
defendant’s efforts to obtain a patient’s privileged mental health
therapy records is to show that the patient has a condition under
rule 506(d)(1)(A). But Mr. Bell fails to satisfy this requirement.
    ¶17 A condition under rule 506(d)(1)(A) is a state that persists
over time that “significantly affects a person’s perceptions,
behavior, or decision[-]making in a way that is relevant to the
reliability of the person’s testimony.”22 It must be more than
“mere expressions of emotion” but “is not limited to diagnosable
disorders or illnesses.”23
    ¶18 For example, in State v. Worthen, this court found that a
patient had an emotional condition when a criminal defendant
provided extrinsic evidence of the patient’s significant
“frustration” and “hatred” toward her parents that may have led
to false accusations of sexual abuse.24 In that case, Mr. Worthen
was charged with aggravated sexual abuse based on allegations
his adopted daughter made to her counselor.25 Mr. Worthen
__________________________________________________________
   20   Id.
   21 Id. In Mr. Bell’s case, the court of appeals “assum[ed],
without deciding,” that Mr. Bell met “the first two requirements”
under the three-part showing. State v. Bell, 2018 UT App 230, ¶ 13,
438 P.3d 104. But it determined Mr. Bell’s request failed because
he “provide[d] nothing close to the amount of extrinsic evidence
required to meet the ‘reasonable certainty’ standard.” Id. ¶ 15.
Because the court of appeals should have determined whether
Mr. Bell established a condition under rule 506(d)(1) as a
threshold matter, we affirm on this alternative basis. See State v.
Worthen, 2009 UT 79, ¶ 19, 222 P.3d 1144. (“Only after this first
question is answered may a reviewing court evaluate whether the
person seeking access to the exception has shown that the records
contain exculpatory evidence to a reasonable certainty.”).
   22   Id. ¶ 21.
   23   Id.
   24   Id. ¶¶ 28, 36.
   25   Id. ¶¶ 1, 5.


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                          Opinion of the Court

sought his daughter’s privileged counseling records to “support[]
his defense that [his daughter] had extreme hatred and frustration
toward the Worthens and therefore had a motive to fabricate the
[sexual abuse] allegations in order to be removed from the
Worthen home.”26
    ¶19 We determined that Mr. Worthen made a sufficient
showing that his daughter had “an emotional condition
contemplated by the rule” based on her “frustration with, and
hatred toward, her parents.”27 To establish this condition, he
provided thirteen different journal entries, written by his
daughter, which “demonstrated persistent hostility” and a “desire
to leave the home.”28 Mr. Worthen also provided a discharge
summary from his daughter’s inpatient admission following her
suicide attempt.29 The discharge summary specifically stated that
his daughter “looked for ways to interpret statements and
behavior in a way to mesh with her negative thinking . . . [and]
was very prone to major misinterpretations.”30 Because the
daughter’s “‘frustration with, and hatred toward’ her parents”31
was something that “persist[ed] over time” and “affected [her]
perceptions, behavior, [and] decision[-]making in a way that [was]
relevant to the reliability of [her] testimony,”32 we held that “it
[was] an emotional condition contemplated by the rule.”33
   ¶20 In this case, Mr. Bell fails to allege that Child has any
condition under the rule. In fact, at oral argument, Mr. Bell
conceded that he could not identify a specific condition. And even
when we consider other evidence that he provided to support
other requirements of rule 506’s three-part test, we do not find
that any of these arguments or supporting evidence demonstrate
that Child had a condition contemplated by the rule.

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   26   Id. ¶ 1.
   27   Id. ¶ 28 (internal quotation marks omitted).
   28   Id. ¶ 28.
   29   Id. ¶¶ 3, 7.
   30   Id. ¶ 3 (second alteration in original).
   31   Id. ¶ 28.
   32   Id. ¶ 21.
   33   Id. ¶ 28.


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                            STATE v. BELL
                        Opinion of the Court

    ¶21 For instance, in his motion requesting limited review of
Child’s records, Mr. Bell points to two facts to support his
assertion that he is entitled to limited review of Child’s therapy
records.34 First, Mr. Bell states that Child’s refusal to talk to the
detective in the initial interview and her decision to disclose the
abuse to the detective only after she had received months of
therapy shows a reasonable probability that she was coached
during the intervening therapy. And second, he argues that, due
to Child’s age and suggestibility, therapy could have “tainted her
testimony.”
    ¶22 But a child who refuses to talk to a detective, who then
later changes her mind, does not have a “condition” under the
rule. And Mr. Bell provides no factual support that Child was
particularly suggestible, such that she may have been more prone
to improper coaching during therapy. He fails to allege any facts
that the counseling methods were inappropriate based on Child’s
age, and as a result, suggest that she was coached. In other words,
we do not view Mr. Bell’s mere speculation, without any factual
support, that Child was coached during therapy to constitute a
“physical, mental, or emotional condition” under rule
506(d)(1)(A). Because Mr. Bell does not establish a “condition”
under rule 506(d)(1)(A), we affirm the court of appeals.
  II. Although We Do Not Reach Mr. Bell’s Argument That His
Right to Due Process Was Violated, We Note That Mr. Bell Raises
Important Concerns and Refer Rule 506 to Our Rules Committee
   ¶23 Mr. Bell’s main argument on appeal is that our
“reasonable certainty” test violates his due process rights under

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   34  On appeal, Mr. Bell argues for the first time he sought
records because they “may pertain to the alleged victim’s animus
toward [Mr. Bell] and/or motive to fabricate allegations of abuse,”
much like the daughter in Worthen. But this court does “not
consider issues raised ‘for the first time on appeal unless the
[district] court committed plain error or exceptional circumstances
exist.’” State v. Bozung, 2011 UT 2, ¶ 7 n.4, 245 P.3d 739 (alteration
in original) (citation omitted). In his motion to the district court,
Mr. Bell did not include any allegation that Child held animus
towards him or that Child had some other motive to fabricate an
allegation of abuse. Because Mr. Bell raises this for the first time in
his brief, we decline to address it.


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                          Opinion of the Court

the United States Supreme Court decision in Pennsylvania v.
Ritchie.35 While he acknowledges that protecting patient privacy is
important, he asserts that the “reasonable certainty” test sets the
bar too high for criminal defendants seeking limited review of
privileged records. Although we do not reach this issue because
Mr. Bell failed to establish a condition under rule 506(d)(1)(A), we
briefly address his concerns regarding the “reasonable certainty”
test and refer them to our rules committee for consideration.
    ¶24 The “reasonable certainty” test is the third and final
showing a criminal defendant must make to obtain limited review
of privileged mental health therapy records.36 Under this test, a
criminal defendant has the burden of convincing the district court
that the requested records contain exculpatory evidence favorable
to the defense.37 Generally, this requires that a criminal defendant
identify his or her “specific and narrow defense,” 38 and then offer
extrinsic evidence that ties the patient’s condition to the specific
records requested.39 By establishing an evidentiary threshold, this
test seeks to narrow the scope of the criminal defendant’s request,
and thereby prevent criminal defendants from unnecessarily
engaging in a “fishing expedition” through a patient’s mental
health therapy records.40
   ¶25 Mr. Bell argues that the evidentiary threshold created by
the “reasonable certainty” test is too high and, as a result, violates
his due process rights under Ritchie.41 In Ritchie, Mr. Ritchie
sought the protected records of the state agency that investigated
sexual abuse allegations against him.42 The records were protected
under a Pennsylvania statute which provided eleven exceptions.43
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   35   480 U.S. 39 (1987).
   36   State v. J.A.L., 2011 UT 27, ¶ 48, 262 P.3d 1.
   37   State v. Worthen, 2009 UT 79, ¶ 39, 222 P.3d 1144.
   38   Id. ¶ 40.
   39   Id. ¶¶ 41–42.
   40State v. Gomez, 2002 UT 120, ¶ 6, 63 P.3d 72; see also Worthen,
2009 UT 79, ¶ 38.
   41   480 U.S. 39 (1987).
   42   Id. at 43.
   43   Id.


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                             STATE v. BELL
                         Opinion of the Court

One of the exceptions allowed disclosure by any “court of
competent jurisdiction pursuant to a court order.”44 Although the
records Mr. Ritchie sought were already in the trial court’s
possession, the court did not review the records in their entirety,
and as a result, did not know whether they contained material
and exculpatory evidence.45
    ¶26 Because it could not determine, without knowledge that
the unviewed portions of the records contained material evidence,
whether Mr. Ritchie’s right to due process was violated, the
Supreme Court remanded the case to the trial court for a review of
the entire record.46 The Court provided two reasons for its
decision to remand. First, it explained that the protected records
were in the State’s possession, and that “the government has the
obligation to turn over evidence in its possession that is both
favorable to the accused and material to guilt or punishment.”47
Second, the Court noted that the state statute permitted disclosure
pursuant to a court’s order in any judicial proceeding.48 So the
statute that protected the records provided an exception for
“criminal prosecutions,” without any additional showing from the
defendant.49
    ¶27 Following the Supreme Court’s decision in Ritchie, we
were presented with a similar question in State v. Cardall.50 And,
in our attempt to apply Ritchie, we created what we now refer to
as our “reasonable certainty” test. After determining that the
defendant had satisfied the first two requirements of the privilege
exception under rule 506(d)(1)(A), we interpreted Ritchie as
requiring the defendant to also “show with reasonable certainty

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   44 Id. at 44 (internal quotation marks omitted). This exception
appears to be a broad exception because it provides a court of
“competent jurisdiction” discretion to allow disclosure in any
judicial proceeding. Id.
   45   Id.
   46   Id. at 58.
   47   Id. at 57.
   48   Id. at 57–58.
   49   Id.
   50   1999 UT 51, 982 P.2d 97.


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that exculpatory evidence exists which would be favorable to his
defense.”51 So following our decision in Cardall, criminal
defendants were required to independently demonstrate, with
reasonable certainty, that the privileged records contain evidence
that is material to a claim or defense.52
   ¶28 In this case, Mr. Bell argues that, under the Supreme
Court’s decision in Ritchie, the district court violated his due
process rights by failing to review Child’s mental health therapy
records. And in so arguing, he criticizes our decision in Cardall as
imposing too stringent a standard.
    ¶29 But Mr. Bell’s Ritchie argument may be misplaced for two
reasons. First, in Ritchie, the Supreme Court based its decision on
the fact that a criminal defendant’s right to due process is
implicated when the privileged records are in the State’s
possession, not when the privileged records are in the possession
of a private party.53 In this case, it does not appear that Child’s
records are in the State’s possession. Second, the Ritchie Court’s
decision was also based on the language of the Pennsylvania
statute—a statute that differs substantially from our rules of
evidence. For this reason, the Supreme Court’s decision in Ritchie
did not address whether a state could create an absolute privilege,
forbidding a defendant to access privileged records under any
circumstance.54 In other words, the Ritchie decision does not
provide guidance on whether our rules of evidence have set the
evidentiary burden too high for a criminal defendant.55

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   51   Id. ¶ 30.
   52   Id.
   53The Court did not decide whether Mr. Ritchie was entitled to
access the protected records under the Sixth Amendment’s
Compulsory Process Clause, which might compel a private party
to disclose protected records. Ritchie, 480 U.S. at 56 (“[W]e need
not decide today whether and how the guarantees of the
Compulsory Process Clause differ from those of the Fourteenth
Amendment[’s Due Process Clause].”).
   54 See Gomez, 2002 UT 120, ¶ 16 (holding that the statutory
privilege created by the Confidential Communications for Sexual
Assault Act is absolute, and as a result, Ritchie did not control).
   55   Id.


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                          Opinion of the Court

    ¶30 We acknowledge, however, that our interpretation of
Ritchie in Cardall may suffer from the same defects as Mr. Bell’s
Ritchie argument. In Cardall, we suggested that the holding in
Ritchie required us to adopt the “reasonable certainty” test
without acknowledging any distinction between the statute at
issue in that case and our rules of evidence or between privileged
documents held by the State and documents held by private
parties. So our adoption of the “reasonable certainty” test may
have stemmed from a misreading of the opinion in Ritchie.
    ¶31 But even though our adoption of the “reasonable
certainty” test in Cardall and Mr. Bell’s arguments in this case may
rely on a misreading of Ritchie, we note that both Cardall and
Mr. Bell raise important concerns regarding the current state of
the privilege exception under rule 506(d)(1)(A). For example, our
adoption of the “reasonable certainty” test in Cardall seems to
have helped address some uncertainty about what is required
under the rule’s “condition” and “element to the defense”
requirements.56 For instance, in Cardall, we determined that a
“condition” included a child’s “mental[] and emotional[]”
instability that “led her to lie about an attempted rape” on a
different occasion.57 And we held that this condition was an
element of the criminal defendant’s defense because she was “a
habitual liar.”58 Later, in State v. Worthen, we determined that the
alleged victim’s extreme and persistent hatred toward her parents

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   56 See State v. Worthen, 2009 UT 79, ¶ 21, 222 P.3d 1144 (holding
that a condition under rule 506(d)(1) “is not limited to diagnosable
disorders or illnesses” but “does not include mere expressions of
emotion” and must be a “state that persists over time” while
“significantly affect[ing] a person’s perceptions, behavior, or
decision[-]making”); see also State v. Blake, 2002 UT 113, ¶¶ 18, 24,
63 P.3d 56 (declining to grant the defendant’s request for in
camera review under the rule 506(d)(1)(A) exception, and instead
rejecting his request because he failed to show, with reasonable
certainty, that the requested records contained exculpatory
evidence); Cardall, 1999 UT 51, ¶ 30 (failing to define the
rule 506(d)(1)(A) exception and summarily determining the
defendant made an adequate showing).
   57   Cardall, 1999 UT 51, ¶ 29.
   58   Id.


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                          Cite as: 2020 UT 38
                         Opinion of the Court

was a condition under the rule, and that this condition was an
element to Mr. Worthen’s defense because it “caused her to
fabricate abuse allegations” in order to be removed from the
home.59 These decisions may not provide a clear definition of
what is required for criminal defendants seeking limited review of
privileged documents, and, as a result, they may lead to a
significant number of meritless requests. But, by raising the
evidentiary burden imposed on criminal defendants before they
may obtain limited review of privileged documents, our
“reasonable certainty” test operates to more clearly identify, and
limit, the situations in which criminal defendants can access
privileged records.60
    ¶32 Mr. Bell, on the other hand, raises the possibility that the
stringent evidentiary burden imposed by our “reasonable
certainty” test may violate criminal defendants’ due process rights
by preventing them from mounting a full and fair defense. This
too is an important concern. And even though we do not address
the merits of Mr. Bell’s Ritchie arguments in this case, we refer this
issue to our rules committee. In considering this issue, we direct
our rules committee to consider the importance of maintaining a
strong privilege rule,61 of more clearly defining what is required
to qualify for exceptions to privilege, and of respecting a criminal
defendant’s constitutional rights.62


__________________________________________________________
   59   Worthen, 2009 UT 79, ¶ 37.
   60 See Blake, 2002 UT 113, ¶ 19 (noting that the “reasonable
certainty” test is a “stringent test,” which is “deliberate and
prudent in light of the sensitivity of these types of records”).
   61 We have previously noted that victims of sexual abuse have
constitutional and statutory rights, and that these “rights . . .
support considerable policy-based arguments for supporting
evidentiary privileges.” Worthen, 2009 UT 79, ¶ 55 (citing similar
discussions in State v. Gonzales, 2005 UT 72, ¶ 33, 125 P.3d 878 and
Blake, 2002 UT 113, ¶ 16).
   62 While Mr. Bell argues only that his right to due process is
implicated, we note there are other constitutional rights at issue.
For example, both the federal and Utah constitutions include “the
right to confrontation and compulsory process.” State v. Cramer,
2002 UT 9, ¶ 19, 44 P.3d 690.


                                     15
                           STATE v. BELL
                       Opinion of the Court

                            Conclusion
    ¶33 In his request for limited review of Child’s privileged
mental health therapy records, Mr. Bell failed to establish that
Child had a “condition” under rule 506(d)(1)(A). As a result, we
affirm the court of appeals without considering the merits of
Mr. Bell’s challenge to our “reasonable certainty” test. But we note
that he raises significant concerns about this test, and as a result,
we ask the rules committee to review rule 506 to ensure that it
appropriately balances patients’ privacy with criminal
defendants’ constitutional rights.




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