When a person becomes a victim of a crime, his or her outlook on life can be dramatically, even permanently altered It is not unusual for crime victims to become emotionally paralyzed, incapable of living lives similar to the lives they led before the crimes occurred. Thus, it should come as no surprise that crime victims already enduring emotional turmoil and even physical injury are stunned when they receive a subpoena duces tecum requesting records of their private lives. More and more defendants are routinely invading victims' privacy by seeking personal records, such as counseling, mental health, medical, employment and educational records. The California law governing when these records may be disclosed to a defendant is complex and often turns on numerous factors, such as whether the records are in the possession of the prosecutor ¹; whether they are protected by privilege; or whether the privilege has been waived in full or in part. This article discusses a defendant's ability to obtain disclosure of a victim's private records and the devices a victim may use to prevent disclosure in a criminal prosecution.

In a criminal case, the appropriate method for the production of relevant materials in the possession of a thirdparty, such as a crime victim, hospital or counseling center, is via a subpoena duces tecum. Cal. Penal Code² §§ 13261328. On January 1, 2005, the Judicial Council of California adopted a mandatory subpoena form for criminal or juvenile cases. This form, while limiting improper fishing expeditions, also helps victims by standardizing the method for requesting thirdparty records by either the prosecution or defense, and by requiring a supporting affidavit of the specific records requested and their relevance. It is the first line of defense for a crime victim. However, since currently the issuing party is not required to notify either the prosecution or the victim whose records are sought, a challenge on the face of the subpoena is very difficult. Most often, a subpoena duces tecum to a nonparty (i.e., record holder) is challenged by a motion to quash by the nonparty holder of the records or by the victim or witness whose records are sought through the nonparty. Arguably, once the record holder receives the subpoena duces tecum, the record holder should notify the victim of the subpoena and seek authorization from the victim to release the records ³. In this way, the victim has knowledge of the subpoena and has the ability to seek to quash the subpoena prior to trial.

The next defense for a crime victim, if the subpoena does not describe with particularity the relevance of the evidence sought, is to quash the subpoena on its face. See People v. Rhone (1968) 267 Cal.App.2d 652, 657. This requirement in California is supported by the United States Supreme Court decision in Pennsylvania v. Ritchie, (1987) 480 U.S. 39, 51, which explained that the right to production flows from the Sixth Amendment's rights to confrontation and compulsory process. While the Sixth Amendment guarantees a defendant the right to compulsory process, the right is not absolute. United States v. Gonzales, 79 F.3d 413, 424 (5th Cir.1996). "When requesting a court to subpoena a witness, a defendant ... has the duty to demonstrate the necessity of the witness's testimony." Id. Therefore, the defendant must "at least make some plausible showing of how [the witness's] testimony would [be] both material and favorable to his defense." United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982) (quoting U.S. CONST. amend. VI). In Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1296, the court held that a defendant must articulate a specific basis for the need for the records and not merely assert that the records are needed to assess a victim's credibility. Further, a recent Utah case demonstrates a recent trend towards strengthening victim's rights in this arena by holding that the disclosure of protected material requires a reasonable certainty that the records contain exculpatory evidence. T.W. v. State of Utah, 2006 WL 1700494 at 3 (Utah App.) Court of Appeals of Utah (emphasis added). Thus, when a victim receives a subpoena the affidavit must be scrutinized to make sure that defense counsel has adequately articulated a specific need for the records. If a subpoena is improper, a motion to quash all or part of the subpoena for privileged records should be filed. See e.g. In re Charles H. (Cal. Ct. App. Jan. 22, 2004) No. B162677, 2003 WL 22405447 at 3.

In Hammon, the California Supreme Court held that a defendant does not have the right to subpoena privileged information prior to trial. 938 P.2d 986. Again, in reviewing the analysis in Ritchie, the court specifically rejected the argument that the right to crossexamination part of the right to confrontation supports a request for production pursuant to a subpoena, because to require production of all material that would allow more effective crossexamination would have the effect of “constitutionally compelled” pretrial discovery. See Ritchie, 480 U.S. at 52. Instead, the right to confrontation is solely a trial right, which means that production of documents from nonparties is only available at trial. Procedurally, since many cases are resolved prior to trial, victims' records are often protected from discovery because the defendant is not entitled to access until trial. A victim should be sure to assert this procedural right.

Upon issuance of a subpoena duces tecum, the issuing party does not have legal access to the records sought until the court has decided that the party is legally entitled to receive them. Penal Code § 1326(c); People v. Hammon (1997) 15 Cal. 4th 1117. The court will balance the defendant's interests against the victim's interests. Almost all of the victim's records sought by defense counsel are protected by some type of privilege ⁴. Therefore, by limiting access to a victim's records, privileges play a crucial role in protecting a victim's privacy. However, privileges are statutory and will fail when challenged by the defendant's Sixth Amendment rights.

As California's constitution contains an explicit right to privacy, raising an invasion of privacy argument is another potential challenge to a defendant's subpoena of a victim's records. Cal. Const. Art. I, § 1. No California case has specifically dealt with the balancing of the constitutional right to privacy as related to records versus a defendant's constitutional rights. However, in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37, the court found that the privacy interests were not absolute and they must be balanced against other important interests. Using Hill, a crime victim alleging an invasion of privacy must establish each of the following elements: a legallyprotected privacy interest (e.g. informational privacy or autonomy privacy); a reasonable expectation of privacy under the circumstances; and a serious invasion of a privacy interest. Id. at 3940. A defendant's interests may prevail if the defendant can negate any of the above elements or show that the invasion is justified because it substantially furthers a countervailing interest, such as the right to due process or the disclosure of favorable evidence to the accused.

At trial, when the court applies the balancing test, the court will: (1) obtain and examine in camera all the materials under subpoena; (2) weigh defendant's constitutionallybased claim of need against the statutory privileges invoked, if any; (3) determine which privileged matters should be disclosed, if any, for defendant to adequately assert his rights of confrontation; and (4) create a record adequate to review its ruling. People v. Reber (1986) 177 Cal.App.3d 523 overturned in part, Hammon, 938 P.2d 986.

Although a crime victim will likely feel a sense of dread upon receiving a subpoena duces tecum, useful mechanisms exist, as outlined above, to protect the crime victim against unwarranted intrusions into his or her private records. To summarize, defense counsel must describe with particularity the relevance of the evidence sought. The victim can claim an invasion of privacy, or if appropriate, the victim may claim that a privilege applies, thus triggering stringent production requirements. While crime victims often feel as though they have become the actual defendant upon receiving a subpoena duces tecum, it is important to remember that under our system of justice a defense counsel's request for a victim's private documents is often justified; the mechanisms within the system, as described in this article, are designed to weed out those requests which are unjustified and to preserve the sanctity of the victim's privacy.

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1. The prosecutor is only constitutionally required to disclose information that is exculpatory and material to the issue of guilt, see Brady v. Maryland (1963) 373 U.S. 83, 8788, and which is within the custody or control of the prosecutor.
2. Unless otherwise indicated, all citations are to the California Penal Code.
3. For school records, see Education Code § 49077. For health records, see the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Pub.L. 104191, 110 Stat. 1936 (1996); 45 C.F.R.164.50034 (2005).
4. Physician patient privilege, Evidence Code § 994. Evid. Code § 1014 describes the psychotherapist-patient privilege and Evid, Code § 1035 created the sexual assault victimcounselor privilege.

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Darren C. DeFrance is a law student at the University of the Pacific, McGeorge School of Law and a Law Clerk at the McGeorge School of Law Crime Victim's Legal Clinic. The Clinic is part of the Crime Victims Resource Center and provides resources to crime victims throughout California at 1-800-VICTIMS.

November/December 2006