In re Subpoena To Crisis Connection Inc.State

• Decision Date: 23 June 2011
• Docket Number: No. 19S05–1012–CR–678.,19S05–1012–CR–678.
• Citation: 949 N.E.2d 789
• Parties: In re Subpoena to CRISIS CONNECTION, INC.State of Indiana, Appellee (Plaintiff below),v.Ronald Keith Fromme, Appellee (Defendant below).
• Court: Indiana Supreme Court

949 N.E.2d 789

In re Subpoena to CRISIS CONNECTION, INC.State of Indiana, Appellee (Plaintiff below),

v.Ronald Keith Fromme, Appellee (Defendant below).

No. 19S05–1012–CR–678.

Supreme Court of Indiana.

June 23, 2011.

Jon Laramore, Matthew T. Albaugh, Trina K. Taylor, Indianapolis, IN, Attorneys for Crisis Connection, Inc.S. Anthony Long, Boonville, IN, Attorney for Ronald Keith Fromme.Kerry Hyatt Blomquist, Indianapolis, IN, Attorney for Amici Curiae Indiana Coalition Against Domestic Violence, Battered Women's Justice Project–Domestic Abuse Intervention Programs, Inc., & Indiana Coalition Against Sexual Assault.Paul L. Jefferson, Indianapolis, IN, Attorney for Amici Curiae National Ass'n of Social Workers & National Ass'n of Social Workers, Indiana Chapter.

On Petition to Transfer from the Indiana Court of Appeals, No. 19A05–0910–CR–602.

SULLIVAN, Justice.

Ronald Keith Fromme, a defendant in a child molesting prosecution, contends that he has a constitutional right to inspect the records of a nongovernmental counseling agency, notwithstanding the General Assembly's enactment of a “victim advocate privilege” shielding such records from discovery. Because neither the Due Process Clause nor the Sixth Amendment requires disclosure of information protected by this privilege in the present case, we enforce the victim advocate privilege as enacted.

Background

Crisis Connection, Inc., is a nonprofit organization that “provide[s] services for emotional and psychological conditions that occur to an individual against whom an act of domestic or family violence, sexual assault, or dating violence is committed.” Appellant's App. 28. It operates in the Indiana counties of Crawford, Dubois, Orange, Perry, and Spencer.

After being charged with two counts of child molesting, Fromme asked the Dubois Circuit Court to require Crisis Connection to provide him with all records in its possession relating to the alleged victims, M.Y. and D.Y., and their mother. Crisis Connection argued that Indiana's “victim advocate privilege,” codified at Indiana Code section 35–37–6–9, gave it authority to refuse record requests in such circumstances. The court ordered Crisis Connection to deliver the records to the court for its in camera review to determine their relevance before turning them over to Fromme.

Before proceeding further, the court agreed to Crisis Connection's request that its decision be reviewed by the Court of Appeals. State v. Fromme (In re Subpoena to Crisis Connection, Inc.), 930 N.E.2d 1169, 1172 (Ind.Ct.App.), aff'd on reh'g, 933 N.E.2d 915 (Ind.Ct.App.2010). That court concluded that “[t]he interest in privacy asserted by Crisis Connection, while important, [was] not strong enough to bar an in camera review of its records.” Id. at 1190.

Crisis Connection sought, and we granted, transfer, Crisis Connection, Inc. v. Fromme, 940 N.E.2d 832 (Ind.2010) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).

Discussion

I

The General Assembly enacted Indiana's “victim advocate privilege” in 1987. Pub.L. No. 136–1987, § 5, 1987 Ind. Acts 1872, 1874–77. This privilege protects victims, victim advocates, and victim service providers ¹ from being “compelled to give testimony, to produce records, or to disclose any information concerning confidential communications ² and confidential information ³ to anyone or in any judicial, legislative, or administrative proceeding.” Ind.Code § 35–37–6–9(a) (2008).⁴ The General Assembly has expressly provided that the victim advocate privilege applies in cases like the present one.⁵ Accordingly, the Court of Appeals held that this privilege applies to Crisis Connection's records, In re Subpoena to Crisis Connection, 930 N.E.2d at 1175; we adopt that portion of its opinion and incorporate it by reference, App. R. 58(A)(1).

II

In Indiana, privileges are statutory in nature and it is within the General Assembly's power to create them. State v. Pelley, 828 N.E.2d 915, 918 (Ind.2005). By enacting the victim advocate privilege, the General Assembly has recognized the societal value of protecting the confidences existing within that relationship. See Canfield v. Sandock, 563 N.E.2d 526, 529 (Ind.1990) (discussing the creation of the physician-patient privilege).

Nevertheless, we have acknowledged that when the General Assembly creates a privilege, it puts two policies of the law in direct conflict:

On the one hand is a policy which dictates exclusion of material and relevant evidence for its effectuation; on the other is the policy which favors full disclosure of all relevant facts at trial in order to arrive at a just determination of the issues presented. While the latter must give sway to the former where applicable, it would seem unwise indeed to give unwarranted effect to the former so as to utterly and unreasonably frustrate the fact finding process.

Collins v. Bair, 256 Ind. 230, 236–37, 268 N.E.2d 95, 98 (1971) (emphasis in original deleted).

Thus, we are bound by the General Assembly's determination of whether a particular interest is sufficient enough to justify the creation of a privilege and the scope of the protection provided under that privilege. See id. at 238, 268 N.E.2d at 99 (mindful “not [to] discount the concern of the Indiana General Assembly that the confidential nature of the physician-patient relationship be preserved at the cost of rendering certain evidence inadmissible,” but concluding that a patient waives the privilege “by pursing a course of conduct inconsistent with a continued observance of the privilege”); Terre Haute Reg'l Hosp., Inc. v. Basden, 524 N.E.2d 1306, 1309–11 (Ind.Ct.App.1988) (refusing to write-in a good faith requirement or to require a balancing test in the application of the peer review privilege); see also Massey v. State, 267 Ind. 504, 509–10, 371 N.E.2d 703, 706–07 (1978) (applying the probation officer-juvenile privilege).

III

The Court of Appeals did not grant Fromme's request that Crisis Connection's records be provided directly to him. But the court did hold that they should be turned over to the trial court for determining the records to which Fromme was entitled. In re Subpoena to Crisis Connection, 930 N.E.2d at 1190. The court's decision was grounded in Fromme having met a three-step test we have established for the discoverability of records by a criminal defendant in certain circumstances: (1) there must be sufficient designation of the items sought to be discovered (particularity); (2) the requested items must be material to the defense (relevance or materiality); and (3) if the first two requirements are met, the trial court must grant the request unless there is a showing of “paramount interest” in nondisclosure. State v. Cline (In re WTHR–TV), 693 N.E.2d 1, 6 (Ind.1998) (citing Kindred v. State, 540 N.E.2d 1161, 1174 (Ind.1989)).⁶

In another case handed down today, Crawford v. State, 948 N.E.2d 1165 (Ind.2011), we apply this test to determine the discoverability of information not protected by privilege. But this test is not reached when the question is the discoverability of information that is otherwise privileged. The General Assembly has made this information off-limits and we are compelled to uphold its decision unless it violates the Constitution.

The case law makes clear that the three-step test applies only to discover nonprivileged information. In Jorgensen v. State, we applied this test to determine the discoverability of nonprivileged information held by a psychologist under the homicide exception to the psychologist-patient privilege, as discussed in footnote 4, supra. 574 N.E.2d 915, 917–18 (Ind.1991). We explicitly stated that the test applied “[w]ith respect to nonprivileged information.” Id. at 917; see id. at 918 (instructing the trial court on remand to first determine whether the information sought was privileged and then determine whether the nonprivileged information was material to the defense under the three-step test); Pelley, 828 N.E.2d at 920–23 (providing that “some discovery” is permissible under Jorgensen, but unless the homicide exception applies, any communication between the psychologist and patient is privileged and not discoverable).

To the extent that the decisions of the Court of Appeals have applied the three-step test to “privileged” information, they are distinguishable. For example, in Williams v. State, the privilege making prescriptions confidential contained an exception that allowed the information to be disclosed “in connection with a criminal prosecution.” 819 N.E.2d 381, 387 (Ind.Ct.App.2004), trans. denied. Similarly, the privilege in Sturgill v. State contained a provision granting the court access to the information. 497 N.E.2d 1070, 1071 (Ind.Ct.App.1986).⁷

In the cases discussed above, some exception to an otherwise-applicable privilege existed to allow the court to review the information—the court either reviewed the information because some of the information was or could have been nonprivileged or the privilege itself authorized review. But unlike those cases, an in camera review of the information in this case would not reveal any nonprivileged information and the privilege does not give the court that authority. As we have already recognized, there is no dispute that the records Fromme seeks from Crisis Connection are covered by the victim advocate privilege, and the General Assembly has expressly provided that the privilege applies in cases like this to prohibit any disclosure. Put differently, there is no chance that the information sought in this case is anything other than privileged, and under our decisions in Jorgensen and Pelley, that ends the inquiry.

IV

We acknowledge, of course, that the privilege must yield to Fromme's constitutional rights. And he contends that invoking it to prevent his access to Crisis Connection's records violates his rights under the Sixth Amendment ⁸ to confront witnesses against him and to...