People v. Sisneros, 02SA117.

• Decision Date: 07 October 2002
• Docket Number: No. 02SA117.,02SA117.
• Citation: 55 P.3d 797
• Parties: In re the PEOPLE of the State of Colorado, Plaintiff, v. Aaron Dean SISNEROS, Defendant.
• Court: Colorado Supreme Court

55 P.3d 797

In re the PEOPLE of the State of Colorado, Plaintiff, v. Aaron Dean SISNEROS, Defendant.

No. 02SA117.

Supreme Court of Colorado.

October 7, 2002.

Altman, Keilbach, Lytle, Parlapiano & Ware, P.C., David E. Ware, Pueblo, Colorado, Attorneys for Dr. Nancy Aldrich, Petitioner.

Mika & Associates, P.C., Patrick D. Mika, Colorado Springs, Colorado, Attorneys for Defendant.

Justice RICE delivered the Opinion of the Court.

This original proceeding arises out of a criminal case currently pending in the Pueblo County District Court. The Petitioner, Dr. Nancy Aldrich, seeks to prevent the District Court from enforcing a subpoena duces tecum requiring her to provide "[a]ny and all files, documents, and reports" relating to her treatment of the victim of the alleged sexual assault at issue in the criminal case. The trial court denied Petitioner's motion to quash the subpoena duces tecum. Instead, it ordered her to turn over the records for an in camera review. We issued a rule to show cause to Defendant.

We hold that the psychologist-patient privilege applies and shields the documents requested by Defendant from discovery — even in camera review by the trial court. Once the privilege attaches, the privilege holder must waive, explicitly or implicitly, the privilege before Defendant can obtain discovery. The victim's testimony at the preliminary hearing did not constitute a waiver of the privilege. Since there was no waiver, the subpoena duces tecum should have been quashed. The trial court did not have discretion to conduct an in camera review of the documents. The rule to show cause is made absolute.

I. FACTS AND PROCEDURAL HISTORY

Defendant, Aaron Dean Sisneros, has been charged with sexual assault on a child by one in a position of trust in violation of section 18-3-405.3(1), 6 C.R.S. (2002). Because this case is in the pre-trial stage, the facts of the alleged assault are based entirely on the victim's testimony at the preliminary hearing. The victim testified that she was sexually assaulted by the Defendant at his home during a sleepover with Defendant's daughter, a friend of the victim. Defendant's daughter, although in the same room, was asleep at the time and there were no other witnesses.

The victim remained largely silent regarding the incident until June 2001 — some six or seven months later. At that time, she informed her parents who in turn reported the assault to law enforcement. After the alleged assault was revealed to the victim's parents and reported to authorities, the victim began meeting with Dr. Nancy Aldrich, a state-licensed psychologist.

On the basis of the victim's accusations, the Defendant was arrested and charged. The information alleged that the incident occurred sometime in November 2000. However, during the preliminary hearing, the date of the incident became the subject of controversy. During cross-examination, defense counsel asked the victim when the assault took place and the following exchange occurred:

Victim: I don't recall the exact date. But me and my counselor did go through it and figured out that it was somewhere — it was Christmas vacation and — but it was before Christmas came, so probably about the weekend before Christmas. Because I remember on the way to his house, we were all singing Christmas carols, and he was talking about the Jingle Bell Rock. And she helped me narrow things down like that, and —

Defense Counsel: Who is "she"?

Victim: Nancy Aldrich.

Defense Counsel: So Nancy Aldrich helped you or told you — helped you find out what date this occurred?

Victim: Yes.

Based on this testimony, the prosecutor moved to amend the information to allege that the assault occurred in "November or December." The trial court allowed the amendment.

In March 2002, Defendant issued a subpoena duces tecum requesting that Dr. Aldrich produce "[a]ny and all files, documents and reports relating to [victim]... regarding her therapy with you and or associates of your office." Dr. Aldrich filed a motion to quash the subpoena duces tecum, arguing that the records were protected by the psychologist-patient privilege. See § 13-90-107(1)(g), 5 C.R.S. (2002). At the hearing on the motion, the trial court recognized the existence of the psychologist-patient privilege and, rather than allow Defendant full, unrestricted access to the records, expressed its intention to review the documents in camera. It is unclear from the transcript of the hearing what the trial court intended to excise from the Petitioner's records. The court simply indicated that it planned to do a review to determine if there is "something that may be relevant." Petitioner's motion to quash was denied. Dr. Aldrich filed a petition for a rule to show cause pursuant to C.A.R. 21 and this court issued an order to show cause to the Defendant. The trial court received Dr. Aldrich's records and placed them under seal, pending this court's decision on whether an in camera review is appropriate.

II. ORIGINAL JURISDICTION

In general, pretrial discovery orders are interlocutory in nature and not reviewable in an original proceeding. See Caldwell v. District Court, 644 P.2d 26, 30 (Colo.1982)

. However, this court has discretion under C.A.R. 21 to review whether a trial court abused its discretion in circumstances where a remedy on appeal would prove inadequate. See Kerwin v. District Court, 649 P.2d 1086, 1088 (Colo.1982). In this case, if Petitioner is wrongfully required to disclose confidential records, the damage will occur upon disclosure, regardless of any ruling on appeal. Therefore, we find it appropriate to exercise our original jurisdiction.

III. ANALYSIS

The issue before this court is whether the trial court has discretion to review Petitioner's documents in camera absent a waiver of the psychologist-patient privilege. Petitioner argues that the documents requested by Defendant are covered by the psychologist-patient privilege and without a waiver by the privilege holder the trial court lacks discretion to review the documents. Defendant contends that the privilege is not absolute and the trial court has discretion to review Petitioner's documents to determine "which documents are covered by [the] privilege, whether the privilege is abrogated, and whether there are uses for the documents that do not implicate the privilege." Def.'s Resp. at 8-9.

The psychologist-patient privilege enjoys widespread acceptance, both in Colorado and throughout the country. See Jaffee v. Redmond, 518 U.S. 1, 12, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996)

(noting that at the time of the opinion, all fifty states and the District of Columbia had some form of psychotherapist-patient privilege). In Colorado, the privilege was established by statute and is codified in section 13-90-107(1)(g), 5 C.R.S. (2002), which provides:

A licensed psychologist ... or unlicensed psychotherapist shall not be examined without the consent of such licensee's or unlicensed psychotherapist's client as to any communication made by the client to such licensee or unlicensed psychotherapist, or such licensee's or unlicensed psychotherapist's advice given thereon in the course of professional employment....

The purpose of the psychologist-patient privilege is to enhance the effective diagnosis and treatment of illness by protecting the patient from the embarrassment and humiliation that might be caused by the psychologist's disclosure of information divulged by the client during the course of treatment. Clark v. District Court, 668 P.2d 3, 8 (Colo. 1983). While this is the same policy that supports the physician-patient privilege, this court has noted that the justification is even more compelling when applied to the psychologist-patient relationship. Bond v. District Court, 682 P.2d 33, 38 (Colo.1984) ("A physical ailment may be treated by a doctor whom the patient does not trust, but if a psychologist or psychiatrist does not have the patient's trust, the therapist cannot treat the patient."). The policy is especially pronounced in this case because of the sensitive nature of the treatment of sexual assault victims:

[I]t is of paramount importance to assure a victim of a sexual assault that all records of any treatment will remain confidential unless otherwise directed by the victim. The knowledge that the alleged assailant would be entitled to discover these otherwise privileged documents could hamper a victim's treatment progress because of her unwillingness to be completely frank and open with the psychotherapist.

People v. District Court, 719 P.2d 722, 726-27 (Colo.1986).

The psychologist-patient privilege shields more than just communications between the psychologist and the patient. See Clark, 668 P.2d at 8

. Once it attaches, the psychologist-patient privilege protects testimonial disclosures as well as pretrial discovery of files or records derived or created in the course of the treatment. Id.; Dill v. People, 927 P.2d 1315 (Colo.1996) (notes and reports from ongoing counseling sessions properly excluded under the psychologist-patient privilege).

Once the privilege has attached, the Defendant may not compel discovery unless it is waived. Clark, 668 P.2d at 9; People v. District Court, 719 P.2d at 727; People v. Tauer, 847 P.2d 259, 261 (Colo.App. 1993)("Once the privilege applies, the only basis for allowing any disclosure of information is waiver by the person holding the privilege."). This conclusion is warranted based on the plain language of the statute. Clark, 668 P.2d at 10. Section 13-90-107(1)(g) provides that privileged information cannot be disclosed "without the consent" of the privilege holder. This "consent" requires an evidentiary showing that the privilege holder expressly or impliedly has given up any claim of confidentiality as to communications with the psychologist. Clark, 668 P.2d at 10.

This evidentiary showing of waiver is required before the trial court may order the documents produced for an in camera review....