State v. Famiglietti

• Decision Date: 08 May 2002
• Docket Number: No. 3D01-1158.,3D01-1158.
• Citation: 817 So.2d 901
• Parties: The STATE of Florida, Petitioner, v. David FAMIGLIETTI, Respondent.
• Court: Florida District Court of Appeals

817 So.2d 901

The STATE of Florida, Petitioner, v. David FAMIGLIETTI, Respondent.

No. 3D01-1158.

District Court of Appeal of Florida, Third District.

May 8, 2002.

Robert A. Butterworth, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for petitioner.

Bennett H. Brummer, Public Defender, and Eric M. Cohen, Special Assistant Public Defender, for respondent.

H. Scott Fingerhut, Miami; Benedict P. Kuehne of Sale & Kuehne for the Florida Association of Criminal Defense Lawyers-Miami Chapter as amicus curiae.

William R. Samek, Ph.D. for the Florida Psychological Association as amicus curiae.

Before SCHWARTZ, C.J., and JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN, SORONDO, and RAMIREZ, JJ.

On Rehearing En Banc

COPE, J.

The question presented is whether the defendant in a criminal case can invade the victim's privileged communications with her psychotherapist if the defendant can establish a reasonable probability that the privileged matters contain material information necessary to his defense.¹ We conclude that the answer is no.

First, the Evidence Code contains no authority for such an invasion of privileged matter. Second, no applicable constitutional provision authorizes an intrusion into matters protected by the psychotherapist-patient privilege.

I.

In this domestic violence case, the defendant is charged with attempted murder for beating the victim, his girlfriend, nearly to death with a tire iron, and with ramming the police vehicle of the officers who attempted to apprehend him the following day.

The defense took the deposition of the victim and asked her about prior incidents of domestic violence. The victim testified that in connection with a prior incident of domestic violence (for which she was hospitalized), she told her psychiatrist that she had been beaten by two unknown males. She indicated that she did this because she did not want to disclose that the defendant, her boyfriend, had beaten her.

The defendant moved for issuance of a subpoena duces tecum to the victim's psychiatrist, requiring disclosure of all of the victim's psychiatric records. The defendant's motion asserted that the information in the psychiatric files "is potentially either exculpatory evidence, goes to the credibility of the victim's testimony or is necessary information toward the preparation of the Defendant's defense."²

The trial court granted the motion in part. The court ruled that all of the psychiatrist's files regarding the victim would be disclosed to the judge in camera. The judge would then make the determination whether to release any of the records to the defense.

The State filed a petition for writ of certiorari. A panel of this court granted the petition and quashed the order. The panel opinion agreed with the defendant in principle that a defendant could invade a victim's privileged psychiatric records through the application of a balancing test.

The panel concluded, however, that in this case the defendant had not made a sufficiently specific showing of need to justify invading the victim's psychiatric records. The trial court order was quashed, but without prejudice to the defendant to make a more particularized showing.

On its own motion, this court set the case for rehearing en banc.

II.

In setting this case for en banc consideration, the court directed the parties to address (among other things) the question whether the State had standing to assert the psychotherapist-patient privilege on behalf of the patient. The State is not listed in subsection 90.503(3), Florida Statutes (2001) as one of the persons or entities that may invoke the psychotherapist-patient privilege on behalf of a patient.

We are now satisfied that the State does have standing. First, subsection 960.001(7), Florida Statutes (2001), provides in part, "The victim of a crime ... and the state attorney, with the consent of the victim ... have standing to assert the rights of a crime victim which are provided by law or s.16(b), Art. I of the State Constitution." The psychotherapist-patient privilege is a right provided by law. § 90.503, Fla. Stat. (2001).

Second, the defense has not raised any objection to the State's standing. Under Florida Supreme Court precedent, the issue of standing is waived if it is not raised in the trial court. Krivanek v. Take Back Tampa Political Committee, 625 So.2d 840, 842 (Fla.1993); Markham v. Neptune Hollywood Beach Club, 527 So.2d 814, 814 n. 2 (Fla.1988); Cowart v. City of West Palm Beach, 255 So.2d 673, 674-75 (Fla.1971).

III.

Proceeding to the merits, the Evidence Code does not contain any provision which would allow the defendant to invade a victim's communications which are protected by the psychotherapist-patient privilege.

Under the Evidence Code, the patient of a psychotherapist "has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition. ..." § 90.503(2), Fla. Stat. (2001). By the plain language of the Code, if the communication is privileged then it is not to be disclosed.

In defining the scope of the psychotherapist-patient privilege, the Code contains three exceptions. Id. § 90.503(4). These exceptions say in substance that there is no privilege in involuntary commitment proceedings, or when there is a court-ordered mental examination, or when the patient herself raises the issue of her mental condition in litigation.³ The Evidence Code also provides that the privilege may be waived by voluntary disclosure. Id. § 90.507.⁴

None of the statutory exceptions applies in this case. Thus, the psychiatric records at issue here are privileged. Under the plain words of the Evidence Code the victim has a right to prevent the disclosure of her psychiatric record.

The dissent argues that if the legislature has created exceptions to the psychiatrist-patient privilege then it follows that the privilege is somehow a qualified, or limited, one which may be invaded under a balancing test. That is not so.

The Evidence Code itself describes the scope of the privilege which has been created. If the communication fits within the privilege, then the patient may refuse, and may insist that others refuse, to disclose the communication. Id. § 90.503(2). There is no language in the Code which expressly or impliedly allows anyone to override a valid claim of psychiatrist-patient privilege. Cf. Jackson v. State, 603 So.2d 670, 671 (Fla. 4th DCA 1992) ("As the statute specifically delineates those exceptions to the marital privilege, we are loath to add additional exceptions.") (citations omitted).

When the legislature desires to create a qualified privilege, it knows how to do so. When the legislature created the journalist's privilege, the legislature said in plain words that it is "a qualified privilege not to be a witness concerning ... information... that the professional journalist has obtained while actively gathering news." § 90.5015(2), Fla. Stat. (2001) (emphasis added). The statute goes on to set forth the balancing test which must be met by "[a] party seeking to overcome this privilege...." Id.⁵

The psychotherapist-patient privilege contains no "qualified privilege" language. The psychotherapist-patient privilege does not contain any authority for invading the privileged communication nor any legal standard for doing so.

Arguing for judicially created exceptions to Evidence Code privileges, the dissent points to a statement by the Florida Supreme Court that "[t]he attorney-client privilege is not absolute and `may be outweighed by the public interest in the administration of justice in certain circumstances.'" Turner v. State, 530 So.2d 45, 46 (Fla.1987) (citation omitted). But in Turner the disclosure of the privileged communications was authorized by a specific provision of the Evidence Code. Id. (citing § 90.502, Fla. Stat.). The Turner decision did not involve a judicially-created exception to the attorney-client privilege.

The dissent makes reference to the State's limited privilege to withhold the identity of a confidential informant. However, that analogy does not apply here. The privilege regarding the confidential informant is purely a creature of case law, and case law defines its scope. In the present case we deal with a testimonial privilege which has been codified in the Evidence Code. Once codified, the words of the statute control.

The defendant relies on Katlein v. State, 731 So.2d 87 (Fla. 4th DCA 1999), but that case involved mental health treatment records covered by sections 394.4615 and 397.501, Florida Statutes (1997). 731 So.2d at 88. Both statutes allowed release of mental health records on a showing of good cause. Id. There is no comparable provision in the Evidence Code for invasion of the psychotherapist-patient privilege under a good cause standard.

The defendant argues that disclosure is authorized in this case by section 90.510, Florida Statutes, which states:

90.510. Privileged communication necessary to adverse party.

In any civil case or proceeding in which a party claims a privilege as to a communication necessary to an adverse party, the court, upon motion, may dismiss the claim for relief or the affirmative defense to which the privileged testimony would relate. In making its determination, the court may engage in an in camera inquiry into the privilege.

(Emphasis added).

By its terms, section 90.510 does not apply. First, this Evidence Code provision applies only in civil cases, not criminal cases. Second, even if it did, the crime victim is not a party to the case.

IV.

The foregoing interpretation of the Evidence Code is also sound policy. Writing in the context of federal evidentiary rules, the United States Supreme Court considered a case in which the Seventh Circuit had held that the psychotherapist-patient privilege could be...