U.S. v. Glass, 97-6066

• Decision Date: 13 January 1998
• Docket Number: No. 97-6066,97-6066
• Parties: 48 Fed. R. Evid. Serv. 634, 98 CJ C.A.R. 624 UNITED STATES of America, Plaintiff-Appellee, v. Archie Monroe GLASS, II, Defendant-Appellant, George C. Harris, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1356

133 F.3d 1356

48 Fed. R. Evid. Serv. 634, 98 CJ C.A.R. 624

UNITED STATES of America, Plaintiff-Appellee, v. Archie Monroe GLASS, II, Defendant-Appellant, George C. Harris, Amicus Curiae.

No. 97-6066.

United States Court of Appeals, Tenth Circuit.

Jan. 13, 1998.

William P. Earley, Assistant Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant.

Randal A. Sengel, Assistant U.S. Attorney (Patrick M. Ryan, United States Attorney, with him on the brief), Oklahoma City, OK, for Plaintiff-Appellee.

George C. Harris, Associate Professor, University of Utah College of Law, Salt Lake City, UT, for Amicus Curiae.

Before PORFILIO, TACHA, and KELLY, Circuit Judges.

PORFILIO, Circuit Judge.

In Jaffee v. Redmond, 518 U.S. 1, ----, 116 S.Ct. 1923, 1931, 135 L.Ed.2d 337 (1996), the Supreme Court held "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence." While announcing the privilege in the context of that § 1983 action, the Court found it "neither necessary nor feasible to delineate its full contours in a way that would 'govern all conceivable future questions in this area.' " Id. at ----, 116 S.Ct. at 1932 (quoting Upjohn Co. v. United States, 449 U.S. 383, 386, 101 S.Ct. 677, 681, 66 L.Ed.2d 584 (1981)). This case represents one of those anticipated permutations: whether Jaffee extends to a criminal case in which the confidential communication between a psychotherapist and his patient constituted the sole basis for the government's prosecution and conviction for threatening the life of the President. Confined to the particular facts and circumstances of this case, we hold the rule and rationale of Jaffee apply and reverse the district court's denial of the motion to exclude the statement which formed the basis for defendant's conditional guilty plea.

I. The Threat

The record is sparse and uncontroverted. On February 16, 1996, Archie Monroe Glass was taken to Hillcrest Hospital where he was voluntarily admitted to the mental health unit for treatment of his "ongoing mental illness." To Dr. Shantharam Darbe, a psychotherapist examining him, Mr. Glass stated "he wanted to get in the history books like Hinkley [sic] and wanted to shoot Bill Clinton and Hilary [sic]." Several days later, Dr. Darbe released Mr. Glass who had agreed "to participate in outpatient mental health treatment while residing at his father's home." Ten days after his admission and release from the hospital, an outpatient nurse, discovering Mr. Glass had left his father's home, notified local law enforcement. Subsequently, Secret Service agents contacted Dr. Darbe who related Mr. Glass' statement.

Indicted for knowingly and willfully threatening to kill the President of the United States in violation of 18 U.S.C. § 871(a), ¹ Mr. Glass moved to exclude Dr. Darbe's statement on the ground the confidential communication to his treating psychotherapist was protected by the psychotherapist-patient privilege announced in Jaffee. Responding to the motion, the government argued to the district court, albeit without benefit of an evidentiary hearing, "[o]nce Dr. Darbe determined that Defendant Glass presented a danger of violence to the President of the United States, he had a duty to protect the President," ² relying on footnote 19 of Jaffee, in which the Court expanded on its reluctance to propound the "full contours" of the psychotherapist-patient privilege but, in dicta, proffered an exception:

Although it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.

518 U.S. at ---- n. 19, 116 S.Ct. at 1932 n. 19. The district court agreed, persuaded under such compelling circumstances as those presented here of "an express threat to kill a third party by a person with an established history of mental disorder," that the "broad privilege recognized by Jaffee is inapplicable." This conclusion was made without presentation of evidence and, from our review of the record, appears to be supported factually only by argument contained in the government's trial court brief.

Mr. Glass now proposes a triad of alternative resolutions to the district court's adverse ruling: (1) extend the psychotherapist-patient privilege to criminal cases; (2) hold, in this case, assertions made solely for the purpose of treatment, with an expectation of confidentiality, do not constitute "threats" under § 871; or (3) remand the case for an evidentiary hearing to determine whether the facts fit the Jaffee exception for serious threats of harm to third persons. In opposition and upon the evidentiary bedrock that testimonial privileges thwarting the search for truth should be narrowly construed, the government warns adopting any of Mr. Glass' alternatives would create a "broad exclusionary rule" preventing "a psychotherapist from fulfilling his common law duty to protect the foreseeable victims from danger." The government urges Jaffee 's rationale for the privilege, fostering an atmosphere of confidence and trust when a person seeks to disclose his thoughts, simply does not apply in a criminal setting and asks we extend United States v. Burtrum, 17 F.3d 1299 (10th Cir.), cert. denied, 513 U.S. 863, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994), to all criminal cases. This proposition, Mr. Glass parries eviscerates Jaffee, requiring the admission of all threatening statements against third parties made to psychotherapists in the course of treatment. Because there was no evidentiary hearing or other fact-finding in this case to establish the patient knew what he was saying or to determine whether the threat of harm could only be averted by disclosure, Mr. Glass insists our embracing the government's suggestion conflicts with Jaffee 's express reluctance to define the parameters of the privilege, preferring analysis on a case-by-case basis.

II. Jaffee

In Jaffee, Petitioner, the administrator of the estate of a man who was shot by a police officer, sought access to a therapist's notes taken during counseling sessions with the officer after the shooting. Because of the conflicting versions of the event, Petitioner sought to discover the clinical social worker's notes for use in cross-examining the officer in a suit alleging violation of the deceased's constitutional rights under 42 U.S.C. § 1983 and Illinois' wrongful death statute. The officer responded the notes were protected by the psychotherapist-patient privilege and despite the court's rejecting the argument, the officer and therapist refused to comply with the court's disclosure order, prompting the court to instruct the jury it "could presume the contents of the notes would have been unfavorable to respondents." 518 U.S. at ----, 116 S.Ct. at 1926. The jury then awarded the estate damages on the federal and state claims. The Seventh Circuit reversed and remanded for a new trial, concluding " 'reason and experience,' the touchstones for acceptance of a privilege under Rule 501 of the Federal Rules of Evidence, compelled recognition of the psychotherapist-patient privilege." Id. (quoting 51 F.3d 1346, 1355 (7th Cir.1995)). Because of the split in the circuits in recognizing a psychotherapist privilege under Rule 501 of the Federal Rules of Evidence, the Court granted certiorari.

Against the broad mandate of the Federal Rules of Evidence authorizing federal courts "to define new privileges by interpreting 'common law principles ... in the light of reason and experience,' " id. at ----, 116 S.Ct. at 1927 (citation omitted), yet recognizing "the general duty to give what testimony one is capable of giving," id., the Court acknowledged that testimonial privileges may, however, be justified by a "public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth." Id. (internal quotes omitted) (citations omitted). "Reason and experience" persuaded the Court the psychotherapist-patient privilege advances both a public good and important private interests. "The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance." Id. at ----, 116 S.Ct. at 1929. At the same time, fostering and protecting "an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears" further "important private interests." Id. The Court reasoned sacrificing these important public and private interests for only modest evidentiary benefit, given the communications would unlikely come into being were they not protected, "would therefore serve no greater truth...