The Psychotherapist-Patient Privilege as an 'Occasional Instrument of Injustice': An Argument for a Criminal Threat Exception

Joi T. Montiel

Faulkner University, Jones School of Law

March 30, 2012

The Supreme Court in Jaffee v. Redmond announced a federal testimonial privilege protecting communications between a psychotherapist and his patient in federal court. However, in footnote 19 of the opinion, the Court noted that there may be times where the privilege must “give way,” such as when “disclosure” of the statements made in therapy is necessary to protect an intended victim of the patient.

Nonetheless, commentators have argued against an exception to the privilege when the statements made to the therapist indicate that a target is in danger, and some courts have rejected such a “dangerous patient exception” to the psychotherapist-patient privilege. This Article takes an opposing view and argues for an exception to be applied in limited circumstances that is narrower than the dangerous patient exception – a “criminal threat exception.”

This Article will demonstrate that, where courts refuse to acknowledge an exception to the psychotherapist-patient privilege where the patient’s threatening statement is in itself a crime, the federal courts are rendered “occasional instruments of injustice,” as Justice Scalia warned in his dissent in Jaffee.

Moreover, the rationale behind Jaffe’s creation of the psychotherapist-patient privilege – that society’s interest in the mental health of the citizenry outweighs society’s interest in the search for the truth in court – does not hold true where the statement that a patient makes to his therapist is in itself a crime, specifically a threat against a federal official. Congress has criminalized threats against public officials for several reasons: not only to protect the target from the threat being carried out, but also to protect the official from the fear of the violence and from the disruption that that fear engenders. That fear and disruption inhibits the free and fair functioning of government. Thus, in the case of a threat against a public official, the public’s need for the evidence is elevated; The need for a criminal threat exception exceeds the costs. Therefore, a narrow exception to the psychotherapist-patient privilege should be acknowledged under those circumstances.

Number of Pages in PDF File: 40

Keywords: psychotherapist-patient privilege, exception, Jaffee

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Date posted: April 2, 2012  

Suggested Citation

Montiel, Joi T., The Psychotherapist-Patient Privilege as an 'Occasional Instrument of Injustice': An Argument for a Criminal Threat Exception (March 30, 2012). Available at SSRN: http://ssrn.com/abstract=2033154 or http://dx.doi.org/10.2139/ssrn.2033154

Contact Information

Joi T. Montiel (Contact Author)
Faulkner University, Jones School of Law ( email )
Montgomery, AL 36109
United States
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