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The Supreme Court's Decision to Recognize a Psychotherapist Privilege in Jaffee V. Redmond, 116 S. Ct. 1923 (1996): The Meaning of the Term 'Experience' and the Role of 'Reason' Under Federal Rule of Evidence 501

University of Cincinnati Law Review, Vol. 65, No. 5, 1997

32 Pages Posted: 1 Feb 1999  

Diane Marie Amann

University of Georgia School of Law; University of Georgia - Dean Rusk International Law Center

Edward J. Imwinkelried

University of California, Davis - School of Law

Abstract

In Jaffee v. United States, 116 S. Ct. 1923 (1996), the U.S. Supreme Court recognized a testimonial privilege protecting the patient-psychotherapist relationship. Its decision is based on Rule 501 of the Federal Rules of Evidence, which permits courts to decide novel questions of privilege in the light of reason and experience. The Court held that this rule authorized not only recognition of a new privilege, but also a privilege of a broad scope, extending to relationships between patients and licensed clinical social workers. Its decision came as a mild surprise, given a widely shared assumption that Rule 501 creates a strong presumption against establishment of new privileges.

This article criticizes the Court's reliance on an instrumental rationale, one that sees privileges as a means to the end of encourging individuals to seek needed psychotherapeutic assistance. After examining the etymology of the statutory terms reason and experience, the article argues that the Court should have explored a humanistic, privacy-focused rationale for its decision. Still, the article concludes, the Court arrived at the correct result, and in so doing, offered important insight into the meaning of those key statutory terms.

Keywords: evidence, privilege, psychotherapy

JEL Classification: K10

Suggested Citation

Amann, Diane Marie and Imwinkelried, Edward J., The Supreme Court's Decision to Recognize a Psychotherapist Privilege in Jaffee V. Redmond, 116 S. Ct. 1923 (1996): The Meaning of the Term 'Experience' and the Role of 'Reason' Under Federal Rule of Evidence 501. University of Cincinnati Law Review, Vol. 65, No. 5, 1997. Available at SSRN: https://ssrn.com/abstract=141247

Diane Marie Amann (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

University of Georgia - Dean Rusk International Law Center

100 Herty Drive
Athens, GA 30602-6018
United States

Edward J. Imwinkelried

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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