by Miriam Bial*

In Jaf­fee v. Red­mond, the Court rec­og­nized that “fed­er­al priv­i­lege should also extend to con­fi­den­tial com­mu­ni­ca­tions made to licensed social work­ers in the course of psy­chother­a­py” so that ther­a­pists could not be com­pelled or per­mit­ted to tes­ti­fy regard­ing the con­tents of their ses­sions.1 The Court reached this deci­sion after deter­min­ing that the fed­er­al ther­a­pist-patient priv­i­lege “serves the pub­lic inter­est” and respects the over­whelm­ing sup­port shown by state leg­is­la­tures while threat­en­ing lit­tle actu­al detri­ment to the avail­abil­i­ty of reli­able evi­dence.2 The Court chose not to ful­ly cir­cum­scribe the reach of the priv­i­lege, and the cir­cuit courts have result­ing­ly split over a so-called “dan­ger­ous patient” excep­tion.3 The con­test­ed excep­tion builds upon the duty to warn expressed in Tara­soff v. Regents of the Uni­ver­si­ty of Cal­i­for­nia, and states that when a patient issues a seri­ous threat such that the ther­a­pist is required to warn law enforce­ment or a third par­ty, the patient los­es the abil­i­ty to lat­er claim the priv­i­lege and bar the therapist’s tes­ti­mo­ny at a sub­se­quent tri­al.4

This con­tri­bu­tion ana­lyzes the Jaf­fee Court’s dri­ving ratio­nale behind cre­at­ing the priv­i­lege, the let­ter and lan­guage of the Jaf­fee hold­ing, and the dire impli­ca­tions of notice as a form of waiv­er to argue that the excep­tion is inap­pro­pri­ate and should be reject­ed by the courts.


In Jaf­fee, the Supreme Court held that a fed­er­al ther­a­pist-patient priv­i­lege was war­rant­ed because it would “serv[e] pub­lic ends.”5 How­ev­er, in Clark v. Unit­ed States, the Court warned that “the recog­ni­tion of a priv­i­lege does not mean that it is with­out con­di­tions or excep­tions. The social pol­i­cy that will pre­vail in many sit­u­a­tions may run foul in oth­ers of a dif­fer­ent social pol­i­cy, com­pet­ing for suprema­cy.”6 This sit­u­a­tion­al weigh­ing mech­a­nism is the lens through which a poten­tial excep­tion ought to be judged as courts “medi­ate between [pub­lic ends], assign­ing, so far as pos­si­ble, a prop­er val­ue to each, and sum­mon­ing to its aid all the dis­tinc­tions and analo­gies that are the tools of the judi­cial process.”7 The fed­er­al ther­a­pist-patient tes­ti­mo­ni­al priv­i­lege was cre­at­ed based on its pub­lic health ben­e­fits, neg­li­gi­ble evi­den­tiary impact, and respect for state pol­i­cy­mak­ing. These aims would be under­mined by the cre­ation of a “dan­ger­ous patient” exception.

The fed­er­al ther­a­pist-patient tes­ti­mo­ni­al priv­i­lege was cre­at­ed in fur­ther­ance of immense pub­lic health ben­e­fits. It is in the inter­ests of peace­able soci­ety that those in need of men­tal health treat­ment are encour­aged to seek it out.8 Even Jus­tice Scalia’s dis­sent in Jaf­fee rec­og­nized that “[e]ffective psy­chother­a­py undoubt­ed­ly is ben­e­fi­cial to indi­vid­u­als with men­tal prob­lems, and sure­ly serves some larg­er social inter­est in main­tain­ing a men­tal­ly sta­ble soci­ety.”9 For treat­ment to be effec­tive, it is not enough for patients to mere­ly vis­it a therapist—they must feel com­fort­able dis­clos­ing issues and receiv­ing advice. The Sixth Cir­cuit rec­og­nized this as the Court’s objec­tive in Jaf­fee, hold­ing in Unit­ed States v. Hayes that the ther­a­pist-patient priv­i­lege was con­struct­ed to “facil­i­tate ‘an atmos­phere of con­fi­dence and trust’ con­ducive to mean­ing­ful treat­ment.”10

Con­verse­ly, the “dan­ger­ous patient” excep­tion com­pro­mis­es these pub­lic health ben­e­fits. The Sixth Cir­cuit under­stood that “recog­ni­tion of a ‘dan­ger­ous patient’ excep­tion sure­ly would have a dele­te­ri­ous effect on the ‘atmos­phere of con­fi­dence and trust’ in the psychotherapist/patient rela­tion­ship” because it would “chill and very like­ly ter­mi­nate open dia­logue.”11 In the face of this threat to effec­tive ther­a­py, the Sixth Cir­cuit repu­di­at­ed the excep­tion: “if our Nation’s men­tal health is indeed as valu­able as the Supreme Court has indi­cat­ed, and we think it is, the chill­ing effect that would result from the recog­ni­tion of a ‘dan­ger­ous patient’ excep­tion and its log­i­cal con­se­quences is the first rea­son to reject it.”12 The Ninth Cir­cuit sim­i­lar­ly declined to cre­ate a “dan­ger­ous patient” excep­tion in Unit­ed States v. Chase, because it rec­og­nized that “[a] crim­i­nal con­vic­tion with the help of a psychotherapist’s tes­ti­mo­ny is almost sure to spell the end of any patient’s will­ing­ness to under­go fur­ther treat­ment for men­tal health prob­lems.”13 

The privilege’s pub­lic health ben­e­fits do not evap­o­rate once a patient has been deemed dan­ger­ous and at risk of com­mit­ting a vio­lent crime. Main­tain­ing the priv­i­lege is essen­tial to ensure that oth­er patients con­tin­ue to can­did­ly con­fide in their ther­a­pists. As a gen­er­al rule, indi­vid­u­als must be able to pre­dict the appli­ca­tion of a priv­i­lege for them to take advan­tage of it and there­fore for the privilege’s soci­etal ben­e­fits to be real­ized.14 The “dan­ger­ous patient” excep­tion is inher­ent­ly unpre­dictable as indi­vid­u­als in men­tal health coun­sel­ing may be unable to pre­dict how their state­ments will be per­ceived. Indi­vid­u­als who fear that their com­mu­ni­ca­tions will be mis­in­ter­pret­ed and lead to crim­i­nal charges may self-cen­sure or eschew ther­a­py entire­ly. Would-be patients with poor emo­tion­al reg­u­la­tion may sim­i­lar­ly avoid ther­a­py, as an out­burst in front of the wrong audi­ence could lead to adverse tes­ti­mo­ny that would not oth­er­wise accrue. Such an out­come is detri­men­tal both to those would-be patients and to soci­ety at large because indi­vid­u­als expe­ri­enc­ing vio­lent ideation are exact­ly those who should be receiv­ing men­tal health treatment.

There is a tremen­dous chasm between the pre­ven­ta­tive and puni­tive mech­a­nisms at play. Main­tain­ing the priv­i­lege to encour­age indi­vid­u­als to seek effec­tive men­tal health coun­sel­ing may pro­vide pre­ven­ta­tive ben­e­fits by fore­stalling harm­ful actions that might have been pur­sued in the absence of ther­a­py. Mean­while, a focus on pun­ish­ing indi­vid­ual wrong­do­ing after the fact rather than pre­vent­ing wide­spread harm before it occurs is dele­te­ri­ous to pub­lic wel­fare. The crime at issue can­not be undone and, as the Sixth Cir­cuit rec­og­nized, “[o]nce in prison, even part­ly as a con­se­quence of the tes­ti­mo­ny of a ther­a­pist to whom the patient came for help, the prob­a­bil­i­ty of the patient’s men­tal health improv­ing dimin­ish­es sig­nif­i­cant­ly and a stig­ma cer­tain­ly attach­es after the patient’s sen­tence is served.”15 The stan­dard invo­ca­tions of deter­rence as a meld of the pre­ven­ta­tive and puni­tive mech­a­nisms are uncon­vinc­ing in this con­text. Where indi­vid­u­als are suf­fer­ing from men­tal health issues and may be act­ing irra­tional­ly, they are less like­ly to mod­i­fy their behav­ior in accor­dance with the typ­i­cal under­stand­ing of deter­rent measures.

This detri­ment to pub­lic health does not pro­vide sig­nif­i­cant evi­den­tiary ben­e­fits to off­set the loss. Oppo­nents of a robust ther­a­pist-patient priv­i­lege com­plain that the Jaf­fee Court “dis­cussed at some length the ben­e­fit that will be pur­chased by cre­ation of the evi­den­tiary priv­i­lege in this case: the encour­age­ment of psy­cho­an­a­lyt­ic coun­sel­ing” but dis­count­ed “the pur­chase price: occa­sion­al injus­tice.”16 Yet, the Supreme Court and sev­er­al cir­cuit courts have held that the result­ing injus­tice is not occa­sion­al but rather near­ly nonex­is­tent.

Jus­tice Scalia’s crit­i­cism rests on the premise that there is an untapped reserve of ther­a­pists’ tes­ti­mo­ny and the priv­i­lege allows guilty indi­vid­u­als to go free. How­ev­er, if any such cache exists, it would van­ish as soon as the priv­i­lege is removed.17 Far from ignor­ing the privilege’s evi­den­tiary loss­es, as Jus­tice Scalia alleged, the major­i­ty in Jaf­fee acknowl­edged that the evi­dence would be unavail­able regard­less: “With­out a priv­i­lege, much of the desir­able evi­dence to which lit­i­gants such as peti­tion­er seek access—for exam­ple, admis­sions against inter­est by a party—is unlike­ly to come into being. This unspo­ken ‘evi­dence’ will there­fore serve no greater truth-seek­ing func­tion than if it had been spo­ken and priv­i­leged.”18 Just as the “dan­ger­ous patient” excep­tion would dis­cour­age can­did ther­a­py or treat­ment-seek­ing, it would simul­ta­ne­ous­ly reduce the cre­ation of poten­tial evi­dence, there­by reduc­ing the privilege’s ben­e­fits for neg­li­gi­ble evi­den­tiary com­pen­sa­tion. The Court has made clear that “the priv­i­lege is not root­ed in any con­sti­tu­tion­al right of pri­va­cy but in a pub­lic good which over­rides the quest for rel­e­vant evi­dence[.]”19 While the pub­lic good of encour­ag­ing men­tal health and pre­ven­ta­tive care is an immense one, it is aid­ed by the fact that the quest for rel­e­vant evi­dence would be fruit­less just the same.


In for­mu­lat­ing its opin­ion, the Jaf­fee Court con­sid­ered state evi­dence rules for two rea­sons: (1) states’ supe­ri­or pol­i­cy-mak­ing abil­i­ty in this area, and (2) the ben­e­fits of pro­ce­dur­al con­sis­ten­cy across state and fed­er­al courts. It found that both sup­port­ed the recog­ni­tion of the fed­er­al ther­a­pist-patient priv­i­lege. A sim­i­lar review indi­cates that both fur­ther sup­port a robust ver­sion of the priv­i­lege that does not con­tain a “dan­ger­ous patient” exception.

First, states have the great­est insight into how crim­i­nal courts oper­ate at the local lev­el and thus are expect­ed to enact the evi­den­tiary poli­cies that best pro­mote jus­tice and effi­ca­cy. As the Jaf­fee Court held, “[b]ecause state leg­is­la­tures are ful­ly aware of the need to pro­tect the integri­ty of the factfind­ing func­tions of their courts, the exis­tence of a con­sen­sus among the States indi­cates that ‘rea­son and expe­ri­ence’ sup­port recog­ni­tion of the priv­i­lege.”20 It is beyond ques­tion that the states’ “rea­son and expe­ri­ence” sup­ports Jaf­fee’s cre­ation of the fed­er­al ther­a­pist-patient priv­i­lege because all 50 states and the Dis­trict of Colum­bia have enact­ed laws safe­guard­ing ther­a­pist-patient con­fi­den­tial­i­ty.21 These actions of state leg­is­la­tures but­tress a robust ver­sion of the priv­i­lege. The Sixth Cir­cuit held that “adop­tion of a ‘dan­ger­ous patient’ excep­tion as part of the fed­er­al com­mon law is ill-advised” because “[t]he major­i­ty of states have no such excep­tion as part of their evi­dence jurispru­dence.”22 Inso­far as state leg­is­la­tures promise greater “rea­son and expe­ri­ence,” they have reject­ed the cre­ation of a “dan­ger­ous patient” exception.

Sec­ond, con­sis­ten­cy in priv­i­lege appli­ca­tion is essen­tial.23 Because indi­vid­u­als can­not reli­ably pre­dict whether they will be tried in state or fed­er­al court, dis­agree­ment over a priv­i­lege would require indi­vid­u­als to “play it safe” and act as if there is no priv­i­lege. The Jaf­fee Court held that “giv­en the impor­tance of the patient’s under­stand­ing that her com­mu­ni­ca­tions with her ther­a­pist will not be pub­licly dis­closed . . . [d]enial of the fed­er­al priv­i­lege there­fore would frus­trate the pur­pos­es of the state leg­is­la­tion that was enact­ed to fos­ter these con­fi­den­tial com­mu­ni­ca­tions.”24 Fail­ing to rec­og­nize a priv­i­lege that the states have affir­ma­tive­ly enact­ed would essen­tial­ly act as a judi­cial over­rule of oth­er­wise con­sti­tu­tion­al state action. If states wished to cre­ate a “dan­ger­ous patient” excep­tion, they could do so statu­to­ri­ly. The fact that all but one have not and have instead enshrined a more straight­for­ward ver­sion of the ther­a­pist-patient priv­i­lege indi­cates that fed­er­al courts should fol­low suit. 


When the Tenth Cir­cuit rec­og­nized a “dan­ger­ous patient” excep­tion, it claimed it did so under the aus­pices of the Supreme Court’s rul­ing in Jaf­fee.25 How­ev­er, the Tenth Circuit’s opin­ion rests upon an incor­rect inter­pre­ta­tion of a sin­gle foot­note which appeared in dic­ta and was intend­ed to high­light future ques­tions, not to under­mine a land­mark deci­sion. In Jaf­fee, the Court not­ed that “[b]ecause this is the first case in which we have rec­og­nized a psy­chother­a­pist priv­i­lege, it is nei­ther nec­es­sary nor fea­si­ble to delin­eate its full con­tours in a way that would ‘gov­ern all con­ceiv­able future ques­tions in this area.”’26 The Court append­ed the much-dis­cussed foot­note to its dis­cus­sion of this impossibility:

“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.”27

The Sixth, Eighth and Ninth Cir­cuit have coa­lesced around a com­mon under­stand­ing of the foot­note: “We believe . . . that the Jaf­fee foot­note is no more than an aside by Jus­tice Stevens to the effect that the fed­er­al psychotherapist/patient priv­i­lege will not oper­ate to impede a psychotherapist’s com­pli­ance with the pro­fes­sion­al duty to pro­tect iden­ti­fi­able third par­ties from seri­ous threats of harm.”28 The con­cur­rence in Chase protest­ed that “[t]he words ‘the priv­i­lege must give way’ do not mean that ‘the right to out-of-court con­fi­den­tial­i­ty must give way,’ or that ‘the right to con­fi­den­tial­i­ty is super­seded by the duty of out-of-court dis­clo­sure to the prospec­tive vic­tim.’”29 But the Hayes major­i­ty coun­tered with a list of sce­nar­ios in which the priv­i­lege itself would “give way,” out­side of the con­text of a crim­i­nal tri­al, not­ing that, for exam­ple, “psy­chother­a­pists will some­times need to tes­ti­fy in court pro­ceed­ings, such as those for the invol­un­tary com­mit­ment of a patient[.]”30 The majority’s inter­pre­ta­tion of the foot­note com­ports with the text and respects the over­ar­ch­ing aims dis­cussed in Jaf­fee.

The Tenth Circuit’s inter­pre­ta­tion of the foot­note does not just betray the moti­vat­ing ratio­nales of the priv­i­lege; it is also poten­tial­ly unwork­able. In Glass, the Tenth Cir­cuit read the foot­note as inten­tion­al­ly prof­fer­ing the “dan­ger­ous patient” excep­tion, but nonethe­less remand­ed the case for an evi­den­tiary hear­ing to deter­mine if the defendant’s threat against Bill and Hillary Clin­ton was “seri­ous.”31 The Sixth Cir­cuit not­ed that this form of inquiry means that “future cas­es of this sort will devolve into a bat­tle of experts tes­ti­fy­ing whether a psy­chother­a­pist behaved ‘rea­son­ably’ before dis­clos­ing what was believed to be a seri­ous threat. Such an inquiry would, at a min­i­mum, be high­ly spec­u­la­tive and very like­ly lead to errat­ic results.”32 These evi­den­tiary hear­ings would also vary wild­ly, as states have dis­parate def­i­n­i­tions of “rea­son­able” pro­fes­sion­al con­duct and eval­u­at­ing the “seri­ous­ness” of a threat may be high­ly sub­jec­tive.33


The con­cepts of waiv­er and breach should not be used to con­struct a de fac­to “dan­ger­ous patient” excep­tion. Sup­port­ers of the excep­tion have man­i­fest­ed the argu­ment in two forms: (1) that patients should be on notice that any sup­pos­ed­ly threat­en­ing com­mu­ni­ca­tions would not be con­fi­den­tial, and thus waive the priv­i­lege by vocal­iz­ing such com­mu­ni­ca­tions, and (2) that the ini­tial breach of con­fi­den­tial­i­ty when a ther­a­pist dis­clos­es a threat to law enforce­ment in ful­fill­ment of their Tara­soff duty voids any sub­se­quent claims to invoke the ther­a­pist-patient priv­i­lege. Nei­ther is persuasive.

In Hayes, the gov­ern­ment argued that because Hayes’ ther­a­pists advised him of their “duties to pro­tect,” by report­ing threats to law enforce­ment, “when Hayes chose to con­tin­ue dis­cus­sions with the ther­a­pists after receiv­ing such advice, he con­struc­tive­ly waived the pro­tec­tions of the psychotherapist/patient evi­den­tiary priv­i­lege.”34 The Sixth Cir­cuit reject­ed this argu­ment, hold­ing that the priv­i­lege can only be waived “know­ing­ly” or “vol­un­tar­i­ly,” and because Hayes was nev­er informed that his ther­a­pists might not only report his threats but also tes­ti­fy against him, there was no case for con­struc­tive waiv­er.35 The Sixth Cir­cuit addi­tion­al­ly ruled that any notice meant to serve as the basis for con­struc­tive waiv­er must be tai­lored to the patient’s actu­al under­stand­ing.36 While ther­a­pists could the­o­ret­i­cal­ly adopt a tai­lored tes­ti­mo­ni­al warn­ing at the begin­ning of ther­a­py ses­sions to sat­is­fy this require­ment, it would still under­mine the pro-ther­a­py goals of the priv­i­lege and thus should not be encour­aged, let alone read in as a de fac­to exception.

Sup­port­ers of the excep­tion have also called upon the con­cept of breach, argu­ing that once a ther­a­pist has com­plied with their Tara­soff duty to warn and informed law enforce­ment or a third par­ty about their patient’s threat, con­fi­den­tial­i­ty has been breached and can­not be restored.37 This rea­son­ing flips the log­ic of the ther­a­pist-patient priv­i­lege on its head and ren­ders it mean­ing­less. It is the patient, not the ther­a­pist or any oth­er par­ty, who main­tains the author­i­ty to waive the tes­ti­mo­ni­al priv­i­lege.38 Hold­ing that the therapist’s warn­ings con­vey breach incor­rect­ly vests the abil­i­ty to waive priv­i­lege in the ther­a­pist with no actu­al input from the patient. Con­se­quent­ly, it could not be argued that the patient “know­ing­ly” or “vol­un­tar­i­ly” agreed to the waiv­er in any form. As the Sixth Cir­cuit not­ed, “it would be rather per­verse and unjust to con­di­tion the free­dom of indi­vid­u­als on the com­pe­ten­cy of a treat­ing psy­chother­a­pist.”39


The fed­er­al ther­a­pist-patient tes­ti­mo­ni­al priv­i­lege seeks to bol­ster the nation’s health and well­be­ing and ought to be main­tained as a robust priv­i­lege. Cre­at­ing a “dan­ger­ous patient” excep­tion lessens the privilege’s pub­lic health ben­e­fits with­out pro­vid­ing com­pen­sato­ry evi­den­tiary gains. Inso­far as the priv­i­lege was con­struct­ed out of respect for state pol­i­cy­mak­ing, that same objec­tive rec­om­mends against a “dan­ger­ous patient” excep­tion. And although cir­cuit courts have invoked the Jaf­fee foot­note along­side breach and waiv­er argu­ments, the Sixth, Eighth, and Ninth Cir­cuits have cor­rect­ly reject­ed these argu­ments out of a focus on the privilege’s aims and prac­ti­cal workability.

* Miri­am Bial is a J.D. Can­di­date (2022) at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on the prob­lem pre­sent­ed at the 2021 Prince Moot Court Com­pe­ti­tion held in Brook­lyn, New York. The argu­ments expressed in this con­tri­bu­tion reflect a dis­til­la­tion of one side of an argu­ment assigned to the author’s team at the Prince Moot Court Competition.

1. Jaf­fee v. Red­mond, 518 U.S. 1, 15 (1996).

2. Id. at 11–13.

3. The Fifth and Tenth Cir­cuits embraced the excep­tion, while the Sixth, Eighth, and Ninth Cir­cuits reject­ed it. See Unit­ed States v. Auster, 517 F.3d 312 (5th Cir. 2008); Unit­ed States v. Glass, 133 F.3d 1356 (10th Cir. 1998); Unit­ed States v. Hayes, 227 F.3d 578 (6th Cir. 2000); Unit­ed States v. Ghane, 673 F.3d 771 (8th Cir. 2012); Unit­ed States v. Chase, 340 F.3d 978 (9th Cir. 2003).

4. See, e.g., Glass, 133 F.3d at 1357.

5. Jaf­fee, 518 U.S. at 11 (quot­ing Upjohn Co. v. Unit­ed States, 449 U.S. 383, 389 (1981)).

6. Clark v. Unit­ed States, 289 U.S. 1, 13 (1933).

7. Id.

8. See Jaf­fee, 518 U.S. at 11 (“The men­tal health of our cit­i­zen­ry, no less than its phys­i­cal health, is a pub­lic good of tran­scen­dent importance.”).

9. Id. at 22 (Scalia, J., dissenting).

10. Hayes, 227 F.3d at 582 (quot­ing Jaf­fee, 518 U.S. at 10).

11. Hayes, 227 F.3d at 584–85 (quot­ing Jaf­fee, 518 U.S. at 10).

12. Id. at 585.

13. 340 F.3d 978, 991 (9th Cir. 2003).

14. See Upjohn Co. v. Unit­ed States, 449 U.S. 383, 393 (1981) (“[I]f the pur­pose of the attorney–client priv­i­lege is to be served, the attor­ney and client must be able to pre­dict with some degree of cer­tain­ty whether par­tic­u­lar dis­cus­sions will be pro­tect­ed. An uncer­tain priv­i­lege, or one which pur­ports to be cer­tain but results in wide­ly vary­ing appli­ca­tions by the courts, is lit­tle bet­ter than no priv­i­lege at all.”).

15. Hayes, 227 F.3d at 585.

16. Jaf­fee, 518 U.S. at 18 (Scalia, J., dissenting).

17. See Chase, 340 F.3d at 990 (“Any excep­tion nec­es­sar­i­ly has some adverse effect on the can­dor that the psy­chother­a­pist-patient priv­i­lege is meant to encour­age, because patients will be more reluc­tant to divulge unsa­vory thoughts or urges if they know that the ther­a­pist may be required to tes­ti­fy about the con­tent of ther­a­peu­tic sessions.”).

18. Jaf­fee, 518 U.S. at 12.

19. Unit­ed States v. Glass, 133 F.3d 1356, 1358 (10th Cir. 1998) (cit­ing Jaf­fee, 518 U.S. at 17–18).

20. Jaf­fee, 518 U.S. at 13.

21. Chase, 340 F.3d at 982.

22. Cal­i­for­nia stands alone as the sin­gle state whose evi­dence code con­tains a “dan­ger­ous patient” excep­tion. Unit­ed States v. Hayes, 227 F.3d 578, 585–86 (6th Cir 2000); see also Cal. Evid. Code § 1024 (West 1967).

23. See Chase, 340 F.3d at 986 (“A state’s promise of con­fi­den­tial­i­ty has less val­ue if the patient knows that an excep­tion to the priv­i­lege applies in fed­er­al court.”)

24. Jaf­fee, 518 U.S. at 13.

25. See Glass, 133 F.3d at 1359–60.

26. Jaf­fee, 518 U.S. at 18 (quot­ing Upjohn, 449 U.S. at 386).

27. Id. at 18 n.19.

28. Hayes, 227 F.3d at 525. See also Unit­ed States v. Ghane, 673 F.3d 771, 785 (8th Cir. 2012) (“We agree with our sis­ter cir­cuits that have reject­ed this excep­tion and decline to inter­pret the dic­tum in Jaf­fee as estab­lish­ing a prece­den­tial­ly bind­ing “dan­ger­ous patient” excep­tion to the fed­er­al psy­chother­a­pist-patient tes­ti­mo­ni­al priv­i­lege.”); Chase, 340 F.3d at 984 (“We read that foot­note as endorsing—albeit elliptically—a duty to dis­close threats to the intend­ed vic­tim and to the authorities[.]”).

29. Chase, 340 F.3d at 995 (Kle­in­feld, J., concurring).

30. Hayes, 227 F.3d at 585.

31. Glass, 133 F.3d at 1360.

32. Hayes, 227 F.3d at 584.

33. Id.

34. Id. at 586.

35. Id. (hold­ing that because “[n]one of Hayes’s psy­chother­a­pists ever informed him of the pos­si­bil­i­ty that they might tes­ti­fy against him . . . the government’s con­struc­tive waiv­er argu­ment is meritless.”).

36. Id. at 587 (When deal­ing with patients who “suf­fer from seri­ous men­tal and/or emo­tion­al dis­or­ders[,] . . . it must be the law that, in order to secure a valid waiv­er of the pro­tec­tions of the psychotherapist/patient priv­i­lege from a patient, a psy­chother­a­pist must pro­vide that patient with an expla­na­tion of the con­se­quences of that waiv­er suit­ed to the unique needs of that patient.”). See also Unit­ed States v. Ghane, 673 F.3d 771, 787 (8th Cir. 2012) (hold­ing that the plain­tiff did not waive ther­a­pist-patient priv­i­lege because he was not specif­i­cal­ly informed that his state­ments could be used against him in a sub­se­quent crim­i­nal prosecution).

37. The Prince Moot Court Evi­dence Competition’s prob­lem made note of this opin­ion, stat­ing that “when a secret is out it is out for all time and can­not be caught again like a bird and put back in its cage.” (quot­ing Peo­ple v. Bloom, 193 N.Y. 1, 10 (1908)).

38. Hayes, 227 F.3d at 587 (cit­ing Jaf­fee, 518 U.S. at 15 & n. 14).

39. Id. at 584.