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).
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.
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.