Getting the Alleged Victim’s Medical Records in a Criminal Case To
Defend On Causation
Atty. Michael D. Evans
The topic of this article is how to obtain an alleged victim’s medical
records to defend your client on the issue of causation in a criminal
case in Colorado.
Unlike civil litigation, criminal defense litigation does not have a discovery
tool like C.R.C.P. 35. It is very difficult in Colorado to obtain medical
records on an alleged victim in a criminal case, or submit them to a psychological
exam (or in criminal law, challenge the witness’ competency and
ability to perceive events). Difficult, but not impossible.
The best use of the tools in this article will be in crimes against the
person – assault, domestic violence, and homicide. Cause of injury
or death is always a material issue for the fact finder. If the defendant
can obtain evidence of a pre-existing injury on the alleged victim, similar
in type and recent in time, then reasonable doubt may be found. If the
defendant can obtain evidence that the alleged victim was under the influence
of drugs or alcohol which affected their ability to perceive events, then
reasonable doubt may be found.
A defendant is entitled to exculpatory or otherwise favorable evidence. See
Brady v. Maryland, 373 U.S. 83, 87 (1963). The duty to provide discovery encompasses impeachment
evidence as well as exculpatory evidence.
United States v. Bagely, 473 U.S. 667 (1985). There is a fundamental constitutional right provided
to a defendant in a criminal case to compel the attendance of witnesses
and evidence at a criminal trial. Colo. Const. art. II, § 16. A defendant
also has constitutional rights to confrontation and meaningful cross examination
of witnesses. See U.S. Const. Amend. 6, and 14; Colo. Const. Art. 2, §
16. See also
People v. Thurman, 787 P.2d 646, 651 (Colo. 1990).
Cross-examination regarding a witness or victim’s drug use is proper
and permitted if attempting to prove that the witnesses was under the
influence of a narcotic substance at the time of the occurrence to which
they were testifying, or if at the time of testifying at trial, matters
which might affect the witnesses' ability to perceive, remember, or
testify as to a particular event.
People v. Roberts, 553 P.2d 93, 94-95 (Colo. App. 1976) (defendant permitted to cross prosecution’s
witnesses on heroin use). See also CRE 404(a)(2), 608; CRS §§
This also includes:
Evidence bearing on ability to ability to observe, recollect and communicate
the events alleged as the basis for charges in this case. See
People v. Hester, 139 Colo. 255, 260 (1959). Such evidence is necessary to a determination
of competency to testify. See C.R.S. § 13-90-106(I)(a) (2008). See
also C.R.E. 602.
Evidence concerning ability to differentiate between real and imagined
events or hallucinations, and regarding her ability to understand the
witness’ oath to tell the truth. See
People v. Alexander, 724 P.2d 1304, 1307 (Colo. 1986).
Evidence regarding past and current drug use and the effect of drug use,
if any, on mental condition. See
People v. Roberts, 553 P.2d 93, 94 (Colo. App 1976).
- Evidence regarding inconsistent statements. See C.R.S. § 16-10-201.
Medical records are subject to waiver of privilege. An evidentiary showing
of waiver is required before the trial court may order the documents produced
for an in camera review. The proper inquiry is whether the victim has
injected his or her physical or mental condition into the case as the
basis of a claim or an affirmative defense. To establish a waiver, the
defendant must show that the privilege holder, by words or conduct has
expressly or impliedly forsaken his claim of confidentiality with respect
to the information in question.
People v. Wittrein, 221 P.3d 1076, 1083-1084 (Colo. 2009) (holding a partial waiver of psychologist-patient
People v. Pressley, 804 P.2d 226, 227-229 (Colo. Ct. App. 1990);
People v. Sisneros, 55 P.3d 797, 800-802 (Colo. 2002)
People v. Pressley, 804 P.2d 226, 227-229 (Colo. Ct. App. 1990), the Courts of Appeal distinguished
the privilege in both civil and criminal cases, as well as physician and
psychologist privileges. It explained the holding of
Kelley v. Holmes, 28 Colo. App. 79, 470 P.2d 590 (Colo. 1970) (holding one of the main
issues to be determined was the extent of plaintiff's injuries in
a civil case and therefore he had waived the physician-patient privilege
as to all physicians consulted concerning those injuries). It also held that a
general due process claim cannot outweigh the public policy considerations inherent
in the privilege.
Id at 229.
Mauro v. Tracy, 380 P.2d 570 (Colo. 1963), the Court considered whether a plaintiff's
trial testimony in a civil personal injury case waived his physician-patient
privilege. Plaintiff testified regarding the extent of his injuries from
an accident, the treatments prescribed by his doctors, and the amount
they charged for their services. The trial court allowed defendant to
call the treating physicians in order to rebut the evidence offered by
plaintiff on these issues. This court affirmed, noting that the plaintiff
had opened the door by his own statements regarding the details of his
Id. at 571.
The purpose of the physician-patient privilege is to enhance the effective
diagnosis and treatment of illness by protecting the patient from the
embarrassment and humiliation that might be caused by the physician's
disclosure of information imparted to him by the patient during the course
of a consultation for purposes of medical treatment.
Clark v. District Court, Second Judicial Dist., 668 P.2d 3, 7-8 (Colo. 1983). In
Bond v. District Court, 682 P.2d 33, 38 (Colo. 1984) the Court held that a
psychologist-patient privilege outweighs a physician-patient privilege because “a physical ailment may be treated by a doctor whom the
patient does not trust, but if a psychologist or psychiatrist does not
have the patient's trust, the therapist cannot treat the patient.".
People v. Chard, the Colorado Supreme Court decided that when determining whether to order
a psychological examination of a complaining witness in sexual assault
case, the Court must balance the likelihood that the examination will
produce material evidence against the possible embarrassment or emotional
trauma caused to the witness by the examination. See
People v. Chard,
III, 808 P.2d 351, 355 (Colo. 1991).
People v. Sisneros, 55 P.3d 797, 800-802 (Colo. 2002), the Court held that even though the
victim in a criminal case is not asserting a personal claim or defense,
he or she may waive the privilege by testifying as to the substance of
her treatment sessions or by placing her post-assault mental health in issue.
It must be sufficiently alleged and proven that there is no alternative
means by which the defendant can obtain the evidence other than court
order (via subpoena or subpoena duces tecum). If a court order is requested,
the defendant must set forth facts that: 1) a reasonable likelihood the
documents requested exist; 2) the materials are evidentiary and relevant
to this case; 3) the materials must be procured in advance of trial for
competent representation; 4) there exists no alternative means by which
the defendant may obtain the same documents; and 5) the subpoena is made
in good faith.
People v. Spykstra, 234 P.3d 662 (Colo. 2010).