Getting the Alleged Victim's Medical Records in a Criminal Case To Defend On Causation

Posted By Michael || 2-Dec-2015

Getting the Alleged Victim’s Medical Records in a Criminal Case To Defend On Causation

December 2015

By 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 §§ 16-9-101(1), 18-3-402.

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 privilege); People v. Pressley, 804 P.2d 226, 227-229 (Colo. Ct. App. 1990); People v. Sisneros, 55 P.3d 797, 800-802 (Colo. 2002)

In 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.

In 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 treatment. 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.".

In 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).

In 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).

Categories: Criminal Defense

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