American Journal of Law & Medicine

In camera inspections of privileged records in sexual assault trials: balancing defendants' rights and state interests under Massachusetts's Bishop test.


A sexual assault trial requires a court to balance evidentiary privileges enacted by a state legislature against a criminal defendant's constitutional trial rights. State legislatures enact various privileges which either limit or prohibit the discovery of confidential communications in criminal trials.(1) Such statutes reflect a firmly based legislative effort to protect citizens' private and personal confidences from unwarranted public scrutiny.(2) When a defendant charged with sexual assault seeks to compel discovery of the victim's privileged medical, psychiatric, or counseling records, a conflict inevitably arises.(3) States and victims assert that courts must respect statutory assurances of confidentiality; defendants assert that their constitutional right to a fair trial(4) and their right to confront the witnesses and evidence against them mandates disclosure.(5) Resolution of this pressing conflict requires a careful balancing of both the state's and defendant's interests on a case by case basis.(6)

In Pennsylvania v. Ritchie,(7) the Supreme Court of the United States held that a judicial in camera inspection of privileged records strikes a constitutional balance between the defendant's and the state's competing interests.(8) Under Ritchie, if a defendant asserts a need to review a victim's privileged records, the federal in camera approach empowers a judge to first inspect the requested records alone in chambers; the judge will then allow the defense and prosecution to review information deemed exculpatory or material.(9) The Court recognized that the exclusion of material evidence from the trial process increases the danger of convicting an innocent person and that a fair trial may necessitate a preliminary in camera inspection by the judge.(10) The Court stressed, however, that statutory privileges underscore society's efforts to protect victims' confidential communications and promote effective counseling.(11) Thus, the Court advocated in camera inspections as a constitutional, but discreet, method of providing the defense with material information while protecting the victim's privileged records.(12)

Judicial in camera reviews of victims' privileged records currently represent the most common method of balancing statutory privileges and defendants' trial rights.(13) Although many state courts advocate such judicial safeguards in sexual assault trials, the seemingly simple in camera review process also raises many complex procedural issues for courts.(14) Efforts by state courts to address these procedural disputes have resulted in varied applications of the in camera process.(15) The circumstances under which a court will conduct an in camera inspection, the scope of state constitutional protections, the admissibility of privileged records at trial, and the nature of the privilege asserted by the victim represent areas in which state courts have fashioned widely differing approaches to maintaining a balance between defendants' and states' competing interests.

Massachusetts courts, in particular, have grappled extensively with the appropriate method and manner of conducting in camera proceedings in sexual assault trials.(16) The Massachusetts Supreme Judicial Court's holding in Commonwealth v. Bishop(17) marks an attempt to provide trial courts with a systematic approach to the in camera review process.(18) The court recognized the defendant's right to prepare an informed defense, but it emphasized that a defendant may only have access to a victim's privileged communications in certain circumstances.(19) The focus of the opinion then devolved into the "vexatious task" of delineating what circumstances mandate disclosure.(20) The court articulated a five-stage review process with in camera review as its core principle.(21) The Bishop test seeks to clarify when and how the trial court should review privileged records, and when and why the trial court should deny disclosure to the defense.(22)

Part II of this Note reviews Supreme Court case law protecting the defendant's trial rights, analyzes the use of in camera inspections by various states in the early and mid-eighties, and discusses the Supreme Court's holding in Pennsylvania v. Ritchie. Part II then examines how the states responded to Ritchie, noting that most states adopted in camera review as a standard safeguard for privileged records, while others provided defense counsel with direct, initial access to privileged records under a state constitutional analysis. Part III states the facts of Commonwealth v. Bishop, and then details the five-stage procedure for in camera inspections adopted by the Massachusetts Supreme Judicial Court. Part IV analyzes the Bishop test at length. It explores its strengths and weaknesses in light of case law from other states, as well as recent interpretations of the test by Massachusetts trial courts. Lastly, Part V concludes that, while Bishop provides the courts with an equitable approach for dealing with privileged records, it fails to resolve several pressing procedural issues; a result which may lead to confused and inconsistent rulings in rape trials.


The Supreme Court of the United States has never recognized a general constitutional right to pretrial discovery in criminal cases.(23) The Court has, however, addressed closely related issues. In Brady v. Maryland,(24) the Supreme Court held that a defendant has a due process right under the Fourteenth Amendment to review exculpatory evidence in the government's possession.(25) The Court held that depriving defendants access to favorable, material evidence deprives them of a fair trial.(26) Under the Sixth Amendment, the Supreme Court has recognized a criminal defendant's pervasive right to confront and cross-examine witnesses, as well as a right to compel the attendance of favorable witnesses and the introduction of relevant evidence at trial.(27) These constitutional principles firmly safeguard a defendant's right to prepare a full and informed defense.

While a defendant's trial rights stem from constitutional mandates, privileges protecting confidential communications arise under the common law or by statute.(28) The enactment of statutory privileges, in particular, reflects the significance society places on protecting the confidentiality of particular communications.(29) For example, society has an interest in encouraging sexual assault victims to seek therapeutic counseling, hence many states privilege psychiatric and rape counseling records.(30) Society also has a compelling interest in promoting diligent reporting of sexual assaults,(31) hence every state and the District of Columbia have statutes protecting the confidentiality of state child abuse records.(32) To protect the above interests, legislatures enact statutory privileges with varying degrees of protection; some privileges are qualified by a list of noted exceptions,(33) other privileges are absolute and explicitly prohibit discovery in all circumstances, absent a waiver by the victim.(34) Statutes imposing strict guidelines or absolute bans on the disclosure of privileged information indicate a firmly based legislative concern for the inviolability of the protected communication.(35) Courts recognize the need to preserve qualified and absolute privileges and the interests they protect, noting that unwarranted disclosures of allegedly protected communications undermine the underlying privilege.(36)


When an evidentiary rule, such as a rule of privilege, imposes upon a defendant's trial rights, a court must consider whether the interests served by the rule justify the infringement.(37) The existence of statutory privileges and the use of judicial in camera inspections to protect them raises such a consideration.(38) Without a detailed directive from the Supreme Court, state courts in the 1980s varied in their constitutional analyses of in camera reviews.(39) Some states recognized the method as a viable, constitutional means of protecting both a defendant's trial rights and a victim's privileged communications.(40) Others took more extreme views. For example, Colorado recognized the absolute nature of some statutory privileges, and refused to disclose such records in criminal trials even for an in camera inspection.(41) In contrast, Pennsylvania rejected judicial in camera review in favor of providing defense counsel with direct and immediate access to privileged records.(42)

Throughout the 1980s, Massachusetts courts commonly reviewed a rape victim's privileged records in camera.(43) The Massachusetts Supreme Judicial Court's (SJC) opinion in Commonwealth v. Two Juveniles(44) provided trial courts with a definitive statement on the need for in camera inspections of privileged records.(45) In Two Juveniles, the defense originally sought direct and full access to records protected by an absolute privilege--the victim's rape counseling records.(46) The defense modified its position on appeal, insisting that defense counsel must participate with the judge in the in camera inspection.(47) The SJC recognized that the legislature sought to protect a sexual assault victim's privacy by guaranteeing confidentiality without exception, but it ultimately held that a defendant's Sixth Amendment trial rights may override even an absolute privilege.(48) To safeguard the state's and victim's privacy interests, however, the opinion emphasized that judges should conduct such record inspections in camera without defense counsel present.(49)

Two Juveniles squarely placed the burden on the defense to make a "preliminary showing of why the privilege must be overridden."(50) It required the defense to justify its request for an in camera inspection by showing a "legitimate need for access to the communications."(51) If the defense provided such a threshold showing, the court would then review the records in search of information useful and necessary to the defense.(52) The defense challenged the feasibility of a fact-specific proffer of "legitimate need,"(53) and contended that judges improperly assumed the role of an advocate during the in camera inspection.(54) Two Juveniles rejected both arguments, holding that an in camera review did not infringe upon the defendant's trial rights, rather it safeguarded them.(55)

Holdings by the Supreme Court of Colorado reflect a strong commitment to uphold statutory privileges and restrict the use of in camera inspections.(56) When addressing qualified privileges, the court recognized that judges "have a duty to ensure that evidence which might tend to prove a defendant's innocence is not withheld from the defense."(57) Thus, it concluded that in some circumstances, the court may be required to conduct a preliminary in camera inspection and provide the accused with access to privileged records.(58) However, the court emphasized that a defendant must establish that the privileged records are necessary to determine an issue in the case before a judicial in camera inspection will occur.(59) Within the context of absolute statutory privileges, the court took a stricter position. The court recognized both a state and federal right to confrontation, but it emphasized that the "right to cross examination is not absolute."(60) The court went so far as to reject the balancing approach for post-assault psychotherapy records, holding that the defense may not compel an in camera inspection of records protected by an absolute, unqualified privilege.(61)

Courts in Pennsylvania also grappled with balancing privileges against defendant's trial rights. In 1981, when a rape counseling center challenged the defense's request for access to its files, the Supreme Court of Pennsylvania specifically recommended in camera inspections as an appropriate protective remedy.(62) In defining the issue before the court, it noted that "we recognize the important societal interest in promoting such communications, [but] we also recognize the compelling societal interest in the truthseeking function of our system of criminal justice."(63) The court held that, after an in camera inspection, the trial court shall provide "only those statements of the complainant contained in the file which bear on the facts of the alleged offense."(64)

Controversy concerning the scope of in camera inspections in Pennsylvania, however, came to a head in Commonwealth v. Ritchie.(65) Prior to trial, the defendant in a sexual assault case served a subpoena upon Child Welfare Services (CWS) seeking access to the entire contents of the agency's child abuse file on the victim.(66) The trial court held an in camera hearing when CWS refused to produce the privileged records, and, without reviewing the records, the court chose not to disclose them to the defense.(67) On appeal, the Supreme Court of Pennsylvania held that the failure to disclose the entire CWS file to the defense violated both the Confrontation and Compulsory Process Clauses of the Sixth Amendment.(68) Despite the existence of a Pennsylvania statute creating a qualified privilege,(69) the court held that "the Commonwealth's interest in maintaining the confidentiality of these records may not override a defendant's [Sixth Amendment] right to effectively confront and cross-examine the witnesses against him."(70) The court ruled that it was constitutionally infirm to deny the defense the opportunity to review the records "with the eyes and the perspective of an advocate."(71) Thus, the court granted the defense direct, initial access to all requested records without a preliminary in camera inspection.(72) The Commonwealth appealed to the United States Supreme Court.(73)



In Pennsylvania v. Ritchie,(74) Pennsylvania challenged its state supreme court's abrogation of statutory privileges in criminal trials. The Supreme Court of the United States granted certiorari to determine whether "a State's interest in the confidentiality of its investigative files concerning child abuse must yield to a criminal defendant's Sixth and Fourteenth Amendment right to discover favorable evidence."(75) The Court ultimately determined that judicial in camera inspections outside the presence of defense counsel properly safeguard the defendant's right to a fair trial.(76)

The Court held that the Sixth Amendment failed to fully address the issues in the case, thus it engaged in a due process analysis under the Fourteenth Amendment's fair trial framework.(77) The Court noted that the Confrontation Clause provides two types of rights to a criminal defendant: the right to physically face accusers, and the right to cross-examine witnesses.(78) The defense asserted that judicial in camera inspections, resulting in limited or no access to the defense, interfered with the right of cross-examination; information in privileged records may provide the defense with evidence of bias or reveal inconsistent statements.(79) The Court rejected this claim, noting that the Confrontation Clause is a trial right "designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination."(80) It does not compel the pretrial production of all information that might be useful in contradicting trial testimony.(81)

The Court also rejected claims that judicial in camera inspections violate the Compulsory Process Clause.(82) The defense asserted that denying Ritchie direct, initial access to the privileged files denied him the names of "witnesses in his favor."(83) The Court recognized that the Compulsory Process Clause protects a criminal defendant's right to have the government's assistance in compelling the attendance of favorable witnesses and the right to put before the jury evidence influencing the issue of guilt.(84) As the Court had never held that the Compulsory Process Clause guarantees the right to discover a witness's identity or requires the government to produce exculpatory evidence, it chose to analyze the issue of pretrial discovery under the Due Process Clause of the Fourteenth Amendment.(85)

The Court emphasized that due process requires that the defense have access to "material" information; prior to trial the government must turn over evidence to the defense that is favorable or material to guilt or punishment.(86) Nonetheless, the Court stressed that "[a] defendant's right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth's [privileged] files."(87) When dealing with sexual assault crimes and privileged records, the Court stated that "to allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the Commonwealth's compelling interest in protecting [privileged] information."(88) Thus, the Court held that an in camera inspection fully considers the defense's need for access to privileged information, but respects the state and victim's confidentiality interests by utilizing a discreet method of review.(89)



Subsequent to Ritchie numerous states explicitly recognized in camera inspections as the appropriate method of reviewing privileged records in sexual assault trials.(90) In some states, however, opposition to the procedure continued to mount. Courts in Pennsylvania and Massachusetts held that their state constitutions provided criminal defendants with greater protections than the "federal" in camera approach detailed under Ritchie.(91) Engaging in a state constitutional analysis, they asserted that a criminal defendant's state confrontation and compulsory process rights required that the defense, not just the court, should have full access to privileged files.(92)

In Commonwealth v. Lloyd(93) the Pennsylvania Supreme Court effectively rejected the Supreme Court's analysis in Pennsylvania v. Ritchie.(94) The defendant sought access to the victim's entire psychotherapy file, asserting that the Pennsylvania Constitution(95) mandated full disclosure to the defense.(96) The court emphasized that the case before it differed from Ritchie in two fundamental ways. First, the court noted that "the issue before this Court arises not under the federal constitution but rather under our State Constitution."(97) It then interpreted Ritchie as providing defendants with minimal federal constitutional guarantees, while the Confrontation and Compulsory Process Clauses of the Pennsylvania Constitution mandated that the defense receive direct, unlimited access to the entire privileged file.(98) Second, it emphasized that the case "does not involve statutorily protected state maintained records but rather a request to produce Psychotherapy records in the possession of a hospital where treatment was given."(99) As only a common law privilege protected the psychiatrist's records, and not a statutory privilege, the court refused to shield the records from the defense's scrutiny.(100)

Within three years, however, the court had dramatically modified the significance of its holding in Lloyd.(101) Rather than emphasize Lloyd's state constitutional analysis, subsequent opinions focused upon the common law status of the psychiatrist-patient privilege at the time of the holding.(102) In short, courts must not balance a common law privilege against a criminal defendant's constitutional rights, but a statutory privilege requires balancing to preserve the legislature's efforts to preserve confidentiality.(103) Thus, the Pennsylvania Supreme Court advised trial courts to determine whether information is statutorily privileged and then determine the scope of that privilege.(104) It ultimately concluded that qualified statutory privileges warrant judicial in camera inspections,(105) while absolute statutory privileges protect a record from disclosure, absent a waiver by the victim.(106)

In Massachusetts, the Supreme Judicial Court's decision in Commonwealth v. Stockhammer(107) introduced a fundamental shift in rape trial discovery procedures.(108) Stockhammer dealt with the defense's access to records protected by qualified privileges.(109) Stockhammer presented a new procedure in Massachusetts whereby defense counsel would read the rape victim's privileged records prior to a judicial in camera review.(110) Subject to certain protective orders, the defense would move for the production of privileged records, scan the records for evidence of a victim's bias, prejudice, or a motive to lie, and then the court would rule on the evidence's admissibility in a subsequent in camera hearing.(111) Stockhammer did not expressly eliminate the requirement that the defense establish a record's relevancy prior to receiving access.(112)

In reversing the defendant's rape conviction, Stockhammer held that the trial court improperly denied the defense full and direct access to the victim's privileged records by conducting a judicial in camera inspection. …

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