Court Rejects Subpoenas for Victim Mental Health Records Citing Privacy and Lack of Discovery Rights

Page 37 of 78 2007 Utah L. Rev. 861, *912 court's refusal to issue subpoenas designed to uncover documents relating to the mental health of a victim and various witnesses. 8° The court described the broad and speculative nature of the request directed toward a hospital, observing that the defense was ""hard- [*913] pressed! to describe the information it hoped to discover in the materials." 7°° Consistent with Nixon, the court found the defendant's request "exemplified his "mere hope’ that the desired documents would produce favorable evidence, and a Rule 17(c) subpoena cannot properly be issued upon a "mere hope." 7?! Similarly, in State v. Percy, the Vermont Supreme Court upheld the lower court's refusal to order production by the victim. 79? The defendant had requested production of the victim's mental health information, arguing it was necessary for him to present his defense. 77? The Vermont Supreme Court rejected the defendant's arguments, finding that he made no showing of the materiality or helpfulness of the information - "indeed, [the] defendant essentially admitted the underlying acts." 794 The court also found it notable that the information sought was in the hands of a third party - not the State - and that the defendant made a broad request, rather than specifying particular records in the subpoena. 7°° In aggregate, the court considered those factors "fatal" to the defendant's request. a8 These cases were all decided against a constitutional backdrop that must favor crime victims: a criminal defendant has no constitutional right to conduct discovery, while confidential and personal information of crime victims may be protected by a constitutional right of privacy. The Supreme Court has clearly held that "there is no general constitutional right to discovery in a criminal case." 7°’ Indeed, the Constitution "has little to say regarding the amount of discovery which the parties must be afforded." 7° The only remotely related due process requirement the Court has recognized is the requirement that prosecutors disclose evidence that is favorable to the accused and material to guilt or punishment 2°? - evidence that would deprive the defendant of a fair trial if not disclosed. °° But even this rule - the Brady rule - is not a discovery rule and it does not reflect any discovery rights. Rather, it is a "self-executing constitutional rule" - a rule of "fairness and minimum prosecutorial obligation." 3°! Recognizing this, the Supreme Court has carefully circumscribed Brady: "An interpretation of Brady to create a broad, constitutionally required right of discovery would entirely alter the character and balance of our present systems of [*914] criminal justice." 7°? Indeed, 289 75 F.3d 1275, 1283-84 (8th Cir. 1996). 20 [dat £283. 291 Td. (citing United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980)). 292 548 A.2d 408, 415 (Vt. 1988). 293 Td. at 413. 294 Td. at 414-15. 295 Iq. 296 Fd. at 415. 297 Weatherford v. Bursey, 429 U.S. 545, 559 (1977); see also United States v. Ruiz, 536 U.S. 622, 629 (2002) (quoting Weatherford, 429 U.S. at 559). 298 Wardius v. Oregon, 412 U.S. 470,474 (1973). 299 See Brady v. Maryland, 373 U.S. 83, 87 (1963). 300 See United States v. Bagley, 473 U.S. 667, 675 (1985). 301 United States v. Garrett, 238 F.3d 293, 302 (Sth Cir. 2000) (citation and internal quotation marks omitted). 302, Bagley, 473 U.S. at 675 n.7 (citation and internal quotation marks omitted). DAVID SCHOEN HOUSE_OVERSIGHT_017672