Supreme Court Ruling: Jaffee v. Redmond, 1996

This article is a reprint of the one which first appeared in the San Francisco Recorder on 07/24/96

Though recently protected from disclosure in the federal courts, therapists' records remain under siege by insurance companies

By: Mark Levy, M.D.

Confidentiality is the core of a patient/therapist relationship. Trust, the very foundation of therapy, is eroded by a threat to privacy.

And in June, the U.S. Supreme Court decided that all psychotherapist-patient communication is protected from compelled disclosure in federal courts. The ruling in Jaffee v. Redmond, 1996 WL 315841, marks an enormous victory for patient confidentiality -- but it does nothing to protect patients from insurance companies, Medicare and other organizations and agencies.

Inspectors from a major insurance company -- Albany, N.Y.- based Physicians Health Plan -- regularly monitor therapists' record-keeping by entering offices and reading files. Even the federal government's Health Care Financing Administration has claimed that inspectors from Medicare insurers have the right to read therapists' records to assure that Medicare patients receive the same treatment as others. This sham explanation hides the insurers' true goal -- to invade the doctor-patient privilege. Because of the possibility of such inspections, some therapists now routinely decline to see any patients covered under the Medicare program. Forget whether patients can trust that their therapy is confidential -- they may not get the treatment they need in the first place.

In managed care, mental health professionals are required to state a specific diagnosis and treatment plan to obtain authorization for what is usually a very brief period of care. It is virtually impossible for a patient to give informed consent to this release of information: When an individual is hurting, her priority is to make the pain go away, not to think about the implications of disclosure.

For example, many people occasionally think about suicide, if only in passing. If the psychotherapist notes every instance of suicidal thoughts, the patient might be branded as a suicide risk and subsequently denied life insurance. A patient can't validly consent to allow access to sensitive information if that patient cannot fully comprehend the consequences of his decision.

If you think the assault on patient confidentiality is a purely hypothetical one, consider a suit brought by a coalition of groups helping AIDS patients in Boston. The suit was aimed at stopping auditors at the Department of Health and Human Services from disseminating the names of AIDS patients to various government agencies. Worse, according to Time magazine, several years ago a banker who served on a state health commission obtained a list of every cancer patient in his community and proceeded to call in their loans. The banker's name was not made public, and he was never punished.

The Dangers Of Progress

Many states, including California, are considering the development of a comprehensive, computerized database for medical records. Maryland's Health Care Access and Cost Commission, which is responsible for annually reporting variations in fees charged and the use of physician services, has already done so.

Placing medical information in centralized computer systems may improve efficiency, but it raises privacy concerns. Such records are useful only if they are widely accessible. Though Maryland's HCACC maintains that confidentiality is protected because each patient is identified by an encrypted number, opponents say the main threat to security comes from within.

"The larger the scope of the [HCACC]'s activities, the larger number of insiders who may become involved. As long as data are considered valuable by some parties . . . there will be security risks," according to professor Beverly Woodward of Brandeis University, who is writing a book about medical databases.

To combat the threat to confidentiality, the American Psychoanalytic Association, affiliated with the San Francisco Psychoanalytic Institute and the San Francisco Foundation for Psychoanalysis, has recommended an extreme, but logical solution -- that therapists keep no record of individual treatment sessions. Issues of privacy are most pronounced for those patients seeking psychoanalysis, where disclosing intimate details is an integral part of treatment.

While the Jaffee v. Redmond decision guards patient privacy in federal courts, it does not protect sensitive information from other prying eyes.

AUTHOR: Mark Levy, M.D., is an assistant clinical professor of psychiatry at the UCSF School of Medicine and president of the San Francisco Foundation for Psychoanalysis.

The Supreme Court ruling in the Jaffee v. Redmond Case

On June 13, 1995 the U.S. Supreme Court ruled 7-2 that the communication between a licensed psychotherapist and a patient (for diagnosis or treatment) is PRIVILEGED and that the therapist cannot be compelled to reveal the content of such communication in a Federal court without the patientÕs consent.

This milestone ruling, in effect, creates a new privilege in law at the Federal level. The ruling is particularly strong in that it is not left to the descretion of judges in individual cases to decide whether the need for evidence in a particular case should override the patient's virtually absolute privilege of blocking all access to such material.

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Experts & Confidentiality - Pettus v. Cole - Cal Ct. Appeal 1996

In California Psychiatric Experts Are Under the Same Privilege/Confidentiality Obligations  as are Treating Psychiatrists

California Appellate Decision Regarding Privilege/Confidentiality Duties of Non-Treating, Psychiatric Experts: see PETTUS V. COLE, 57 Cal.Rptr.2d 46 (1996)
Court of Appeal, First District, Division 2, California 

from the Headnotes:

"Two psychiatrists violated the Confidentiality of Medical Information Act(Civ. Code, S 56 et seq.) when they disclosed the details of their evaluations of an employee who sought stress-related disability leave to his supervisors at work without his written authorization. Civ. Code, S 56.10, subd. (c)(8)(B), limits permissible disclosure to a description of any "functional limitations" that may have entitled the employee to leave work, and also explicitly prohibits disclosure of "medical cause." These psychiatrists described in detail the employee's hostility toward the company and a coworker, his drinking habits, and other details about his personal life, disclosures which went well beyond a description of "functional limitations." 

"(3) Employer and Employee S 7--Contracts of Employment--Medical Care-- Unauthorized Disclosure of Medical Information to Patient's Employer-- Employee's "Patient" Status. 

An employee who was evaluated by two psychiatrists in connection with his request for stress-related disability leave was a "patient" within the meaning of the Confidentiality of Medical Information Act (Civ. Code, S 56 et seq.) and thus was protected by the act's provisions."

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Frye v. The United States

No. 3968
Court of Appeals of District of Columbia
293 F. 1013; 1923 U.S. App. LEXIS 1712; 54 App. D.C. 46; 34
A.L.R. 145
December 3, 1923, Decided

PRIOR HISTORY:   [**1]   

Appeal from the Supreme Court of the District of Columbia.

CORE TERMS: blood pressure, deception, systolic, conscious, discovery, scientific principle, expert testimony, scientific, experiments, admissible, falsehood, admitting, skilled, deduced

OPINION BY: VAN ORSDEL

OPINION:   [*1013]   Before SMYTH, Chief Justice, VAN ORSDEL, Associate Justice, and MARTIN, Presiding Judge of the United States Court of Customs Appeals.

VAN ORSDEL, Associate Justice.  Appellant, defendant below, was convicted of the crime of murder in the second degree, and from the judgment prosecutes this appeal.

A single assignment of error is presented for our consideration.  In the course of the trial counsel for defendant offered an expert witness to testify to the result of a deception test made upon defendant.  The test is described as the systolic blood pressure deception test.  It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system.  Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination,   [**2]   raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject's mind, between fear and attempted control of that fear, as the examination [*1014]   touches the vital points in respect of which he is attempting to deceive the examiner.

In other words, the theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure.  The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself.  In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.

Prior to the trial defendant was subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained.  The offer was objected to by counsel for the government, and the court sustained the objection.   [**3]   Counsel for defendant then offered to have the proffered witness conduct a test in the presence of the jury.  This also was denied.

Counsel for defendant, in their able presentation of the novel question involved, correctly state in their brief that no cases directly in point have been found.  The broad ground, however, upon which they plant their case, is succinctly stated in their brief as follows:

"The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it.  When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence."

Numerous cases are cited in support of this rule.  Just when a scientific [**4]   principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define.  Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.

The judgment is affirmed.

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Admissability of Scientific Evidence - Daubert v. Merrell Dow (1993)

The U.S. Supreme Court's opinion in Daubert v. Merrell Dow (1993) rejected the Frye  test and Frye-plus tests for the admissibility of certain scientific evidence (see admissibility tests lecture).  Instead of "general acceptance" in the scientific community, the Daubert test requires an independent judicial assessment of reliability.  Among other purposes, the Daubert test is intended to end the current "battle of the experts" state of affairs. The Daubert decision involved the claim that Bendectin caused birth defects, and even though it was intended to clear the way for admitting novel scientific evidence (like DNA), it has instead turned out to be a firestorm of controversy.

The misuse of scientific evidence is a serious problem. Even the FBI laboratory is under suspicion. In West Virginia, a serologist falsified test results in hundreds of cases over a ten-year period, sentencing hundreds of defendants to lengthy prison terms. In Texas, a pathologist faked autopsy results, resulting in as many as 20 death penalty verdicts. A police chemist elsewhere falsified reports and sent hundreds of innocent people away to jail on rape charges. Most misuse of scientific evidence is pro-prosecution. Daubert sheds light on shoddy procedures, protocols, and proficiency testing.

This document attempts to understand the Daubert test in light of continuing battles over forensic techniques and procedures. The Daubert ruling rests on an interpretation of the Federal Rules of Evidence. As a statutory, rather than constitutional case, it is not necessarily binding on the states, but many courts of appeals are ordering remands or whole new hearings because the trial court failed to conduct a Daubert hearing, and there is frequent variation from state to state in how Daubert hearings are conducted.

The fact is that Frye still remains the rule in many states. Other states have adopted Daubert, and yet other states have a history of rejecting Frye  and Daubert, substituting their own standards. The following table contains a summary:

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States accepting Daubert:	States sticking with Frye:	States with their own tests, or typically a Frye-plus test.
Connecticut Indiana Kentucky Louisiana Massachusetts Missouri New Mexico Oklahoma South Dakota Texas West Virginia	Alaska Arizona California Colorado Florida Illinois Kansas Maryland Michigan Nebraska New York Pennsylvania Washington	Arkansas Delaware Georgia Iowa Military Minnesota Montana North Carolina Oregon Utah Vermont Wyoming

Of course, all this is subject to change, but was fairly accurate as of 2004, and I continue to get emails from people updating my information. States in the third category, like North Carolina, express a variety of standards, but generally use a balancing test approach, balancing relevancy or materiality with prejudicial effect which, in North Carolina, has been noted as "consistent with Daubert" (see State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995)).

THE REASONING BEHIND DAUBERT

JUDICIAL NOTICE: The theoretical foundations behind many sciences are so firmly established as scientific laws that they are more properly the subject of judicial notice; the judge should be able to make a determination.

ADMINISTRATIVE LAW: Some techniques and procedures have such an extensive precedent in administrative law as to be part of official manual/standard operating procedure for agencies; it is wide-ranging precedent. CERTIFICATION: Scientific fields that have been generally accepted by professional forensic associations are proliferating, forensic this and forensic that; there must be some underlying reliability standards.

CODIFICATION: Daubert may provide the impetus to amend Fed. Rule 702 and its state counterparts which have created a variety of tests such as the "modified Frye Rule", the "Frye Plus Rule", the "objectively verifiable rule", and "three-prong rules".

Let's look at some common statements of FRYE and DAUBERT.

Interpretation of Frye:	Interpretation of Daubert:
Where novel scientific evidence is at issue, the Frye inquiry allows the judiciary to defer to scientific expertise precisely as to whether or not it has gained "general acceptance" in the relevant field. The trial court's gatekeeper role in this respect is conservative, thus helping to keep "pseudoscience" out of the courtroom.	General acceptance is an austere standard absent from and incompatible with the Rules of Evidence. "Scientific knowledge" must be derived from the scientific method supported by "good grounds&quot.in validating the expert's testimony, establishing a standard of "evidentiary reliability."

The Daubert ruling substitutes a reliability test for a relevancy test.For states that follow neither Frye nor Daubert, this means that the continued practice of using reliability as a weight once relevancy has been established exposes a serious constitutional liability.

  WHAT ARE THE RELIABILITY FACTORS IN DAUBERT.

All trial courts make a preliminary determination of admissibility. This job involves a preliminary assessment of whether the evidence is relevant, competent, and material. In short, can the evidence be properly applied to the facts in this case? This is the traditional "gatekeeping" function of courts. A number of reliability factors can enter into this and subsequent hearings using the Daubert  standard.

• Has the scientific theory or technique been empirically tested? According to K. Popper (1989) in The Growth of Scientific Knowledge, "the criterion on the scientific status of a theory is its falsifiability, refutability, and testability."
  
• Has the scientific theory or technique been subjected to peer review and publication? This ensures that flaws in the methodology would have been detected and that the technique is finding its way into use via the literature. 
• What is the known or potential error rate? Every scientific idea has Type I and Type II error rates, and these can be estimated with a fair amount of precision. There are known threats to validity and reliability in any tests (experimental and quasi-experimental) of a theory.
  
• What is the expert's qualifications and stature in the scientific community? And does the technique rely upon the special skills and equipment of one expert, or can it be replicated by other experts elsewhere? 
• Can the technique and its results be explained with sufficient clarity and simplicity so that the court and the jury can understand its plain meaning? This is just the Marx standard, which is assumed to be incorporated in Daubert as it was with Frye.
  

SOME EXAMPLES OF DAUBERT APPLIED TO SPECIFIC TECHNIQUES:
(Note this is not a complete list, and is not accurate for ALL jurisdictions.

BALLISTICS generally FAILS the Daubert  standard despite widespread acceptance.

BATTERED WOMAN SYNDROME has satisfied the Daubert standard in some jurisdictions, but fails in most.

CHILD ABUSE ACCOMMODATION SYNDROME has FAILED the test, for the most part.

COMPUTER SIMULATION has failed because experts often can't explain the algorithms.

DNA evidence is admissible under either the Frye or Daubert standard, but the reliability issue goes beyond the matter of testimony to the proper performance of protocols and probability estimates.

EYEWITNESS IDENTIFICATION generally FAILS the Daubert test, for the most part, as most social science, like social psychology, does.

FORENSIC ANTHROPOLOGY has not yet met the Daubert test, but the study of certain features from bones remains reliable.

HAIR ANALYSIS. Daubert has been successfully applied to Spectrophotometer and Gas Chromatographic tests for detecting the past use of drugs.

HYPNOSIS has known therapeutic value, but not as a method of producing accurate recollection of past events, as it would be used in court. Hypnosis, therefore, does not meet the Daubert test.

INTOXILYZER TESTS have been ruled valid and are considered beyond scientific dispute by many judges.

POLYGRAPH evidence (which was usually acceptable under Frye with a few exceptions) is beginning to be found reliable in Daubert hearings, but still does not enjoy widespread acceptance, and is, in fact, outlawed by per se laws in various jurisdictions.

PSYCHIATRIC evidence has had mixed results under Daubert. Techniques such as use of penile plethysmography to measure sexual arousal have had problems getting admitted in some states, but have faced no problems in other states. Also having difficulty is psychological or sociopsychological profiling which is often attacked for its lack of logical foundation and/or weak methodology. Checklist techniques, such as those used to determine if someone is a pedophile or a psychopath (e.g., an Axis disorder on the DSM IV) are even experiencing difficulties. However, testimony regarding mental disorders that go to the matter of mens rea  generally satisfies the Daubert test as does much diminished capacity testimony and the more proven variety of syndromes.

QUESTIONED DOCUMENTS (or Expert Handwriting Analysis) has been ruled by many judges as not requiring the Daubert test because scientific principles have nothing to do with the day to day tasks as performed by practicing QDEs. However, some newer types of analysis are experiencing difficulties.

SOCIAL SCIENCE evidence, such as the use of regression analysis to show evidence of racial bias or estimates of damage, often requires the addition of proof from the field of epidemiology and some demonstration of mastery at econometrics, but "naked" statistical evidence has often been admitted anyway by some judges.

TRACE EVIDENCE COMPARISON has not yet been decided due to controversy over the qualifications required for a forensic scientist or lab technician as a microanalyst.

VOICE COMPARISON techniques have FAILED the Daubert test, for the most part.

  INTERNET RESOURCES

Blog 702

Daubert on the Web

Daubert Tracker from MDEX Online

RAND Report on Admitting Scientific Evidence

PRINTED RESOURCES

Berger, M. (2000). "The Supreme Court's Trilogy on the Admissibility of Expert Evidence," Reference Manual on Scientific Evidence. Washington D.C.: Federal Judicial Center.

Dixon, L. & Gill, B. (2002). Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision. Santa Monica: CA: RAND.

Giannelli, P. (1994). "Daubert: Interpreting the Federal Rules of Evidence." Cardoza Law Review 15: 1999-2026.

Golan, T. (2004). Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America. Cambridge, MA: Harvard Univ. Press.

Huber, P. (1993). Galileo's Revenge: Junk Science in the Courtroom. NY: Basic Books.

Jasanoff, S. (1997). Science at the Bar: Science and Technology in American Law. Cambridge, MA: Harvard Univ. Press.

Kiely, T. (2005). Forensic Evidence: Science & The Criminal Law, 2e. Boca Raton, FL: CRC Press.

Lubet, S. (1999). Expert Testimony. NY: National Institute for Trial Advocacy.

Spiegel, M. (1994). Admissibility of expert testimony: Daubert and Beyond. Washington D.C.: ABA Section on Litigation.

Wecht, C. & Rago, J. (Eds.) (2005). Forensic Science and Law. Boca Raton, FL: CRC Press.

  Last updated: 02/05/06

Lecture List for JUS 425

MegaLinks in Criminal Justice

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Forensic Psychiatric Landmark Cases

American Academy of Psychiatry & Law selected Landmark Cases which it thinks especially important and significant for forensic psychiatry.

Download Forensic Psychiatric Landmark Cases.pdf

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