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National Crime Victim Law Institute

State v. Kellywood, --- P.3d ---, No. 2 CA-CR 2017-0178, 2018 WL 6521865 (Ariz. Ct. App. Dec. 12, 2018)

January 03, 2019

Defendant appealed from his convictions and sentences for sexual contact with a minor and related charges, arguing that the trial court erred by denying his motion to compel production of the victim’s medical and counseling records for in camera review because they possibly contained exculpatory evidence.  In particular, defendant argued that these types of records often include “questions concerning whether or not someone has been sexually inappropriate with [the victim]” and that they might show that the minor-victim affirmatively denied that abuse took place.  The trial court denied the motion, noting that even if the minor-victim had denied abuse, that “would not necessarily be exculpatory.”  The appellate court rejected this interpretation, but found that the “mere possibility” that the minor-victim could have said something exculpatory was not sufficient to require her to produce the records sought.  In reaching this conclusion, the court relied on the therapist privilege and Arizona’s Victims’ Bill of Rights, which grants victims the constitutional right to refuse a discovery requested by the defendant or a person acting on defendant’s behalf.  The court recognized that this right is not absolute, and must bend to defendant’s Constitutional rights, including the right to due process.  In order to show a due process right to the records, defendant was required to show that there was a reasonable possibility that they would contain evidence to which he was entitled to as a matter of due process.  “In light of the competing constitutional interests, as well as the ordinarily privileged nature of patient-provider communications, we conclude the burden of demonstrating a ‘reasonable possibility’ is not insubstantial, and necessarily requires more than conclusory assertions or speculation on the part of the requesting party.”  Here, defendant did not demonstrate a reasonable possibility because his assertions as to why he needed the records were conclusory and speculative.  “Indeed, were we to conclude that [defendant] had demonstrated a ‘reasonable possibility’ on the basis of such speculation, the effect would be to compel production of medical and counseling records in virtually any case in which a defendant accused of sexual offenses claims fabrication.”  And although defendant requested in camera review, the court noted that “even disclosure for in camera review by a trial judge represents a significant intrusion on a victim’s confidential records.”  Accordingly, the court found no abuse of discretion.  Defendant also argued that he was entitled to the minor-victim’s Department of Child Safety (DCS) records, school records, search history, Facebook entries, and text messages—a motion which he withdrew before or at trial.  Reviewing for fundamental, prejudicial error, the court found no error.  With respect to all but the DCS records, the state had no obligation to acquire, produce or create records that were not in its possession or control.  With respect to the DCS records, there was nothing in the case record to indicate that these records contained any material or exculpatory information.  The disposition was affirmed.  The Chief Judge dissented, noting the fact that defendant requested an in camera inspection, and arguing that “while the defendant’s access to exculpatory information stands central to the reliability and fairness of a criminal trial, the victim’s interest in the privacy of her medical and counseling records is substantially protected by the threshold requirement of in camera review.”  The dissenting justice also would have found that defendant made the required showing because his “plausible reason” established a possibility that there would be exculpatory information in the victim’s records.