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National Crime Victim Law Institute

R.S. v. Thompson in & for Cty. of Maricopa, — P.3d —, No. 1 CA-SA 19-0080, 2019 WL 6206892 (Ariz. Ct. App. Nov. 21, 2019)

January 22, 2020

Defendant, charged with second-degree murder, secured a court order granting his motion to compel the production of the deceased victim’s privileged mental health records for in camera review. The deceased victim’s siblings, who are also “victims” under state law, petitioned the Arizona Court of Appeals for special action review. The court of appeals granted review and held that the trial court erred by granting an in camera review of the victim’s privileged records. In reaching its holding, the court observed that “[i]t is well-established that ‘[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one.’” The court found that the records at issue are privileged medical records and none of the statutory exceptions to the privilege applies. The court declined to extend the holding of its prior decision, State ex rel. Romley v. Superior Court (Roper), wherein the court held that the Roper defendant’s due process right to a fair trial extended to pretrial discovery and entitled her to an in camera review of privileged records. The court acknowledged that the Roper decision involved “unique” facts, and it relied largely on inapposite or distinguishable cases, including cases that concerned privileged records that were already in the state’s possession and therefore subject to Brady. The court concluded that Roper provides no basis for overriding the physician-patient privilege in this case. The court also concluded that in “exceptional case[s],” a defendant’s due process right to present a defense might overcome the physician-patient privilege and allow in camera review of privileged records. Noting that an in camera review “is nevertheless an intrusion and an encroachment” on the victim’s rights, the court determined that the “reasonable possibility” standard for authorizing in camera review adopted in an earlier decision, State v. Conner, is “inadequate,” and instead adopted a new “substantial probability” standard for in camera review of privileged records not subject to Brady. The court explained that this standard “require[s] … a document-specific basis for invading the privilege,” and the trial court “must start with a strong presumption that the privilege prevents access to the information it protects.” Applying this standard, the court concluded that defendant failed to show a substantial probability that he is entitled to the privileged records as a matter of due process. For these reasons, the court granted the victims’ petition for relief from the trial court’s order.