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National Crime Victim Law Institute

Fox-Embrey v. Neal, --- P.3d ---, 2020 WL 2988524 (Ariz. Ct. App. June 4, 2020)

July 02, 2020

Defendant was charged with first-degree murder and child abuse. She filed a number of motions seeking production of the child-victims’ Department of Child Safety (DCS) and Special Nutrition Program for Women Infants and Children (WIC) records from and after the date the victims were removed from the home, including medical and therapeutic records. After a lengthy process, involving several appeals, the respondent judge allowed disclosure of some documents, but not all. Victims’ counsel filed a special action petition challenging the order compelling disclosure of any WIC records and previously undisclosed physician records. Defendant filed a cross-petition arguing that the respondent judge had erred in limiting the production of the WIC documents to a 12-month period and denying her request for additional medical, psychological and therapeutic records that she believed were in the DCS file. The court began by explaining that a court may order any person to make available to the defendant material or information the defendant requests if the court finds that the defendant has a substantial need for the material or information to prepare the defendant’s case and cannot obtain the substantial equivalent by other means without undue hardship. However, “[j]uxtaposed against and often in tension with defendants’ constitutional and rule-based rights are the rights of victims under the VBR [Victims’ Bill of Rights].” The court further explained that the VBR includes the right to refuse a discovery request by the defendant, and that “[t]he right to refuse discovery generally includes the right to refuse to disclose medical records, which are also protected by statutory privileges.” However, the court noted, the right to refuse discovery under the VBR is not absolute, and “must yield to a defendant’s due process right to present a complete defense.” The court explained that the test has been generally articulated in Arizona as “when a defendant’s due process right to a meaningful opportunity to present a defense directly conflicts with the victim’s rights under the VBR, the victim may be compelled to produce treatment records for in camera inspection if the defendant shows ‘a reasonable possibility that the information sought… include[s] information’ the defendant is entitled to ‘as a matter of due process.’” Here, defendant asserted, as a matter of first impression, that when the state is seeking the death penalty, as in this case, capital jurisprudence necessarily affects the application of this reasonable possibility test. In particular, she argued that in balancing the rights of victims under the VBR or a statutory privilege against the rights of a capital defendant, the defendant’s constitutional rights are more compelling and necessarily must be given greater weight in favor of disclosure of a victim’s confidential or privileged records. After reviewing jurisprudence from the U.S. Supreme Court, other states, and Arizona’s statutory scheme, the court agreed with defendant that the parameters of what information a defendant would be entitled to receive as a matter of due process is more expansive in a capital case. The court stated that, as with all defendants, a capital defendant is entitled to an in camera review of protected records as a matter of due process if there is a reasonable possibility they contain exculpatory information or impeachment evidence. “But, the capital defendant is also entitled to an in camera review of such records if the defendant establishes there is a reasonable possibility the records contain evidence relevant and material to sentencing, specifically information that may establish mitigating circumstances or evidence that may create a reasonable doubt as to any aggravating circumstance the state attempts to prove.” The court found this to be the appropriate analysis even though the child abuse charges did not carry a capital charge because the charges were being tried together and there was likely to be a “spill-over effect” between the capital charge and the remaining offenses. Turning then to the WIC records, the court found that they must be disclosed for in camera review, as they were likely to contain evidence directly related to the children’s neglect and malnourishment, and they may also contain evidence that would bear on the first-degree murder charge because insofar as they contained no evidence of mistreatment over time, it had the potential to act as mitigation evidence for purposes of a death sentence. The court acknowledged that it “has held that even an in camera review by a trial judge is a significant intrusion in a victim’s confidential records[,]” however, it “agree[s] with [defendant] that given the nature of the WIC records, in balancing her due process rights against the privacy interests of two young children, whether under a statutory privilege or the VBR, and considering the minimal risk of embarrassment to them, [defendant’s] interests and due process rights must override those of the victims, at least for the purpose of obtaining an in camera review of the records.” As to the medical and therapeutic records, the court concluded that defendant “had specifically identified the kinds of records she is seeking and has provided a concrete basis for obtaining an in camera review of those records,” including by pointing out differences in the information the children provided during forensic interviews that may have suggested they had been coached about the offenses. In light of the state seeking the death penalty, the court found defendant met her burden. Accordingly, the victims’ petition was denied and defendant’s petition granted.