State v. Cashen, – N.W.2d —, No. 07-2109, 2010 WL 2629827 (Iowa July 2, 2010).

Defendant was charged with domestic abuse assault.  Intending to rely on a defense of self-defense, defendant deposed the victim and sought certain of the victim’s mental health records referenced in the deposition, arguing that they showed that she had a propensity for violence.  The lower court ordered that the defense attorney be permitted to inspect the victim’s mental health records, and the state appealed on this discrete issue.  On review, the Iowa Supreme Court required that the trial court issue a subpoena for records to be produced under seal.  In so doing, it articulated a five-part standard for discovery.  Of particular note within this new standard, if the victim objects to discovery, a hearing will be held to determine if “reasonable probability exists that the records contain exculpatory evidence tending to create a reasonable doubt as to the defendant’s guilt.”  If the records are produced, the attorney for the defendant - rather than the court as an initial matter - has the right to inspect the records, subject to a non-disclosure agreement.  Additionally, given “the importance of the public interest in not convicting an innocent person of a crime, any standard should resolve doubts in favor of disclosure.” 

One justice dissented, noting that the “new test may … ultimately cause victims to decline to report domestic abuse in order to protect themselves from being required to disclose very personal and private information to the alleged abusers and other parties to the prosecution.”  The dissent also noted that the holding “deprives victims of domestic abuse crimes … of a constitutional right of privacy without an opportunity to show how the deprivation of the right will impact their privacy interest.”