Evidence: No "Dangerous Patient" Exception to Federal Psychotherapist/Patient Testimonial Privilege-United States V. Hayes

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Evidence: No "Dangerous Patient" Exception to Federal Psychotherapist/Patient Testimonial Privilege-United States v. Hayes1-The Sixth Circuit held there is no "dangerous patient" exception to the federal psychotherapist/patient testimonial privilege under Rule 501 of the Federal Rules of Evidence.2 Appellant, the United States, sought to prosecute respondent Roy Lee Hayes under 18 U.S.C. secs 1153 for making threats during several psychotherapy sessions to murder his supervisor at the United States Postal Service.4 Hayes moved to suppress his medical records and therapist's testimony on the grounds that the records and testimony were privileged.5

In Jaffe v. Redmond,6 the Supreme Court recognized the psychotherapist/patient evidentiary privilege, holding that "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence."7 Jaffe included a footnote, which read: "[W]e do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist."8 In United States v. Glass,9 the Tenth Circuit interpreted this footnote to create an exception to the privilege when the threat is seriously made and disclosure is literally the only means of averting harm. 10

In declining to follow Glass, the Hayes court focused on the issue of whether the degree of care exercised by a psychotherapist is relevant to the patient's right to assert the psychotherapist/patient privilege.11 Though the court acknowledged the psychotherapist has a "duty to protect" third parties from a patient's serious threats, it stated that such a duty bears only a "marginal" connection, "if any at all" to the court's "refusal to permit the therapist to testify about such threat in a later prosecution of the patient for making the threat."12

The court next considered whether policy concerns support the adoption of the "dangerous patient" exception.13 It stated that "reason and experience" support rejecting this exception.13 First, the court stated that such an exception would negatively effect the "atmosphere of confidence and trust" in the psychotherapist/patient relationship.14 Second, the court stated that although allowing a psychotherapist to testify against his or her patient in a criminal prosecution about statements made for treatment purposes may serve a public end, this end does not justify the means. …


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