The Newest Federal Privilege: Jaffee V. Redmond and the Protection of Psychotherapeutic Confidentiality
Lombardo, Paul A., Developments in Mental Health Law
"The public has a right to every man's evidence." This axiom has been repeated for at least two hundred fifty years as a dominant principle of the law of evidence, where the legal compulsion to testify during trials operates to favor full disclosure as a means to ascertain the truth. (1) The notion of "privilege" stands as an exception to the expectation of disclosure. It insulates the content of some communications from public scrutiny, even when the substance of those communications might be critical to a just outcome in a trial.
The rules of evidence for courts of the U.S. federal system reflect this traditional reluctance to create barriers to the truth, and judges are hesitant to identify new privileges. However, the United States Supreme Court recently chose to honor the ethic of psychotherapeutic confidentiality by creating a new federal privilege to protect the content of mental health therapy from courtroom disclosure. The result in the case of Jaffee v. Redmond places the psychotherapist' s office alongside the confessional and the family home as a precinct where communication is protected from the intrusive view of litigants. It is a tribute to the acceptance of mental health therapies that the Supreme Court has given legal recognition to this setting.
The Ancient Privileges: Clergy, Spouses, Gentlemen
In contrast to the novelty of psychotherapeutic privilege other privileges existed as part of the common law for centuries. The clergy-penitent privilege, a relic of medieval Christianity dating from at least the fifth century, was recognized in English law for over a thousand years. It was abandoned by the Anglican Church and English courts (2) following the Protestant Reformation.
Of similar ancient pedigree are the spousal privileges, protecting confidential disclosures between husband and wife. The common law protected private marital communications from compelled disclosure and also prohibited spouses from testifying against one another. (3)
Other less known privileges were also part of the common law tradition. The code of honor in 17th Century England counted a gentleman's word as good as a vow, and promises to keep secrets were considered so sacred among the gentry that the common law explicitly recognized them with a legal privilege. Gentlemen could and did invoke the privilege--the right to refuse to testify in court--concerning confidences revealed in exchange for such promises. (4)
A related policy argument was voiced in favor of all these privileges: confidential communications arising out of relationships of trust should not be the subject of coerced testimony in court. (5) The rule of privilege is meant to protect trusting relationships from destructive invasions, thereby fostering certain socially-valued intimacies that are often defined by the exchange of secrets.
Common Law Privileges in American Courts
Many vestiges of the common law were left behind in England at the time of American Independence. Codes of honor reminiscent of the aristocratic hierarchy did not survive, nor did the "gentleman's privilege" they recognized. The clergy/penitent privilege was discarded in England even before 1776, and was therefore not available for incorporation into American law. Nevertheless, from the early years of the Republic, American courts within both the state and federal systems have recognized this privilege, in some cases granting explicit endorsement to it.
Despite abandonment of the clergy/penitent privilege in English courts, an American state court recognized it as early as 1813. (6) The first explicit endorsement in a federal court occurred in Mullen v. U.S. (7) when a conviction for child abuse was overturned, partially because evidence of the abuse was solicited from a Lutheran minister to whom the defendant had confessed. The Supreme Court implicitly acknowledged the existence of a clergy/penitent privilege (and several others) in a 1875 decision. …