Court Procedures / Evidence / Service

I found out some specific information that I hope will be helpful from the attorney I contacted at the Confidentiality Institute.

She said that often defense attorneys try to subpoena therapy records, but that does not mean they will succeed. The therapist has an ethical duty to fight any subpoena issued for his/her client’s records, but that the client/victim should should notify the therapist ahead of time that if the therapist receives any subpoena, that the client/victim does NOT consent to the therapist giving out any information and that the client/victim expects confidentiality to be protected. There are attorneys who a therapist can contact to help him/her object to a subpoena in court (called filing a motion to quash the subpoena). If your therapist is at a non-profit organization, she can request pro bono (free) assistance from American Bar Association’s subpoena defense project - this is the exact type of work that they do.

Even though as the victim of a crime, you do not have your own attorney as part of the criminal case, if you are served with a subpoena or if you find out about it from the DA, you could get your own civil attorney who can file a motion in court to ask to quash the subpoena for therapy records because you hold the privilege over those records. You do not have to rely only on the DA to do it, especially since it is hard to know how a DA would react to a subpoena.

How a judge will respond to all this depends in part on privilege laws in the jurisdiction where you are, the judge’s attitude, habits, etc. But the Supreme Court of U.S. has decided in a different court case that the 6th amendment right of a criminal defendant to confront the charges against him/her (the “right to confrontation”) is not necessarily a right to get pre-trial discovery (information, records, etc).