How “Privilege” Can Affect Your Criminal Defense in Georgia

Georgia law provides that certain types of communications are “privileged,” and therefore not usable as evidence in a criminal trial. Some common examples include attorney-client privilege and spousal privilege. Privilege also covers communications between a psychiatrist or licensed psychologist and their patient.

Georgia Man Accused of Molesting Granddaughter Allowed to See Her Counseling Records

While the law prevents prosecutors from using privileged communications against a defendant, what about a situation where the defendant needs to use a potentially privileged communication involving a witness? After all, the United States Constitution guarantees every criminal defendant the right to “confront” the witnesses against them at trial. How does this confrontation right square with statutory privilege?

The Georgia Court of Appeals recently addressed such a case. In this pre-trial proceeding, In re Charity Muse, LPC, BCC, a woman told her licensed professional counselor that her grandfather “inappropriately touched her” when she was a child. Georgia prosecutors subsequently charged the grandfather with child molestation and other sex offenses.

Before the trial court, the grandfather sought disclosure of the granddaughter’s counseling records, which he believed would show the granddaughter had been “coached” to make false accusations. The grandfather served a subpoena on the counselor. The counselor, in turn, asked the court to quash the subpoena as “overbroad” and a violation of federal regulations governing the disclosure of medical records in a judicial proceeding.

The trial court held a hearing and ultimately determined the information requested by the grandfather was subject to disclosure and upheld the subpoena. The counselor then filed an appeal.

But the Court of Appeals agreed with the trial judge. The appellate court explained that when there is a conflict between the privilege of a witness and the defendant’s constitutional right to confrontation, the balance “must be tipped in favor of” the latter.

That is not to say that all subpoenas of an accuser’s mental health records are subject to disclosure in a criminal trial. In a 2022 decision, In re Frost, the Court of Appeals actually upheld a clinical social worker’s challenge to a similar subpoena. In that case, however, the defendant sought disclosure based on his “understanding and belief” that the accuser might have made relevant statements to the social worker. In contrast, the present case involved a situation where the accuser only disclosed the alleged abuse to the professional counselor and her family, made multiple references to her counseling sessions during a subsequent forensic interview, and used “technical language” that suggested possible coaching by a professional. Under these circumstances, the trial court acted within its discretion to order disclosure of the accuser’s counseling records to the defense.

Contact Hawkins Spizman Trial Lawyers Today

When you are on trial for a serious felony, you have every right to seek evidence that may assist in your defense. A qualified Atlanta sex crimes defense attorney can help ensure that right is protected by the courts. Contact Hawkins Spizman Trial Lawyers today. We serve clients throughout Georgia including Atlanta, Dunwoody, Alpharetta, Cobb County, Fulton County, Gwinnett County, Johns Creek and Sandy Springs.

Source:

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