Summary
In Block, the Court substantially adopted the procedure that was followed in the Patterson case, the genesis of which was a line of Connecticut Supreme Court cases, which carefully analyzed the competing interests implicated when confidential material may well impair the accused's right to cross-examination.
Summary of this case from State v. WoodOpinion
I.D. No. 9908006808
Submitted: January 21, 2000
Decided: February 18, 2000
Upon Defendant's Motion to Compel. Denied.
Stephen R. Welch, Jr., Department of Justice, for the State of Delaware.
Michael J. Malkiewicz of Barros, McNamara, Scanlon, Malkiewicz Taylor, P.A., for the Defendant.
MEMORANDUM OPINION
Before the Court is Defendant's Motion to Compel discovery. On September 7, 1999, Defendant, John E. Block, was indicted by the Kent County Grand Jury and charged with the following offenses: Rape in the Third Degree, a felony, in violation of 11 Del. C. § 771(a)(1); Sexual Solicitation of a Child, a felony, in violation of 11 Del. C. § 1112; Unlawful Sexual Contact in the Second Degree, a felony, in violation of 11 Del. C. § 768; and Endangering the Welfare of a Child, a misdemeanor, in violation of 11 Del. C. § 1105. On October 13, 1999, Defendant, by and through his attorney, served the State of Delaware Department of Justice with a Request for Discovery and Inspection and a Request for Brady, Augurs and Jencks Materials. Thereafter, on November 24, 1999, Defendant sent a letter to the Deputy Attorney General handling this matter asking the State to respond to the Defendant's discovery requests.
The Defendant asserts that the evidence he is seeking is material and relevant to the preparation of his defense; in particular, the evidence directly relates to the alleged victim's credibility. From the Defendant's Motion to Compel, it appears that the following information is sought by the Defendant from the State:
(1) All psychiatric records, including counseling and school records, relating to the alleged victim's competency, ability to remember, ability to observe and ability to tell the truth, in that one of the criminal offenses allegedly committed by the Defendant involves sexually abusing an "incompetent person";
(2) All information relating to past allegations of sexual assault or sexual abuse that have been made by the alleged victim. In this case, the alleged victim has allegedly reported being sexually assaulted on two prior occasions: once in the State of Florida and once in the State of Pennsylvania. These reports were apparently made by the alleged victim in 1994 and 1996. These allegations are believed to have been false; and
(3) All information, documents, checklists, books, procedural guidelines and training manuals that were relied on by counselors, therapists, doctors and investigators to arrive at their opinions that the alleged victim was sexually abused by the Defendant.
At oral argument, the State opposed the production of this information before trial claiming it is Brady material and does not have to be produced until it becomes relevant and material with the proper witness on the stand at trial. The Defendant has argued that since there is no bright-line rule in Delaware regarding when Brady material must be turned over, the Court can order the State to produce the Brady material pre-trial, in the name of judicial economy, so that the Defendant can decide before the trial begins whether he is going to retain an expert. The Defendant claims his reasoning would prevent any delay at trial that would result when the records were produced and exculpatory or impeachment evidence was found, which could cause the Defendant to procure an expert and delay trial.
In response, the State has argued that any pre-trial discovery by criminal defendants in sex cases would be nothing more than a "fishing expedition" into the sexual, medical and psychological history of any sexual assault or sexual abuse victim. Furthermore, the State has contended that it is not in possession of some of the materials requested by the Defendant, most notably, records that may exist of previous false allegations that reside in the State of Pennsylvania and/or Florida. According to the Defendant, the State has an obligation to ask the alleged victim if these records exist, and, if they do, to try to obtain the alleged victim's consent to obtain these records.
Before deciding whether the material attempting to be discovered by the Defendant should be turned over pursuant to Brady and Augurs as argued by the Defendant, the Court first needs to look at Superior Court Criminal Rule 16. Rule 16 governs criminal discovery and disclosure of evidence by the State. As the language of the rule makes clear, the Defendant is not entitled to discovery or inspection of reports, memoranda, or other internal state documents made by the attorney general or other state agents in connection with the investigation or prosecution of the case, or of statements by state witnesses or prospective state witnesses. "Similarly, Rule 16 does not provide for the discovery of privileged medical records of witnesses, especially those records which are unrelated to the alleged criminal activity of the defendant. Furthermore, Rule 16 only requires the State to produce that which is in its possession or control."
Rule 16. Discovery and inspection.
(a) Disclosure of evidence by the State. (1) Information subject to disclosure.
(A) Statement of defendant.
(B) Defendant's prior record.
(C) Documents and tangible objects. Upon request of the defendant the state shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state, and which are material to the preparation of the defendant's defense or are intended for use by the state as evidence in chief at trial, or were obtained from or belong to the defendant.
(D) Reports of examinations and tests. Upon request of a defendant the state shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the state, and which are material to the preparation of the defense or are intended for use by the state as evidence in chief at trial.
(E) Expert witnesses. . . .
(2) Information not subject to disclosure. Expect as provided in paragraphs (A), (B), (D) and (E) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the attorney general or other state agents in connection with the investigation or prosecution of the case, or of statements by state witnesses or prospective state witnesses.
State v. Williams, Del. Super., Cr.A. No. IK96-08-0772, Terry, J. (June 19, 1997) (ORDER) at 1.
The information that the Defendant is requesting in the case at bar is specifically excluded from discovery under Rule 16. Therefore, the Defendant must rely on Brady v. Maryland in order for this information to be turned over by the State. The Brady rule "requires the State to disclose any favorable evidence within its possession that is material to guilt or punishment of the accused. Thus, any evidence that may be exculpatory must be disclosed." Subsequently, in Bagley v. United States, the Court held that "[i]mpeachment evidence. . . . as well as exculpatory evidence, falls within the Brady rule."
373 U.S. 83 (1963).
State v. Patterson, Del. Super., Cr.A. No. 1K93-09-0065, Terry, J. (May 1, 1998) (ORDER) at 1.
473 U.S. 667, 675 (1985).
The holding in Brady is similar to Rule 16 in that it applies only to evidence which is in the possession of the State. In general, Brady material is not discoverable until the State has put the witness on the stand at trial, this is especially applicable to impeachment evidence. However, "Delaware Courts addressing the issue have not stated a clear bright line rule for the time of disclosure." In State v. Patterson, Judge Terry opined that the "timing question depends on a case-by-case analysis." It is from this decision that the Defendant asserts the State should disclose Brady material before the start of trial.
Patterson at 1 (internal citations omitted).
Id.
In a typical case, the Court would find the Defendant's rationale for early disclosure of Brady material unpersuasive. However, cases dealing with sexual assault or sexual abuse are highly sensitive. The case sub judice is factually similar to State v. Redd. In Redd, the Court denied defendant's motion seeking the issuance of certain subpoenas under Superior Court Criminal Rule 17 to the victim's school psychologists, psychiatrist and custodian of emergency room treatment records. As argued in this case, the defendant wanted these materials in order to cross-examine the victim's credibility at trial. As in the instant case, the defendant stated that these records could be submitted to an expert who could then testify about the alleged victim's behavior and the correct manner in which an officer or counselor investigating a sexual assault case should interview the victim. The Redd Court held that a Rule 17 subpoena was not a pre-trial discovery tool and statements of witnesses sought for impeachment purposes do not ripen until the witness has testified at trial and their credibility has been put into issue.
Del. Super., Cr.A. No. IN92-10-17 19, Cooch, J. (June 18, 1993) (Mem. Op.).
Redd at 3; See also McBride v. State, Del. Supr., 477 A.2d 174 (1984); State v. Hutchins, Del. Super., 138 A.2d 342 (1957).
This Court finds the reasoning set forth in Redd controlling to the case at bar. In the instant case, the Defendant has not yet attempted to subpoena the materials that he is requesting via his Motion to Compel. Regardless, at this point in time, the Court would be reluctant to issue such a subpoena based on the Redd holding. To quote Judge Cooch in Redd: "Clearly, insofar as the requested materials are sought to impeach or otherwise attack the credibility of the complainant, such right of inspection does not arise until the time of trial." Redd went on to analyze whether a case does exist where the material sought by the Defendant is discoverable pre-trial.
Redd at 3; Hutchins at 346; McBride at 181-182.
In order to require production under Rule 17(c) prior to trial, the moving party must show (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable in advance of trial by the exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general 'fishing expedition.'
Id. citing United States v. Nixon, 418 U.S. 683, 700 (1977); Moore's Federal Practice § 17.07 (2d ed. 1990).
After applying these factors to the facts at hand in Redd, the Defendant's requested relief was still denied because the evidence did not attain its "evidentiary" status until the witness had testified at trial. Moreover, the Court recognized that by denying the defendant's discovery request, the defendant "may have good grounds to request an appropriate recess of the trial to review with his expert witness the contested documents produced at trial." The Court acknowledged the likelihood of this occurring and did not preclude the defendant from arguing such.
Redd at 3.
The present case must be reviewed under the holding in Redd, as well as State v. Wynn, where the personal medical records of an alleged victim were found not to be discoverable before trial. The Court in Wynn found that the "production of such records is not proper because of their highly personal nature and the "state's long-standing recognition of a privilege in patient-physician communications." The Court further opined that medical records are not discoverable under Rule 16 and that the defendant had failed to meet the "heavy burden" called for by Redd and Madric in order to procure Brady material pre-trial.
Del. Super., Cr.A. No. IN93-11-0182, Cooch, J. (June 16, 1994) (ORDER).
Wynn at 3 citing State v. Madric, Del. Super., Cr.A. No. IN89-01-0759, Herlihy, J. (Aug. 18, 1989) (Mem. Op.).
In the case at bar, the materials that the Defendant is seeking to have produced pre-trial are of a highly personal nature to the alleged victim. The Court must weigh the alleged victim's right to privacy with the Defendant's right to prepare an adequate defense for trial. The Defendant would have this Court follow the procedure set forth in State v. Patterson and have the Court inspect the records, either medical, psychological or psychiatric, in camera to determine if they should be turned over to the Defendant before the start of trial. However, the Patterson case is distinguishable because there the State agreed before trial that the Court should examine the psychiatric records in camera before any disclosure took place. In Patterson, Judge Terry stated that "[t]he rule [that] impeachment evidence does not have to be produced until after the witness testifies is premised on the assumption that until the government puts on its case, it is not known for sure which witnesses it will call." However, Judge Terry differentiated a sexual assault case by stating that the complaining witness in a sex case must testify in order for the State to meet its burden; therefore, the State should have to turn over Brady material that involves the alleged victim in order for an expert to review this material and be prepared for trial. It should be noted that the Patterson case was decided after the Court already had the opportunity to review the alleged victim's psychiatric records in camera.
See Patterson, supra.
Patterson at 1.
The Patterson decision relied on a line of Connecticut cases which weighed "the need of the defendant for psychiatric records to enable him to cross examine the victim against the victim's privacy interests in her medical records." Patterson approvingly cited a procedure developed by the Connecticut Supreme Court "whereby it would review privileged records such as we have here in camera provided a showing is first made that failure to produce that material would likely impair the defendant's right of confrontation. Upon such a showing, the State is given the opportunity to secure the witness' consent for the court to conduct an in camera inspection of the records. If the court determines that the records contain relevant material, the State will be given an opportunity to obtain the witness' consent to turn the relevant material over to the defense. If the witness refuses to make the materials available for an in camera review or refuses to authorize any relevant material to be turned over to the defense, the witness' testimony will not be allowed."
Id.; See State v. Hufford, Conn. Supr., 533 A.2d 866 (1987); State v. Esposito, Conn. Supr., 471 A.2d 949 (1984).
Patterson at 3.
The Patterson Court ultimately concluded "that in light of both the Brady rule and the right of the defendant to confront the complaining witness, the psychiatric records must be produced prior to trial in order to enable the defendant to conduct an effective cross-examination." The Court held that the alleged victim's right to privacy was outweighed by the defendant's right to a fair trial. The Court did not have to reach the more sensitive issue of whether the victim would not be allowed to testify if she refused to turn her records over before trial.
Id.
For the most part, this Court agrees with procedures that the Patterson Court adopted from the Connecticut Supreme Court and in the appropriate case would allow such a procedure. However, I will not go so far as to not allow the victim to testify if she refuses to produce her records prior to trial. Pursuant to the reasoning of Redd, Madric, and Patterson, this Court adopts the following procedure for procuring the medical, psychological or psychiatric records of an alleged victim in a sexual assault or sexual abuse case. First, the defendant must be able to pinpoint the exact records he is seeking in order for production to occur. The defendant must assert a compelling basis for requesting these documents or records and the request must be more than mere speculation. This is not civil discovery, and the Court will not entertain a "fishing expedition" into the alleged victim's medical and psychiatric past. If the defendant can determine with particularity the information he is seeking, the defendant must then ask the State to attempt to procure the alleged victim's consent in obtaining these records. It is more appropriate to put the burden of asking the victim for consent on the State because of the relationship that the State has developed with the alleged victim as a result of the investigation into the offenses. If the victim will not consent, then the defendant is to make an application to the Court, pursuant to Superior Court Criminal Rule 17, to issue a subpoena for the records to be produced for review by the Court.
Rule 17. Subpoena.
(c) For production of documentary evidence and of objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.
The defendant must then demonstrate to the Court that the information he is seeking is relevant and material to his defense. Furthermore, the defendant must point the Court with specificity to the records that he wishes to have disclosed and what he expects those records to contain. Upon such a showing, the Court will issue a subpoena for the records and review them in camera to determine whether they are relevant and material enough to the defendant's case that they should be turned over to the defendant before trial. It is within the Court's discretion to decide if the documents are relevant and material to the credibility of the victim. If so, they will be produced for the defendant's examination prior to trial. Conversely, if, from the Court's perspective, the records are not relevant and material to the defendant's defense, the defendant will have to wait until the records become ripe at trial and seek their production at that time. If the victim does not produce the records voluntarily before trial, and the Court, on request, has to issue a subpoena to review the documents in camera and finds them not to be discoverable until the time of trial, the victim will still be allowed to testify and the normal Brady rule will apply.
In addition, the State is only obligated to search for records relating to the alleged victim that the State knows exist. This does not stop the defendant from requesting the State to ask the victim if these records exist; however, if the victim refuses consent, the State is not under an obligation to research the defendant's case for them. The State is only responsible for documents or records that are in its possession or control, or those which the victim has consented to disclosure. The State does not have an obligation to search for out-of-state records that may, or may not, exist. If documents or records not in the control or possession of the State are sought, and the victim refuses consent of these materials, then the defendant must either ask the Court for the appropriate relief and meet the criteria that have previously been enumerated or wait until the proper time at trial for disclosure to occur.
Applying this procedure to the instant case, the Court finds that the Defendant's requests lack the particularity needed for the Court to examine the records in camera before trial, or to issue a subpoena for their disclosure, although the Court recognizes that no such application has yet been made. The Court acknowledges the Defendant's attempt to expedite matters by requesting that these materials be discovered pre-trial in order for them to be submitted to an expert, thus, avoiding a recess in the middle of trial; however, the rules of this Court and case law of this State do not require impeachment evidence to be turned over to the Defendant until the evidence becomes relevant and material through the testimony of a witness on the stand.
Therefore, the Defendant's Motion to Compel is denied as to any medical, psychological or psychiatric records that the Defendant is seeking to have produced because the requests are too vague to be adhered to by the State. The Defendant's Motion is also denied as to any out-of-state records of prior allegations that may exist because the State is under no obligation to affirmatively determine if these records exist. The Defendant will be given the opportunity to re-notice and present his motion to state with particularity the documents that he is seeking to have produced. At that point, the Court will re-evaluate the parties' positions in light of this opinion.
Finally, with regard to the information relied upon by various investigators sought to be discovered by the Defendant, the Motion to Compel is denied because it is not yet ripe for the State to turn this material over to the Defendant. Again, the Court recognizes the Defendant's argument that early discovery of this material may prevent a continuance of the trial to retain an expert; however, the State is not under an obligation to produce this material until the witness has testified. As a result, these materials do not have to be produced by the State until they become relevant and material as a result of the witness' testimony. Therefore, Defendant's Motion to Compel is denied as to all counts.
IT IS SO ORDERED.
WITHAM, J.