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Abstract

In 1996, the Supreme Court recognized the existence of a federal psychotherapist-patient privilege in Jaffee v. Redmond. The Court did not explain, however, how this evidentiary privilege should coexist with a psychotherapist's so-called Tarasoff duty to breach confidentiality when necessary to protect third parties against whom a patient has articulated serious threats. Jaffee included a footnote indicating that the privilege was not intended to invalidate this duty, but left unclear whether the privilege continues once disclosure of the patient's threats has breached confidentiality. Indeed, the two circuits that have considered this issue since Jaffee have adopted divergent approaches. The Tenth Circuit indicated in United States v. Glass that once a psychotherapist has appropriately disclosed a patient's threats, those statements are no longer protected by privilege in a subsequent prosecution of the patient. The Sixth Circuit, however, rejected that approach last year in United States v. Hayes. Faced with the unusual prosecution of a patient solely for uttering--without carrying out--threatening remarks to his psychotherapist about a federal employee, the Hayes majority held that the Jaffee privilege prevented the psychotherapist from testifying to those threats in court, despite their previous disclosure. Yet as the dissent remarked, the majority's overly broad language implied that a psychotherapist should never be permitted to testify about a patient's threats, even when those threats have already been disclosed and are offered as evidence of the patient's guilt of a subsequently committed crime. This blanket approach is inconsistent with the rationale underlying the Jaffee privilege, and future courts should narrow the privilege to include only cases in which the crime is the threat itself.

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