Philadelphia Criminal Defense Blog
PA Superior Court: Trial Judge Improperly Usurped Role of Jury By Deciding Gradation of Witness Intimidation Charge
Philadelphia Criminal Lawyer Zak Goldstein
The Superior Court has decided the case of Commonwealth v. Raymond, holding that the trier of fact must make a specific finding of how the defendant “intimidated” a witness before the trial court can impose an enhanced felony gradation for the charge at sentencing. The Superior Court rejected the Commonwealth’s argument that the court could decide the gradation itself in the absence of a specific ruling from the jury.
Commonwealth v. Raymond
Philadelphia police charged the defendant with intimidation of a witness, retaliation against a witness, and possession of an instrument of a crime (“PIC”) based on his interactions with the complainant. Prior to the initiation of this case, the complainant had cooperated with law enforcement officials who charged the defendant’s friend with first degree murder. At the preliminary hearing for the murder case, the complainant testified that the defendant’s friend murdered the victim in that case.
The defendant and the complainant knew each other because they had lived in the same neighborhood for years. As the complainant had agreed to testify against the defendant’s friend at his murder trial, the complainant was placed in a witness protection program and relocated to another neighborhood approximately ten to fifteen minutes away. The complainant testified that he was concerned for his safety in his former neighborhood and no longer kept in contact with friends there because he had been labeled a snitch.
Shortly before the murder trial, the complainant was outside with his wife and his daughter at his residence when the defendant approached in his vehicle. After the defendant exited the vehicle and greeted the complainant’s family, the complainant’s wife and daughter went inside the residence. While the two men were alone, the defendant told the complainant that “I know where you was at. I would have done reach out and touched you, but I wanted to give you an opportunity to make shit right.” The complainant interpreted the defendant’s statement as an effort to convince him not to testify at the murder trial. The complainant then subsequently asked the defendant to leave. The defendant then said that “I’ve been up to the prison to see [defendant’s friend]. I know everything. And you got to make this shit right.”
The complainant then went inside his residence. He watched from his window as the defendant went back to his car, grabbed a black firearm, and tucked it under his shirt. The defendant then said “what are you gonna do?” while he placed his hand on his gun. After the complainant shut his door, he heard the defendant say “I know where you’re at.” The defendant then drove away.
After the defendant drove away, he called the complainant’s cell phone and stated “I shouldn’t have came. I don’t want you to feel threatened.” The defendant then stated that he did not want to be involved as the matter was between the complainant and his friend. As a result of this incident, the complainant relocated his family again to an unspecified address, which required his daughter to change schools. The complainant testified against the defendant’s friend, and that person was convicted of murder.
After the murder trial, the complainant testified about two incidents that occurred that made him feel he was being retaliated against for his testifying against defendant’s friend. First, he saw two men in a van parked outside of his home. One of the men was the defendant’s friend from his old neighborhood. Additionally, the complainant also found a dead bird on his doorstep. This was symbolic because the defendant’s nickname was tweet. The defendant, however, was in custody during both of these incidents.
The defendant went to trial with a jury. The above testimony was presented and he was convicted of all charges with the exception of PIC. It should be noted that there was not a specific finding by the jury as to how the defendant “intimidated” the complainant. This is important because intimidation has various subsections which trigger different gradations - it can range from a misdemeanor carrying only a few years in prison to a felony for which someone can get twenty years.
After his conviction, he filed a motion for extraordinary relief arguing that there was insufficient evidence to support either of his convictions. Regarding the witness intimidation charge, the defendant was originally charged under §4952(a)(1) which, as shown below, does not fit the facts that the Commonwealth alleged. The defendant also argued that there was no evidence to show that he made a specific threat or used violence to retaliate against the complainant for testifying at his friend’s preliminary hearing and thus there was insufficient evidence to convict him of that charge. The trial court agreed that there was insufficient evidence to convict him for the retaliation against a witness charge, however it denied the defendant’s motions on the intimidation of a witness charge. At his sentencing, the defendant was sentenced to six to twelve years’ incarceration. The defendant then filed a timely post-sentence motion which was denied. He then filed a timely appeal to the Pennsylvania Superior Court.
What is an Intimidation of a Witness Charge in Pennsylvania?
The charge of intimidation of a witness is governed by 18 Pa C.S.A. § 4952. The statute provides that a person can be guilty of intimidating a witness:
if with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent, or interfere with the administration of justice he intimidates or attempts to intimidate any witness or victim to” do any of the following:
Refrain from informing or reporting to any law enforcement officer, prosecuting official or judge concerning any information, document or thing relating to the commission of a crime.
Give any false or misleading information or testimony relating to the commission of any crime to any law enforcement officer, prosecuting official or judge.
Withhold any testimony, information, document or thing relating to the commission of a crime from any law enforcement officer, prosecuting official or judge.
Give any false or misleading information or testimony or refrain from giving any testimony, information, document or thing, relating to the commission of a crime, to an attorney representing a criminal defendant.
Elude, evade or ignore any request to appear or legal process summoning him to appear to testify or supply evidence.
Absent himself from any proceeding or investigation to which he has been legally summoned.
The penalty for being found guilty of intimidating a witness can be very severe. 18 Pa C.S.A. § 4952 (b)(1) lists how the charge of witness intimidation may be graded:
The offense is a felony of the degree indicated in paragraphs (2) through (4) if:
The actor employs force, violence or deception, or threatens to employ force or violence, upon the witness or victim or, with the requisite intent or knowledge upon any other person.
The actor offers any pecuniary or other benefit to the witness or victim or, with the requisite intent or knowledge, to any other person.
The actor's conduct is in furtherance of a conspiracy to intimidate a witness or victim.
The actor accepts, agrees or solicits another to accept any pecuniary or other benefit to intimidate a witness or victim.
The actor has suffered any prior conviction for any violation of this section or any predecessor law hereto, or has been convicted, under any Federal statute or statute of any other state, of an act which would be a violation of this section if committed in this State.
The offense is a felony of the first degree if a felony of the first degree or murder in the first or second degree was charged in the case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
The offense is a felony of the second degree if a felony of the second degree is the most serious offense charged in the case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
The offense is a felony of the third degree in any other case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
Otherwise the offense is a misdemeanor of the second degree.
The statute requires the Commonwealth to prove specific things in order to obtain an enhanced sentence. If the Commonwealth wants the witness intimidation charge to be graded as a felony of the first degree, it is not sufficient to show that the underlying case was also listed as felony of the first degree or a murder, but they must also show that the defendant “intimidated” the witness in one of the enumerated ways listed in 18 Pa C.S.A. § 4952 (b)(1)(i)-(iv). In the instant case, the defendant argued that because the jury did not specifically find which way the defendant “intimidated” the witness, he was entitled to the least severe grading which is a misdemeanor of the second degree.
The Superior Court’s Decision
The Superior Court agreed with the defendant that his conviction should have been graded as a misdemeanor of the second degree. The reason is because the jury did not make a specific finding as to how the defendant “intimidated” the complainant. Per 18 Pa C.S.A. § 4952 (b)(1), a criminal defendant can only receive an enhanced grading if the trier of fact finds that the defendant “intimidated” a witness through one of those enumerated points. Because the jury did not make a specific finding of how the defendant “intimidated” the complainant, his conviction could not be upgraded to the higher grading. Therefore, the trial court should have found that it was a misdemeanor and sentenced him to a maximum of two years’ incarceration.
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If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Supreme Court: Reckless Introduction of False Evidence Bars Retrial of Wrongfully Convicted Defendant
Philadelphia Criminal Lawyer Zak Goldstein
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Johnson, holding that the Pennsylvania Constitution’s Double Jeopardy Clause bars a retrial where the original conviction was based on false evidence and prosecutorial misconduct occurred in the form of prosecutors acting recklessly with respect to seeking the admission of the false evidence. This is an important case which sharpens the teeth of PA’s Double Jeopardy Clause and which provides some accountability for prosecutors who introduce evidence at trial that turns out to be false.
The Facts of Johnson
In Johnson, the victim, Walter Smith, told the police that a man named Clinton Robinson had killed a woman named Margaret Thomas. Later that year, Smith was shot and killed outside of a Philadelphia bar. Based on the ballistics evidence, police believed that there were multiple shooters. Police also found a red baseball cap near Smith’s body.
Debbie Williams, a friend of Smith’s, went to the police station and made a statement to Philadelphia police. She claimed that as they left the bar, there were numerous people outside on the sidewalk or in the street. A man who was wearing a red article of clothing pushed past her towards Smith. She heard shots, so she ducked, and she did not see the shooting. She then saw people run away. After the gunshots, she saw the person who had been wearing the red hat run past her, as well. She went to Smith’s body and picked up his baseball hat, which had a hole in it. The police arrived soon thereafter and took her to the station. She gave the hat to the police.
The case was not solved until 2005. In 2005, a jailhouse informant named Bryant Younger, who was under indictment in a federal drug case, told police that he heard the defendant, who was also in custody, make statements implicating himself in Smith’s murder. The police obtained the defendant’s DNA and compared it to DNA recovered from the red hat. They found that there was a match.
The Commonwealth then somehow got confused and failed to realize that there were two hats – a red hat which was found in the street, and a black hat which Smith had been wearing. The black hat had been tested and in fact had Smith’s blood and DNA on it, and the red hat had the defendant’s DNA on it. But somehow the Commonwealth believed that there was one hat with both men’s DNA on it. The Commonwealth arrested the defendant and charged him with first-degree murder, conspiracy, and possessing an instrument of crime. The case went to trial, and at trial, the Commonwealth’s crucial piece of evidence was the red hat with the DNA on it.
However, due to the Commonwealth’s apparent confusion, the prosecutor argued that the shooter, who was wearing the red hat, must have gotten in close to Smith and shot him, leading both to his own DNA being on the red hat as well as Smith’s blood. This was wrong because Smith’s blood was not actually on the red hat; it was on the black hat.
Nonetheless, the DNA analyst also testified that Smith’s blood and the defendant’s DNA were both found on “the hat.” The defendant’s attorney somehow never challenged the underlying premise that there were two hats. He argued that the DNA may not have been reliable and that no one actually saw the defendant commit the shooting. The prosecution emphasized that the decedent’s blood was on the same hat as the defendant’s DNA in closing argument. The jury convicted, and the court sentenced the defendant to death.
The Post-Conviction Relief Act Litigation
The defendant eventually filed a PCRA Petition after his attorneys uncovered the fact that there had been two hats and the decedent’s blood was only on the black hat. The Commonwealth agreed that the defendant should receive a new trial and also agreed not to seek the death penalty. The court granted a new trial.
Discovery Motions and Double Jeopardy Motions
The defendant then began filing discovery motions based on the finding of the two hats. The motion eventually evolved into a motion to dismiss on double jeopardy grounds due to prosecutorial misconduct in introducing false evidence – the false evidence being that there was only one hat. This led to various evidentiary hearings at which the prosecutors and detectives involved in the original trial had to testify. It quickly became clear to the court that the Commonwealth had not intentionally misstated the evidence but had gotten confused and believed that there was only one hat. Some police officers, however, had also exaggerated the evidence if not completely misstated it.
Following the evidentiary hearing, the defendant moved to dismiss the case. One officer had exaggerated the extent to which he saw blood stains on the red hat, and the other detectives and prosecutors believed that there was only one hat despite the fact that the Commonwealth clearly had two hats in its possession with separate property receipt numbers. He argued that regardless of whether the mistake was intentional or reckless, he had to spend nine years on death row, and the case should therefore be dismissed. The Commonwealth agreed that mistakes were made, but it argued that the mistakes had not been intentional, so it should be permitted to retry the defendant.
The trial court denied the motion to dismiss on double jeopardy grounds. It found that the Commonwealth had acted recklessly, not intentionally, and because the Commonwealth had not acted in bad faith, the double jeopardy clause did not apply. It did, however, permit the defendant to appeal prior to the re-trial by finding that such an appeal would not be frivolous. The Superior Court affirmed, and the defendant appealed further to the Pennsylvania Supreme Court. The Supreme Court accepted the case and reversed the conviction.
The Supreme Court’s Ruling
The Court barred the prosecution of the defendant and dismissed the charges against him.
First, it accepted the trial court’s findings that prosecutors had not acted intentionally but had acted either recklessly or with gross negligence. They had not conspired to deprive the defendant of a fair trial, but they had made so many inexplicable mistakes that the mistakes rose to a level of more than just ordinary negligence.
Second, the Court found that the Pennsylvania Constitution provides greater protections than the United States Constitution. Federal appellate courts have found that the United States Constitution requires intentional misconduct in order for the double jeopardy clause to apply and bar a retrial. But the Supreme Court found that Pennsylvania’s Constitution bars a retrial where the first conviction was vacated as a result of prosecutorial misconduct that occurred recklessly.
The purpose of the double jeopardy clause is not only to penalize prosecutorial error, but also to protect citizens from the embarrassment, expense, and ordeal of a second trial for the same offense. It should also prevent compelling them to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent they may be found guilty.
When the government engages in improper actions sufficiently damaging to undercut the fairness of a trial, it does not matter much to the defendant whether the prosecution did it on purpose. Therefore, the double jeopardy clause applies to bar retrial both when the prosecution acts intentionally as well as recklessly. Because the prosecution here clearly acted recklessly, the Commonwealth could not re-try the defendant, and the Court dismissed the case.
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Philadelphia Criminal Lawyers
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, DUI, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Superior Court: Restraining Child in Room With Baby Gate May Have Been Justified
Philadelphia Criminal Lawyer Zak Goldstein
The Superior Court has decided the case of Commonwealth v. Yachimoski, holding that a defendant who used a gate to keep his child in her room from leaving at night was entitled to a parental justification jury instruction. This case, aside from the absolute absurdity of it being prosecuted in the first place, highlights the importance of jury instructions in a criminal case. For one, it shows that jury instructions provide guidance to a jury on how to decide a case and, if provided, can help a defendant avoid a wrongful conviction. Additionally, it highlights the fact that a criminal court giving an improper jury instruction is often one of the strongest potential issues on appeal. If a jury is not instructed on a legal defense when there was evidence which would have supported that defense, then a defendant will often be entitled to a new trial.
Commonwealth v. Yachimowski
The defendant and his co-defendant (the mother of his child) were charged with endangering the welfare of a child (“EWOC”). The alleged victim in this case was their five-year-old daughter. The defendants elected to proceed by way of a jury trial and at their trial, the Commonwealth called several witnesses. The first witness was a case manager for Family Psychological Associates. She testified that at approximately 10:30 AM on May 17, 2018, she knocked on the front door of the defendants’ home. The defendant opened the door while holding a portable drill and let her in. After he let her in, the defendant walked to the doorway of his daughter’s room. According to this witness, she saw two baby gates which were stacked one on top of the other. The gates blocked the doorway into the child’s room. The defendant then used the drill to unscrew the top baby gate to allow his child to leave the room.
The witness then stated that she saw the child chewing on either tissue paper or a paper towel. When asked why his daughter was chewing on this, the defendant responded that his daughter “was hungry.” It is worth noting that according to this witness, the child did not look like she was underfed or lacking in proper hygiene. Additionally, she testified that the home was not in disarray and that it looked normal.
The Commonwealth also called a caseworker from Clarion County Children and Youth Services (“CYS”). The caseworker testified that she had received a report that the defendant’s child was being confined in her room by the use of secured baby gates. She also testified that she, along with two Pennsylvania State Troopers, entered the defendants’ home and went to the child’s bedroom. In the room, there was a “potty chair sitting on the floor with a box of wipes and a bed.” The CYS worker asked why they were using baby gates to block the child’s doorway and they responded it was to make sure the child “didn’t get into things whenever they hadn’t gotten out of bed in the morning.”
This was the extent of the Commonwealth’s case. After the Commonwealth rested, the co-defendant testified. She testified that they installed the baby gates in the doorway because the child “likes to get up at two or three in the morning and play” while she and the defendant are asleep. According to the co-defendant, they placed the baby gates to prevent the child’s nightly wanderings. She also testified that the CYS worker spoke to the defendants in a “raised” voice and that she told them they should not have the gates in case there was a fire. The co-defendant then testified that they “didn’t think of that when [they] put the gates up…[w]e were only doing it for [the child’s] safety.”
After being told of the dangers, they took down the gates and put them in the shed. The co-defendant reiterated that these gates were for the child’s safety. Following this testimony, the trial court permitted the Commonwealth to reopen its case. A Pennsylvania State Trooper testified that he obtained a search warrant for the defendants’ shed and they found the baby gates in the defendants’ shed with drill holes in them. They executed this search warrant during the trial because the defendants had denied fully attaching the gates to the wall.
After all the evidence was presented, the defendants’ attorneys requested that the trial court provide the jury with a parental justification instruction. The trial court denied their request because “the defendants did not use force upon or toward the child.” The jury then found the defendants guilty. The trial court sentenced the defendant to a term of nine months to two-years-less-one-day in Clarion County Jail and his co-defendant to a term of three years’ probation. The defendants then filed a post-sentence motion which was denied. They then filed a timely appeal. On appeal, the defendant raised one claim: whether the trial court erred in failing to provide a justification defense instruction.
What is the Parental Justification Instruction?
The Parental Justification Instructionderives from 18 Pa. C.S.A. § 509(1). That statute provides:
The use of force upon or toward the person of another is justifiable if:
(1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian or other responsible person and:
(i) the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the preventing or punishment of his misconduct; and
(ii) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.
The parental justification defense defines conduct that is otherwise criminal, but which under the circumstances is socially acceptable and which deserves neither criminal liability nor even censure. The purpose of the parental justification defense is designed to balance competing interests. Finally, the parental justification defense has four statutory elements:
The actor uses “force upon or toward the person of another;”
The actor “is the parent or guard or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian or other responsible person;”
The force is used for the purpose of safeguarding or promoting the welfare of the minor, including the preventing or punishment of his misconduct;” and
The force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.”
In the instant case, the only issue in terms of whether the instruction should have been provided was the first element which was whether the defendants used “force upon or toward the person of another.” The trial court had reasoned that the defendants did not use force upon the child by simply putting up a gate, so they were not entitled to the instruction. However, in general, defendants are entitled to an instruction for any defense which could be supported by the evidence.
The Superior Court’s Decision
The Superior Court found that the trial court committed reversible error and granted the defendant a new criminal trial. In its decision, the Superior Court analyzed the crimes code and determined that “force” was not defined. Next, the Superior Court reviewed the language of the statute. The Superior Court found that under the plain language of the statute, the defendants’ actions could constitute “the use of force toward” their child. The Superior Court found that the defendants’ actions of creating a physical barricade was a “force that was directed towards [their child].” Additionally, the Superior Court analyzed other statutes and found that confinement qualifies as a use of force in other criminal statutes. As such, the Superior Court found that the trial court erred when it did not grant this jury instruction and the defendant will get a new trial. This does not mean that the Superior Court ruled that the evidence could not possibly support a conviction of the defendants. Instead, it means that they were improperly deprived of a legal defense which was potentially supported by the evidence. The jury should have been instructed that the parents were potentially justified in using the force if they were doing it for the child’s safety. Therefore, they will receive a new trial.
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Philadelphia Criminal Lawyers
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, DUI, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Superior Court: Overheard Statement Made To Other Patient After Treatment Not Covered By Psychotherapist Privilege
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Cook, holding that an incriminating statement made to another patient of an inpatient mental health treatment center which was overheard by a security guard is not covered by the psychotherapist privilege. The Superior Court found the statement admissible despite the fact that the guard had a minor role in providing treatment to patients and the fact that the defendant had been involuntarily committed to the facility.
The Facts of Cook
In Cook, the Pennsylvania State Police began investigating a murder in 1991. In 2016, the defendant was charged with the murder. Specifically, prosecutors filed charges for criminal homicide and robbery. Suspecting that the defense would likely object to the admissibility of certain statements the defendant had allegedly made, the Commonwealth filed a motion in limine prior to trial asking the trial court to find that those statement would be admissible at trial. The statements had allegedly been made while the defendant was involuntarily committed to a mental health treatment center in Minnesota. During that commitment, the defendant allegedly made an incriminating statement to another patient which was overheard by a Security Counselor who worked for the facility. The defendant argued that the statement was privileged under 42 Pa.C.S.A. Section 5944, which governs confidential communications to psychiatrists and therapists.
The trial court issued an order finding that the incriminating statement, in which the defendant admitted to committing a murder in Philadelphia, was privileged and could not be introduced into evidence at trial. The Commonwealth filed a motion for reconsideration, arguing that the statements were not confidential because they were made to a fellow patient rather than a psychologist or psychiatrist and because the Security Counselor had simply overheard the defendant in a public setting. Therefore, the Commonwealth argued the the statements were not made in the course of treatment by a treatment provider.
The trial court held a hearing on the motion to reconsider at which the security counselor testified. The counselor testified that he was basically a security guard and that his job was to ensure the safety and security of the facility. He would count patients for their medications and meals and make sure that they were taking their medication. He would also document any unusual patient behavior and let the nurses know. Notably, he did not administer medications, he did not prescribe medications, and he would only be present for group meetings and interactions for security purposes. He was not involved in making treatment recommendations.
The security counselor heard the statements when the defendant was in the facility’s library. This was not part of a treatment session, and treatment was not conducted in the library. There were no doctors or nurses present at the time. The defendant made the statement to the other patient while they were sitting together on the couch in the library, and the security counselor was a few feet away. The defendant knew that the security counselor was present. The security counselor visibly took notes on the exchange.
Following the hearing, the trial court re-entered its original order, finding that the testimony was privileged. The Commonwealth appealed to the Pennsylvania Superior Court.
The Pennsylvania Superior Court’s Opinion
The Superior Court reversed the trial court’s order on appeal and found that the incriminating statement is admissible. The court noted that evidentiary privileges are limited and must be strictly construed. The psychotherapist privilege applies only under limited circumstances.
Does Pennsylvania have a psychotherapist privilege?
The 42 Pa.C.S.A. Section 5944 provides:
§ 5944. Confidential communications to psychiatrists or licensed psychologists
No psychiatrist or person who has been licensed . . . to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.
Can a therapist testify about things that you told them in therapy?
The psychotherapist privilege acts to bar testimony by the treating psychologist or psychiatrist as well as disclosure of certain records. The privilege does not always apply, however. While documents prepared during the course of treatment may sometimes fall within the privilege, the privilege applies only to confidential communications between psychiatrists or psychologists and their patients/clients that were made in the court of treatment. Not all records and documents regarding mental health treatment are protected. The privilege does not extend to reports, documents, or statements that do not contain communications made by the patient to the therapist.
The privilege extends to members of the treatment team, but to be privileged, a statement must be made by the client “in confidence” to a member of the treatment team and '“in the course of facilitating the treatment plan.”
Here, the defendant made his statement in a private conversation to a fellow patient during a recreational time in the library. It was not part of a therapy session, and the statement was not made to a member of the treatment team. Thus, the statements were not confidential or made in the course of treatment. Instead, they were statements made during a private conversation between the defendant and a third-party which were overheard by a security guard. Therefore, the statements are not protected by the privilege and can be used against the defendant at trial.
When does the psychotherapist privilege not apply?
As the court’s opinion illustrates, there are a number of situations in which the privilege may not apply. The privilege may not apply if:
The statement is not confidential - meaning it is made to someone other than the therapist.
The statement is made outside of a treatment setting where other people can hear it and no steps have been taken to keep the conversation private.
The statement is not made during the course of treatment.
This opinion unfortunately fails to reflect that the guard does appear to have been involved in treatment both by documenting patient behaviors for the nurses and that the defendant was committed to the facility involuntarily. Given that he was receiving involuntary, inpatient treatment, the court should have found that any statement made while he was there was privileged as it was all part of his treatment. Nonetheless, this opinion, like many, illustrates that it is much better to not make incriminating statements regarding serious crimes as courts are extremely resultant to prohibit the admission of such statements at trial. When the police tell you that anything you say can be used against you in court, they mean it.
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Goldstein Mehta LLC - Criminal Defense Lawyers in Philadelphia, PA
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, DUI, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.