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A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of diagnosis or treatment of the patient's mental or emotional condition among the patient, the patient's psychotherapist or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.
Chase began receiving treatment at Kaiser Permanente from psychiatrist Kay Dieter in 1997, and was eventually diagnosed with bipolar type II disorder. Chase met with Dr. Dieter every couple of months for therapy and for management of his medication. Defendant met more often (ranging from bi-weekly to monthly) with psychologist Robert Schiff for psychotherapy. During a counseling session on August 18, 1999, Chase showed Dr. Dieter his day planner, which contained a list of names, addresses, and social security numbers. The list included two FBI agents who had investigated complaints lodged by Chase. Chase confided to Dr. Dieter that he had thought about injuring or killing these people and that he had threatened some of the listed individuals several times during the preceding five years. Dr. Dieter became concerned that Chase might act on his threats. Chase told Dr. Dieter that he had no intention to act immediately on his homicidal thoughts. Nonetheless, Dr. Dieter warned Chase that if he told her specifics about whom he planned to kill, she would have a duty to disclose the threats to the intended victims so that they could protect themselves. Following this session, Dr. Dieter discussed with one of her supervisors her concerns regarding Chase’s threats. She asked whether she had a duty to warn potential victims. The supervisor suggested that Dr. Dieter try to elicit more information from Chase before taking any further action. Chase reiterated his threats during two more sessions.
On October 28, FBI Agent Donald McMullen spoke with Dr. Dieter and told her that the FBI was planning to interview Chase and to execute a search warrant on his home, looking for weapons and the day planner containing the list of threatened individuals. Later that day, Chase left several voice-mail messages for Dr. Dieter, telling her that he believed he was about to be arrested. Chase also spoke with two of the clinic's telephone operators, telling one that "there are FBI Marshals that are on their way out to get me and if that happens, people are going to die." Dr. Dieter did not return Chase’s calls. Instead, she notified Agent McMullen to alert him to the fact that Chase knew that the authorities were on their way. Agent McMullen and his team went to Chase’s home but, before proceeding, called for backup. Chase’s wife arrived while the agents were waiting. The agents prevented her from entering the house. A series of cell-phone negotiations ensued, involving Chase, his wife, and his lawyer. Finally, a deal was struck whereby Chase would put his gun on a table and leave the house. As agreed, Chase walked into his yard, assisted McMullen over a wall, and allowed himself to be handcuffed. Chase told McMullen about the gun on the table and about the location of the day planner; Chase did not mention two other firearms that were hidden in the house. Chase said that when he told the clinic operator that people were going to die if the agents came to his home, he meant that he would die. Chase also referred to the threatening statements conveyed to Dr. Dieter as "hypothetical." Defendant was arrested and charged on three counts: Count I (threatening to murder federal law enforcement officers who were preparing to execute a search warrant on his home); Count II (threatening to murder the FBI agents who, he complained, had failed to investigate his earlier complaints properly); and Count III (possession of firearms by a person adjudicated by the Social Security Administration to be mentally defective). The district court dismissed Count III before trial. At trial, Defendant challenged the admissibility of (1) Dr. Dieter's testimony relating to statements that Defendant had made during therapeutic sessions and (2) evidence of threats that he had made against individuals other than federal law enforcement officers. The district court held that Dr. Dieter's testimony was admissible. Following the trial wherein Dr. Dieter testified, the jury convicted Defendant on Count I (threatening the agents who were en route to execute the search warrant) but acquitted him on Count II (the threats communicated during sessions with Dr. Dieter).
Was Chase’s communication to Dr. Dieter of threats to third parties a confidential communication that is ordinarily subject to federal testimonial privilege?
Chase’s statements were made in the course and scope of treatment. Accordingly, Chase’s communications to Dr. Dieter were confidential under state law (although an exception permitted disclosure of certain parts of the communications). That is so even though the threats that Chase communicated arguably constituted a crime. Once Chase finished uttering the threats, the charged crime was completed, and the psychiatrist was in the same position she would have occupied had her patient described a bank robbery in which he had participated a week earlier. Chase’s disclosures to his psychiatrist also were subject to a testimonial privilege in federal court, unless some exception applies.