Submitted by Jeffrey Hark, New Jersey Criminal Defense Lawyer
Can I get my girlfriend’s or boyfriend’s prior psychiatric or medical records and use them at trial to attack there credibility. There are two issues which must be addressed here. The first is criminal court Rule 3:13–3. First, the defendant cannot require the state to produce discovery that is not in its possession. A victim’s pre-existing/prior mental health records and or medical records most likely will not be in the possession of the State. The court cannot order the State to produce what they do not possess and or have control over. In addition the victims medical and mental health records are private third-party documents.
Burden of Proof with Prior Medical/Psychiatric Records
The second threshold issue deals with the evidentiary burden the defendant must satisfy. Before the court will order any records to be turned over revealing the alleged victim’s pre-existing or prior medical/psychiatric records s/he must satisfy a very high burden of proof. “The defendant must provide actual proof of a legitimate need to reach the evidence which is shielded by privilege by showing the evidence is relevant and material to an issue before the court, and the evidence cannot be secured by any less intrusive means.”
Here, the defendant must prove that the prior psychiatric and or medical records of the victim are both relevant and material to her credibility and veracity for cross examination purposes. Yes, the court views a defendant’s constitutional guaranteed fair trial, and entitlement to cross examination, as a significant issue, however the threshold is still very high because the right to confront and cross-examine a witness is not unqualified. The court must balance the compelling state interest to maintain the confidentiality of certain records, i.e. prior medical records and psychiatric records, with a defendant’s cross examination of said witness.
Yes, there are circumstances where a witness’s prior mental defect and potential drug abuse could affect the ability to perceive events and relate them accurately to a jury. The court said this not one of those exceptional circumstances. The court wrote the alleged assault and domestic violence in a long-standing relationship does not open the door to obtaining pre-existing or prior medical records of a domestic violence victim. In this case the defendant did not provide any showing that the victim suffered from a mental or neurological condition that affected her ability to perceive and recall related events on the night in question. In addition, the defense attorney did not provide sufficient notice to the victim regarding any intent to obtain said records and provide the victim an opportunity to object to same. Merely being a victim who is dragged into the criminal process and procedure does not give consent to expose her prior medical or psychiatric records to the prosecutor, the defendant, and the court system. The court also acknowledged that victims do not sign “criminal complaint’, it is the state and law-enforcement officers who do.
Admissibility of Medical or Psychiatric Conditions
In sum, unless a defendant can show that the alleged victim had medical or psychiatric conditions which affected the ability to perceive recall and testify that would deny him his sixth amendment right to confrontation, such prior/pre-existing medical and psychiatric records will not be allowed to be used for cross examination. It is the defendant’s burden to prove these issues to the court before any medical records will be released. Thereafter the victim has to be put on notice and providing an opportunity to object as well.
Jeffrey S. Hark, Esq.