IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 11, 2008
No. 07-30084
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JOHN C. AUSTER,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Knowing that his therapist, Dr. Fred Davis, would convey his threat to its
target, John Auster informed Davis that unless the managers of his workers’
compensation claim continued to pay the benefits that he believed he was owed,
he would “carry out his plan of violent retribution” against them and others. The
authorities were called, Auster arrested and indicted for extortion. Though de-
nying his motion to dismiss the indictment, the district court ruled that com-
munications between Auster and his therapist were inadmissible at trial under
No. 07-30084
the psychotherapist-patient privilege. The government appeals that interim or-
der, and we reverse and remand, because Auster had no reasonable expectation
of confidentiality when he made his threat.
I.
Auster, a retired New Orleans police officer, has been receiving workers’
compensation benefits since 1989. Cannon Cochran Management Services, Inc.
(“CCMSI”), manages Auster’s benefit claim. Auster is treated for paranoia, an-
ger, and depression and has threatened various individuals over the years. He
often makes his threats during sessions with his two therapists, Davis and Dr.
Harold Ginzburg, and his therapists then relaySSpursuant to their “duty to
warn”1SShis threats to their targets. Auster admits that he is aware that his
threats are communicated in that way.2
Auster’s relationship with CCMSI is strained. His anger regarding the
administration of workers’ compensation settlement is a frequent topic of thera-
py. In the past, after particularly troubling sessions, Auster’s therapists have
felt compelled to warn CCMSI employees about his potential for violence.
In September 2006, CCMSI informed Auster that it would stop paying a
portion of his benefits beginning on October 1, 2006. On September 13, Auster
discussed the pending partial termination of benefits with Davis, specifically
1
See, e.g., Hutchinson v. Patel, 637 So. 2d 415, 424 (La. 1994) (citing LA. REV. STAT.
ANN. 9:2800.2).
2
In argument to the district court, Auster’s lawyer conceded that Auster “was in fact
on occasion told that his threats of violence would be communicated to CCMSI.” Likewise,
when Ginzburg related to Auster, after Auster had threatened CCMSI on a separate occasion,
that CCMSI had been warned, Auster stated that “he had expected that [Ginzburg] would do
just that.” Auster introduced into evidence a letter from Davis to CCMSI wherein Davis stated
that “I have had to exercise my duty to warn, with [Auster’s] knowledge, several times when
he was in danger of acting violently . . . . Mr. Auster is well aware of my position regarding
violence and has agreed that he understands that I have such an obligation. This understand-
ing has not interfered in his reporting of homicidal intentions in the past.”
2
No. 07-30084
threatening CCMSI personnel, city authorities, and police officials. Davis sent
Keith Smith, a CCMSI employee responsible for Auster’s claim, a letter warning
that it was Auster’s position that if “CCMIS [sic] persists in their position,” that
would “serve as a provocation for him to carry out his plan of violent retribution
against a list of persons he feels have caused him injury.” Davis alerted CCMSI
that Auster had stated that he possessed “stockpiles of weapons and supplies to
provide the basis for his actions.” October 2 was marked as the date of “violent
retribution.”
When Smith received Davis’s letter, he became concerned, bought a gun
for self-defense, and called the police, who notified the FBI; Auster was arrested
on September 29. The United States filed an extortion complaint against Auster
under 18 U.S.C. § 1951,3 alleging that he made his threat with knowledge and
intent that Davis would convey it to CCMSI, thereby causing CCMSI to submit
to his demands. The magistrate judge and district court, respectively, held de-
tention hearings and took evidence.
Auster unsuccessfully moved to dismiss the complaint; a grand jury in-
dicted him for “attempt[ing] to obtain property of CCMSI with the consent of
CCMSI having been induced by the wrongful use of threatened force, violence
and fear, in that the defendant did communicate to CCMSI, via his treating psy-
3
Title 18 U.S.C. § 1951 states that
(a) Whoever in any way or degree obstructs, delays, or affects commerce or
the movement of any article or commodity in commerce, by robbery or extortion
or attempts or conspires so to do, or commits or threatens physical violence to
any person or property in furtherance of a plan or purpose to do anything in vio-
lation of this section shall be fined under this title or imprisoned not more than
twenty years, or both.
....
(2) The term “extortion” means the obtaining of property from another, with
his consent, induced by wrongful use of actual or threatened force, violence, or
fear, or under color of official right.
3
No. 07-30084
chotherapist,” his threat of violence if his benefits were reduced.
Before the indictment issued, Auster unsuccessfully argued to the magis-
trate judge that the communications between him and Davis were privileged.
After a hearing, the court suppressed the communications, citing the psychother-
apist-patient privilege.
II.
A.
“‘Except as otherwise required by the Constitution of the United States’
or other authority listed in Rule 501, . . . privilege[s] ‘shall be governed by the
principles of the common law as they may be interpreted by the courts of the
United States in the light of reason and experience.’” United States v. Robinson,
121 F.3d 971, 974 (5th Cir. 1997) (quoting FED. R. EVID. 501). We review factual
findings underlying a privilege ruling for clear error and the application of legal
principles de novo. Id.
B.
“For more than three centuries it has now been recognized as a fundamen-
tal maxim that the public (in the words sanctioned by Lord Hardwicke) has a
right to every man’s evidence.” United States v. Bryan, 339 U.S. 323, 331 (1950)
(internal citations and quotations omitted). This “fundamental principle,” Tram-
mel v. United States, 445 U.S. 40, 50 (1980), counsels that privileges “are not
lightly created nor expansively construed, for they are in derogation of the
search for truth.” United States v. Nixon, 418 U.S. 683, 710 (1974).
The psychotherapist-patient privilege is a recognized privilege.4 Though
4
“In every state, the therapist-patient relationship is given some level of protection in
court cases; but all such privilege laws contain exceptions that allow a psychologist’s records
or testimony to be admitted as evidence in certain circumstances.” Mary Alice Fisher, Protect-
(continued...)
4
No. 07-30084
declining to “delineate [the privilege’s] full contours” in a way that would “govern
all conceivable future questions in this area,” Jaffee v. Redmond, 518 U.S. 1, 18
(1996), the Court recognized that this privilege can be appropriate in certain
circumstances.5 The Court, however, mindful of the burden imposed on the judi-
ciary’s truth-seeking function, unambiguously limited the psychotherapist-pa-
tient privilege’s applicability to those instances in which the patient’s statement
was made in confidence, holding that the “privilege covers confidential communi-
cations made to licensed psychiatrists and psychologists[, and] confidential com-
munications made to licensed social workers in the course of psychotherapy.” Id.
at 15 (emphasis added).
Jaffee’s explicit confidentiality requirement is fatal to Auster’s claim of
privilege. Because Auster knew, when he made the September 13 threat, that
it would be forwarded to CCMSI, his privilege claim fails, because he had no
reasonable basis to conclude that the statement was confidential. As a matter
of law, where the confidentiality requirement has not been satisfied, the psycho-
4
(...continued)
ing Confidentiality Rights: the Need for an Ethical Model, AM. PSYCHOLOGIST, Jan. 2008, at 10.
5
The Court added that
[a]lthough it would be premature to speculate about most future developments
in the federal psychotherapist privilege, we do not doubt that there are situa-
tions in which the privilege must give way, for example, if a serious threat of
harm to the patient or to others can be averted only by means of a disclosure by
the therapist.
Jaffee, 518 U.S. at 18 n.19. Although we decline to rule on whether there is a dangerous-pa-
tient exception to the psychotherapist-patient privilege, we note that the foregoing footnote
demonstrates that the Court viewed the privilege as limited in scope. Moreover, because the
Court contemplated that the privilege must give way in some instances involving dangerous
patients, even where there is confidentiality, it follows a fortiori that the privilege is inapplica-
ble in similar situations involving dangerous patients where there is no confidentiality.
5
No. 07-30084
therapist-patient privilegeSSas with other privileges6SSdoes not apply.
Auster was informed repeatedly by his therapists that his violent threats,
although made during therapy, would be communicated to his potential victims.7
That is unremarkable; his therapists have a Tarasoff duty8 to convey “signifi-
cant” “threat[s] of physical violence” against “clearly identified . . . victims,”9 and
they also have an ethical duty to inform Auster of that legal duty.10 Consequent-
6
See, e.g., 1 CHARLES MCCORMICK, MCCORMICK ON EVIDENCE § 72 (Kenneth S. Broun
ed., 6th ed. 2006) (requiring for all privileges that “[t]he communications must originate in a
confidence that they will not be disclosed . . . .”) (quoting 8 JOHN H. WIGMORE, EVIDENCE IN
TRIALS AT COMMON LAW § 2285 (John T. McNaughton ed., rev. ed. 1961)). For a helpful dis-
cussion of the privilege as recognized in federal court under rule 501 and as recognized in Jaf-
fee, see generally 2 STEPHEN A. SALTZBURG,MICHAEL M. MARTIN & DANIEL J. CAPRA, FEDERAL
RULES OF EVIDENCE MANUAL § 501.02[6] (LexisNexis 9th ed. 2006).
7
The district court found that “[t]he communication to his ongoing, treating psychother-
apist was confidential and concerned the subject matter of Auster’s treatment.” That factual
finding of confidentiality is clearly erroneous. As noted, see supra note 2, Auster’s lawyer con-
ceded that Auster “was in fact on occasion told that his threats of violence would be communi-
cated to CCMSI.” Davis and Ginzburg also have informed Auster that they have a legal duty
to convey his threats to those at risk, and, in a letter Auster introduced into evidence, Davis
stated unequivocally that “Mr. Auster is well aware of my position regarding violence and has
agreed that he understands that I have such an obligation.”
8
Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976) (recognizing duty of
mental health therapists to warn third parties of potential violence in certain circumstances).
Tarasoff, a nationally recognized authority, triggered what has been described as “ethical-legal
confusion” for mental health practitioners. Fisher, supra note 4, at 4.
9
Under Louisiana law, “[w]hen a patient has communicated a threat of physical vio-
lence, which is deemed to be significant in the clinical judgment of the treating psychologist
or psychiatrist . . . against a clearly identified victim or victims, coupled with the apparent in-
tent and ability to carry out such threat, the psychologist . . . or the psychiatrist . . . treating
such patient and exercising reasonable professional judgment, shall not be liable for a breach
of confidentiality for warning of such threat or taking precautions to provide protection from
the patient’s violent behavior.” LA. REV. STAT. ANN. 9:2800.2. This has been construed as a
“duty to warn.” Hutchinson, 637 So. 2d at 424.
10
See, e.g., Jaffee, 518 U.S. at 13 n.12 (“At the outset of their relationship, the ethical
therapist must disclose to the patient the relevant limits on confidentiality.”) (internal citations
and quotations omitted).
6
No. 07-30084
ly, when Auster made the threat, he knew it would be relayed to CCMSI.11 He
therefore had no “reasonable expectation of confidentiality,” Robinson, 121 F.3d
at 976, in his threatening statement, and without such a reasonable expectation,
there is no privilege.
C.
The federal circuits are in disagreement in this regard. The Sixth and
Ninth Circuits have held that such statements, though made without a reason-
able expectation of confidentiality, are nonetheless privileged,12 and the Tenth
Circuit has held that, in such situations, the psychotherapist-patient privilege
must give way, though for reasons different from those we have articulated.13
We respectfully disagree with those circuits that have extended Jaffee by holding
that even if a patient knows that a threat is not made in confidence, any state-
ments made to the therapist are privileged in a federal trial. Those courts have
held, thus, that confidentiality is not a requirement for the applicability of the
psychotherapist-patient privilege, the Ninth Circuit’s holding being explicit in
11
Auster argues that the letter Davis sent was not a Tarasoff letter, given that on Sep-
tember 20, 2006, Davis sent CCMSI another letter indicating that if Auster persisted in his
threats, Davis would send a Tarasoff letter. Auster does not explain how Davis legally and
ethically could have sent the September 13 letter to CCMSI, detailing Auster’s therapy, unless
that letter fell under the Tarasoff exception to the confidentiality obligation. The district court,
likewise, ruled that “Dr. Davis complied with the duty to protect by informing CCMSI of
potential threats,” a factual finding that we see no reason to question. But whether it was a
Tarasoff letter, in Davis’s clinical opinion, is ultimately beside the point: The controlling ques-
tion is whether Auster had a “reasonable expectation of confidentiality,” Robinson, 121 F.3d
at 976, when he made the threat. Because he knew he was making a threat of physical
violence against specific victims to commence on a specific date, he also knew that his state-
ment was of the sort that Davis had a duty to disclose. Under these circumstances, any expec-
tation of confidentiality would have been “manifestly unreasonable.” Id.
12
See United States v. Chase, 340 F.3d 978 (9th Cir. 2003) (en banc); United States v.
Hayes, 227 F.3d 578 (6th Cir. 2000).
13
See United States v. Glass, 133 F.3d 1356 (10th Cir. 1998) (recognizing a dangerous-
patient exception to the psychotherapist-patient privilege).
7
No. 07-30084
that regard.14 That viewSSwhich is not in accord with Jaffee or testimonial privi-
leges generally15SSis open to question.
In support for their position, the Sixth and Ninth Circuits assert that “[i]f
the federal evidentiary privilege were tied to the states’ disclosure laws, then
similarly situated patients would face different rules of evidence in federal crim-
inal trials,” Chase, 340 F.3d at 987, and “it cannot be the case that the scope of
a federal testimonial privilege should vary depending upon state determinations
of what constitutes ‘reasonable’ professional conduct,” Hayes, 227 F.3d at 584.
But this misunderstands the effect of state law. Federal law does not depend on
state law but instead is turning on the lack of confidentiality, regardless of the
reason. Though, in certain instances, state law may play a role in negating
confidentiality (just as other factors can nullify it, e.g., the presence of third par-
ties16), the operative test is a federal one: whether there was a “reasonable expec-
tation of confidentiality” when the statement was made.
Likewise, both the Sixth and Ninth Circuits erroneously conclude that in
weighing the pros and cons of extending the psychotherapist-patient privilege,
the harm in permitting material obtained from a therapy session into a criminal
trial outweighs its benefits. This is a miscalculation. It is true that in Jaffee,
518 U.S. at 10, the Court noted that the “private ends” served by a psychothera-
pist-patient privilege include “an atmosphere of confidence and trust,” something
that is necessary for effective therapy. And, at the same time, the Court ob-
14
See Chase, 340 F.3d at 985-87.
15
See Hayes, 227 F.3d at 589 (Boggs, J., dissenting) (“Hayes waived any privilege purely
and simply . . . by continuing to threaten after he had been given notice that his threats would
not be held in confidence.”).
16
See, e.g., United States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976) (“It is vital to a
claim of privilege that the communication have [sic] been made and maintained in confidence.
Thus courts have refused to apply the privilege to information that the client intends his at-
torney to impart to others, or to communications made in the presence of third parties.”) (in-
ternal citations omitted).
8
No. 07-30084
served that the privilege can be relatively costless, because “[w]ithout a privi-
lege, much of the desirable evidence to which litigants . . . seek access . . . is un-
likely to come into being.” Id. at 12. These considerations led the Court to con-
clude that the psychotherapist-patient privilege, at least in some form, should
be recognized.
But, as the Jaffee Court implicitly recognized by explicitly requiring confi-
dentiality,17 this cost-benefit calculation is inapt where the patient already
knows the confidence will not be kept. Consider the marginal impact on effective
therapy of allowing a statement into evidence that the patient knew would be
communicated to third parties when he uttered it.18 In such a case, the “atmos-
phere of confidence and trust” has already been severely undermined.19 Now,
the patient’s target and deepest enemy, “the person the deranged individual
hates so much that he plans to kill him,” Chase, 340 F.3d at 997 (Kleinfeld, J.,
concurring), knows the patient’s secret. And for sincere threats, the target can
17
In fact, after “hold[ing] that confidential communications between a licensed psycho-
therapist and her patients in the course of diagnosis or treatment are protected from compelled
disclosure,” Jaffee, 518 U.S. at 15, the Court added a footnote that underscores the ap-
propriateness of a per se rule requiring confidentiality before the privilege is applicable: “Like
other testimonial privileges, the patient may of course waive the protection,” id. at 15 n.14.
By both expressly noting the possibility of waiver and tying the psychotherapist-patient privi-
lege to other testimonial privileges (which all require that the statements be made in confi-
dence), the Court reiterated the fundamental nature of confidentiality.
18
Cf. Case Comment, Sixth Circuit Holds That Tarasoff Disclosures Do Not Vitiate
Psychotherapist-Patient Privilege, 114 HARV. L. REV. 2194, 2199 (2001) (“The critical question
is thus whether a significant number of patients who disclose their violent impulses to their
psychotherapists even after learning of the Tarasoff exception would become unwilling to do
so when advised that if they actually acted on those impulses, their psychotherapists might
have to testify against them. The Hayes majority offered no rationale for its belief that there
would be many such patients, and, in fact, psychological literature suggests that few patients
would react in this way. Those patients who remain in therapy even after being advised of the
limits on confidentiality typically do so because they recognize their need for help and believe
that psychotherapy may provide it.”) (internal citations omitted).
19
The Sixth and Ninth Circuits concedeSSas they mustSS that these warnings have at
least some marginal effect on a patient’s willingness to speak openly with his therapist. See
Hayes, 227 F.3d at 584-85; Chase, 340 F.3d at 990.
9
No. 07-30084
now defend himself. If the therapist’s professional duty to thwart the patient’s
plans has not already chilled the patient’s willingness to speak candidly, it is
doubtful that the possibility that the therapist might also testify in federal court
will do so.20
The deleterious effect of a Tarasoff warning on the “atmosphere of confi-
dence and trust” is further reinforced by the knowledge that the intimate details
of therapy will be spread to more than just the target of the threat.21 There is,
after all, no obligation that the target keep the Tarasoff warning confidential,
and it is unrealistic to believe that he will do so; there are likely mutual acquain-
tances between the target and the patientSSe.g., friends, co-workers, familySS
and the target will almost certainly tell them, if for no other reason than to let
them know that there is a potentially serious problem with the patient and that
everyone ought to be on the lookout for trouble.
Thus, knowing that anyone, or everyone, might be privy to the secret will
embarrass the patient and will detrimentally affect his relationships with oth-
ers. Such a Tarasoff disclosure might also cost the patient his job. The marginal
increase, therefore, in effective therapy achieved by privileging psychotherapist-
patient communications at trial, but still allowing the therapist to warn threat-
ened third parties, is de minimis.
Moreover, it is not even true, under the Sixth and Ninth Circuits’ stan-
dard, that a therapist cannot assist in having a patient locked away. Both courts
acknowledge that a psychotherapist can testify in civil commitment hearings.
See id. at 991; Hayes, 227 F.3d at 585. Though there is a legal distinction be-
20
All are “concerned about deranged murderous individuals stopping valuable therapy
because” they do not trust their therapists, but if that were to happen, “it doubtless already
[will] have occurred [when the patient learns that] the psychotherapist [will] betray[] their con-
fidences to their worst enemies.” Chase, 340 F.3d at 997 (Kleinfeld, J., concurring).
21
“[O]nce information is released, both client and psychologist lose control over redisclo-
sure.” Fisher, supra note 4, at 10.
10
No. 07-30084
tween criminal incarceration and involuntary civil commitment, the nuanceSSin
terms of trust and confidenceSSlikely does not matter much to the fellow com-
mitted.22 Because, “by definition,” patients “reject the prospect of [forced] hospi-
talization,” Hayes, 227 F.3d at 585, “reason and experience” dictate that it is un-
likely that many patients will be dissuaded from seeking therapy by the addi-
tional chance that, aside from being committed against their will because of
what they say to their therapists, they may also be criminally incarcerated based
in part on those same statements.
The slight marginal therapeutic benefit of allowing the therapist to divulge
confidences and to testify in civil commitment hearings, but not in federal crim-
inal trials, must then be weighed against the marginal increase in “having truth
vindicated and justice done.” Chase, 340 F.3d at 997 (Kleinfeld, J., concurring).
The public interest at stake in a criminal trial of any sort is substantial, more
so than in a civil case like Jaffee. But the criminal issues that are raised by cas-
es like Auster’s are of a more serious sort still, because the Tarasoff duty does
not come into play lightly. Those cases are the ones that are the most serious,
so any marginal increase in the admissibility of probative evidence in criminal
proceedings is especially valuable.23 Consequently, where a patient has no rea-
sonable expectation of confidentiality, the cost-benefit scales favor disclosure.24
22
Cf. O’Connor v. Donaldson, 422 U.S. 563, 575 (1975) (“A finding of ‘mental illness'
alone cannot justify a State’s locking a person up against his will . . . .”) (emphasis added).
23
Moreover, “[i]n the event that a patient actually carried out or attempted to carry out
threats that his psychotherapist had already disclosed, the psychotherapist’s testimony could
be critically important in establishing such elements as identity, motive, and absence of mis-
take.” Case Comment, supra note 18, at 2199.
24
The Ninth Circuit posits that the lack of confidentiality is not dispositive, because it
is a legal “fiction that the patient knows that a disclosure for one purpose (warning a potential
target of violence) is a disclosure for all purposes (including incriminating testimony in a fed-
eral criminal trial),” and, if “a patient actually does know the law[, then] . . . the legal rule it-
self, whatever it may be, will govern the patient’s expectations.” Chase, 340 F.3d at 988-89.
(continued...)
11
No. 07-30084
The Sixth and Ninth Circuits also opine that because the majority of states
permit psychotherapists to issue Tarasoff or other similar warnings but not to
testify at trial, the federal courts should not let them testify either.25 This justi-
fication too is wanting. There is not a uniform consensus among the states re-
garding statements made with no reasonable expectation of confidentiality.26
Even a cursory review of the laws of the states reveals wide divergences.
For instance, in California “a psychotherapist not only must disclose to authori-
ties or intended victims the existence of a dangerous patient, [he] also may testi-
fy to threats made during the course of therapy.” Chase, 340 F.3d at 986 (citing
CAL. EVID. CODE § 1024). A decision from an appellate court suggests that Flori-
da follows California.27 States like West Virginia, Connecticut, and Wyoming
also seem to favor the testimony’s admission.28 North Carolina’s code
24
(...continued)
Even if we were to accept that Jaffee permits us to interpret “confidential” to mean merely con-
fidential-at-law and not (the more intuitive) confidential-in-fact, the above discussion demon-
strates that we should not. As explained, the slight marginal benefit on effective therapy
achieved by recognizing the privilege’s applicability where a patient knows a threat will be con-
veyed is substantially outweighed by the marginal costs. The Ninth Circuit’s position is thus
a doctrinal cul-de-sac, interesting but leading nowhere.
25
See, e.g., id. at 986 (“Almost all states . . . recognize the distinction between confiden-
tiality (which is affected by the Tarasoff duty) and testimonial privilege (which is not).”).
26
See Jaffee, 518 U.S. at 12 (“[A]ll 50 states and the District of Columbia have enacted
into law some form of psychotherapist privilege.”).
27
See Guerrier v. Florida, 811 So. 2d 852, 855 (Fla. App. Ct. 2002) (“[T]he Legislature
intended to allow admission of the psychiatrist’s testimony in a subsequent prosecution of the
dangerous patient for offenses committed against the victim.”).
28
See W. VA. CODE § 27-3-1 (“Confidential information may be disclosed . . . . [p]ursuant
to an order of any court based upon a finding that the information is sufficiently relevant to
a proceeding before the court to outweigh the importance of maintaining the confidentiality es-
tablished by this section . . . [in order t]o protect against a clear and substantial danger of im-
minent injury by a patient or client to himself, herself or another . . . .”); CONN. GEN. STAT. §
52-146c (“[I]n civil and criminal actions . . . all communications shall be privileged and a psy-
chologist shall not disclose any such communications . . . . [unless i]f the psychologist believes
in good faith that there is risk of imminent personal injury to the person or to other individuals
(continued...)
12
No. 07-30084
contemplates judges’ deciding on a case-by-case basis whether to exclude such
evidence,29 and Texas does not recognize the psychotherapist-patient privilege
at all in criminal cases.30
Moreover, for the reasons laid out above, it would not significantlySSif at
allSSundermine state laws to hold that a defendant cannot claim the protections
of the psychotherapist-patient privilege if he had actual knowledge, when mak-
ing the statements, that they would not be kept confidential. It is unlikely that
any patient, knowing that his threats will be relayed to the relevant target, will
be substantially deterred from seeking therapy by the additional possibility that,
although the therapist will not testify in a state criminal trial, the patient may
some day be on trial for a federal crime, and his therapist might be called to tes-
tify. In summary, because Auster concedes that he had actual knowledge that
his threat would be conveyed to CCMSI, his threat was not confidential, and,
under Jaffee, the psychotherapist-patient privilege does not apply.31
28
(...continued)
or risk of imminent injury to the property of other individuals.”); WYO. STAT. ANN. § 33-27-123
(“In judicial proceedings, whether civil, criminal, or juvenile . . . a patient. . . may refuse to
disclose or prevent the disclosure of confidential information [except] . . . . [w]here an
immediate threat of physical violence against a readily identifiable victim is disclosed to the
psychologist . . . .”).
29
See N.C. GEN. STAT. § 8-53.3 (“Any . . . judge in the district in which the action is
pending may . . . compel disclosure, either at the trial or prior thereto, if in his or her opinion
disclosure is necessary to a proper administration of justice.”).
30
See Tex. R. Evid. 510 (limiting the privilege to civil cases). It is uncertain whether
Virginia follows Texas in this regard. The particular provision of the Virginia code cited in Jaf-
fee is expressly limited to civil matters. See Jaffe, 518 U.S. at 11 n.12 (citing VA. CODE ANN.
§ 8.01-400.2).
31
The Sixth and Ninth Circuits also focus on the fact that it does not benefit the men-
tally ill to incarcerate them, and, implicitly, that it is not particularly blameworthy where the
mentally ill make threatening remarks during therapy, even if the threats violate the law.
This is a policy question for Congress, not the courts, because “such tender concern for criminal
evidence is [not] required by the common law, or by reason and experience, when the patient
has been put on notice.” Hayes, 227 F.3d at 588 (Boggs, J., dissenting).
13
No. 07-30084
III.
Because Auster’s non-confidential statement cannot, as a matter of law,
be privileged, we need not address whether the district court improperly sup-
pressed evidence sua sponte, erroneously placed the burden of disproving the
privilege on the government, or abused its discretion in failing to hold an eviden-
tiary hearing. We also need not decide whether there is a dangerous-patient or
crime-fraud exception to the psychotherapist-patient privilege.
For the foregoing reasons, the order of suppression is REVERSED, and
this matter is REMANDED for further proceedings.
14