DUE PROCESS RIGHTS VERSUS CONFIDENTIALITY

In many criminal sexual conduct cases involving false allegations, the alleged victim or accuser has made false allegations in the past or otherwise been involved with mental health services or the Department of Human Services.

Many false allegations by children, young women, and adult longtime partners, have a long and complex factual background that needs to be fully investigated to properly defend a criminal sexual conduct case.

The prosecution, and for that matter the judge, do not have a duty to develop your case for you. You and your attorney must properly develop your case for trial. Critical to defending a case where the accuser may have ulterior motives or a history of mental instability, is to obtain relevant confidential documents to help explain why an accuser made the false allegations.

Many times a prosecutor may fail to fully disclose the history of the accuser’s mental health records, DHS records, and medical records. A defendant can file a motion under MCR 6.201(C), which outlines a defendant’s right to obtain confidential documents. People v Stanaway, 446 Mich App 643 (1995), which ensured a defendant’s constitutional right to a fair trial over an accuser’s claim of privilege.

Because the defendant’s due process right to a fair trial outweighs an accusers or other persons rights to “privilege,” the defendant must bring a proper motion and convince the court to review those confidential documents. The court then does this four step analysis:

  1. The defendant must show that the information sought is confidential privileged under the law;
  2. The defendant must show a good-faith belief, grounded in articulable facts;
  3. That there is a reasonable probability that the privileged records are likely to contain information necessary to the defense;
  4. Once the court agrees to review the documents, it will conduct an in camera (private) review of the documents. If the judge determines they may be helpful to the defense, then the court can release the relevant portions of the documents to the defendant under any appropriate protective order.

For example, there may be a mental health record where the accuser made a specific statement alleging sexual misconduct, but that statement is entirely inconsistent with the statement the accuser gave to the police. That would be critical information for the defense. However, if the defense does not ask for it, fight for it, or otherwise demand it from the prosecutor and the court, then the defendant will never have that evidence for trial.

Another example is when there is a child accuser. Many times the child has been improperly interviewed by employees of the Department of Human Services or other mental health professionals. Every time a child is interviewed, properly or not, it solidifies that child’s recollection, false or not, and makes the child’s allegations further suspect. A proper motion discovering DHS or other mental health records can be critical in defending a criminal sexual conduct case involving a child.

A defendant’s right to privileged information trumps every privilege, including, but not limited to:

  • Social Worker Privilege, MCL 333.18513
  • Psychiatrist Patient Privilege, MCL 300.1700
  • Professional Counsel Privilege, MCL 333.18117
  • Physician Patient Privilege, MCL 600.2157
  • Public School Employee-Student Privilege, MCL 600.2165

Additionally, if your case arises because of allegations made by any person to the Department of Human Services, then there are special statutory allowances for the accused under the Michigan Child Protection Law to obtain full and complete disclosure of documents regarding any such allegations. MCL 722.627(2)(g) See also Zimmerman v Owens, 221 Mich App 259 (1977)

Nye & Associates, PLLC defends criminal cases in Roscommon, Grayling, Gaylord, Saginaw, and the surrounding area.