Seizure of Therapy Records Is Rare, Faces Challenge in Menendez Case

Police seizure of a psychologist’s records of therapy sessions is extremely rare and, in the Menendez case, will almost certainly be the subject of a legal challenge.

“There definitely will be a challenge because in my opinion, the seizure is clearly a violation of the law,” said Gerald Chaleff, attorney for Lyle Menendez, who, with his brother, has been accused in the shooting deaths of his parents.

Conversations between patients and psychotherapists are ordinarily secret. State law says they are not to be disclosed by the psychotherapist even in civil or criminal proceedings.

However, there are exceptions to the secrecy rule that prosecutors could cite.

The two main ones are these: If the psychotherapist believes the patient is a serious threat to himself or others, courts have held that the psychotherapist has an obligation to warn those in danger. If the patient is using the psychotherapist as part of some plan to commit a crime or cover one up, the psychotherapist is also free to talk.

However, the law distinguishes between crimes committed in the past and those that might be committed in the future. If the patient merely confesses to a past crime, the psychotherapist is legally bound to keep the patient’s secret.

“Let’s say I’m a patient and I . . . confess to my psychologist that I killed somebody last year--or yesterday,” said Win Schachter, a psychologist and lawyer who is executive director of the California Psychological Assn.

The psychotherapist has “a legal duty not to report that information.” If he does report it, he could be sued for malpractice.

The reason for the secrecy is that the Legislature has said it recognizes that psychotherapy is “dependent upon the fullest revelation of the most intimate and embarrassing details of the patient’s life. . . . Unless a patient . . . is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment . . . depends.”

In strengthening what is known as the “psychotherapist-patient privilege” to keep a secret, the Legislature in 1965 declared that some seriously disturbed people were refusing treatment because they feared that therapists would disclose what they said.

The Legislature said “the interests of society will be better served if (psychotherapists) are able to assure patients that their confidences will be protected.”

State law nonetheless provides a procedure in which police can seize records, using a search warrant, from a psychotherapist who is not himself a suspect in a crime.

To obtain a warrant to search under this statute, police need to convince a judge that they have good reason to believe they will find evidence of a crime. The judge then appoints an independent attorney, known as a “special master,” to carry out the search. Special masters are also used in searches of lawyers’ offices to make certain police do not look into files they are not authorized to.

A variety of legal experts said Friday that they had never heard of the procedure specified in the statute, Penal Code Section 1524, being applied to a psychotherapist.

Under the procedure, the special master seizes the records. If the psychotherapist objects--as he is legally obligated to--the special master seals the records and takes them to court. There, a judge holds a hearing to determine if the records should remain secret or be given to the police.

In the Menendez case, however, police first reviewed the seized materials, which were tape recordings, then turned them over to the special master pending a court hearing, according to a law enforcement source.

What the tape recordings say is not clear. However, they are apparently significant. District attorney spokesman Mike Botula has been quoted as saying that Lyle Menendez was arrested after “newly discovered evidence (turned up) in the case, which involved conversations that he and his brother had with a psychiatrist after the killings.”

Chaleff, the lawyer for Lyle Menendez, said he was unaware that police had examined the evidence, but said, “If law enforcement authorities have listened, or read, or in any way obtained any information from the files, then it’s clearly a violation of 1524.”

Asked to assume that police have indeed reviewed materials prematurely, other legal experts said it was unclear whether courts would block prosecutors from using the materials as evidence.

Myrna Raeder, professor of law at Southwestern University School of Law and chairwoman of the American Bar Assn.’s committee on rules of evidence and criminal procedure, said, “I think you can make an argument on either side.” She said a court might allow the evidence if it construed the violation to be merely technical.

The prosecutor and police could argue that they relied in good faith on the judgments of the special master, she said.

At the hearing after seizure of the materials, the psychotherapist is entitled to argue that the materials should not be disclosed to the police because to do so would violate his psychotherapist-patient privilege.

Raeder said prosecutors could argue that the Menendez brothers had waived their privilege by disclosing the content of their psychotherapy sessions to others.

Or, she speculated, prosecutors might argue that they were entitled to pierce the privilege because the brothers were an ongoing threat to others, or because they had told the psychologist before their parents died that they intended to kill them. If that is the case, it could be argued the psychologist had a duty to disclose the threat.