Criminal Sexual Conduct Defendant’s Sixth Amendment Rights Limited by Minnesota High Court
This past month, the Minnesota Supreme Court held that Minnesota statute prevents people accused of criminal sexual conduct (or any crime) from accessing communications between sexual assault counselors and those that seek their help without the alleged victim’s consent. This ruling creates new hurdles for people accused of a sex crime to prepare an adequate defense.
In re Hope Coalition v. Conrad (A21-0880) (Minn. July 13, 2022), arose from the following facts:
Defendant Charged with Second Degree Criminal Sexual Conduct
The defendant was charged with second degree criminal sexual conduct. The alleged victim, who at the time of this lawsuit was 15, reported to a detective in 2019 that she had been assaulted repeatedly by the defendant, her grandfather, since she was eight years old. The alleged victim’s mother and the alleged victim met with a sexual assault counselor at Hope Coalition. In preparing his defense, the defendant requested notes, memoranda, records, reports or any documentation from Hope Coalition about the alleged victim. (Id. at 3-4.)
Paradee Motion Seeking In Camera Review of Sexual-Assault-Counselor Records
The defendant brought a “Paradee motion” (State v. Paradee, 403 N.W.2d 640 (Minn. 1987)), requesting that the trial court do an in camera review of the requested records to determine whether any of the records were “material and relevant to his defense.” (Id. at 4.) An in camera review is a hearing or review that is not open to the public, and review of the documents by judge and counsel are held in confidence. (Id. at 4, n.1.) This process allows the judge to determine whether the defendant should have access to any of the records for his defense.
The State, in opposing the motion by defendant to see the records, argued that the defendant had failed to meet his burden of showing that the information sought was specific and might plausibly relate to his guilt or innocence. (See State v. Paradee, 403 N.W.2d 640 (Minn. 1987).) The district court granted the defendant’s request for an in camera review of the records, finding that the records could be material and favorable to the defense and was reasonably specific. (Id. 5.)
Ultimately, the trial court issued a subpoena to Hope Coalition to produce the documents, and Hope Coalition moved to quash. The trial court denied the motion, and Hope Coalition appealed to the court of appeals, who concluded that Hope Coalition must comply with the subpoena and produce the documents. Hope Coalition appealed to the Minnesota Supreme Court.
Minnesota Sexual-Assault-Counselor Privilege Statute, Minnesota Statute section 595.02.
The Minnesota Supreme Court examined Minnesota’s sexual-assault-counselor privilege statute, Minnesota Statute section 595.02, which provides:
….Sexual assault counselors may not be allowed to disclose any opinion or information received from or about the victim without the consent of the victim….
Statute’s Plain Meaning Requires a Sexual Assault Victim to Consent to Disclosure in a Criminal Proceeding
The court held the plain meaning of the statute prohibited sexual assault counselors from disclosing privileged records in a criminal proceeding without the victim’s consent. (Slip Op. at 13.)
It stated that when a statutory privilege protects the records sought, the threshold inquiry is whether the privilege may be pierced, and based on the plain language interpretation of the statute, the court concluded the privilege cannot be pierced in a criminal proceeding. (Id. at 17.)
No Constitutional Right to Discovery – Brady Does not Apply
The court noted that criminal defendants have no general constitutional right to discovery. The court concluded that not even Brady v. Maryland, 373 U.S. 83 (1963), which requires that the prosecution to turn over exculpatory evidence, applied because that only relates to evidence held by the State. (Id.) In this case, the court reasoned, the evidence was not held by the State. (Id.)
Sixth Amendment Right to Confront Accuser Not Violated
Further, the court held that the statutory privilege did not violate the defendant’s right (who was accused of criminal sexual conduct) to confront his accuser under the Sixth Amendment. It reasoned that the right to confront witnesses is the key element of the right of confrontation, and here the defendant would not be prevented in his ability to cross-examine his accuser – he was only blocked from “access to certain records in pretrial discovery.” (Id. at 18-19.)
State’s Compelling Interest to Protect Victim Outweighs Accused’s Constitutional Rights.
The defendant raised other constitutional arguments, all of which the court rejected, based on the State’s “compelling interest in protecting a victim’s privacy through the sexual-assault-counselor privilege.” (Id. at 20.) That compelling interest, the court concluded “is not outweighed by [the defendant’s] constitutional rights,” and therefore the privileged cannot be pierced. (Id. at 20.)
A few quick take-aways:
- Sixth Amendment Right of Confrontation Limited By Court’s Assumptions of Truth about Alleged Victim’s Accusations.
This case obviously raises questions about the extent to which the Sixth Amendment’s Confrontation Clause applies to a defendant’s right and ability to examine (and impeach) his accuser. In this case, the Court gave priority to victims. This priority assumes two critical facts: 1) that the victim is, in fact, a victim (as opposed to an “alleged victim”); and 2) that the victim is, in fact, a victim of the defendant. Both assumptions are precisely what the State needs to prove beyond a reasonable doubt for the accused to be criminally liable. Yet this decision rests on those two critical facts – as truth – to support its holding.
- Ability to Impeach a Witness Limited.
Without access to prior statements made by the alleged victim in the sexual-assault-counselor privilege, the ability to impeach a witness (i.e. alleged victim) will be dramatically limited. Minnesota Rules of Evidence 613 allows for a party to impeach a witness based on prior statements made by that witness. How will Rule 613 be implicated?
- The Future: Will Hope Coalition Extend to Other Privileges?
How Hope Coalition will be applied to other settings remains to be seen: will a unpierceable privilege apply to all privileged communications going forward? Why is it just alleged victims of sexual assault receive this protection? What about alleged victims of other crimes, who become patients of therapists, psychiatrists, doctors? By the reasoning of Hope Coalition, it stands to reason that those privileges should likewise not be pierceable by a criminal defendant because it could chill a patients’ willingness to seek help for any number of mental and physical issues.
Hope Coalition was hailed as a win for victims – it most certainly is. A victory for one necessarily means a loss for another. As my constitutional law professor told us in our first year of law school, in Constitutional Law there is always a winner – and a loser. Hope Coalition is a good example of that reality.
If you are accused of sexual assault, or charged with any degree of criminal sexual conduct or other sex crime, call Minneapolis defense attorney Stacy Bettison at 612-305-8104 for a free consultation.