State v. Bell
State v. Bell, 2020 UT 38 (Durrant, J.)
Criminal
After a three-year-old child accused the defendant of showing her pornographic material, putting his “wee-wee” on her “no-no,” and putting his finger “under her bum,” the defendant was charged with and convicted of rape of a child, aggravated sexual abuse of a child, and dealing in materials harmful to a minor by an adult. Before trial, he asked the district court for limited access to her therapy records. The court denied his request. After conviction, he appealed, arguing that the requirement that the court find to a reasonable certainty that the records will contain exculpatory evidence is unconstitutional. The court of appeals affirmed. On certiorari, the Utah Supreme Court affirmed but recommended review of the rule to the rules committee, holding:
- The court of appeals did not err in affirming the district court’s denial of the defendant’s request for limited review of the therapy records. To grant review of therapy records, a district court must find both (1) an exception to the mental health therapist-patient privilege and (2) a reasonable certainty that the requested records will contain exculpatory evidence. The defendant admitted that he could not meet the first requirement. That is dispositive here.
- Because the defendant cannot show that the records are subject to an exception to patient-therapist privilege, the court need not decide the constitutionality of the “reasonable certainty” test. Even so, the court notes that its adoption of the “reasonable certainty” test “may have stemmed from a misreading” of United State Supreme Court precedent.
- The rules committee should review rule 506 of the Utah Rules of Evidence, considering the importance of maintaining a strong privilege rule, of more clearly defining what is required to qualify for exceptions to privilege, and of respecting a defendant’s constitutional rights.