United States v. Auster
517 F.3d 312, 2008 U.S. App. LEXIS 3103, 2008 WL 353161 (2008)
Rule of Law:
The psychotherapist-patient privilege, established in Jaffee v. Redmond, does not apply to a patient’s threatening statements made during therapy when the patient knew, due to a state-mandated 'duty to warn' and prior practice, that the therapist would disclose those threats to the identified victims, thereby negating any reasonable expectation of confidentiality.
Facts:
- John Auster, a retired New Orleans police officer, received workers’ compensation benefits managed by Cannon Cochran Management Services, Inc. (CCMSI) since 1989.
- Auster received therapy for paranoia, anger, and depression and frequently made threats against various individuals during his therapy sessions.
- Auster's therapists, including Dr. Fred Davis and Dr. Harold Ginzburg, routinely relayed these threats to the identified targets due to their 'duty to warn,' a practice Auster admitted he was aware of and expected.
- In September 2006, CCMSI informed Auster that a portion of his workers’ compensation benefits would cease on October 1, 2006, leading to a strained relationship.
- On September 13, Auster discussed the pending benefit termination with Dr. Davis, specifically threatening CCMSI personnel, city authorities, and police officials, stating he would 'carry out his plan of violent retribution' and possessed 'stockpiles of weapons and supplies.'
- Dr. Davis sent a letter to Keith Smith, a CCMSI employee, warning that Auster planned 'violent retribution' for October 2 if his benefits were reduced.
Procedural Posture:
- After receiving Dr. Davis's warning letter, Keith Smith contacted the police, leading to Auster's arrest on September 29, 2006.
- The United States filed an extortion complaint against Auster under 18 U.S.C. § 1951.
- Auster's initial motion to dismiss the complaint was denied.
- A grand jury subsequently indicted Auster for attempted extortion, alleging he communicated threats via his psychotherapist to induce CCMSI to continue his benefits.
- Prior to the indictment, Auster argued to a magistrate judge that his communications with Dr. Davis were privileged, but the magistrate judge did not agree.
- The district court, however, later ruled that the communications between Auster and his therapist were inadmissible at trial under the psychotherapist-patient privilege.
- The government appealed this interim order of suppression to the United States Court of Appeals for the Fifth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the psychotherapist-patient privilege protect a patient’s threatening statements made to a therapist from being admitted as evidence in a federal criminal trial when the patient knew the therapist had a legal and ethical duty to disclose, and would disclose, those threats to the identified victims?
Opinions:
Majority - Jerry E. Smith
No, the psychotherapist-patient privilege does not apply to Auster's threatening statements made during therapy because he had no reasonable expectation of confidentiality, as he knew his therapist had a duty to warn and would convey the threats to the target. The court emphasized that privileges are not to be lightly created or expansively construed, existing in derogation of the search for truth. Citing Jaffee v. Redmond, the court affirmed that the privilege covers only 'confidential communications.' Auster's knowledge that his threats would be communicated to CCMSI, given his therapists' Tarasoff duty to warn specific victims of significant threats of physical violence, meant any expectation of confidentiality was 'manifestly unreasonable.' The court rejected the reasoning of the Sixth and Ninth Circuits that the privilege applies even without a reasonable expectation of confidentiality, arguing that such a position misunderstands federal law and is inconsistent with Jaffee. The court reasoned that the cost-benefit analysis favoring the privilege (to foster trust for effective therapy) is inapt when the patient already knows the confidence will not be kept. In such cases, the 'atmosphere of confidence and trust' is already undermined, making the marginal therapeutic benefit of further privileging the communication 'de minimis' compared to the public interest in disclosure during criminal proceedings, especially for serious threats. The court also noted that states are not uniform on this issue, with some jurisdictions allowing such testimony.
Analysis:
This case significantly narrows the application of the psychotherapist-patient privilege in the Fifth Circuit, particularly concerning threats of violence. It establishes a clear boundary for confidentiality, linking it directly to the patient's reasonable expectation, which is deemed absent when a 'duty to warn' exists and the patient is aware of it. By creating a circuit split with the Sixth and Ninth Circuits, this decision underscores the tension between promoting therapeutic trust and ensuring public safety and the integrity of criminal proceedings. Future cases within the Fifth Circuit involving patient threats to therapists where a duty to warn is implicated will likely see such statements admitted into evidence, potentially strengthening the prosecution's hand in extortion or assault-related cases, and encouraging therapists to be transparent with patients about the limits of confidentiality when serious threats are made.
