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"Arizona Supreme Court Announces ‘Reasonable Possibility’ Standard in Balancing Right to Present Complete Defense Against Victim’s Refusal to Disclose Privileged Medical Records"

Teddy Carl Vanders was charged with second-degree murder after killing his girlfriend, M.S., during a domestic dispute. In a 911 call, he told the operator he shot M.S. because she was crawling around, “acting evil,” and had abused and threatened him for years.

Vanders moved pretrial to compel Magellan Hospital to disclose, for in-camera review, M.S.’s mental health records pertaining to her treatment in 2011 following a previous domestic incident. Vanders argued the records were essential to his justification defense, in particular to show that he was afraid of M.S. because she had previously assaulted him on multiple occasions. The trial court, relying on State ex rel. Romley v. Superior Court (Roper), 836 P.2d 445 (Ariz. Ct. App. 1992), ruled that Vanders’ due process rights required disclosure of the records for in-camera review.

M.S.’s siblings, as victims (“Victims”), filed a special action pursuant to Arizona’s Victims’ Bill of Rights (“VBR”), arguing that the records were protected under the VBR and under the statutory physician-patient privilege codified in A.R.S. § 13-4062(4). The court of appeals (“COA”), relying on R.S. v. Thompson, 454 P.3d 1010 (Ariz. Ct. App. 2019), concluded that Vanders could show only that he had a right to the documents under Arizona Rule of Criminal Procedure 15.1(g). The COA then reasoned that when a defendant’s rule-based right to demand documents conflicts with a victim’s statutory privilege, the statute must prevail. The COA also rejected the “reasonable possibility” standard for in-camera review. Instead, the COA ruled that defendants must demonstrate a “substantial probability” that the protected records contained information that was trustworthy and critical to an element of the charge or defense or that their unavailability would result in a fundamentally unfair trial. The COA concluded that Vanders had not made such a showing and granted relief to the Victims. The Arizona Supreme Court granted Vanders further review.

The Court observed “[d]ue process requires that a defendant receive a fundamentally fair trial, including a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683 (1986). Denial of due process is a denial of fundamental fairness, shocking to the universal sense of justice. Oshrin v. Coulter, 688 P.2d 1001 (Ariz. 1984).

On the other hand, Arizona’s VBR broadly recognizes that victims are entitled “[t]o be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse throughout the criminal justice process.” Ariz. Const. art. II, § 2.1(A)(1). A victim may refuse a discovery request from a defendant, id. § 2.1(A)(5), and that includes the right to refuse to disclose medical records. State v. Sarullo, 199 P.3d 686 (Ariz. Ct. App. 2008).

The Court explained that courts must balance the competing interests of a victim’s privilege with the defendant’s right to due process which encompasses the right to present a complete defense and announced: “We hold that the reasonable possibility standard applies to determine a defendant’s right to in-camera review of a victim’s privileged mental health records.”

The Court explained that courts must recognize that the federal constitution is the supreme law of the land, and a defendant’s federal constitutional rights trump state constitutional and statutory rights. U.S. Const. art. VI. In State v. Connor, 161 P.3d 596 (Ariz. Ct. App. 2007), the court ruled that trial courts are to conduct in-camera review of privileged records when the defendant demonstrates a reasonable possibility that the requested information includes evidence to which he is entitled. Reasonable possibility requires a showing of a “sufficiently specific basis.” Id. The showing is not insubstantial and requires more than conclusory assertions or speculation on the part of the requesting party. State v. Kellywood, 433 P.3d 1205 (Ariz. Ct. App. 2018).

But the COA’s departure in requiring substantial probability is not suited as a benchmark for in-camera review, according to the Court. The substantial probability standard is unworkable because it effectively requires a defendant to know the contents of the requested documents as a prerequisite for in-camera review.

Applying the reasonable possibility standard to the instant case, the Court observed that pursuant to A.R.S. §§ 13-404 & 405 a person is justified in using deadly force against another when a reasonable person would have believed such force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly force. And “the state of mind of a reasonable person ... shall be determined from the perspective of a reasonable person who has been a victim of those past acts of domestic violence.” A.R.S. § 13-415. When a defendant raises a justification defense, he is entitled to offer proof of the victim’s reputation for violence. Connor.

The Court concluded “there is a reasonable possibility that that the information Vanders seeks stemming from the 2011 incident and attendant medical records created by Magellan Hospital may shed light on M.S.’s character for violence and corroborate Vanders’ version of events.”

Accordingly, the Court vacated the opinion of the COA and affirmed the trial court’s ruling ordering in-camera review. See: Crime Victims R.S. v. Thompson, 485 P.3d 1068 (Ariz. 2021). 

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