Victim Confidentiality Laws Promote Safety and ... - the Missouri Bar

and exclusion from the courtroom
during trial can have a significant
detrimental impact on prosecution
resources. Should Missouri legislators
look for guidance in drafting similar
legislation, Arizona and Maine offer
effective models to pattern.
Disclosure of Confidential Records
The statutes and cases discussed
in the preceding paragraphs do not
address a variety of other confidential
records pertaining to victims and the
professionals who serve them. The
Health Insurance Portability and
Accountability Act (HIPAA) 43 and the
widely-established protections that
apply to privileged communications
between health care providers and
patients 44 and counselors or therapists
and their clients 45 do not prevent
defendants in criminal cases from
seeking access to the medical and
counseling records of victims on
a regular basis. This is perplexing
to the lay witness who has been
led by common understanding to
assume that “confidential” means
“confidential” when it comes to this
information. Case law indicates that,
upon a defendant’s properly filed
motion, Missouri trial courts are to
(1) conduct a hearing on the motion,
(2) make a finding that the materials
sought are indeed privileged and that
the defendant has shown that the
records may contain “relevant and
material information,” (3) review the
records in camera, and (4) determine
whether the records should be released
to the defendant following the in
camera review. 46
If a defendant can show that the
records sought are likely to contain
relevant and material information,
such as exculpatory information,
motive to lie, inconsistent
statements, 47 or evidence of factors
that might impede accurate perception
of events such as hallucinations, 48
then the trial court will enter an
order compelling production of the
records (if they are not already in the
state’s possession) for an in camera
review prior to possible release to the
defendant. Failure of the defendant
to prove that the records are known
to exist 49 or to show that there are
specific grounds to support the
motion to compel has resulted in nondisclosure
of records. 50
Once the trial court conducts
an in camera review and decides to
release the records, a protective order
should be attached to the records. 51
This is not yet mandated by law, but
is a matter of judicial discretion and
wise practice for counsel. Regardless
of whether a victim consents to use
of his or her records, a protective
order should be utilized to limit the
viewing and redistribution of private
and personal information. With a
protective order in place, all parties
are also barred from redistribution of
private information in public court
filings. If a party finds it necessary
to file a motion with protected
documents attached, the motion
should be filed under seal with the
court. Quoting from protected records
within a motion or brief, or attaching
the records as an exhibit, defeats
the purpose of a protective order if
not filed under seal and may subject
counsel to sanctions for violating the
protective order. 52
There is always the risk of
accidental disclosure of confidential
or protected information, especially
in lengthy, contested cases. Any
number of scenarios are possible.
When a protected victim’s full name
or address ends up on a witness
list in the court file, or when a law
enforcement officer uses a victim’s
name in a search warrant that
becomes public, court clerks must be
notified promptly of the disclosure
March-April 2013 / 81