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November 24, 1976

UNITED STATES of America ex rel. Herbert EDNEY, Petitioner,
Harold SMITH, Superintendent, Attica Correctional Facility, Respondent

The opinion of the court was delivered by: WEINSTEIN


 WEINSTEIN, District Judge.

 Petitioner seeks a writ of habeas corpus. 28 U.S.C. § 2254. He was found guilty in a New York State court of the kidnapping and killing of the eight-year-old daughter of his former girlfriend. People v. Edney, 39 N.Y.2d 620, 385 N.Y.S.2d 23, 350 N.E.2d 400 (1976). His claim now is that the State violated his federal constitutional rights by calling a psychiatrist who had interviewed petitioner before trial at his counsel's request. While the rules of privilege relied upon by petitioner are preferred, they are not constitutionally mandated. For the reasons detailed below the petition must be denied.


 At the trial the only significant issue was sanity. A defense psychiatrist testified that defendant, as a result of mental illness, was unaware of the nature and quality of his acts and did not know that his acts were wrong. In rebuttal, the prosecution called Dr. Daniel Schwartz, a psychiatrist, who had examined defendant at the request of defendant's attorney. The attorney had not been present during the examination. The defense objected on the grounds of the attorney-client and physician-patient privileges. Dr. Schwartz found no evidence of an underlying disease or defect. It was his opinion that at the time of the murder defendant knew and appreciated the nature of his conduct and knew that his conduct was wrong. Another psychiatrist for the prosecution supported the conclusions of Dr. Schwartz. Additional psychiatrists, produced by the defense, were unable to form opinions as to whether defendant knew or appreciated the nature of his acts, or whether such acts were wrong, although they did agree that defendant had some form of mental illness.

 The jury found the petitioner guilty and he was sentenced to 25 years to life. He appealed, chiefly on the ground that the admission of Dr. Schwartz's testimony over objection was reversible error. The Appellate Division unanimously affirmed. 47 A.D.2d 906, 366 N.Y.S.2d 219 (1975). Its order was in turn affirmed by the Court of Appeals, 39 N.Y.2d 620, 385 N.Y.S.2d 23, 350 N.E.2d 400 (1976).

 The State's highest court, in a full opinion, with one judge dissenting, discussed the privilege issue. It held that where the defense of insanity was asserted and the defendant offered evidence to establish the claim, a waiver of privileges was effected. Under such circumstances, it concluded, the prosecution could call a psychiatric expert who had examined the defendant at his attorney's request.

 The sole issue before this court in this habeas corpus proceeding is whether the admission of Dr. Schwartz's testimony violated petitioner's federal constitutional rights. Petitioner anchors his constitutional claim primarily to the Sixth Amendment guarantee of effective assistance of counsel. He argues that unless the communications of a defendant to a psychiatrist are protected by either the physician-patient or attorney-client privilege an accused, fearing revelation of these communications to the State will not be candid with the psychiatrist. This will, in turn, impede the lawyer's ability to present the effective defense guaranteed by the Constitution. Thus, his argument goes, by necessary implication, either the attorney-client or physician-patient privilege is, to the extent indicated by the facts of this case, embodied in the Sixth Amendment.


 The physician-patient relationship, unlike that of attorney-client, did not give rise to a testimonial privilege at common law; a physician called as a witness had a duty to disclose all information obtained from a patient. See generally 8 Wigmore, Evidence §§ 2380-2391 (McNaughton rev. 1961). In 1828 New York became the first jurisdiction to alter the common-law rule by establishing a statutory privilege. N.Y.Rev.Stat. 1828, 406 (pt. 3, ch. 7, Tit. 3, Art. 9, § 73). Since that time approximately three-quarters of the states have followed New York's lead and enacted similar statutory provisions. 8 Wigmore, Evidence § 2380 (McNaughton rev. 1961).

 Legal scholars have been virtually unanimous in their condemnation of these legislative attempts to foster the doctor-patient relationship by rules of exclusion. See, e.g., 8 Wigmore, Evidence § 2380a at 831-32 (McNaughton rev. 1961); Morgan, Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence, 10 U.Chi.L.Rev. 285, 290-92 (1943); Slovenko, Psychotherapy, Confidentiality, and Privileged Communication 20-24 (1966). They repeatedly argue that while the adverse impact of the privilege on the fact-finding function of the courts is immediate and unquestionable, empirical evidence of the alleged benefits of the privilege is speculative at best and more realistically non-existent. Professor Chafee's well-known criticism is typical:

The reasons usually advanced for extending the privilege of silence to the medical profession are not wholly satisfactory. First, it is said that if the patient knows that his confidences my be divulged in future litigation he will hesitate in many cases to get needed medical aid. But although the man who consults a lawyer usually has litigation in mind, men very rarely go to a doctor with any such thought. And even if they did, medical treatment is so valuable that few would lose it to prevent facts from coming to light in court. Indeed, it may be doubted whether, except for a small range of disgraceful or peculiarly private matters, patients worry much about having a doctor keep their private affairs concealed from the world. This whole argument that the privilege is necessary to induce persons to see a doctor sounds like a philosopher's speculation on how men may logically be expected to behave rather than the result of observation of the way men actually behave. Not a single New England state allows the doctor to keep silent on the witness stand. Is there evidence that any ill or injured person in New England has ever stayed from a doctor's office on that account?
The same a priori quality vitiates a second argument concerning the evils of compelling medical testimony, namely, that a strong sense of professional honor will prompt perversion or concealment of the truth. Has any member of the numerous medical societies in New England observed such a tendency among New England doctors to commit perjury for the sake of "professional honor"?

 Chafee, Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand?, 52 Yale L.J. 607, 609-10 (1943).

 Legal practice in the states which have adopted a general medical privilege confirms the criticism of the commentators. Although no state has repealed the privilege once it has been adopted, recognition of its undesirable effects has led to judicial and legislative whittling away so that its scope has been considerably reduced. Numerous nonuniform exceptions have evolved which have rendered the privilege "substantially impotent," Comment, Federal Rules of Evidence and the Law of Privileges, 15 Wayne L.Rev. 1286, 1324 (1969), and difficult to administer.

 In the federal sphere awareness of these difficulties led the Advisory Committee on the Federal Rules of Evidence to omit any provision for a general physician-patient privilege. It noted that:

[while] many states have by statute created the privilege, the exceptions which have been found necessary in order to obtain information required by the public interest or to avoid fraud are so numerous as to leave little if any basis for the privilege.

 Advisory Committee's Note to Proposed Rule 504, 56 F.R.D. 183, 241-242 (1972).

 These extensive criticisms bear strongly on whether the states and federal government are subject to constitutional pressures to afford protection to physician-patient communications. It is implausible and burdensome should nonetheless be constitutionally compelled. Nonetheless, it has been suggested that the doctor-patient relationship, even absent statutorily privileged status, is entitled to constitutional protection. Thus, in criticizing the absence of a general doctor-patient privilege in the proposed Federal Rules of Evidence, Professor Charles L. Black, relying on the right to privacy, eloquently declared:

There is something very important at stake in these Rules of Evidence. At several points they give major aid and comfort to that diminishment of human privacy which is one of the greater evils of our time, thus raising not only prime questions of value, but also questions of constitutional law which could never have been dismissed as trivial, but which are even more plainly substantial in the light of such recent decisions as Griswold v. Connecticut, 381 U.S. 479 [, 85 S. Ct. 1678, 14 L. Ed. 2d 510] (1965). . . . The question here is not only whether people might be discouraged from making full communication to physicians, though it seems flatly impossible that this would not sometimes happen -- a consideration which would in itself be enough to make incomprehensible the absolute subordination of this privacy interest to any trivial interest arising in litigation. But evaluation of a rule like this entails not only a guess as to what conduct it will motivate, but also an estimate of its intrinsic decency. All of us would consider it indecent for a doctor, in the course, say, of a television interview, or even in a textbook, to tell all he knows, naming names, about patients who have been treated by him. Why does this judgment of decency altogether vanish from sight, sink to absolute zero, as soon as somebody files any kind of a non-demurrable complaint in a federal court? Here, again, can a rule be a good one when the ethical doctor must violate it, or hedge, or evade?
In Rochin v. California, 342 U.S. 165 [, 72 S. Ct. 205, 96 L. Ed. 183] (1952), the late Mr. Justice Frankfurter, for the Court, condemned as utterly indecent the forced pumping of a man's stomach to get criminal evidence. Does not the forced revealing of every medical and personal fact, stomach contents and all, learned by the doctor of a person not even suspected of anything, just to serve the convenience of any litigant, partake at least a little of the same indecency? Do not these and many other considerations lead to the discernment of constitutional as well as policy issues here? If so, then the same remarks as those made above apply to the posture in which those constitutional issues are put by the promulgation of these Rules.

 Hearings on Proposed Rules of Evidence Before the Special Subcommittee on Reform of Federal Criminal Laws of the House Comm. on the Judiciary, 93d Cong., 1st Sess., Ser. 2 at 241-42 (1973) (emphasis in original).

 The substance of Professor Black's thesis was incorporated in a recent federal decision which was, however, subsequently reversed by the Supreme Court. Roe v. Ingraham, 403 F. Supp. 931 (S.D.N.Y.1975), rev'd sub nom. Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977). Suit was brought challenging the constitutionality of New York Public Health Law provisions under which all prescriptions containing Schedule II substances must be filed in Albany with the Bureau of Controlled Substances on forms supplied by the State. In finding the reporting provisions an unconstitutional interference with rights of privacy guaranteed under the Fourteenth Amendment a three-judge district court held that a constitutionally protected right of privacy embraces the physician-patient relationship. The court relied on Justice Blackmun's opinion in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), in tracing the right of privacy to

"a line of decisions . . . going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001, 35 L. Ed. 734 (1891) [that] has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy" are given constitutional protection. Roe v. Wade, supra, 410 U.S. at 152, 93 S. Ct. at 726. It was pointed out that the right of privacy had been said to rest on the First Amendment. Stanley v. Georgia, 394 U.S. 557, 564, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969); the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Katz v. United States, 389 U.S. 347, 350, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); the penumbras of the Bill of Rights, Griswold v. Connecticut, supra, 381 U.S. at 484-485, 85 S. Ct. 1678; on the Ninth Amendment, Id. at 486, 85 S. Ct. 1678 (Goldberg, J. concurring), and on the Fourteenth Amendment, Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923).

 403 F. Supp. at 935-36.

The district court then went on to read Roe v. Wade as holding implicitly and Doe v. Bolton, 410 U.S. [179] at 197, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), as holding explicitly that the doctor-patient relationship is one of the zones of privacy accorded constitutional protection. . .. While the doctor-patient relationship involved in Roe and Doe concerned the most intimate personal relationships, sexual relations and "whether to bear or beget a child," Eisenstadt v. Baird, supra, 405 U.S. [438] at 453, 92 S. Ct. [1029] at 1038 [31 L. Ed. 2d 349], and the right of privacy has primarily focused on home and family, it would be too restricted a reading of precedent for us to hold that the physician-patient relationship here is not constitutionally protected merely because it does not concern medical advice or professional judgments concerning child bearing. See Roe v. Ingraham, 480 F.2d 102, 107 (2d Cir. 1973).
An individual's physical ills and disabilities, the medication he takes, the frequency of his medical consultation are among the most sensitive of personal and psychological sensibilities. One does not normally expect to be required to have to reveal to a government source, at least in our society, these facets of one's life.

 403 F. Supp. at 936-37.

 While the district court's argument has force, some well reasoned federal cases (decided before Roe and Doe) take a directly contrary view. Felber v. Foote, 321 F. Supp. 85 (D.Conn.1970), involved a psychiatrist's action for himself and all practitioners of the healing arts in Connecticut for declaratory and injunctive relief from enforcement of a statute compelling them to report the names of, and other information about, drug-dependent persons to the Commissioner of Health. In denying relief the three-judge district court held that "[there] is no constitutional foundation for the cloak of confidentiality which gives a patient the privilege to exclude communications by him to his physician in judicial proceedings." 321 F. Supp. at 87. The court went on to state:

Plaintiff further makes the unwarranted assumption that the special nature of the doctor-patient relationship affords him a constitutionally protected right to privacy in his conduct of the relationship. There is no "general constitutional right to privacy." The plaintiff's conception of "privacy" which he seeks to protect bears no analogy to those spheres of privacy which have previously won constitutional protection.

 321 F. Supp. at 88 (citations omitted). Cf. United States v. Mullings, 364 F.2d 173, 176 n. 3 (2d Cir. 1966); Rumler v. Board of Sch. Tr. for Lexington Co. Dist. No. 1, 327 F. Supp. 729, 742-43 (D.S.C.), aff'd per curiam, 437 F.2d 953 (4th Cir. 1971); Caesar v. Mountanos, F. Supp. (N.D.Cal.1976) (three-judge court).

 Whatever force these privacy arguments have in favor of a general patient-physician privilege their persuasiveness is increased where the medical relationship implicated is that between psychotherapist and patient. First, the pragmatic, empirical objections to the rationale of the general physician-patient privilege are not applicable to this specialized relationship. The practical need for and efficacy of a privilege covering this unique relationship is clear.

"Among physicians, the psychiatrist has a special need to maintain confidentiality. His capacity to help his patients is completely dependent upon their willingness and ability to talk freely. This makes it difficult if not impossible for him to function without being able to assure his patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule . . ., there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment. The relationship may well be likened to that of the priest-penitent or the lawyer-client. Psychiatrists not only explore the very depths of their patients' conscious, but their unconscious feelings and attitudes as well. Therapeutic effectiveness necessitates going beyond a patient's awareness and, in order to do this, it must be possible to communicate freely. A threat to secrecy blocks successful treatment."

 Advisory Committee Notes to Proposed Rule 504, Federal Rules of Evidence, 56 F.R.D. 183, 242 (1972), quoting Report No. 45, Group for the Advancement of Psychiatry 92 (1960).

 Second, and perhaps more significant for the purpose of determining the validity of a constitutional claim grounded in a right to privacy, is the depth and extraordinarily intimate nature of the patient's revelations.

"The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition. * * * It would be too much to expect them to do so if they knew that all they say -- and all that the psychiatrist learns from what they say -- may be revealed to the whole world from a witness stand."

 Taylor v. United States, 95 U.S.App.D.C. 373, 222 F.2d 398, 401 (1955), quoting from Guttmacher and Weihofen, Psychiatry and the Law 272 (1952).

 In consideration of this deep-rooted and justifiable expectation of confidentiality harbored by most individuals seeking psychiatric therapy the California Supreme Court has said, in dictum, that

a patient's interest in keeping such confidential revelations from public purview, in retaining this substantial privacy, has deeper roots than the California [statutory rules of evidence] and draws sustenance from our constitutional heritage. In Griswold v. Connecticut, supra, 381 U.S. 479, 484, 85 S. Ct. 1678, 1681, 14 L. Ed. 2d 510, the United States Supreme Court declared that "Various guarantees [of the Bill of Rights] create zones of privacy," and we believe that the confidentiality of the psychotherapeutic session falls within one such zone.

 In Re Lifschutz, 2 Cal.3d 415, 431, 85 Cal. Rptr. 829, 839, 467 P.2d 557, 567 (1970). This strong subjective desire and pragmatic need for privacy in the psychotherapist-patient relationship is certain to give birth to intricate, far-reaching questions of constitutional law. But we need not consider the ...

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