EPIC logo




certiorari to the united states court of appeals for
the seventh circuit
No. 95-266.   Argued February 26, 1996-Decided June 13, 1996

Petitioner, the administrator of decedent Allen's estate, filed this
 action alleging that Allen's constitutional rights were violated when
 he was killed by respondent Redmond, an on-duty police officer
 employed by respondent village.  The court ordered respondents to
 give petitioner notes made by Karen Beyer, a licensed clinical social
 worker, during counseling sessions with Redmond after the shooting,
 rejecting their argument that a psychotherapist-patient privilege
 protected the contents of the conversations.  Neither Beyer nor
 Redmond complied with the order.  At trial, the jury awarded
 petitioner damages after being instructed that the refusal to turn
 over the notes was legally unjustified and the jury could presume
 that the notes would have been unfavorable to respondents.  The
 Court of Appeals reversed and remanded, finding that -reason and
 experience,- the touchstones for acceptance of a privilege under
 Federal Rule of Evidence 501, compelled recognition of a psychother-
 apist-patient privilege.  However, it found that the privilege would
 not apply if in the interests of justice, the evidentiary need for
 disclosure outweighed the patient's privacy interests.  Balancing
 those interests, the court concluded that Beyer's notes should have
 been protected. 
Held:  The conversations between Redmond and her therapist and the
 notes taken during their counseling sessions are protected from
 compelled disclosure under Rule 501.  Pp. 5-17.
  (a) Rule 501 authorizes federal courts to define new privileges by
interpreting -the principles of the common law . . . in the light of
reason and experience.-  The Rule thus did not freeze the law
governing privileges at a particular point in history, but rather
directed courts to -continue the evolutionary development of testimo-
nial privileges.-  Trammel v. United States, 445 U. S. 40, 47.  An
exception from the general rule disfavoring testimonial privileges is
justified when the proposed privilege -promotes sufficiently impor-
tant interests to outweigh the need for probative evidence . . . .- 
Id., at 51.  Pp. 5-7.
  (b) Significant private interests support recognition of a psycho-
therapist privilege.  Effective psychotherapy depends upon an
atmosphere of confidence and trust, and therefore the mere possibili-
ty of disclosure of confidential communications may impede develop-
ment of the relationship necessary for successful treatment.  The
privilege also serves the public interest, since the mental health of
the Nation's citizenry, no less than its physical health, is a public
good of transcendent importance.  In contrast, the likely evidentiary
benefit that would result from the denial of the privilege is modest. 
That it is appropriate for the federal courts to recognize a psycho-
therapist privilege is confirmed by the fact that all 50 States and
the District of Columbia have enacted into law some form of the
privilege, see Trammel v. United States, 445 U. S., at 48-50, and
reinforced by the fact that the privilege was among the specific
privileges recommended in the proposed privilege rules that were
rejected in favor of the more open-ended language of the present
Rule 501.  Pp. 7-13.
  (c) The federal privilege, which clearly applies to psychiatrists and
psychologists, also extends to confidential communications made to
licensed social workers in the course of psychotherapy.  The reasons
for recognizing the privilege for treatment by psychiatrists and
psychologists apply with equal force to clinical social workers, and
the vast majority of States explicitly extend a testimonial privilege
to them.  The balancing component implemented by the Court of
Appeals and a few States is rejected, for it would eviscerate the
effectiveness of the privilege by making it impossible for participants
to predict whether their confidential conversations will be protected. 
Because this is the first case in which this Court has recognized a
psychotherapist privilege, it is neither necessary nor feasible to
delineate its full contours in a way that would govern all future
questions.  Pp. 13-16.
51 F. 3d 1346, affirmed.
 Stevens, J., delivered the opinion of the Court, in which O'Connor,
Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. 
Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J.,
joined as to Part III.