Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

prosecutors generally adopt a don't-ask/don't tell policy when it comes to 
private counseling records.  In 1993 I urged prosecutors to adopt such a 
policy and a few were reluctant, but now it is pretty much standard practice 
that prosecutors won't ask a victim about counseling.

there remains a problem in that victims sometimes report private information 
even if nobody asks - and once it gets into the police or prosecutor file, it 
is effectively fair game b/c it becomes part of the state's case.  We need 
better work in this area which is why I also teach the idea of "victims' 
privacy Miranda rights" which involves having someone, preferably the police, 
as soon as possible in the aftermath of the assault, advise the victim of her 
right NOT to answer any questions "not directly related to the investigation" 
that seek disclosure of personal or private information such as sexual past, 
prior abuse, conversations with therapist, doctor, lawyer, etc.  

If a prosecutor DOES send a subpoena, it is usually during the grand jury 
proceeding and I have heard of only one case where a prosecutor tried to get 
counseling records of a victim during a grand jury process.  These are also 
very easy to defeat -- but the third-party recipient has to know how to 
respond, what to send, etc.  The prosecutor is subjected to slightly 
different standards when it comes to sending subpoenas.

at trial, both the prosecutor and the defense attorney have the right to send 
subpoenas, but when subpoenas seek "documents or things" and when they seek 
confidential or private information, judges are obligated to quash the 
subpoena except in very limited circumstances where the one sending the 
subpoena knows what they want; is certain it exists in a certain location and 
where there is no chance the information can be obtained elsewhere.

Wendy Murphy