Federal Judiciary

Fifth Widens Circuit Split Over Psychotherapist-Patient Privilege

By Robert Loblaw

U.S. v. Auster, 07-30084 (5^th Cir., Feb. 11, 2008)

Today, the Fifth Circuit broke new ground in a growing circuit split over whether the psychotherapist-patient privilege applies to violent threats. Defendant John Auster is a retired police officer who suffers from paranoia, anger, and depression; the fact that his worker?s compensation benefits were about to be terminated did not help matters. Auster told his two therapists that he was prepared for a campaign of violent retribution if his benefits were not reinstated. The therapists had a duty under state law to report these threats, and the government decided to prosecute Auster for extortion.

But the prosecution hit a road bump when the district court tossed out Auster?s threatening statements. Following authority from the Sixth and Ninth Circuits, the district court decided that Auster?s threats were protected by the psychotherapist-patient privilege and therefore not admissible at trial.

On appeal, the Fifth Circuit reverses. The panel explains that Auster knew that his therapists had to report any violent threats made during their sessions, so Auster had no expectation of confidentiality. Thus, the statements are not privileged as a matter of law. For those who keep score, the division is now 2-2 (or perhaps 2-1-1), as the Tenth Circuit has reached a similar conclusion but on different grounds.

Full post as published by Decision of the Day on February 11, 2008 (boomark / email).