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A defendant’s statements to a psychologist during a court-ordered evaluation could not be used in the criminal proceeding against him for the alleged sexual abuse of his stepdaughter, Pennsylvania’s Superior Court has ruled. The 2-1 court majority said the case fell “on the cusp of an extremely sharp line of demarcation between admissible and non-admissible testimonial evidence of a psychologist/psychiatrist and a client or examinee.” However, the heart of the decision in Commonwealth v. G.P. was not the psychologist-patient privilege, but the right against self-incrimination. The majority found the defendant’s right was violated because counsel was not present when he made the statements, and he was not informed that his statements could be used in court. Dissenting Judge Debra Todd argued that the psychologist-patient privilege did not apply because there was not a true doctor-patient relationship between the psychologist and the defendant. She said the court should have focused on whether the defendant’s statements were made voluntarily. STANDARDS FOR PSYCHOLOGICAL EXAMS The defendant, G.P., was found guilty of rape, statutory sexual assault, endangering the welfare of a child and other charges arising out of his alleged physical and sexual abuse of his stepdaughter, B.C., from 1989 until 1995. The physical abuse started when B.C. was 4 years old, the sexual abuse when she was 9. On appeal to the Superior Court, G.P. argued that the trial court should not have allowed testimony from a court-appointed psychologist, Dr. Scott Carlson, to be admitted against him. The testimony involved what the psychologist perceived as G.P.’s sexual aggressiveness toward him. In the majority opinion, Superior Court Judge Patrick Tamilia began the analysis by noting that there are different standards relating to court-appointed psychological exams in criminal and civil cases. The Commonwealth Court has recently held in a civil case, M. v. State Board of Medicine, that a court-appointed exam does not create a relationship protected by the psychologist-patient privilege. The case involved a protective order issued to prevent a doctor from testifying before the State Board of Osteopathic Medicine about his evaluation of a patient. The evaluation had been prepared for previous use in a federal civil action. Tamilia said the difference between the civil action and G.P.’s case was that there was no threat to the liberty or life of the examinee in State Board of Medicine. The testimony in G.P.’s case, he said, went “beyond behavioral manifestations” into territory “where criminal sanctions attach based on testimonial admissions from the examinee.” That scenario “borders on coercive custodial interrogation,” Tamilia said. Therefore, in that situation, at the minimum a defendant should be informed of his or her right to consult an attorney and of the possibility that any admissions made could be used against him or her in court. “The fear that persons subject to criminal prosecution may be convicted through psychiatric evaluation is real and present and has been the basis of international denial of rights in many areas of the world,” Tamilia wrote. Tamilia looked to the various privileges recognized by the state and found a “common thread,” found in Pa.C.S.A. Section 5941 — “any competent witness may be compelled to testify but this does not extend to compelling self-incriminating testimony from a witness.” PRIVILEGED COMMUNICATIONS UNDER STATUTES Tamilia recognized that certain privileges are precluded by statute, such as Section 6381 of the Child Protective Services Law. Section 6381 states that communications with a mental health professional are not privileged in proceedings “regarding child abuse or the cause of child abuse.” In Commonwealth v. Spetzer, the Superior Court agreed with the defendant’s argument that the section was meant to encompass only CPSL proceedings and not criminal matters. There are situations, however, in which such inculpatory statements are admissible, as the Superior Court discussed in the 1988 case Commonwealth v. Arnold. In Arnold, the defendant made inculpatory statements to a CYS social worker. The defendant also made inculpatory statements to the police after he was in custody and had been given his Miranda warnings. The statements were found to be admissible in the resulting criminal proceeding because the defendant had been read his Miranda rights before making the statements to the police. Tamilia said G.P.’s statements could be used in the Child and Youth Services proceedings pursuant to the CPSL, but because he was not informed of his rights, they were inadmissible in the criminal trial. “Here, the true issue is not whether [G.P.] was a client to the psychotherapist, and is thereby entitled to the protection of that relationship pursuant to Section 5944, or the suspension of his right to have the protection of that status pursuant to Section 6381,” Tamilia said. “Rather, the issue is whether in either case his admissions during a court-ordered evaluation can be converted into a waiver of his right against self-incrimination as protected by the constitution, common law and statute. …” The record showed that counsel was not present with G.P. when he made the statements, and there was no evidence that he “knowingly, voluntarily and intelligently” waived his right against self-incrimination for the criminal trial, Tamilia said. Therefore, he said, the statements were inadmissible. DISSENT Superior Court Judge Debra Todd dissented, saying she agreed with the trial court that G.P.’s statements to Carlson were not privileged because the two did not have a true patient-psychologist relationship. Todd said both intermediate appellate courts have consistently held that such a relationship must exist for the privilege to apply. G.P. saw Carlson only for an evaluation under court order; G.P. never received any treatment from Carlson, she said. Turning to whether the statements constituted self-incrimination, Todd relied on the Pennsylvania Supreme Court’s 1998 decision in Commonwealth v. Nester, in which the justices held that a confession to a CYS caseworker investigating a sexual abuse claim against the defendant should not have been suppressed. The justices said Miranda warnings are not required when the defendant was not in custody at the time the incriminating statement was obtained. Todd said the same was true of G.P.’s case. Instead, the crux of admissibility, the Nester court said, was whether the statements were voluntary. The determination of voluntariness is made through an analysis of the totality of the circumstances. Todd said that consideration was lacking in G.P.’s case. “In the present case, the trial court did not analyze whether the confession was voluntary and the record contains insufficient information for this court to make its own analysis,” she said. “Thus, I would remand to the trial court for a determination of whether G.P.’s confession was voluntary.”

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