Obtaining Psychological or Psychiatric Records in Georgia Sex Crime Cases

If you were charged with a sex crime in Georgia, you are probably scared and overwhelmed. Even though you are supposed to be innocent until proven guilty, it does not always seem that way. There are many defenses at your disposal, and our Georgia Sex Crime Lawyers are here to help. If you or a loved one has been charged with a sex crime, contact our office immediately.

Can Psychiatric or Psychological Records Be Obtained in Georgia Sex Crime Cases?

In most circumstances, communications between a patient and their providers are privileged and inadmissible in court. As a matter of public policy, Georgia provides for the confidentiality of communications between psychiatrist and patient. This is to encourage patients to talk freely without fear. However, sometimes, these statements are necessary for the defense to prove innocence in sex crime cases. It is a complicated process to obtain these statements but one that our Atlanta Sex Crime Lawyers are familiar with. It begins with the filing of a pretrial motion requesting that the court conduct a hearing to determine the necessity of disclosing the statements to the defense.

Under O.C.G.A. § 24-5-501, admissions and communications between psychiatrist and patient and license psychologist and patient are excluded from evidence.

However, under O.C.G.A. § 24-5-509(b);

(b) No agent of a program shall be compelled to disclose any evidence in a judicial proceeding that the agent acquired while providing services to a victim, provided that such evidence was necessary to enable the agent to render services, unless the privilege has been waived by the victim or, upon motion by a party, the court finds by a preponderance of the evidence at a pretrial hearing or hearing outside the presence of the jury that:

(1) In a civil proceeding:

(A) The evidence sought is material and relevant to factual issues to be determined;

(B) The evidence is not sought solely for the purpose of referring to the victim's character for truthfulness or untruthfulness; provided, however, that this subparagraph shall not apply to evidence of the victim's prior inconsistent statements;

(C) The evidence sought is not available or already obtained by the party seeking disclosure; and

(D) The probative value of the evidence sought substantially outweighs the negative effect of the disclosure of the evidence on the victim; or

(2) In a criminal proceeding:

(A) The evidence sought is material and relevant to the issue of guilt, degree of guilt, or sentencing for the offense charged or a lesser included offense;

(C) The evidence sought is not available or already obtained by the party seeking disclosure; and

(D) The probative value of the evidence sought substantially outweighs the negative effect of the disclosure of the evidence on the victim.

In practice, if you and your attorney intend to compel evidence based on this section, you will need to file a motion and serve notice on the opposing party at least ten days prior to trial. Then the court will hold a pretrial hearing and determine the issue.

If the court finds that the evidence is subject to disclosure, then the court will order the evidence to be produced for the court under seal, and the evidence can be examined in camera. In camera means that it will be a private viewing. The public and press will not be allowed to observe it. Sometimes, in camera means that the evidence is viewed in the judge's chambers.

Georgia Case Law

First, it is important to understand who is included under the term “psychiatrist.”

In Wiles v. Wiles, the court discusses and ultimately interprets the term “psychiatrist” to mean a “person licensed to practice medicine … who devotes a substantial portion of his or her time engaged in the diagnosis and treatment of a mental or emotional condition, including alcohol or drug addiction.” Therefore, this extended the psychotherapist privilege to patients seeking treatment with the expectation of confidentiality from medical practitioners. 264 Ga. 594, (1994).

In a rape case, the defendant was not entitled to the disclosure of the psychiatric history of the victim, because the defendant failed to demonstrate that the victim's mental condition was relevant or affected the credibility of the allegations. Easter v. State, 322 Ga. App. 183, (2013).

Psychologist-patient privilege prohibits the defendant from engaging in a fishing expedition regarding a witness' consultations with a psychologist; therefore, a defendant may not explore such evidence unless he makes allegations sufficient to establish a prima facie need for its discovery by a proper motion for a pretrial hearing. Atkins v. State, 243 Ga. App. 489, (2000).

The court held that a defendant was not entitled to a rape victim's psychiatric records where there was no evidence provided that would overcome the privilege and the victim's mental condition was not relevant to the credibility of her rape allegations. Glass v. State, 255 Ga. App. 390, (2002).

In sum, Georgia case law demonstrates that Courts desire to protect the privacy of victims and have set a high bar for defendants to meet to gain access to these records. In order to release the records, defendants must show that evidence in question is critical to their defense and that substantially similar evidence is otherwise unavailable to him.

Contact Us

Even though it can be challenging to overcome the psychiatric-patient privilege, it can be done with help from Georgia’s best criminal defense attorneys. We understand the bar that has been set, and how to demonstrate the evidence requested is critical to the case. If you have been charged with a sex crime and think psychological records are essential to the success of your case, contact us now for a free case evaluation.