In State v. Blackwell, 420 S.C. 127, 801 S.E.2d 713 (2017), the South Carolina Supreme Court addressed what the Court termed “the novel question of whether a criminal defendant’s constitutional right to confront a witness trumps a witness’s state constitutional right to privacy and statutory privilege to maintain confidential mental health records.”  Our Court recognized, “[T]he majority of jurisdictions in the United States have determined that a criminal defendant’s right, provided certain requirements are met, may supersede a witness’s rights or statutory privilege.” The Court then adopted the following procedure:

[T]rial judges, prior to any disclosure of privileged mental health records, should conduct a hearing with the parties in which the judge inquires whether the witness consents to the disclosure of the privileged records.  If the witness does not consent, the judge alone should review the contents of the records to determine whether disclosure is necessary for the conduct of proceedings before the court and that failure to make the disclosure is contrary to public interest. In making this determination, the judge should assess the importance of the witness to the prosecution’s case and whether the records contain exculpatory evidence, including, but not limited to, evidence relevant to the witness’s credibility.

Our Court, understandably, sought to balance the federal constitutional rights of the accused and the statutory rights of a witness.

The Court’s opinion overlooks S.C. Code Ann. § 19-11-95(D)(1), which provides, “A provider shall reveal confidences when required . . . by court order for good cause shown to the extent that the patient’s care and treatment or the nature and extent of his mental illness or emotional condition are reasonably at issue in a proceeding.”  Blackwell, therefore, should not impose a higher standard than the one created by statute.

Access to mental health records will be an issue in child sexual abuse cases when the prosecution calls a “blind expert,” pursuant to State v. Brown, to testify about the general characteristics of victims of child sexual abuse.  Please click here to read more about the this procedure. 

Please click on this link to read State v. Blackwell.