In Camera Inspections of Privileged Records in Sexual Assault Trials: Balancing Defendants' Rights and State Interests Under Massachusetts's Bishop Test

Abstract

A sexual assault trial requires a court to balance evidentiary privileges enacted by a state legislature against a criminal defendant's constitutional trial rights. State legislatures enact various privileges which either limit or prohibit the discovery of confidential communications in criminal trials. Such statutes reflect a firmly based legislative effort to protect citizens’ private and personal confidences from unwarranted public scrutiny. When a defendant charged with sexual assault seeks to compel discovery of the victim's privileged medical, psychiatric, or counseling records, a conflict inevitably arises. States and victims assert that courts must respect statutory assurances of confidentiality; defendants assert that their constitutional right to a fair trial and their right to confront the witnesses and evidence against them mandates disclosure. Resolution of this pressing conflict requires a careful balancing of both the state's and defendant's interests on a case by case basis.