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We have discussed in this forum and in other forums the necessity of not making statements without the presence or consent of a lawyer you employ.

You may think that you know the law and that privileged communication with a health care professional is all right because such communication is not admissible. Think again.

In a Supreme Judicial Court Decision (Massachusetts) that just came down, a convicted masked and armed robber, appealed his conviction on grounds that his confession should have been suppressed.

“The defendant appeals his conviction of armed robbery while masked, contending that his communications with psychiatric nurse were wrongfully disclosed to the police and that his subsequent arrest and confession to the police were the fruit of that unlawful disclosure.
He also contends that his conviction should have been suppressed as involuntary> The court goes on to say, “We granted the application for direct appellate review”.

The court considered the defendant’s argument that the wrongful disclosure of confidential communications by the nurse should be grounds to suppress his subsequent confession. He contends that the nurse’s revelations to a police officer concerning both the gun and the bank robbery were prohibited by G.L. c. 233 section 20B as the circumstances surrounding these disclosures did not meet the requirements of the dangerous patient exceptions set forth in the quoted statute. He argued that his arrest on firearms charges and the interrogation about the robbery were the fruit of those wrongful disclosures such that the confession should have been suppressed as the fruit of the poisonous tree. On this point the court assumed that at least some portions of the disclosures were in violation of the nurse’s obligation to keep the patient information confidential, but the court did not agree that any such violation would require suppression of the defendant’ confession.

The court further said that a fundamental flaw in the defendant’s fruit of the poisonous tree analysis is that, whatever was wrongful in (nurses) disclosures, the disclosures were made by her own initiative. The record was devoid of anything to suggest that the police did anything to solicit, provoke, or tempt (the nurse) into making the disclosures, and this devoid of anything suggestive or police misconduct.. Marybeth Hebert (the police officer) came to the scene to assist ambulance personnel with a reported medical emergency unrelated to any criminal activity. The nurse and the ambulance attendant offered statements to the police concerning criminal activity. “A private party may have breached some obligation of confidential information in volunteering information to the police does not require the police to ignore that information”.

The defendant failed to convince the court that a private party’s breach of some obligation unconnected with any police misconduct, can serve to launch a fruit of the poisonous tree analysis. The target of the exclusionary rule is “official misconduct” and the rule is not intended to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals”.

“Evidence discovered and seized by private parties is admissible without regard to the methods used, unless State Officials have instigated the search”.

The court went on to elaborate again on the facts of the case and the rule.

The defendant contended that his distraught emotional state , combined with the officer’s recommendations that he be forthright and clear a slate rendered his confession involuntary.

The court countered and said that while the defendant was still upset when he spoke to the officers, he was coherent, lucid, and articulate. “ He did not appear to be under the influence of alcohol or drugs. As for another officer’s recommendation (made some two hours earlier, well before interrogating officers’ reiterating Miranda warnings) that the defendant be ‘forthright’ and ‘clear a slate’, we see no meaningful distinction between that recommendation and the kind of remarks that we have found unobjectionable in other cases…The recommendation at issue here was no more than a general admonition that the defendant tell the truth, and was devoid of any implication that doing so would result in more lenient treatment. As such the officers’ remark did not prevent the Commonwealth from satisfying the burden of voluntariness beyond a reasonable doubt”.

The case is Commonwealth v. Brandwein (Docket No. SJC-08428)

I think that this case would alert the reader not to count on perceived rules concerning confidential information to fiduciaries and professionals.

How about lawyers? (Hmmmmmm). Just kidding, but even here there is the constant threat to make lawyers disclose information on their clients. Constitution HELP!

This may have been a just result of the connviction of a person engaged in serious felonies, but it is also a warning to MA's, that in the process of defending yourself in a self-defense scenario, we do go through the mental processes which may induce us to be vulnerable to suggestions by investigator's and LEO's doing their jobs.
This phase has been much discussed in Van Canna, sensei and Bill Glasheen, sensei's forums for some time.

Your verbal defense as in your martial art defense, in a real situation, is speculative.

In verbal "open the mind and shut the mouth"

Alan K


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"The Goddess of Justice is Blind"

Counsellor,

Interesting. In Illinois, to my understanding, which may well be flawed, nursing staff are not as bound by the doctor/patient privacy issues as are full doctors, psychologists, etc.

Also, was there ever an issue brought against the nurse for violation of patient's expectation of confidentiality? It would be interesting to see if that would float or not.

In Illinois, as a Certified Hypnotherapist, I have NO claim to confidentiality with respect to any of my clients and am honor-bound, and generally required by the National Guild of Hypnotists (the certifying body that I hold credentials with) to tell them that up front before starting a session.

For those in the medical professions who are not doctors or psychologists, MSW's etc. It would be a good idea to check with your State's Attorney's office to see what, if any, regulations apply with regard to patient confidentiality.

And get a second opinion from an attorney who specializes in medical law as well.

Better to be safe than subpoenaed.

Respectfully,

Lee Darrow, C.Ht.

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote

Additionally, students of LFI [Mas Ayoob] know that “logorrhea” [uncontrollable urge to talk and exculpate] is a common, posttraumatic response. The mouth blabbers faster than the brain can think, and everyone within earshot can be subpoenaed to tell what the defendant said after the incident.

Couple this “oral diarrhea with the enormous pressure to talk, often in “silken” approach, and you have a recipe for disaster.

The scary part is that we would “spill our guts” without even realizing we are doing it, in spite of our resolve now__ not to open our mouths. This has sunk many people who simply could not believe the things they said to officers and other people following trauma.

The mantle of confidentiality seems to extend to the spouse, the clergy, and the attorney__ yet LFI advises not to speak to wife/clergy__ but only to the lawyer.

Reason is __ if wife/clergy may, inadvertently, disseminate information to other parties not under the mantle of attorney/client privilege, and those non-privileged people can be compelled to testify as to what they heard under subpoena.

This has occurred in some of my cases.

But lots of luck in not opening your mouth to wife and clergy….

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote

This is interesting. As an example, I had a case in which I was investigating the alleged rape of a prostitute by an employee of a traveling circus. I was representing the liability carrier of the circus.

The alleged rapist was in jail.

I wanted a statement from him in a fact-finding mission to determine if any comparative negligence by the victim was involved, or if the whole thing was a setup to reach the deep pockets of the circus on the allegation of negligent employment of the alleged perpetrator.

I was acting on behalf of assigned defense counsel on behalf of the circus in the civil suit_ therefore he was directing me to perform the investigation, his thought process was involved in the investigation outline, and, in theory, any and all documents and information I generated would be classified as an attorney’s work product, technically non-discoverable..although really there is no such thing.

However, the criminal defense attorney for the jailed employee, [conviction under appeal] would not allow an interview indicating that the prosecutor would be able to subpoena my investigative material and make the civil defense attorney produce his file, as the privileged communication in the criminal case, would not extend to the civil case. Right or wrong..It can get mind boggling out there.

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Van Canna

[This message has been edited by Van Canna (edited January 29, 2002).]

Lee,

I am not aware of any statutory authority which confers the mantle of confidentiality to a pyschiatric nurse. Then again, I have not researched this.

The court appeared to accept the probability that she had breached her "code" of confidentiality and it was not really an issue when the end result was adjudicated.

Van sensei gives good examples of how even an attorney or his file with documentation can be exposed to produce normally privileged information. His information discovered as an insurance investigator, could be subject to subpoena on several grounds once the attorney delved into areas where the material was beyond the protective cloak of confidentiality. The information might have to be produced in a deposition.

When I alluded to your forum, Van, the Mas Ayoob and other references to compulsive damaging speaking is what I had in mind.

The case reported dwelt on a particular statutory exception.

I think this case was a first impression case only because it was reported directly to the Supreme Judicial Court and accepted there. The full court heard that case as opposed to a single justice.

It could set a precedent for the same proposition under other statutory categories.

I suppose that we have to strive to avoid constipation of the brain and diarrhea of the mouth.

Massachusetts law prevents spouses from testifying against each other in a criminal case, if called by the prosecution.

I wonder if this would prevent the admission in evidence if she/he had given police information that they did not intimidate her/him to devulge.

Alan K

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Alan K:

Massachusetts law prevents spouses from testifying against each other in a criminal case, if called by the prosecution.

I wonder if this would prevent the admission in evidence if she/he had given police information that they did not intimidate her/him to devulge.

Alan K

<HR></BLOCKQUOTE>

Counsellor,

Thanks for your considered reply. I believe that, at least in some states, the patient confidentiality issue covers nursing staff when supervised by the physician or psychologist, but I have yet to confirm that.

With regard to voluntary admissions by a spouse, they would be admissible as voluntary admission and statement, would they not? Maybe not under direct examination, but in deposition and examination/cross-examination of witnesses to the statements.

Ah the booby traps the law lays for the uneducated, overstressed and unwary!

Respectfully,

Lee Darrow, C.Ht.

Lee,

The spouse immunity to testify is limited to criminal cases. The problem is that there are so many exceptions to evidentiary rules, one become a specialist to have recall to the various rules of civil and of criminal procedure.

Lawyers who concentrate on criminal trial, have a lot of the answers in their heads.

Even then research is necessary.

What I try to do here is to talk about the rules of law such as the now infamous "reasonable" rule and show how the courts interpret this. We then try to extend this to self-defense awareness in the
mental areas where reasonableness, retreat requirements, and using defense force only to the necessary.

At first these appear to be subjective equations, but if enough examples are given, the mind will quickly translate the subjective to objectivety.

A tragic example is the now internationally famous Junta/Costin case.

An older very wise attorney friend of mine would attend legal seminars. These would typically begin at aound 9:00 AM, have a lunch break and be over by 4:00 PM.

My friend's philsophy was that if you learned only one useful thing from the seminar, it was well worth the money and time.

It is my hope that if we discuss these issues in the forums (not just this one) we will be able to more closely approach the objectivety required to correctly interpret the action needed to meet the standard.

To me this is integral with the teaching of our MA instructors and the detailed information taught in these forums hosted by Canna sensei and Glasheen sensei, for example, and others.

Alan K

Counsellor,

Thank you for your reply. I understand that this is an incredibly complex set of issues and was simply looking to see if my general understanding of openly made and witnessed statements was true or not. It seems, from your reply, that it really relates to the jurisdiction that one has the encounter in.

No problem there and a good answer.

Any forum on a highly technical topic follows the "one good piece of information" rule. I agree.

Once, a very wise performer told me, "When you buy a magic book - if you get ONE good effect or routine out of it - you have made a good purchase."

Interesting how much crossover there is between learning/performing magic and practicing law.

I am enjoying your posts in here and appreciate the effort that goes into each one of them.

Keep 'em coming!

Respectfully,

Lee Darrow, C.Ht.
(my apologies for any spelling errors - the checker is down)

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by LeeDarrow:

Interesting how much crossover there is between learning/performing magic and practicing law.


Lee Darrow, C.Ht.

<HR></BLOCKQUOTE>

Do you by any chance mean what a mutual friend once wrote as "If you can't dazzle them with your footwork, baffle them with...", well, you can fill in the rest, I think....

Remember, I do have standing to make jokes at my own profession.

student

Better than juris imprudence, Lee....

student

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by student:

Remember, I [b]do have standing to make jokes at my own profession.

student[/B]<HR></BLOCKQUOTE>


Is that what they call "juris impudence?"

Lee Darrow, C.Ht.

Lee's famous ancestor, Clarence would turn over in his grave with these quips.

Just kidding; maybe magicians would be the best people to re-write the Fed Tax Code.

They can make it disappear at will!

Alan K

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Alan K:
Lee's famous ancestor, Clarence would turn over in his grave with these quips.

Just kidding; maybe magicians would be the best people to re-write the Fed Tax Code.

They can make it disappear at will!

Alan K<HR></BLOCKQUOTE>

Counsellor,

Actually, from what I understand of Cousin Clarence's (and he IS a cousin, actually) sense of humor, he was not beyond dropping a good pun now and again.

As to magicians re-writing the tax codes - we can't hold a candle to the current crop in that department! They make stuff that doesn't exist in the first place - disappear!

Lee Darrow, C.Ht.

Hi Al,

I just got around to reading this case and the decision, and I noticed a few things:

There is a law that specifically prohibits a psychotherapist from disclosing info related to the diagnosis or treatment of a mental illness, in legislative and administrative proceedings.

"In any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings, a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient's mental or emotional condition."

But the court ruled that this law "does not mandate confidentiality, or prohibit disclosure, in other settings (emphasis added-G.)".

So a psychotherapist MAY NOT testify in court, but may tell the cops.

The court also ruled that the nurses coversation with the cops is a violation of professional ethics, but not a violation of the law.

The court also ruled that since the nurse voluntarily gave up the info, and no cop "did anything to solicit, provoke, or tempt Lindbeck into making her disclosures".

And, as you correctly cited, the court ruled that evidence may not be excluded that is "obtained by way of purely private conduct or misconduct".

As an aside, the court also said that since the defendant handed over an illegal gun to the nurse, she had an obligation to hand the gun over to the cops, but had no obligation to tell the cops where she got it.

Sorry for the long answer!

Gene