The Indiana Supreme Court heard oral arguments today involving the subpoena of records from a domestic violence agency by a defendant who had been charged with two counts of Class A felony child molesting. The agency argued that due to statutory privilege between victims and advocates they did not need to provide the requested information.
In In re Subpoena to Crisis Connection, No. 19S05-1012-CR-678, defendant Ronald K. Fromme requested that Crisis Connection, a domestic violence agency with locations in Jasper, Tell City, and Rockport, release records on a person who had talked with advocates at the Jasper location.
The trial court ordered Crisis Connection to produce the records for an in camera review, but the organization asserted that Indiana Code 35-37-6-9 creates an “absolute privilege” for advocacy organizations. The Court of Appeals affirmed the trial court’s decision July 15, 2010.
In today’s oral arguments, Jon Laramore, representing Crisis Connection, said that the privilege between a victim and advocate was the same as that between a psychotherapist, social worker, or physician and a patient or client.
Justice Frank Sullivan Jr. asked Laramore if, because Crisis Connection received government funding, it should be considered a government agency similar to the way law enforcement is a government agency, and information from law enforcement is available to the defendant.
Laramore said that his client did receive federal funding, as do many domestic violence agencies, but that it is run as a private organization.
It was pointed out that if a counselor for victims learns that there might be child abuse, the counselor must issue a report to Indiana Department of Child Services. The organizations don’t release their clients’ entire files in those cases, just the information needed for those reports.
The counselors for these organizations also tell their clients that everything they say is confidential, and they explain that if there is suspected child abuse they are required to file a report with DCS, Laramore said. A victim can also sign a waiver if he or she no longer wants the record to remain confidential.
If the court considers balancing when a defendant can subpoena a domestic violence organization with the right to confidentiality, Laramore asked the justices to consider People v. Stanaway, a Michigan case that said defendants must have concrete evidence showing why they are seeking information and not just speculation.
He added that there are currently at least 25 subpoenas pending against domestic violence advocacy organizations around Indiana.
S. Anthony Long, Fromme’s attorney, said the request was justified for his client’s defense. He also said that his client met two of the three steps used in balancing this kind of request based on Wlliams v. State of Indiana: a sufficient designation of the items sought to be discovered; the items requested are material to the defense; and if the particularity and materiality requirements are met, the trial court must grant the request unless there is a showing of “paramount interest” in non-disclosure.
Long and the justices discussed the statute, and examined the question, “if the Legislature took the time to carve out exceptions to the privilege for advocates, why didn’t they include situations like Fromme’s?”
They also discussed the difference between Williams in Indiana and Stanaway in Michigan.
Justice Sullivan asked how Long knew there was something in the records and that he wasn’t just “fishing,” as Laramore put it in his briefs.
Chief Justice Randall T. Shepard also commented that as someone who reads child molestation cases for a living, what Long described as strained family relations and other issues that lead Long to believe there is something in the record that could help his client’s case were “extraordinarily ordinary” circumstances and did not seem to show any concrete evidence for this particular case.
This case was previously reported in the Jan. 5-18, 2011 edition of Indiana Lawyer.