There Is No Threats Exception To Psychologist-Client Privilege Statute

State v. Expose, Jr., Minn.S.Ct., 12/9/2015.  This comes up from the court of appeals, read here.  During court-ordered anger management counseling, Mr. Expose, Jr. made threats against his child protection worker.  His counselor reported the threats and the state charged him with terroristic threats.  The state wanted to put the counselor on the stand to tell the jury what Mr. Expose, Jr. said. Mr. Expose, Jr. objected for two reasons:  first, prior to trial he said that the counselor was not a licensed psychologist and thus not subject to the statutory mandated reporter requirements.  Second, during trial he said that his statements to the counselor were privileged. The trial court rejected both those arguments.  The court of appeals reversed, saying that the therapist-client privilege prohibited the counselor from testifying about information she learned during the therapy sessions.  The court of appeals also said that there was no "threats exception" to the privilege.

Justice Stras, with Justices Wright and Hudson not participating, affirms the conclusion of the court of appeals that there is no "threats exception" to the privilege, but then says that the privilege does not extend to testimony of third parties, namely the person who the counselor told about Mr. Expose's threats.

But before Justice Stras gets there he detours to talk about whether the privilege objection made during trial had been timely.  The state said that Rule 10.01 required the defense to raise the privilege objection before trial.  Here's what the rule says:

[d]efenses, objections, issues, or requests that can be determined without trial on the merits must be made before trial by a motion to dismiss or to grant appropriate relief. The motion must include all defenses, objections, issues, and requests then available. Failure to include any of them in the motion constitutes waiver . . . .

Justice Stras rejects this waiver argument.  The rule, he says, applies to such things as challenges to the adequacy of a complaint because that can be determined by looking at the pleadings.  A privilege objection, on the other hand, is dependent upon what the witness is actually saying.  That is, is the counselor testifying to information or opinion acquired "in attending the client in a professional capacity."  Minn.Stat. 595.02, subd. 1(g).  So, Mr. Expose, Jr. didn't waive the privilege objection.

On the merits, Justice Stras, ever the strict constructionist, just can't find any words in the privilege statute that creates a "threats exception."  There are other exceptions in that statute but not for this.  The Justice was not willing to piggy-back the mandated reported statute to infer such an exception.

Employing that same strict constructionist approach the Justice cannot find any words in the privilege statute that excludes testimony from a third person to whom the counselor blabbed. Here, she told another person - her supervisor - of the treats because the counselor believed that she had a duty under the mandated reporter statute to do so.  Apparently the counselor's supervisor was neither a registered nurse, a psychologist, or a licensed social worker, who are the only professionals that the privilege statute covers.  The supervisor was thus a competent witness.

Even so, the court sends Mr. Expose's case back for a new trial because it could not say that the error in allowing the counselor to testify did not substantially influence the jury's verdict.  State v. Sanders, 775 N.W.2d 883 (Minn. 2009).