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Vol 36. No.3 Spring 2012


The Psychotherapist-Patient Privilege as an “Occasional Instrument of Injustice:”  An Argument for a Criminal Threat Exception

Joi T. Montiel (445)
The Supreme Court in Jaffee v. Redmond announced a federal testimonial privilege protecting communications between a psychotherapist and his patient in federal court.  However, in Footnote 19 of the opinion, the Court noted that there may be times where the privilege must “give way,” such as when “disclosure” of the statements made in therapy is necessary to protect an intended victim of the patient. 

Nonetheless, commentators have argued against an exception to the privilege when the statements made to the therapist indicate that a target is in danger, and some courts have rejected such a “dangerous patient exception” to the psychotherapist-patient privilege.  This Article takes an opposing view and argues for an exception to be applied in limited circumstances that is narrower than the dangerous patient exception—a “criminal threat exception.”

This Article will demonstrate that, where courts refuse to acknowledge an exception to the psychotherapist-patient privilege where the patient’s threatening statement is in itself a crime, the federal courts are rendered “occasional instruments of injustice,” as Justice Scalia warned in his dissent in Jaffee

Moreover, the rationale behind Jaffee’s creation of the psychotherapist-patient privilege—that society’s interest in the mental health of the citizenry outweighs society’s interest in the search for the truth in court—does not hold true where the statement that a patient makes to his therapist is in itself a crime, specifically a threat against a federal official.  Congress has criminalized threats against public officials for several reasons—not only to protect the target from the threat being carried out, but also to protect the official from the fear of the violence and from the disruption that that fear engenders.  That fear and disruption inhibits the free and fair functioning of government.  Thus, in the case of a threat against a public official, the public’s need for the evidence is elevated; the need for a criminal threat exception exceeds the costs.  Therefore, a narrow exception to the psychotherapist-patient privilege should be acknowledged under those circumstances.

The Fourth Amendment and New Technologies:  The Misapplication of Analogical Reasoning

Marc C. McAllister (475)
Katz v. United States, 389 U.S. 347 (1967), established that a Fourth Amendment “search” occurs only when government conduct violates “a subjective expectation of privacy that society recognizes as reasonable.”  The Katz test, by its very wording, hinges upon society’s actual expectations of privacy, expectations that are fluid and case-specific.  However, when courts analyze “search” claims, particularly in cases involving sophisticated technologies, courts often rely upon analogies to prior “search” cases from an earlier technological era. 

This Article argues that analogical reasoning to cases of an earlier technological era is a flawed approach for resolving Fourth Amendment claims, and that the actual privacy expectations of today’s society should instead control.  This argument is supported by two lines of Katz cases.  The first line of cases is the GPS tracking cases decided prior to United States v. Jones, 2012 WL 171117 (Jan. 23, 2012).  In these cases, courts often relied upon analogies to investigative activities far removed from the particular form of surveillance at hand, such as trailing a car by vehicle.  Yet, as the five concurring Justices in Jonesrecognized, an officer trailing a car turn-by-turn is fundamentally distinct from the long-term monitoring of a vehicle by GPS, making the analogy a flawed substitute for the inquiry required by Katz.  The second line of cases derives from extension of Smith v. Maryland, 442 U.S. 735 (1979), a case establishing the proposition that society does not reasonably expect privacy in information voluntarily disclosed to third parties.  In recent years, Smith has been extended by analogy to a range of distinct forms of communication, including e-mail, text messages, and internet usage, where courts have echoed the reasoning of Smith and held that one cannot reasonably expect privacy in the addressing information associated with those types of communications where that type of information has been knowingly conveyed to a third-party provider.

In Jones, all nine Justices agreed that the Jones holding would not apply to methods of investigation capable of producing the same type of information as provided by GPS that do not require physical trespass, such as tracking one’s movements by cell phone.  With Jonesunable to resolve these claims, the Smith assumption of risk rationale is seemingly dispositive.  However, in her Jones concurrence, Justice Sotomayor doubted whether theSmith assumption of risk rationale accurately reflects the privacy expectations of today’s society.  Thus, it is critical to examine whether the Smith assumption of risk rationale is valid.

Responding to Justice Sotomayor’s hypothesis, this Article summarizes an original empirical study that seeks to uncover the actual views of society on these issues.  The results of this empirical study are striking.  Most significantly, the results indicate that most respondents would not permit GPS tracking in the absence of a warrant, particularly with respect to the type of suspect at issue in Jones (a suspected drug dealer), results which empirically validate the unanimous Jones ruling.  In addition, the results refute Smith’s assumption of risk rationale by revealing that society today does indeed recognize a legitimate expectation of privacy in information voluntarily conveyed to third parties, including so-called addressing information.  As this Article contends, this original empirical evidence supports Justice Sotomayor’s hypothesis, and should be considered in the next generation of electronic tracking in which the Government obtains electronic tracking information directly from a third-party, such as a cell phone provider. 

A Frank Look at Appellate Waiver in the Seventh Circuit

Kevin Bennardo (531)
In several important respects, the Seventh Circuit writes inconsistently on criminal defendants’ waivers of their appellate rights.  These inconsistencies lead to uncertainty, inefficiencies in plea bargaining, and potentially unjust—or at least unexpected—outcomes.  More than any other judge, Judge Easterbrook has authored a number of decisions that are outliers from the circuit's larger appellate waiver jurisprudence.  This Article highlights some areas of inconsistency in the appellate waiver jurisprudence of the Seventh Circuit and advances recommended resolutions.


Follow the Yellow Chip Road:  The Path to Legalizing Internet Poker

Josh Chumbley (547)
This Comment examines the current state of internet poker legislation and where it is headed in the future.  First, the Comment provides the legal background behind internet poker legislation.  Then, it examines recent and current attempts by legislators to legalize internet poker.  Finally, it analyzes the steps that legislators should take to increase the chance of passing internet poker legislation.  These steps include conducting an informational survey, narrowing the scope of the legislation, and minimizing the effect on states that may occur from switching from a state-controlled empire to a federally-regulated regime.

When Bigger is Not Always Better:  Making “Cents” of Illinois School District Reform Proposals

Craig Griffin (571)
School district consolidation is a perennial topic in Illinois.  This Comment provides an overview of the school district reform proposals that surfaced during the 97th General Assembly and discusses the merits of each.  In particular, it notes that both the financial savings and academic gains touted by proponents of consolidation as potential benefits are, in fact, claims that are unsupported by evidence and which are likely to be nonexistent in practice.  Instead, the Comment argues that school districts as they are currently formed continue to offer benefits to local residents that oftentimes are not given serious consideration by the state's political leaders.  Additionally, it argues that if the state's leaders are serious about reducing non-instructional expenditures and improving the quality of education, they would carefully examine the bureaucratic mandates placed upon schools so that fewer non-instructional staff members are necessary and so that more time may be devoted to the improvement of actual classroom instruction. 


Another Tweak to Miranda:  The Supreme Court Significantly Limits the Edwards Presumption of Involuntariness in Custodial Interrogation

Jessica Davis (593)
A criminal defendant’s Fifth Amendment right against self-incrimination is a right that has traditionally been protected by judicially-created prophylactic rules.  Included among these rules is the presumption that any statement given by an accused while in custody after he or she has invoked the right to have an attorney present is involuntary and should not be used as evidence against the defendant in a criminal proceeding.  Recently, the United States Supreme Court chose to significantly limit the presumption of involuntariness in custodial interrogation by holding that the presumption lasts for only fourteen days.  This Note examines Maryland v. Shatzer in light of the prophylactic rule it establishes, as well as how the rule may yield to exceptions in the future.  This Note calls attention to the arbitrary rule created by the Supreme Court and questions whether the Court properly promulgated a prophylactic rule according to its own precedential guideline.

A Distance of Miles Can Make a Difference of Years:  Ameliorating Comparatively Harsh Sentences for Illegal Reentry Immigration Defendants after United States v. Reyes-Hernandez, 64 F.3d 405 (7th Cir. 2010)

Angela Rollins (613)
Several districts across the country have implemented fast-track programs whereby federal prosecutors offer illegal reentry defendants reduced sentences in exchange for a quick guilty plea and the waiver of certain procedural rights.  This practice results in drastically varied sentences for the same crime depending on the jurisdiction in which the defendant is charged.  At the same time, one of the main goals of the Sentencing Guidelines is to reduce unwarranted sentence disparities.  Circuits are split as to whether sentencing courts may take this disparity into consideration when sentencing illegal reentry defendants.  In United States v. Reyes-Hernandez, the Seventh Circuit overturned circuit precedent and concluded that sentencing courts may consider the disparity created by the absence of a fast-track program.  This Note argues that the Seventh Circuit was correct in allowing sentencing judges to consider fast-track sentencing disparities; however, the court’s suggestion that a variance may be unreasonable if it is solely based on the fast-track disparity is inconsistent with the Supreme Court’s recent sentencing opinions.