SB 492

This bill creates a procedure by which a defendant in a criminal case may seek

access to the mental health treatment records of a crime victim that are not in the

possession of or under the control of a government entity when he or she believes that

those records contain information that is crucial to the defendant's defense.

Under the bill, if a defendant wishes to gain access to the mental health

treatment records of a crime victim, he or she must file a motion describing the

information sought and show that there are mental health treatment records that

are reasonably likely to contain the information sought, that the information is

necessary to formulate an articulated defense, and that the information is not

available from any other source. If the court finds that the defendant has made this

showing by a preponderance of the evidence and that the potential benefit to the

defendant is greater than the harm to the crime victim from disclosure, and if the

crime victim consents, the court may conduct an in camera review of the mental

health treatment records. Upon reviewing the records, if the court determines by

clear and convincing evidence both that the information in the mental health

treatment records is necessary to any articulated defense and that the benefit to the

defendant from disclosure is greater than the harm to the crime victim from

disclosure, or determines that the evidence is otherwise exculpatory, the court may

order disclosure of the records. Following this order, the crime victim may review the

records that the court has determined should be disclosed and may consent to

disclose the records, may appeal the court's decision, or may decline to disclose the

records and be barred from testifying at the trial.

If the crime victim declines to disclose his or her mental health treatment

records for an in camera review, the court must abide by his or her declination and

must permit the victim to testify at trial. The defendant, however, may then

comment on the declination and question the victim about those records.

All filings and records pertinent to this process and the mental health

treatment records of the victim are to be sealed by the court. Additionally, all

decisions of the court during this process may be appealed at any time by the state

or the crime victim as a matter of right.

This bill also adds enumerated rights to the basic bill of rights for victims

describing the right of a victim to privacy in his or her mental health treatment

records, in accordance with the new procedure that the bill creates.