AB 11

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 theory of defense, and that the information is

not available from any other source. If the court finds that the defendant has made

this showing 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 both that the information in the

mental health treatment records is necessary to an articulated theory of 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.