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Cardozo Law Review

Abstract

This Note analyzes the justifications for a testimonial privilege for communications between a rape victim and her counselor. More importantly, it contends that a qualified privilege sufficiently protects the counselor-victim relationship and the rape victim's need for confidentiality, while at the same time securing the defendant's Sixth Amendment rights. This Note endorses a qualified privilege that requires a specific showing by the defendant that the information he seeks might be helpful to his case before the trial judge will conduct an in camera inspection of the confidential rape counseling records. In the in camera review, the judge will determine whether (i) the information sought is relevant and material to the defendant's case; (ii) the sought information's probative value outweighs any potential harmful effects disclosure might have on the victim and her counseling treatment; (iii) the desired material is available from another source; and (iv) disclosure is required in the interest of justice. This Note concludes that an absolute privilege prohibiting disclosure under any circumstance is contrary to society's interest in the fair administration of justice and violates the defendant's constitutional rights to compulsory process and a fair trial.

Keywords

Criminal Law and Procedure, Law and Society, Privileged Communications, Legal Practice and Procedure, Rape, Sex Crimes, Victims' Rights, Victimology, Evidence, Trials

Disciplines

Criminal Law | Criminal Procedure | Evidence | Law | Law and Society

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