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Prosecutor Could Not Admit Evidence of Conversation Between Defendant and Psychotherapist in Florida Criminal Case

In Florida, there are certain privileges a defendant has in a criminal case that preclude the prosecution from presenting evidence to the jury. For example, private conversations between a defendant and his/her attorney, doctor, psychologist or psychiatrist and other specified individuals are privileged and cannot be discovered or admitted into evidence by the state. These conversations must generally be kept private at the time they take place. For instance, if you see your psychologist at a party and have a conversation with him/her in front of other people, that conversation may lose its privileged status. On the other hand, if you have a regular private appointment with a psychologist, it is highly unlikely the state could ever learn what was said during that meeting or be able to use anything said against the defendant in a criminal case.

These privileges remain intact even if someone overhears the discussion as long as the defendant had a reasonable expectation that the conversation was private. In a recent assault case near Jacksonville, Florida, the defendant was taken to the hospital after he was arrested. In the emergency room, doctors approached him and asked him a variety of questions about his condition and the incident that led to his arrest. Because the defendant was under arrest at the time, a police officer was nearby guarding him. The defendant made some incriminating statements to the doctors that the police officer overheard and conveyed to the prosecutors. The prosecutors sought to have the police officer testify to those statements at the trial.

The criminal defense lawyer filed a motion to exclude the statements at trial arguing that they were privileged statements between the defendant and his doctors. The state argued that the privilege did not apply because the defendant made the statements in the presence of the police officer.

While the presence of a third party witness to a statement often results in a waiver of the privilege, that is not the case when the third party is there to further the interest of the defendant or the third party is necessary to the communication. In this case, the court found that the police officer’s presence was mandatory because the defendant was under arrest. Therefore, it was necessary to have the police officer there so the defendant could be treated by the doctors after his arrest. As a result, his presence did not waive the defendant’s privilege. This would also apply if other third parties were present to further the defendant’s interest, such as nurses or other hospital personnel who were present to assist with the evaluation and treatment of the defendant.

Of course, conversations between a defendant and his/her lawyer are also privileged. This is true even if a paralegal or other law firm staff member is present during the meeting to assist. However, if a non-essential friend or witness is present and hears what is discussed between attorney and his/her client, the meeting may lose its privileged status.