SUPREME COURT OF THE UNITED STATES
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No. 95-266
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CARRIE JAFFEE, special administrator for
RICKY ALLEN, Sr., deceased, PETITIONER v.
MARY LU REDMOND et al.
on writ of certiorari to the united states court
of appeals for the seventh circuit
[June 13, 1996]
Justice Stevens delivered the opinion of the Court.
After a traumatic incident in which she shot and
killed a man, a police officer received extensive counsel-
ing from a licensed clinical social worker. The question
we address is whether statements the officer made to
her therapist during the counseling sessions are pro-
tected from compelled disclosure in a federal civil action
brought by the family of the deceased. Stated otherwise,
the question is whether it is appropriate for federal
courts to recognize a -psychotherapist privilege- under
Rule 501 of the Federal Rules of Evidence.
I
Petitioner is the administrator of the estate of Ricky
Allen. Respondents are Mary Lu Redmond, a former
police officer, and the Village of Hoffman Estates,
Illinois, her employer during the time that she served on
the police force. Petitioner commenced this action
against respondents after Redmond shot and killed Allen
while on patrol duty.
On June 27, 1991, Redmond was the first officer to
respond to a -fight in progress- call at an apartment
complex. As she arrived at the scene, two of Allen's
sisters ran toward her squad car, waving their arms and
shouting that there had been a stabbing in one of the
apartments. Redmond testified at trial that she relayed
this information to her dispatcher and requested an
ambulance. She then exited her car and walked toward
the apartment building. Before Redmond reached the
building, several men ran out, one waving a pipe. When
the men ignored her order to get on the ground,
Redmond drew her service revolver. Two other men
then burst out of the building, one, Ricky Allen, chasing
the other. According to Redmond, Allen was brandishing
a butcher knife and disregarded her repeated commands
to drop the weapon. Redmond shot Allen when she
believed he was about to stab the man he was chasing.
Allen died at the scene. Redmond testified that before
other officers arrived to provide support, -people came
pouring out of the buildings,- App. 134, and a threaten-
ing confrontation between her and the crowd ensued.
Petitioner filed suit in Federal District Court alleging
that Redmond had violated Allen's constitutional rights
by using excessive force during the encounter at the
apartment complex. The complaint sought damages
under Rev. Stat. 1979, 42 U. S. C. 1983 and the
Illinois wrongful death statute, Ill. Comp. Stat., ch. 740,
180/1 et seq. (1994). At trial, petitioner presented
testimony from members of Allen's family that conflicted
with Redmond's version of the incident in several
important respects. They testified, for example, that
Redmond drew her gun before exiting her squad car and
that Allen was unarmed when he emerged from the
apartment building.
During pretrial discovery petitioner learned that after
the shooting Redmond had participated in about 50
counseling sessions with Karen Beyer, a clinical social
worker licensed by the State of Illinois and employed at
that time by the Village of Hoffman Estates. Petitioner
sought access to Beyer's notes concerning the sessions
for use in cross-examining Redmond. Respondents
vigorously resisted the discovery. They asserted that the
contents of the conversations between Beyer and Red-
mond were protected against involuntary disclosure by
a psychotherapist-patient privilege. The district judge
rejected this argument. Neither Beyer nor Redmond,
however, complied with his order to disclose the contents
of Beyer's notes. At depositions and on the witness
stand both either refused to answer certain questions
or professed an inability to recall details of their
conversations.
In his instructions at the end of the trial, the judge
advised the jury that the refusal to turn over Beyer's
notes had no -legal justification- and that the jury
could therefore presume that the contents of the notes
would have been unfavorable to respondents. The jury
awarded petitioner $45,000 on the federal claim and
$500,000 on her state-law claim.
The Court of Appeals for the Seventh Circuit reversed
and remanded for a new trial. Addressing the issue for
the first time, the court concluded that -reason and
experience,- the touchstones for acceptance of a privilege
under Rule 501 of the Federal Rules of Evidence, com-
pelled recognition of a psychotherapist-patient privilege.
51 F. 3d 1346, 1355 (1995). -Reason tells us that
psychotherapists and patients share a unique relation-
ship, in which the ability to communicate freely without
the fear of public disclosure is the key to successful
treatment.- Id., at 1355-1356. As to experience, the
court observed that all 50 States have adopted some
form of the psychotherapist-patient privilege. Id., at
1356. The court attached particular significance to the
fact that Illinois law expressly extends such a privilege
to social workers like Karen Beyer. Id., at 1357. The
court also noted that, with one exception, the federal
decisions rejecting the privilege were more than five
years old and that the -need and demand for counseling
services has skyrocketed during the past several years.-
Id., at 1355-1356.
The Court of Appeals qualified its recognition of the
privilege by stating that it would not apply if -in the
interests of justice, the evidentiary need for the disclo-
sure of the contents of a patient's counseling sessions
outweighs that patient's privacy interests.- Id., at 1357.
Balancing those conflicting interests, the court observed,
on the one hand, that the evidentiary need for the
contents of the confidential conversations was diminished
in this case because there were numerous eyewitnesses
to the shooting, and, on the other hand, that Officer
Redmond's privacy interests were substantial. Id., at
1358. Based on this assessment, the court concluded
that the trial court had erred by refusing to afford
protection to the confidential communications between
Redmond and Beyer.
The United States courts of appeals do not uniformly
agree that the federal courts should recognize a psycho-
therapist privilege under Rule 501. Compare In re Doe,
964 F. 2d 1325 (CA2 1992) (recognizing privilege); In re
Zuniga, 714 F. 2d 632 (CA6), cert. denied, 464 U. S. 983
(1983) (same), with United States v. Burtrum, 17 F. 3d
1299 (CA10), cert. denied, 513 U. S. ___ (1994) (declin-
ing to recognize privilege); In re Grand Jury Proceedings,
867 F. 2d 562 (CA9), cert. denied sub nom. Doe v.
United States, 493 U. S. 906 (1989) (same); United
States v. Corona, 849 F. 2d 562 (CA11 1988), cert.
denied, 489 U. S. 1084 (1989) (same); United States v.
Meagher, 531 F. 2d 752 (CA5), cert. denied, 429 U. S.
853 (1976) (same). Because of the conflict among the
courts of appeals and the importance of the question, we
granted certiorari. 516 U. S. ___ (1995). We affirm.
II
Rule 501 of the Federal Rules of Evidence authorizes
federal courts to define new privileges by interpreting
-common law principles . . . in the light of reason and
experience.- The authors of the Rule borrowed this
phrase from our opinion in Wolfle v. United States, 291
U. S. 7, 12 (1934), which in turn referred to the oft-
repeated observation that -the common law is not im-
mutable but flexible, and by its own principles adapts
itself to varying conditions.- Funk v. United States, 290
U. S. 371, 383 (1933). See also Hawkins v. United
States, 358 U. S. 74, 79 (1958) (changes in privileges
may be -dictated by `reason and experience'-). The
Senate Report accompanying the 1975 adoption of the
Rules indicates that Rule 501 -should be understood as
reflecting the view that the recognition of a privilege
based on a confidential relationship . . . should be
determined on a case-by-case basis.- S. Rep. No. 93-
1277, p. 13 (1974). The Rule thus did not freeze the
law governing the privileges of witnesses in federal
trials at a particular point in our history, but rather
directed federal courts to -continue the evolutionary
development of testimonial privileges.- Trammel v.
United States, 445 U. S. 40, 47 (1980); see also Univer-
sity of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990).
The common-law principles underlying the recognition
of testimonial privileges can be stated simply. -`For
more than three centuries it has now been recognized as
a fundamental maxim that the public . . . has a right to
every man's evidence. When we come to examine the
various claims of exemption, we start with the primary
assumption that there is a general duty to give what
testimony one is capable of giving, and that any exemp-
tions which may exist are distinctly exceptional, being
so many derogations from a positive general rule.'-
United States v. Bryan, 339 U. S. 323, 331 (1950)
(quoting 8 J. Wigmore, Evidence 2192, p. 64 (3d ed.
1940)). See also United States v. Nixon, 418 U. S. 683,
709 (1974). Exceptions from the general rule disfavoring
testimonial privileges may be justified, however, by a
-`public good transcending the normally predominant
principle of utilizing all rational means for ascertaining
the truth.'- Trammel, 445 U. S., at 50, quoting Elkins
v. United States, 364 U. S. 206, 234 (1960) (Frankfurter,
J., dissenting).
Guided by these principles, the question we address
today is whether a privilege protecting confidential
communications between a psychotherapist and her
patient -promotes sufficiently important interests to
outweigh the need for probative evidence . . . .- 445
U. S., at 51. Both -reason and experience- persuade us
that it does.
III
Like the spousal and attorney-client privileges, the
psychotherapist-patient privilege is -rooted in the
imperative need for confidence and trust.- Trammel,
445 U. S., at 51. Treatment by a physician for physical
ailments can often proceed successfully on the basis of
a physical examination, objective information supplied by
the patient, and the results of diagnostic tests. Effective
psychotherapy, by contrast, depends upon an atmosphere
of confidence and trust in which the patient is willing to
make a frank and complete disclosure of facts, emotions,
memories, and fears. Because of the sensitive nature of
the problems for which individuals consult psychothera-
pists, disclosure of confidential communications made
during counseling sessions may cause embarrassment or
disgrace. For this reason, the mere possibility of
disclosure may impede development of the confidential
relationship necessary for successful treatment. As the
Judicial Conference Advisory Committee observed in
1972 when it recommended that Congress recognize a
psychotherapist privilege as part of the Proposed Federal
Rules of Evidence, a psychiatrist's ability to help her
patients
-is completely dependent upon [the patients'] willing-
ness and ability to talk freely. This makes it dif-
ficult if not impossible for [a psychiatrist] to func-
tion without being able to assure . . . patients of
confidentiality and, indeed, privileged communica-
tion. Where there may be exceptions to this general
rule . . . , there is wide agreement that confidential-
ity is a sine qua non for successful psychiatric
treatment.- Advisory Committee's Notes to Proposed
Rules, 56 F. R. D. 183, 242 (1972) (quoting Group
for Advancement of Psychiatry, Report No. 45,
Confidentiality and Privileged Communication in the
Practice of Psychiatry 92 (June 1960)).
By protecting confidential communications between a
psychotherapist and her patient from involuntary
disclosure, the proposed privilege thus serves important
private interests.
Our cases make clear that an asserted privilege must
also -serv[e] public ends.- Upjohn Co. v. United States,
449 U. S. 383, 389 (1981). Thus, the purpose of the
attorney-client privilege is to -encourage full and frank
communication between attorneys and their clients and
thereby promote broader public interests in the observ-
ance of law and administration of justice.- Ibid. And
the spousal privilege, as modified in Trammel, is justi-
fied because it -furthers the important public interest in
marital harmony,- 445 U. S., at 53. See also United
States v. Nixon, 418 U. S., at 705; Wolfle v. United
States, 291 U. S., at 14. The psychotherapist privilege
serves the public interest by facilitating the provision of
appropriate treatment for individuals suffering the
effects of a mental or emotional problem. The mental
health of our citizenry, no less than its physical health,
is a public good of transcendent importance.
In contrast to the significant public and private
interests supporting recognition of the privilege, the
likely evidentiary benefit that would result from the
denial of the privilege is modest. If the privilege were
rejected, confidential conversations between psycho-
therapists and their patients would surely be chilled,
particularly when it is obvious that the circumstances
that give rise to the need for treatment will probably
result in litigation. Without a privilege, much of the
desirable evidence to which litigants such as petitioner
seek access-for example, admissions against interest by
a party-is unlikely to come into being. This unspoken
-evidence- will therefore serve no greater truth-seeking
function than if it had been spoken and privileged.
That it is appropriate for the federal courts to recog-
nize a psychotherapist privilege under Rule 501 is
confirmed by the fact that all 50 States and the District
of Columbia have enacted into law some form of psycho-
therapist privilege. We have previously observed that
the policy decisions of the States bear on the question
whether federal courts should recognize a new privilege
or amend the coverage of an existing one. See Trammel,
445 U. S., at 48-50; United States v. Gillock, 445 U. S.
360, 368, n. 8 (1980). Because state legislatures are
fully aware of the need to protect the integrity of the
factfinding functions of their courts, the existence of a
consensus among the States indicates that -reason and
experience- support recognition of the privilege. In
addition, given the importance of the patient's under-
standing that her communications with her therapist
will not be publicly disclosed, any State's promise of
confidentiality would have little value if the patient were
aware that the privilege would not be honored in a fed-
eral court. Denial of the federal privilege therefore
would frustrate the purposes of the state legislation that
was enacted to foster these confidential communications.
It is of no consequence that recognition of the privilege
in the vast majority of States is the product of legisla-
tive action rather than judicial decision. Although
common-law rulings may once have been the primary
source of new developments in federal privilege law, that
is no longer the case. In Funk v. United States, 290
U. S. 371 (1933), we recognized that it is appropriate to
treat a consistent body of policy determinations by state
legislatures as reflecting both -reason- and -experience.-
Id., at 376-381. That rule is properly respectful of the
States and at the same time reflects the fact that once
a state legislature has enacted a privilege there is no
longer an opportunity for common-law creation of the
protection. The history of the psychotherapist privilege
illustrates the latter point. In 1972 the members of the
Judicial Conference Advisory Committee noted that the
common law -had indicated a disposition to recognize a
psychotherapist-patient privilege when legislatures began
moving into the field.- Proposed Rules, 56 F. R. D., at
242 (citation omitted). The present unanimous accep-
tance of the privilege shows that the state lawmakers
moved quickly. That the privilege may have developed
faster legislatively than it would have in the courts
demonstrates only that the States rapidly recognized
the wisdom of the rule as the field of psychotherapy
developed.
The uniform judgment of the States is reinforced by
the fact that a psychotherapist privilege was among the
nine specific privileges recommended by the Advisory
Committee in its proposed privilege rules. In United
States v. Gillock, 445 U. S. 360, 367-368 (1980), our
holding that Rule 501 did not include a state legislative
privilege relied, in part, on the fact that no such
privilege was included in the Advisory Committee's
draft. The reasoning in Gillock thus supports the
opposite conclusion in this case. In rejecting the
proposed draft that had specifically identified each
privilege rule and substituting the present more open-
ended Rule 501, the Senate Judiciary Committee
explicitly stated that its action -should not be under-
stood as disapproving any recognition of a psychiatrist-
patient . . . privileg[e] contained in the [proposed] rules.-
S. Rep. No. 93-1277, at 13.
Because we agree with the judgment of the state
legislatures and the Advisory Committee that a psycho-
therapist-patient privilege will serve a -public good
transcending the normally predominant principle of
utilizing all rational means for ascertaining truth,-
Trammel, 445 U. S., at 50, we hold that confidential
communications between a licensed psychotherapist and
her patients in the course of diagnosis or treatment are
protected from compelled disclosure under Rule 501 of
the Federal Rules of Evidence.
IV
All agree that a psychotherapist privilege covers confi-
dential communications made to licensed psychiatrists
and psychologists. We have no hesitation in concluding
in this case that the federal privilege should also extend
to confidential communications made to licensed social
workers in the course of psychotherapy. The reasons for
recognizing a privilege for treatment by psychiatrists
and psychologists apply with equal force to treatment by
a clinical social worker such as Karen Beyer. Today,
social workers provide a significant amount of mental
health treatment. See, e.g., U. S. Dept. of Health and
Human Services, Center for Mental Health Services,
Mental Health, United States, 1994 pp. 85-87, 107-114;
Brief for National Association of Social Workers et al. as
Amici Curiae 5-7 (citing authorities). Their clients often
include the poor and those of modest means who could
not afford the assistance of a psychiatrist or psycholo-
gist, id., at 6-7 (citing authorities), but whose counseling
sessions serve the same public goals. Perhaps in
recognition of these circumstances, the vast majority of
States explicitly extend a testimonial privilege to
licensed social workers. We therefore agree with the
Court of Appeals that -[d]rawing a distinction between
the counseling provided by costly psychotherapists and
the counseling provided by more readily accessible social
workers serves no discernible public purpose.- 51 F. 3d,
at 1358, n. 19.
We part company with the Court of Appeals on a
separate point. We reject the balancing component of
the privilege implemented by that court and a small
number of States. Making the promise of confidenti-
ality contingent upon a trial judge's later evaluation of
the relative importance of the patient's interest in
privacy and the evidentiary need for disclosure would
eviscerate the effectiveness of the privilege. As we
explained in Upjohn, if the purpose of the privilege is
to be served, the participants in the confidential conver-
sation -must be able to predict with some degree of cer-
tainty whether particular discussions will be protected.
An uncertain privilege, or one which purports to be cer-
tain but results in widely varying applications by the
courts, is little better than no privilege at all.- 449
U. S., at 393.
These considerations are all that is necessary for
decision of this case. A rule that authorizes the recogni-
tion of new privileges on a case-by-case basis makes it
appropriate to define the details of new privileges in a
like manner. Because this is the first case in which we
have recognized a psychotherapist privilege, it is neither
necessary nor feasible to delineate its full contours in a
way that would -govern all conceivable future questions
in this area.- Id., at 386.
V
The conversations between Officer Redmond and Karen
Beyer and the notes taken during their counseling
sessions are protected from compelled disclosure under
Rule 501 of the Federal Rules of Evidence. The judg-
ment of the Court of Appeals is affirmed.
It is so ordered.