by

Jill Paperno, author of

Representing the Accused: A Practical Guide to Criminal Defense

In People v. McCray, 2014 NY Slip Op 02970 (5/1/14), the Court of Appeals considered the extent to which a defendant is entitled to the mental health records of a complainant in a rape case.  The Court of Appeals upheld the lower court's limited disclosure of the mental health records of the complainant.   In the Third Department's decision the Court stated:

Here, defendant requested all of the victim's mental health records, based on the disclosure by the People that the victim has a history of mental illness, had been the victim of sexual abuse on at least three prior occasions and had attempted suicide in the months leading up to the trial.

Under these circumstances, County Court appropriately conducted an in camera review of the victim's records and partially granted defendant's request by turning over those records that the court found were pertinent to the case.

People v. Terence McCray, 102 A.D.3d 1000, 1005, 958 N.Y.S.2d 511, 518 (2013) aff'd sub nom. People v. McCray, 40, 2014 WL 1697020 (N.Y. May 1, 2014)

Check that out - the prosecutor disclosed the prior claims of sexual abuse, the suicide attempt and the history of mental illness to the defense!  According to the Court of Appeals decision, the defense requested that the prosecution provide the defense with all of the mental health  (MH) records of the complainant.  Without specifically stating the prosecution obtained the records, the Court of Appeals decision notes that the trial court conducted an in camerareview, only releasing 28 pages.  The majority considers whether the defense was entitled to more, and concludes it was not.  But the fact that the Court considered whether it should be 28 or more, rather than whether the 28 pages were a gift, is pretty significant.  This is the type of material defendants are entitled to but routinely denied.  

This decision is useful for a few reasons.  First, it recognizes that this information was Brady  material.  In concluding most of the records were cumulative, the Court did consider one aspect that was not cumulative- prior complaints of sexual abuse, but held that the trial court did not abuse its discretion in failing to turn that over.  

Also, the Court's holding that the complainant's 2004 accusation was far removed in time and quite different from the accusation she made in 2009 can be helpful to defendants.  Applying that logic, when a defendant is alleged to have engaged in some act the prosecution seeks to offer as Molineux, defense counsel should similarly be able to argued that five years is too "far removed in time?"   

And Judge Rivera's dissent is a wonderful guide on how to argue for MH records of a complainant, focusing on the state right to confront and cross examine, what constitutes cumulativeness (or is that cumulativity?) and the constitutional underpinnings of this area of law.  Definitely worth a read, and filing away for the next time you're seeking these records.