No. 211 W.D. Misc. Dkt. 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, Pennsylvania, at Misc. Docket 674, July, 1980 and CC8002479, entered on July 11, 1980, holding Appellant in contempt of court.
Anne Lee Begler, Pittsburgh, for petitioner.
John Dean, Pittsburgh, for Keith Glover.
Lynn Marks, Philadelphia, amicus, for Women Organized Against Rape.
Kathryn Kolbert, Philadelphia, amicus, for Women's Law Project.
Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, amicus, for Allegheny County.
Alan Meisel, John Burkoff, University of Pittsburgh Law School, Pittsburgh, for amicus, Civil Liberties Union.
Roberts, Justice. O'Brien, C.j., joins in this opinion and files a concurring opinion. Flaherty, J., joins in this opinion and the concurring opinion of O'Brien, C.j. Larsen, J., files a dissenting opinion.
Appellant Anne Pride is the director of the Pittsburgh-based "rape crisis center" known as Pittsburgh Action Against Rape (PAAR). She appeals from an order of the Criminal Division of the Court of Common Pleas of Allegheny County holding her in contempt of court for refusing to comply with a court order authorizing counsel for a defendant accused of rape to inspect that portion of a PAAR file which is purportedly a statement of the complaining witness.
At issue is the extent to which a court presiding over a rape trial may authorize counsel for the accused seeking to impeach the credibility of the complainant to inspect a rape crisis center file containing communications between the complainant and rape crisis center personnel. Appellant asks this Court to expand the common law of this Commonwealth to create an absolute privilege for all communications between PAAR personnel and persons seeking PAAR's assistance. Although we recognize the important societal interest in promoting such communications, we also recognize the compelling societal interest in the truth-seeking function of our system of criminal justice. In harmony with both the societal interest in promoting PAAR communications and the societal interest in the truth-seeking function of our criminal justice system, and consistent with the views of amicus Greater Pittsburgh Chapter of the American Civil Liberties Union and amicus Women Organized Against Rape, we hold that upon defense request a court should authorize defense inspection of only those statements of the complainant contained in the file which bear on the facts of the alleged offense. The court, however, must not permit defense inspection of statements of the complainant having no bearing on the facts of the alleged offense and relating instead only to the counseling services PAAR provides. The trial court shall not permit defense review of any other aspect of the file.
We remand to the trial court for proceedings consistent with this opinion.
PAAR is a private, non-profit corporation formed in 1974 which provides counseling to victims of rape and other forms of sexual assault. PAAR also provides educational programs. PAAR is one of twenty-seven such centers throughout this Commonwealth and, in appellant's estimation, "one of hundreds throughout the United States." Brief for Appellant at 6.
PAAR is funded, in part, by the federal Law Enforcement Assistance Administration (LEAA). LEAA funds permit a staff of five. In addition, about seventy volunteers maintain a twenty-four hour telephone line for what are termed "crisis calls." Appellant states that
"[t]he volunteers are extensively trained in rape-crisis counseling. They listen, offer support to those who call regardless of when crime occurred, and aid in providing the needed physical, psychological and social help."
According to appellant, once PAAR is contacted concerning a sexual assault, a PAAR staff member typically fills out a one-page intake form called an "Initial Report Form." See Appendix. Included in the Form are twelve sections addressing specific topics. The staff member identifies the following:
(2) Race and Sex of Victim
(3) Time Between Assault and PAAR Contact
(4) Neighborhood or Location of Assault
(5) Does Victim Know Actor?
(7) Approximate Length of Call
(8) Did Victim Receive Medical Care?
(9) Did Victim Report to Police?
(10) If Reported to Police, What is Disposition?
(11) What Services Did Victim Call For
Appellant provides no other details concerning the contents of a typical client file. She states, however, that the Initial Report Forms
"are not for the purpose of obtaining the victim's statement in the legal sense. Attention is placed on the condition of the victim, both physically and psychologically. Also, the counselor inquires of the treatment the victim has received from various individuals and agencies that she or he has encountered in dealing with her/his crisis legally or medically. The information is used to ascertain the victim's medical and psychological needs and to monitor the various institutional systems that the victim may encounter. In most cases, if not all, the forms are filled in after talking with the client to avoid the atmosphere of direct questioning."
Brief for Appellant at 24.
The contempt citation at issue stems from the case of Commonwealth of Pennsylvania v. Keith Glover, No. CC8002479. The accused is charged with rape, involuntary deviate sexual intercourse, indecent assault, simple assault, and terroristic threats for allegedly forcing the complainant, Mary Jane Weiss, to engage in sexual intercourse, including intercourse per os, at the complainant's apartment.
Trial commenced on July 10, 1980. At trial, the complainant testified that the accused, a chemistry classmate, entered her apartment on the understanding that she would help him with some chemistry problems. According to the complainant, upon completion of the problems the accused attacked her. On cross-examination, the accused sought to develop a theory of consent.
On both direct and cross-examination, the complainant testified that following the alleged attack she spoke with
PAAR personnel. In the presence of the jury, the accused sought to probe whether the victim had been "coached" by PAAR. The trial court sustained the Commonwealth's objection to such an inquiry in the jury's presence. The court, however, permitted the accused to proceed outside the presence of the jury.
During this proceeding, the court questioned Christine Corbett, who had been named by the complainant as a PAAR volunteer with whom she spoke. Corbett made no mention of the "Initial Report Form." Instead, she testified that, as a result of her discussion with the complainant, she filed a "medical advocacy report." Corbett described the report only as
"a statement as to what time I was called, what the circumstances were of the rape as related by the victim, and what is to happen with the case . . . ."
The following colloquy ensued between the court and Corbett:
"Q [By the Court]. So it is . . . a matter of routine an advocate for [PAAR] files a written report with [PAAR] setting forth facts which are told to that advocate by the alleged victim of the crime?
A [By Corbett]. A brief summary of it. If the victim does not always -- we don't go in and ask for them to tell us what happened. If the victim volunteers information as to the occurrences during the rape, those will in outline form be on the form itself."
The court, however, did not inquire into what information, if any, complainant Weiss "volunteered."
The accused requested the court to order "production of any written reports of statements made by the alleged victim of this crime . . . which remain on file with [PAAR]." The court then requested appellant Pride to appear before the court with PAAR's file on this case to enable the court, in camera, to determine whether the file "must be available for inspection to protect the constitutional rights of the person accused of a crime."
Appellant honored the court's request. At the in camera hearing held July 11, 1980, the complainant consented to the trial court's review of the PAAR file.
No inquiry into the preparation or contents of the file appears on this record. Nor was the PAAR file made a part of the record. Only the following determination was made:
"This Court will find as a matter of fact after reviewing the statement recorded by Ms. Brown and Ms. Corbett [(PAAR personnel)] that statements are consistent with testimony made by Miss Weiss [(the complainant)] and would not give rise to a defense, would not give the defense grounds to cross examine on its basis of prior inconsistent testimony [sic]."
However, the court went on to agree with the accused that "the defendant and the defense have at all times the right to determine whether or not there are inconsistencies in prior statements given." Thus it ordered appellant to permit counsel for the accused
"to review only that portion of the report which was recorded by Ms. Corbett or Ms. Brown and purports to be a statement made by Miss Weiss on the alleged night -- on the night of this alleged occurrence."
Upon appellant's refusal to comply, the court held her in contempt of court, remanding her to the Allegheny County Jail until she complied with the court's order.*fn1 PAAR's file remains outside the present record.
Appellant obtained a stay of the trial court's contempt citation from Mr. Justice (now Chief Justice) O'Brien of this Court. On August 26, 1980, this Court granted appellant's petition to assume plenary jurisdiction. Argument was expedited and heard on October 22, 1980.
Appellant does not argue that any statute of this Commonwealth specifically accords privileged status to communications
between PAAR personnel and persons seeking PAAR's assistance.*fn2 Rather, as previously mentioned, appellant argues the common law should be expanded to include the claimed privilege. See 8 Wigmore, Evidence § 2285 at p. 527 (McNaughton ed. 1961). Such an expansion would, of course, absent the complainant's consent, foreclose even the in camera review of the PAAR file which was conducted here.
There is an undoubtable public interest in helping victims of rape to cope with inevitable disruption of emotional stability caused by the physical assaults they suffer. There is an equally compelling public interest in encouraging victims of violent crime to come forward. We would be closing our eyes to reality were we to discount the value of rape crisis centers in fostering these vital public interests.
It must be remembered, however, that our system of criminal justice is a search for truth. As the Supreme Court of the United States observed, "disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice." Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973 (1966). Accord, e.g., Lewis v. Court of Common Pleas, 436 Pa. 296, 304 n.4, 260 A.2d 184, 189 n.4 (1969). So too, the
American Bar Association Project on Minimum Standards for Criminal Justice states: "Where life, liberty and protection of communities from crime are the stakes, gamesmanship is out of place." Standards Relating to Discovery and Procedure Before Trial § 1.1 Comment at p. 31 (Approved Draft 1970).
In a wide range of circumstances courts have sought to promote the truth-finding process. In Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), the Supreme Court of the United States permitted the Government's use of unlawfully obtained physical evidence to impeach an accused's false assertions on direct testimony.
"It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which the evidence in the Government's possession was obtained to his advantage, and provide himself with a shield against contradiction of his untruths."
347 U.S. at 65, 74 S.Ct. at 356. In United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), the Court held that the Government is entitled to review a defense investigator's report of statements made by prosecution witnesses which the defense plans to use for impeachment purposes. "Production of the report might substantially enhance 'the search for truth.'" 422 U.S. at 232, 95 S.Ct. at 2167, quoting Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (notice-of-alibi rule a constitutionally permissible device for assuring truthful defenses). Out of similar concern, this Court in Lepley v. Lycoming County Court of Common Pleas, 481 Pa. 565, 393 A.2d 306 (1978), upheld a trial court order requiring a defendant to make available to the prosecution his tape recording of the preliminary hearing testimony of a Commonwealth witness no longer willing to testify.
The truth-finding function of our system of criminal justice must circumscribe the absolute privilege appellant would have this Court create. We are guided by the admonition of Wigmore:
"For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) 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 exemptions which may exist are distinctly exceptional . . . ."
8 Wigmore, Evidence § 2192 at p. 70 (McNaughton rev. 1961). We are guided, too, by the "executive privilege" case of United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), where the Supreme Court of the United States unanimously refused to permit the former President's "generalized interest in confidentiality" of presidential communications to prevail over "fundamental demands of due process of law in the fair administration of criminal justice." The Court recognized that a claim of executive privilege is of constitutional dimension. It nonetheless upheld the federal district court's power to subpoena Presidential materials, stating, in the words of Mr. Chief Justice Burger, that:
"[w]e have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense."
418 U.S. at 709, 94 S.Ct. at 3108. Like Wigmore, the Court said of privileges that "[w]hatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation
of the search for truth." 418 U.S. at 710, 94 S.Ct. at 3108. Accord, Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1979) (discarding federal privilege against adverse spousal testimony); Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (rejecting first amendment privilege which would bar plaintiff in defamation action from inquiring into editorial processes of defendant where inquiry will produce evidence material to proof of critical element of action). See also Kansas Comm'n on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 543 P.2d 1263 (1975) (although disclosure of customer credit ratings intrusive, intrusion justified to protect state interest in investigating claim of race discrimination in granting credit).
No less than in Nixon, where a president's claim of absolute privilege was rejected in favor of the Government's effort to obtain evidence, we must reject appellant's claim of absolute privilege. Indeed, at stake here is not only the public interest in the disposition of litigation on the basis of what Wigmore referred to as "every man's evidence," but also basic considerations of fairness to the accused seeking to defend against criminal charges. "We have consistently held that the prosecution must allow the defense to examine statements in its possession given by persons who testify as prosecution witnesses." Commonwealth v. Grayson, 466 Pa. 427, 428, 353 A.2d 428, 429 (1976). See also e.g., Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (right of confrontation paramount to state interest in protecting juvenile offender witness); Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) (no legitimate state interest in denying defendant opportunity to question prosecution witness on real name and address). It would be unfair to erect a privilege that would deny the accused the opportunity at least to ascertain what the complainant previously has said. As Mr. Chief Justice Burger stated in Nixon, "[t]o ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense." 418 U.S. at 709, 94 S.Ct. at 3108.
We caution immediately, however, that where, as here, the defense's basis for inspection of a PAAR file is to determine the existence of prior inconsistent statements, only "statements" of the complainant, and not interpretations or recollections of the PAAR counselor, are to be made available. Statements of the complainant include only notes that are verbatim accounts of the complainant's declarations and notes that the complainant has approved as accurately reflecting what she said. As our Superior Court recently observed in a similar context, "[i]t would be unfair to permit impeachment of the witnesses through use of [a police] officer's interpretation of what [the witnesses] had said, not their own earlier recollections." Commonwealth v. Hill, 267 Pa. Super. 264, 270, 406 A.2d 796, 799 (1979). See e.g., Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978) (plurality opinion); Commonwealth v. Hustler, 243 Pa. Super. 200, 364 A.2d 940 (1976); Commonwealth v. Bellis, 252 Pa. Super. 15, 380 A.2d 1258 (1977), rev'd on other grounds, 484 Pa. 486, 399 A.2d 397 (1979).
The trial court should make whatever inquiry is necessary to determine whether matters contained in the PAAR file are indeed "statements." The trial court's inquiry must, of course, be conducted in camera. Little would be served by a judicial inquiry seeking to identify and protect important interests which is not itself structured to protect against improper disclosure.
It is not for the trial court to review these statements with an eye toward the utility or permissibility of their ultimate use at trial. In Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977), this Court made it clear that:
"[p]rior statements may, by themselves or in conjunction with other information known by the defense, open up valuable lines of cross-examination for the defense, even though the statements involve matters not directly relating to a witness' direct testimony. Accordingly, a standard which would permit the defense to examine only those prior statements in the possession of the Commonwealth which relate to a witness' direct testimony does not
truly grant the defense access to all the prior statements which might properly be employed in cross-examination. Again, only the defense can determine whether the statements are helpful; trial court review of the statements is inadequate. As this Court stated in Commonwealth v. Grayson, 466 Pa.  at 429, 353 A.2d at  429:
'Whether the statements of the prosecution's witnesses would have been helpful to the defense is not a question to be determined by the prosecution or by the trial court. They would not be reading the statements with the eyes of a trial advocate engaged in defending a client. Matters contained in a witness's statement may appear innocuous to some, but have great significance to counsel viewing the statements from the perspective of an advocate for the accused about to cross-examine a witness.'"
474 Pa. at 501, 378 A.2d at 1226.
However, this is not to say that in every case the defense must be given all statements. We cannot rule out the possibility that statements contained in a PAAR file may have no bearing whatsoever on the facts of the alleged offense and may relate instead only to the valuable counseling services which PAAR provides. Such statements reflecting counseling shall be withheld from defense inspection.
Nor is the defense given a free hand to disseminate statements made available by the court. The statements are made available to counsel only for proper use in the defense of the accused. The important interests in providing emotional support to a victim of rape and in exposing and combatting violent crime may require the trial court to fashion appropriate protective orders to insure against improper disclosure or use of the statement(s) made available. See Pa.R.Crim.Proc. 305 F; American Bar Association Standards Relating to the Administration of Criminal Justice, Discovery and Procedure Before Trial Std. 11-4.4 (2d ed. 1978); see also Commonwealth v. Hamm, supra; Kansas Comm'n on Civil Rights v. Sears, Roebuck & Co., supra, 216 Kan. at 321, 532 P.2d at 1275 (court "vested with authority
to issue such protective orders as it deems advisable to keep the information from prying eyes and to prevent its misuse").
Our sole remaining task is to evaluate the present record to ascertain whether the court properly concluded that a statement of the complainant is contained in the PAAR file. As already mentioned, there is before us no record of the precise contents of the PAAR file subjected to the court's in camera review. While we do have a sample "Initial Report Form," we also have the testimony of PAAR volunteer Corbett that she filled out a "medical advocacy report." As Corbett described this latter form, it is not the same as the intake form. There is no ...