Defendant’s Right to Third Party Confidential Records

Suppose Defendant is charged with sex offense against a child. He knows that DSS previously investigated similar allegations made by the child against other people and heard that DSS found those charges to be unfounded. When Defendant subpoenas the records from DSS, the agency moves to quash. Is Defendant entitled to the records? The answer is: Sort of. On these facts, Defendant has a right to have the court do an in camera review of the records. If the court finds that they contain favorable, material evidence, it has to be turned over to the defendant. This post outlines the relevant law, which stems from a U.S. Supreme Court case called Pennsylvania v. Ritchie, 480 U.S. 39 (1987).

In Ritchie, the Court held that the defendant had a due process right to have a judge conduct an in camera review of a child protective services agency file on the victim to determine whether it contained favorable and material evidence, and if so, to turn it over to the defense. Ritchie was charged with rape and other crimes committed against his daughter. During discovery, Ritchie issued a subpoena seeking access to the agency’s file related to the charges against him, as well as certain records that he claimed were compiled a year earlier when the agency investigated a separate report that Ritchie’s children were being abused. Ritchie argued that the file “might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence.” The agency refused to comply with the subpoena, claiming that the records were privileged under state law. Acknowledging that he had not reviewed the entire agency file, the trial court denied Ritchie’s request for disclosure. Ritchie was convicted and he appealed. As noted, the Court held that Ritchie had a due process right to have the trial court review the file in camera and disclose to him any favorable, material evidence. Noting that “the public interest in protecting this type of sensitive information is strong,” the Court declined to find that “this interest necessarily prevents disclosure in all circumstances.” Though finding that Ritchie had a right to have the trial court conduct an in camera review, the Court expressly rejected his argument that he had a constitutional right to examine all of the confidential information in the file and present arguments in favor of disclosure. Recognizing that the “eye of an advocate may be helpful” in identifying favorable and material evidence, the Court concluded that full disclosure to defense counsel would “sacrifice unnecessarily the Commonwealth’s compelling interest in protecting its child-abuse information.” Thus, it endorsed a rule requiring in camera review by the trial court.

Application to Third-Party Records Generally

In North Carolina, Ritchie issues arise most frequently in child sexual abuses cases where the defendant seeks to obtain the type of agency records at issue in Ritchie. See, e.g., State v. Tadeja, 191 N.C. App. 439, 449-50 (2008); State v. Johnson, 165 N.C. App. 854, 856-59 (2004); State v. McGill, 141 N.C. App. 98, 101-03 (2000); State v. Bailey, 89 N.C. App. 212, 222 (1988). However, the courts have applied Ritchie to a variety of confidential records in possession of third parties, including government agencies and private parties. See, e.g.,Love v. Johnson, 57 F.3d 1305, 1313-14 (4th Cir. 1995) (victim’s files at a medical center, county mental health department, and county DSS); State v. Johnson, 145 N.C. App. 51, 54 (2001) (public school records); State v. Henderson, 155 N.C. App. 719, 728-29 (2003) (school records); State v. Taylor, 178 N.C. App. 395, 407-08 (2006) (school records); State v. Bradley, 179 N.C. App. 551, 553 (2006) (Duke University Health Systems records); State v. Jarrett, 137 N.C. App. 256, 266 (2000) (hospital records).

Defendant’s Burden for In Camera Review: “Some Plausible Showing”

The defendant “may not require the trial court to search through the . . . file without first establishing a basis for his claim that it contains material evidence.” Ritchie, 480 U.S. at 58 n.15. Ritchie suggests that the defendant “must at least make some plausible showing of how [the evidence is] both material and favorable to his defense.” Id.; see also Love v. Johnson, 57 F.3d 1305, 1315 (4th Cir. 1995). However, because “an accused cannot possibly know, but may only suspect, that particular information exists which meets these requirements, he is not required, in order to invoke the right, to make a particular showing of the exact information sought and how it is material and favorable.” Love, 57 F.3d at 1313; see also Johnson, 165 N.C. App. at 855. And in fact, the standard is not terribly strenuous. In Ritchie the defendant made the requisite showing simply by arguing “‘that he was entitled to the information because the file might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence.’” Love, 57 F.3d at 1313 (quoting Ritchie, 480 U.S. at 44).

In Camera Review, Order and Sealing of Evidence

If the defendant makes the required showing, the defendant “does not become entitled to direct access to the information to determine for himself its materiality and favorability.” Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir. 1995) (citing Ritchie). Rather, the defendant has the right “to have the information he has sufficiently identified submitted to the trial court for in camera inspection and a properly reviewable judicial determination made whether any portions meet the ‘material’ and ‘favorable’ requirements for compulsory disclosure. Id. (citing Ritchie).

If the court determines that there is favorable, material evidence in the records, the court should so find by written order and should provide the relevant evidence to the defendant. If the trial court conducts an in camera review but denies the defendant’s request, in whole or in part, the trial court should so find by written order, seal the undisclosed evidence, and place it in the record for appellate review. See, e.g., Johnson, 165 N.C. App. at 855-56; State v. McGill, 141 N.C. App. 98, 101 (2000).