abuse. The court noted, in ordering that pre-trial
discovery be granted, the exception to the physician-
patient privilege where the condition of the patient is a
defense to a legal action. While there could be no
absolute assurance that the defendant would put forth
evidence at trial charging prior abuse by the victim, the
Court held, under the circumstances of this case, that it
would be “fundamentally unfair” to withhold
defendant’s records from the State until such time as the
defense was raised at trial.
F. Psychologist - Patient Privilege
N.J.R.E. 505, also N.J.S.A. 45:14B-28, provides that
“confidential relations and communications between a
licensed practicing psychologist and [patient] ... are
placed on the same basis as those provided between
attorney and client.” As with the attorney-client
privilege, the privilege belongs to the patient and any
waiver must be made by the patient. State v. L.J.P., 270
N.J. Super. 429, 438 (App. Div. 1994). It is of greater
scope and protection than the physician-patient
privilege. Id. at 439; see also Kinsella v. Kinsella, 150 N.J.
276, 298 n. 1 (1997).
In State v. McBride, 213 N.J. Super. 255 (App. Div.
1986), the defendant was convicted of aggravated assault
in viciously attacking his wife with a metal pipe, striking
her in the head, and also banging her head on an asphalt
driveway. The victim was subsequently hospitalized,
suffering from organic brain syndrome, the symptoms of
which were disturbed mental behavior, the making-up of
stories, and retrograde amnesia. A clinical psychologist
examined the victim, and his conclusions were partially
relied upon by another doctor who testified regarding his
continuing diagnosis and treatment of the victim
following her hospital discharge. The report apparently
referred to the victim’s mental disorder as not organically
caused by head trauma and described certain problems
the victim had with reality. The trial court precluded
defense counsel from cross-examining the second doctor
concerning the clinical psychologist’s report, basing its
decision upon the privilege.
The Appellate Division in McBride ruled that,
despite the psychologist-patient privilege, the trial court
should have made an in camera inspection of the report
to determine its relevance, since “common notions of
fairness” may compel limited disclosure of otherwise
confidential communications. See also Arena v. Saphier,
201 N.J. Super. 79 (App. Div. 1985). The court can limit
the scope of inquiry in order both to preserve confidential
communications the victim may have made to the clinical
psychologist and to accommodate the defendant’s need
to show the mental condition of the victim where there
might have been other causes of her mental disorder and
where it might affect the credibility of both the doctor
and the victim.Although, unlike the physician-patient privilege,
there is no explicit exception for information required by
another statute to be reported, State v. Snell, 314 N.J.
Super. 331, 337 (App. Div. 1998), held that a
psychotherapist consulted for treatment by a child sexual
abuser was obligated by N.J.S.A. 9:6-8.10 to report the
abuse to the Division of Youth and Family Services.
However, the privilege is not completely lost, and the
therapist cannot be forced to testify regarding the
privileged communications at the defendant’s trial. State
v. Snell, 314 N.J. Super. at 339.XVI. NEUTRALIZATION (See also, HEARSAY,
PRIOR CONSISTENT STATEMENTS, supra)
Pursuant to N.J.R.E. 607, formerly Evid. R. 20, the
party calling a witness may not neutralize the testimony
of that witness with a prior contradictory statement
unless the party is surprised by the testimony of the
witness or the statement is in a form admissible under
N.J.R.E. 803(a)(1), formerly Evid. R. 63(1)(a). State v.
Nelson, 318 N.J. Super. 242 251 (App. Div.), certif.
denied, 158 N.J. 687 (1999); State v. Johnson, 216 N.J.
Super. 588, 608-09 (App. Div. 1987). Neutralization
serves to erase or cancel the unexpected harmful
testimony by showing that the witness has made a prior
contradictory statement. State v. Gallicchio, 44 N.J. 540
(1965).When evidence of a prior contradictory statement is
admitted for neutralization, the trial court must instruct
the jury on the limited purpose for which that evidence
may be considered. Id.; State v. Johnson, 216 N.J. Super.
at 609. The contradictory statements are not admissible
as substantive evidence unless the reliability require-
ments of N.J.R.E. 803(a)(1) are met. A hearing pursuant
to N.J.R.E. 104(a) must be held with respect to the
testimony sought to be neutralized, either before the
witness testifies, if it is known he will not adhere to prior
statements, or if the State had no indication that the
witness would give contradictory testimony, after the
testimony sought to be neutralized is given. State v.
Johnson, 216 N.J. Super. at 609.