1976), a defendant was charged with the brutal and
senseless slaying of his wife and his infant son. For use at
a competency hearing, both the prosecution and the
defense subpoenaed a marriage counselor and his files.
The Roma court held that the privilege improperly
infringed on the defendant’s rights to compulsory
process in his defense and due process of law. Hence, the
privilege was unconstitutional as applied to the facts of
this case.
The privilege has also been held to be
unconstitutional in the context of child custody disputes
since it interferes with a child’s due process right to have
introduced relevant evidence concerning the child’s best
interests and welfare. M. v. K., 186 N.J. Super. 363 (Ch.
Div. 1982).
E. Physician-Patient Privilege
The physician-patient privilege is contained
N.J.R.E. 506 (N.J.S.A. 2A:84A-22.1 et seq.). The
purpose of the privilege is to permit patients to disclose
facts necessary for diagnosis and treatment, by protecting
the patient from the adverse consequences that would
follow from disclosure. State v. Dyal, 97 N.J. 229, 237
(1984). The privilege is to be strictly construed,
however, and while it applies to a prosecution for a crime
or disorderly persons offense, it does not apply to a
prosecution for a violation of the motor vehicle laws,
including one for driving while intoxicated. State v.
Schreiber, 122 N.J. 579, 588 (1991). Moreover, even if
a physician violates the privilege and informs police of a
privileged communication, the police are not required to
ignore evidence voluntarily placed before them. Id. at
587; State v. Smith, 307 N.J. Super. 1, 14 (App. Div.
1997), certif. denied, 153 N.J. 216 (1998).
In State in Interest of M.P.C., 165 N.J. Super. 131
(App. Div. 1979), a juvenile prosecution, the juvenile
was arrested and taken to a hospital for blood tests and
treatment. The hospital provided treatment, but the
hospital personnel wrongfully refused to perform the
blood tests requested by the police. The State
subpoenaed the records of the hospital to obtain the
results of diagnostic blood tests performed on the
defendant. The defendant asserted the physician-patient
privilege, but the Appellate Division affirmed the trial
court’s decision that the request for blood tests and the
results thereof should have been honored by the hospital
staff, for different reasons. The court agreed with the trial
court that a blood test is a “confidential communication”
under N.J.S.A. 2A:84A-22.1d since the term is defined
as including information obtained by an examination of
a patient. However, the court held that the statutory
patient-physician privilege was inapplicable, since the
defendant did not fall under the definition of patient as
defined by N.J.S.A. 2A:84A-22.1a, as the defendant had
not submitted to an examination by a physician for the
sole purpose of securing treatment or a diagnosis
preliminary to treatment of his physical or mental
condition.In State v. Dyal, supra, the Supreme Court of New
Jersey expanded the ruling in M.P.C. by holding that to
obtain the results of a blood test that was protected by the
patient-physician privilege, the police should apply to a
municipal court judge for a subpoena duces tecum. “Upon
a showing by the police that they have a reasonable basis
to believe the defendant was operating a motor vehicle
while under the influence, the judge may issue a
subpoena. In establishing a reasonable basis, the police
may rely on objective facts known by them at the time of
the event or within a reasonable time thereafter.” Id. at- Although M.P.C. and Dyal no longer apply to
motor vehicle offenses after Schreiber, their analysis still
has validity with respect to crimes or disorderly persons
prosecutions, e.g., a death by auto case.
The holder of the physician-patient privilege is the
patient. State v. Barath, 169 N.J. Super. 181, 188 (Law
Div. 1979), aff’d o.b., 172 N.J. Super. 230 (App. Div.
1980). However, the privilege can be waived where
defendant interjects an issue concerning a statement he
made to his physician which contradicts his own
testimony. See State v. Soney, 177 N.J. Super. 47 (App.
Div. 1980), certif. denied, 87 N.J. 13 (1981).Communications made to medical personnel within
the hearing of others are not privileged, nor are
observations by medical personnel observable by others.
State v. Phillips, 213 N.J. Super. 534, 541-42, 545 (App.
Div. 1986).N.J.S.A. 2A:84-22.4 (N.J.R.E. 506(d)) limits the
privilege where the condition of the patient is an element
or factor of a defense. Thus, the State should be given pre-
trial access to any medical records or other information
dealing with a murder defendant’s prior treatment for
physical abuse caused by her victim-husband, where it
appears inevitable or “highly probable” that the
defendant will allege the prior abuse at trial in order to
lower the degree of homicide. State v. Alston, 212 N.J.
Super. 644 (App. Div. 1986). The defendant told police
shortly after the homicide that she had killed her
husband because of prior physical abuse, specifically
naming two centers where she had been treated for this