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Children's Resource Center May be State Agent Subject to Mandatory Discovery

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Privilege provided by law may not apply to victims of sexual abuse who are interviewed at a hospital for "forensic" purposes


Elisabeth K.H. Pasqualini, Sexual Crimes Defense Lawyer, Harrisburg, PA

In a recent Pennsylvania Superior Court decision, the Court vacated and remanded the order of a trial court that ordered that certain Children's Resource Center ("CRC") records be produced for the court to conduct an in camera (in chambers) inspection to determine whether they were exculpatory to the defendant and should, therefore, be provided to the defendant.  In Commonwealth v. Berger, 2014 Pa.Super 147 (July 14, 2014), a defendant had been charged with several sex offenses against four minors.  All minors were interviewed at the CRC.  At the CRC, the victims were subject to interviews by "forensic interviewers" and their interviews were video and audio recorded.  Police and victim advocates watched the interviews through one-way mirrors.  The CRC provided the videotaped interviews to the District Attorney's office in furtherance of their criminal investigation.  The Defendant filed a subpoena to produce other evidence, including notes from other interviews, of the interviewer for CRC.  Counsel for CRC objected, arguing that CRC was a "medical provider" and, as such, its materials were subject ot lawful privilege.

Can A Defendant Subpoena a Third Party?

Yes, courts have previously ordered, by virtue of their subpoena power under 42 Pa.C.S.A. Section 5905 and Pa.R.Crim.P. 9106 (now Rule 107) that third parties must produce records relevant to a criminal prosecution.  Such third parties include: children and youth services, rape crisis centers and possibly the CRC.

When Can the Defendant Subpoeana a Third Party?

When the third party acts as an agent of the state.  CRC claimed it did not act in this capacity, but as a hospital.  The defendant, citing the CRC's own website and the statements of the police in their probable cause affidavits, indicates that they work hand-in-hand with police as "forensic interviewers" to assist in prosecutions.  Therefore, they are the very essence of a state agent.

The matter was remanded to the trial court in order to conduct a further fact-finding analysis of CRC's role as either an entity that should enjoy a privilege of confidentiality for their clients or one that acts as an arm of the state and should be ordered to provide its evidence to the judge for him or her to determine if it benefits the accused.

New Legislation May Hold the Key to the Answer

The Sexual Assault Testing and Evidence Collection Act, 35 P.S. Section 10172.2, et seq. was recently passed into law in September 2015.  It defines evidence collection sites, such as the CRC as follows: 

"Child advocacy center." A local public agency in this Commonwealth, or a not-for-profit entity incorporated in this Commonwealth that is tax exempt under section 501(c)(3) of the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 501(c)(3)) or any successor provision, which operates within this Commonwealth for the primary purpose of providing a child-focused, facility-based program dedicated to coordinating a formalized multidisciplinary response to suspected child abuse. At a minimum, either onsite or through a partnership with another entity or entities, a child advocacy center shall assist county agencies, investigative teams and law enforcement by providing services, including forensic interviews, medical evaluations, therapeutic interventions, victim support and advocacy, team case reviews and a system for case tracking.  (emphasis added).  

This definition sounds similar to the very definition that the CRC has placed upon itself.  If it collects and partners with police to detect, interview, and ultimately assist in the prosecution of sexual assault cases, is it not a state actor, subject to the discovery rules of a state police investigative agency?

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