IN THE SUPREME COURT OF IOWA

No. 19–1697

Submitted October 15, 2020—Filed December 23, 2020

STATE OF IOWA,

Appellee,

vs.

PATRICK J. BARRETT JR.,

Appellant.

Appeal from the Iowa District Court for Cass County, Jeffrey L. 

Larson, Judge. 

The defendant appeals the denial of a motion for new trial following 

the court of appeals ruling that the defendant should have been provided 

exculpatory medical records under Iowa Code section 622.10(4). 

REVERSED AND REMANDED. 

McDermott, J., delivered the opinion of the court, in which all 

participating justices join. Christensen, C.J., took no part in the 

consideration or the decision of the case. 

Martha J. Lucey, State Appellate Defender, and Mary K. Conroy

(argued), Assistant Appellate Defender, for appellant. 

Thomas J. Miller, Attorney General, Louis S. Sloven (argued), 

Assistant Attorney General, and Vanessa E. Strazdas, County Attorney, 

for appellee. 
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McDERMOTT, Justice.

The State charged Patrick Barrett with sexual abuse of a child. 

Barrett requested the child’s privileged mental health and counseling

records to use in his defense to the charges. The district court privately 

reviewed the requested records without the parties present as required by 

statute, but determined the records contained no exculpatory information

and thus denied the request. At trial, a jury convicted Barrett of sexual 

abuse in the second degree. Barrett appealed. The court of appeals held 

that the child’s mental health and counseling records should have been 

provided to Barrett before the trial because they contained exculpatory 

information. It remanded the case for the district court to decide whether 

Barrett’s inability to review and use the records required a new trial. 

The district court on remand analyzed the new trial decision under 

a standard typically used when a defendant claims evidence was contrary 

to the weight of the evidence, asking whether the evidence “carries 

sufficient weight so as to make the jury’s guilty verdict contrary to the 

collective evidence.” See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998) 

(adopting the weight-of-the-evidence standard). Answering no, the district 

court denied the motion for new trial. But the district court also referenced 

potential other new trial standards in its analysis. 

This is our first case analyzing the standard for new trial 

determinations after a finding that exculpatory medical records were 

erroneously undisclosed under Iowa Code section 622.10(4)(a). In this 

appeal, Barrett contends that the district court applied the incorrect 

standard in analyzing whether to grant the motion for new trial and denied

the motion for new trial in error. 
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I.

Iowa Code section 622.10 generally prevents a mental health 

professional from disclosing “any confidential communication properly 

entrusted to the person in the person’s professional capacity” associated 

with the patient’s treatment. Iowa Code § 622.10(1) (2016). The statute 

specifically forbids disclosing these records to a defendant in a criminal 

action, with two exceptions. 

The first exception (not at issue in this case) requires a showing that 

the holder of the privilege voluntarily waived the confidentiality privilege. 

Id. § 622.10(4)(a)(1). The second exception requires the defendant to 

file[] a motion demonstrating in good faith a reasonable 

probability that the information sought is likely to contain 

exculpatory information that is not available from any other 

source and for which there is a compelling need for the 

defendant to present a defense in the case. 

Id. § 622.10(4)(a)(2)(a). If the defendant satisfies the threshold showing for 

the second exception, the district court must review the records in camera

(privately, without the parties present) to determine whether the records 

contain exculpatory information. Id. § 622.10(4)(a)(2)(b). If the court 

determines from its review that the records contain exculpatory 

information, the court must then “balance the need to disclose such 

information against the privacy interest of the privilege holder.” 

Id. § 622.10(4)(a)(2)(c). If the court finds the balance tilts in favor of 

disclosure, the portions of the records containing exculpatory information 

must be disclosed to the defendant and counsel. Id. § 622.10(4)(a)(2)(d).

Barrett filed a motion seeking the child’s mental health and 

counseling records. The district court reviewed the records in camera, but 

determined that the records didn’t contain exculpatory information and,

thus, denied Barrett’s motion. Barrett’s initial appeal followed his 
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conviction and challenged the district court’s denial of his motion seeking 

the records. 

The court of appeals reviewed the mental health and counseling

records and, pinpointing the records containing exculpatory information, 

held that the district court had abused its discretion in concluding the 

records contained no exculpatory information. State v. Barrett, No. 17–

1814, 2018 WL 6132275, at *3 (Iowa Ct. App., Nov. 21, 2018). It remanded 

the case and directed that, after the district court disclosed the 

exculpatory records to the parties, the district court “shall consider

whether new trial is necessary.” Id. 

On remand, the district court gave the parties the opportunity to 

review and then brief the significance of the records that the court of 

appeals ordered disclosed. In its analysis, the district court primarily 

invoked the standard we apply for new trial motions based on claims the 

conviction was contrary to the weight of the evidence. The district court 

stated that, under that weight-of-the-evidence standard, we have analyzed 

whether the verdict was “contrary to the law or evidence,” or more 

precisely, whether “a greater amount of credible evidence supports one 

side of an issue or cause than the other.” See State v. Reeves, 670 N.W.2d 

199, 202 (Iowa 2003); Ellis, 578 N.W.2d at 656, 658. The district court 

further noted courts should grant a new trial under this standard only in 

“exceptional circumstances.” 

In its findings and conclusions, the district court wrote:

The present consideration of whether new trial should 

be granted hinges on whether the exculpatory evidence carries 

sufficient weight so as to make the jury’s guilty verdict 

contrary to the collective evidence. If it does not, then the 

motion for new trial should be denied. . . . Defendant’s motion 

does not, however, make any arguments as to how this 

evidence is contrary to the verdict, or how the evidence 

exculpates defendant, or how this new evidence would 
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probably change the outcome of the trial. This court in its 

review of the record, nevertheless, finds no evidence that 

would probably have changed the outcome of the trial. The 

nondisclosure was indeed harmless, and even if the jury had 

the exculpatory evidence, it would not alter the weight of the 

evidence insofar as to grant a new trial. 

The district court further found that nothing in the evidence created an 

“exceptional circumstance” because “each of the points were either already 

addressed during trial or do not carry enough weight sufficient to grant a 

new trial.” While finding the exculpatory evidence “credible,” it 

nonetheless found it insufficient to support “an alternative verdict.” 

Because it concluded the verdict was not “contrary to the law or evidence,” 

the district court denied the motion for new trial. 

II.

Barrett in this appeal contends that the district court applied an 

incorrect standard in ruling on his new trial motion and erroneously 

denied it. Although we’ve addressed appeals involving privileged medical 

records under section 622.10(4) on several occasions, this is the first 

appeal that squarely requires us to decide the appropriate standard for a 

new trial determination after a district court fails to order production of 

exculpatory medical records.

But this terrain isn’t completely untrodden. In State v. Neiderbach, 

the district court denied a defendant’s motion for an in camera review of 

privileged mental health records requested under Iowa Code section 

622.10(4)(a). 837 N.W.2d 180, 198 (Iowa 2013). We held on appeal that 

the district court had erred and remanded the case for the district court 

to conduct the in camera review of the medical records. Id. We said that 

if the district court found that the records contained exculpatory evidence 

and met the other requirements of section 622.10(4)(a)(2), it must then 

determine whether the defendant was entitled to a new trial. Id. In a 
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footnote, we briefly discussed similarities between the multistep process 

involved in remands to district courts under section 622.10(4) and 

situations in which prosecutors failed to produce to defendants 

exculpatory evidence in the prosecutors’ hands, commonly referred to as 

“Brady violations” in reference to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 

1194 (1963). Id. at 198 n.3. The United States Supreme Court in Brady 

held that due process required the prosecution to disclose exculpatory 

evidence to the accused in criminal cases. Brady, 373 U.S. at 87–88, 83 

S. Ct. at 1197–98. Some of our other cases addressing medical record 

disclosure requirements under section 622.10(4) have likewise referenced 

Brady considerations. See, e.g., State v. Leedom, 938 N.W.2d 177, 188 

(Iowa 2020); State v. Thompson, 836 N.W.2d 470, 485, 487 (Iowa 2013).

To establish a Brady violation, a defendant must prove that the 

prosecution suppressed evidence, the evidence was favorable to the 

defendant, and the evidence was material to the determination of guilt.

DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011). The materiality

element requires a counterfactual inquiry. The defendant must establish 

that there exists “a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been 

different.” DeSimone, 803 N.W.2d at 105 (quoting United States v. Bagley, 

473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985)). A “reasonable 

probability” is “a probability sufficient to undermine confidence in the 

outcome.” Id. (quoting Bagley, 473 U.S. at 682, 105 S. ct. at 3383). 

Barrett, citing to a different line in our footnote in Neiderbach, asks 

us to impose a “harmless beyond a reasonable doubt” standard for the new 

trial determination. 837 N.W.2d at 198 n.3. We generally apply a 

harmless-error standard—meaning that reversal of a conviction or ruling 

isn’t required if the error was “harmless beyond a reasonable doubt”—
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when assessing certain constitutional errors in criminal cases. See, e.g., 

State v. Simmons, 714 N.W.2d 264, 275 (Iowa 2006); State v. Hensley, 534 

N.W.2d 379, 382–83 (Iowa 1995). The harmless-error test presents a lower 

threshold for granting a new trial than either the materiality standard in 

Brady or the weight-of-the-evidence standard. 

The harmless-error test reference in the Neiderbach footnote that 

Barrett cites was part of a quote from Pennsylvania v. Ritchie, 480 U.S. 39, 

58, 107 S. Ct. 989, 1002 (1987), in which the Supreme Court found a due 

process violation based on confidential records alleged to contain 

exculpatory information that were withheld from the defendant. Quoting 

Ritchie, we noted that the defendant was to receive a new trial if the records 

“contain[] information that probably would have changed the outcome of 

his trial.” Neiderbach, 837 N.W.2d at 198 n.3 (alteration in original) 

(quoting Ritchie, 480 U.S. at 58, 107 S. Ct. at 1002). Conversely, if the 

records “contain no such information, or if the nondisclosure was 

harmless beyond a reasonable doubt, the lower court will be free to 

reinstate the prior conviction.” Id. (quoting Ritchie, 480 U.S. at 58, 107 

S. Ct. at 1002). Perhaps confusingly, Ritchie referenced both Brady’s 

materiality standard (reasonable probability that the result would have 

been different) and a harmless-error standard in the same discussion. 

The United States Supreme Court in other cases has rejected 

materiality standards for Brady violations resembling harmless-error 

analysis based on concerns such a standard would impel prosecutors to 

open their files to defendants unnecessarily simply for fear of having a 

conviction reversed on appeal. See Bagley, 473 U.S. at 680, 105 S. Ct. at 

3382; United States v. Agurs, 427 U.S. 97, 108–09, 96 S. Ct. 2392, 2399–

400 (1976). But on the other hand, the lower thresholds for materiality 

under Brady (as opposed to, for example, a weight-of-the-evidence 
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standard) are calibrated to urge prosecutors to err on close calls on the 

side of disclosure. See Kyles v. Whitley, 514 U.S. 419, 439, 115 S. Ct. 

1555, 1568 (1995). With Brady information, prosecutors “anxious about 

tacking too close to the wind will disclose a favorable piece of evidence,” 

which “is as it should be.” Id.

But with victims’ mental health records, Iowa Code section 622.10(4)

recognizes a heightened interest in protecting victims by limiting the 

disclosure. See Thompson, 836 N.W.2d at 489. The statute provides that 

decisions about required disclosures of a third party’s medical records are 

determined by the court, not the prosecutor. See Iowa Code 

§ 622.10(4)(a)(2)(b). And the statute doesn’t indicate a policy preference, 

as for prosecutors with Brady information, for courts to err on the side of 

disclosure of victims’ mental health records. 

But in most other respects, the erroneous withholding of records 

under section 622.10(4) parallels Brady disclosure violations. Both a 

Brady disclosure violation and an improper withholding of records under 

section 622.10(4) involve helpful evidence to which the accused had a right 

not only to use at trial but also to use in strategizing a defense to the 

State’s charges more generally. Both types of violations thus take us 

beyond erroneous evidentiary rulings, which deny the defendant an 

opportunity to present admissible evidence at trial. With both types of 

violations, the defendant is deprived not simply of an opportunity to 

introduce the evidence at trial, but even to know of its existence, 

hamstringing the accused’s trial preparation and strategy more broadly. 

This similarity in harms between Brady violations and section 622.10(4) 

errors provides a useful rationale for applying a similar standard. 

We’re also mindful, particularly in light of the balancing test 

required under Iowa Code section 622.10(4)(a), not to judicially readjust 
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the increased consideration given to confidentiality interests in the 

legislature’s enactment of section 622.10(4). As we’ve discussed in 

Thompson and elsewhere, the procedure put in place by section 622.10(4) 

came in response to our opinion in State v. Cashen and the more expansive 

rights it granted to defendants to access a third party’s medical records. 

See Thompson, 836 N.W.2d at 489; State v. Cashen, 789 N.W.2d 400, 407–

10 (Iowa 2010), superseded by statute, 2011 Iowa Acts ch. 8, § 2 (codified 

at Iowa Code § 622.10 (2011 Supp.)). The dissent in Cashen expressed 

fear that the procedure it put in place afforded the accused “more power 

than necessary to protect the right to a fair trial, while presenting a serious 

risk of a different form of abuse for victims of domestic violence.” Cashen, 

789 N.W.2d at 411 (Cady, J., dissenting). Iowa Code section 622.10(4) is 

the legislature’s attempt to redraw the balance in “an area of the law that 

deals with the clash of two of the most compelling and venerable interests 

known to the law.” Thompson, 836 N.W.2d at 481 (quoting Cashen 789 

N.W.2d at 411). Imposing too low a threshold for new trials invites some 

risk of predisposing district courts toward too freely ordering production 

of privileged medical records. 

When exculpatory documents are erroneously withheld under Iowa 

Code section 622.10(4), courts should apply the materiality standard in 

Brady to resolve whether a defendant is entitled to a new trial. Under this 

standard, the court asks whether there exists “a reasonable probability 

that, had the evidence been disclosed to the defense, the result of the 

proceeding would have been different.” DeSimone, 803 N.W.2d at 105

(quoting Bagley, 473 U.S. at 682, 105 S. Ct. at 3383). This analysis

requires the court “to assess the possible effects nondisclosure had on trial 

preparation and strategy, not merely the weight of the evidence.” Id.

Courts must examine whether the exculpatory evidence “could reasonably 
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be taken to put the whole case in such a different light as to undermine 

confidence in the verdict.” Harrington v. State, 659 N.W.2d 509, 523 (2003) 

(quoting Strickler v. Greene, 527 U.S. 263, 290, 119 S. Ct. 1936, 1952

(1999)). 

The district court applied a weight-of-the-evidence standard,

weighing the undisclosed exculpatory evidence against the trial evidence 

in an attempt to determine whether the verdict was “contrary to the weight 

of the evidence.” The district court concluded that “even if the jury had 

the exculpatory evidence, it would not alter the weight of the evidence 

insofar as to grant a new trial.” While the district court’s ruling also

referred to a Brady standard (in stating it “finds no evidence that would

probably have changed the outcome of the trial”) and a harmless-error 

standard (in stating that nondisclosure of the exculpatory information 

“was indeed harmless”), the ruling centered on the more arduous weightof-the-evidence standard. 

In this appeal, Barrett claims the district court applied an incorrect 

legal standard in reaching its decision. Our review is thus for legal error. 

Iowa R. App. P. 6.907; State v. Robinson, 506 N.W.2d 769, 770 (Iowa 1993). 

We find the district court erred in applying too strict a standard in 

determining whether Barrett was entitled to a new trial under these 

circumstances. 

Of course, the district court didn’t have this opinion when it 

analyzed the new trial motion. When a district court doesn’t have the 

guidance of a particular test or applies the incorrect standard, “we remand 

for new findings and application of the correct standard.” Robinson, 506 

N.W.2d at 770–71. In State v. Showens, we remanded when it wasn’t clear 

the district court applied the correct standard and “did not have the benefit 

of our construction of the statute” in its initial ruling. 845 N.W.2d 436, 
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449 (Iowa 2014). We thus reverse the ruling in this case and remand for 

consideration of whether Barrett is entitled to a new trial under the 

standard we’ve articulated. 

REVERSED AND REMANDED. 

All justices concur except Christensen, C.J., who takes no part.