IN THE SUPREME COURT OF IOWA

No. 07–2109

Filed July 2, 2010

STATE OF IOWA,

Appellant,

vs.

ROSS IAN CASHEN,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Marshall County, 

William J. Pattinson, Judge.

The State seeks further review of a court of appeals decision 

allowing a defendant to gain access to a victim’s privileged mental health 

records. DECISION OF COURT OF APPEALS VACATED; JUDGMENT 

OF DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND 

REMANDED WITH INSTRUCTIONS.

Thomas J. Miller, Attorney General, Jean C. Pettinger and Mary 

Tabor (until withdrawal), Assistant Attorneys General, Jennifer A. Miller, 

County Attorney, and Suzanne M. Lampkin, Assistant County Attorney, 

for appellant.
2

Jennifer L. Steffens of Steffens & Grife, P.C., Marshalltown, Kelly T. 

Bennett, Newton, and Christopher A. Clausen of Boliver, Clausen & 

Bidwell Law Firm, Marshalltown, for appellee.
3

WIGGINS, Justice.

In this appeal, we review a district court order and court of appeals 

decision allowing a criminal defendant to gain access to a victim’s 

privileged mental health records. The district court and the court of 

appeals allowed the defendant access without restriction. We now adopt 

a protocol that balances a patient’s right to privacy in his or her mental 

health records against a defendant’s right to present evidence to a jury 

that might influence the jury’s determination of guilt. Accordingly, we 

vacate the decision of the court of appeals, affirm in part and reverse in 

part the judgment of the district court, and remand the case for further 

proceedings consistent with this opinion.

I. Background Facts and Proceedings.

This case involves a domestic dispute between Ross Cashen and 

Jane Doe.1 As a result of the dispute, on April 18, 2007, the State 

charged Cashen with the offenses of domestic abuse assault, third 

offense, and willful injury, class “D” felonies. 

On July 3 Cashen filed a notice that he intended to rely on the 

defense of self-defense. On July 25 Cashen asked the court to enter an 

order authorizing him to hire an expert to review and aid in the 

interpretation of Doe’s mental health records as well as to present expert 

testimony to the jury regarding Doe’s credibility and propensity for 

violence. The district court denied the motion, finding it was premature 

because the court had not made a determination as to whether the 

records would be admissible at trial.

Cashen then proceeded to depose Doe. In her deposition, Doe

acknowledged she had been involved in past abusive relationships with 

other men. She also testified she had been diagnosed with posttraumatic 

 1We have changed the name of the victim to protect her privacy.
4

stress disorder, anxiety, depression, and had been in counseling and 

therapy since she was fifteen years old. She indicated she had displayed 

impulsive and reactive behavior in the past and became easily frustrated 

when she was in her relationship with Cashen. Doe also said she was 

taking a prescription antidepressant. She said she was taking the 

medication because she was nervous about the safety and welfare of her 

boyfriend, who was serving in the armed services. She also believed 

Cashen was a very violent man, and she worried about retribution from 

him. 

Cashen also employed a private investigator who acquired some of 

Doe’s mental health records from a medical office and a hospital. After 

the State learned Cashen had acquired these records, it filed a motion in 

limine to exclude the records, as well as other matters, from trial. The 

State also sought to preclude admission of Doe’s prior mental health 

history revealed in her deposition.

The district court denied the motion in limine. It found the mental 

health history of Doe, specifically her propensities for violence and 

explosive behavior, was relevant to Cashen’s defense of self-defense. It 

also determined the records could be relevant to Doe’s credibility as a 

witness to accurately observe and recall the events leading to the charges 

and may be helpful to impeach her at trial. The court continued the trial 

to allow Cashen the opportunity to secure an expert to review the records 

and testify, if necessary, on the issues of Doe’s propensity for violence

and her credibility.

On November 29 Cashen filed two separate motions, the first to 

reconvene Doe’s deposition and the second to obtain Doe’s mental health 

records. On December 11 the court ordered Doe to execute a patient

waiver form in favor of Cashen’s counsel and, upon receipt of the 
5

records, permit Cashen’s counsel to reconvene the deposition of Doe to 

explore those areas connected to the records.

The State responded by filing an application for discretionary 

review. We granted the application and transferred the case to the court 

of appeals. The only issue argued on appeal was whether the district 

court erred in allowing the disclosure of Doe’s mental health records. 

The court of appeals affirmed the district court’s order in part and 

reversed in part. It found Cashen had demonstrated a compelling need 

for the mental health records and affirmed the decision of the district 

court ordering disclosure of the records and admission of expert 

testimony on the issues of Doe’s propensity for violence and her 

credibility. It additionally found the district court had no authority to 

order the State to secure and produce the patient waiver of a witness, 

but failed to further address the procedure for the production of the

records. We granted further review.

II. Standard of Review. 

Ordinarily, we review discovery orders for an abuse of discretion. 

State v. Schuler, 774 N.W.2d 294, 297 (Iowa 2009). However, to the 

extent the issues in this case involve constitutional claims, our review is 

de novo. State v. Reyes, 744 N.W.2d 95, 99 (Iowa 2008). Because the 

issues in this case rest on constitutional claims involving Cashen’s due 

process right to present a defense, our review is de novo. See 

Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S. Ct. 989, 1001, 94 

L. Ed. 2d 40, 57 (1987) (holding a due process analysis applies in 

determining whether to disclose a child protective service agency’s

privileged records for purposes of a defendant presenting a defense). 
6

III. Analysis.

A. The State’s Claims. In State v. Heemstra, 721 N.W.2d 549, 

563 (Iowa 2006), we allowed a defendant to obtain the medical records of 

a homicide victim to assist the defendant in presenting his defense. 

There, the defendant was facing a first-degree murder charge that carried

a sentence of life in prison without the possibility of parole. Heemstra, 

721 N.W.2d at 551, 563. In this appeal, the State argues this case is 

distinguishable from our decision in Heemstra because it “does not 

present any ‘unique facts’ warranting abrogation of the psychotherapist

privilege and intrusion into the victim’s mental health records.” The only 

real difference between this case and Heemstra is the severity of the 

penalty. If convicted, Cashen can be deprived of his liberty and 

potentially sentenced to ten years in prison. See Iowa Code § 902.9(5) 

(2005) (stating a defendant’s conviction for a class “D” felony subjects the 

defendant to possible confinement for no more than five years). 

Regardless of the charge or the penalty, all defendants have a right to a 

fair trial. See generally Gentile v. State Bar of Nev., 501 U.S. 1030, 1075, 

111 S. Ct. 2720, 2745, 115 L. Ed. 2d 888, 923 (1991) (Rehnquist, C.J., 

dissenting in part) (“Few, if any, interests under the Constitution are 

more fundamental than the right to a fair trial.”). Thus, there is no 

reason to apply the law regarding the disclosure of privileged records 

differently based on the severity of a defendant’s sentence. 

The State’s fallback position is that if the records are made 

available to the defendant’s attorney, the records should only be 

disclosed on a limited basis. We agree that if privileged records are to be 

made available in a criminal proceeding, a certain protocol must be 

followed to balance the patient’s right to privacy with the defendant’s 

right to present evidence to a jury that might influence the jury’s 
7

determination of guilt. Today, we set forth the proper protocol to be used 

by a court to determine when and how a defendant’s attorney can gain 

access to a victim’s privileged mental health records. 

B. Prior Case Law. We have previously applied a balancing test 

to determine if a party to a proceeding is entitled to review the 

confidential medical records of a nonparty. Chidester v. Needles, 353 

N.W.2d 849, 853 (Iowa 1984). The first decision to adopt and apply this 

test was Chidester. Id. In Chidester, the county attorney sought thirteen 

patients’ medical records in connection with his investigation into 

Medicaid fraud. Id. at 851. The first issue we considered was the nature 

of the patients’ right in keeping the records private. Id. at 851–53. We 

rejected the patients’ claim that Iowa Code section 622.10, the statutory 

physician-patient privilege, protected the records from the county 

attorney’s subpoena because section 622.10 only protects the giving of 

testimony. Id. at 852–53. Instead, we determined the patients’ 

constitutional right to privacy protected the patients’ interests in 

avoiding disclosure of personal matters and maintaining independence 

when making certain kinds of important decisions. Id. at 853. 

Although we recognized the patients had a constitutional right to 

privacy in their medical records, we acknowledged this privilege was not 

absolute, but qualified. Id. Thus, we adopted a balancing test and 

stated, “The privacy interest must always be weighed against such public 

interests as the societal need for information, and a compelling need for 

information may override the privacy interest.” Id. In weighing the 

interests, we said, “[S]ociety has a strong interest in allowing official 

investigators of criminal activity broad authority to conduct thorough 

investigations.” Id. We also declared, “[T]he privacy interest must be 

balanced against society’s interest in securing information vital to the fair 
8

and effective administration of criminal justice.” Id. (emphasis added). 

We then concluded the patients’ privacy interest in their records yielded 

to “the State’s interest in well-founded criminal charges and the fair 

administration of criminal justice” and allowed the county attorney to 

subpoena the records. Id. at 854.

The next case to discuss the balancing test was McMaster v. Iowa 

Board of Psychology Examiners, 509 N.W.2d 754, 759 (Iowa 1993). 

There, the board of psychology examiners subpoenaed a patient’s records 

from a psychologist who was not under investigation. McMaster, 509 

N.W.2d at 755. The patient filed a petition to quash the subpoena. Id. at 

756. In concluding the patient’s constitutional privacy interest in her 

records is not absolute, we applied the balancing test. Id. at 759. 

In applying the balancing test, we found the board’s public interest 

was its statutory duty to police mental health professionals. Id. After 

recognizing this public interest, we adopted a protocol for determining 

whether a patient’s privacy interest in his or her mental health records 

must yield to a competing interest of the State. Id. at 759–60. The

protocol first required the party seeking access to the records must 

“make a minimal showing that the complaint reasonably justifies the 

issuance of a subpoena in furtherance of the investigation.” Id. at 759. 

Second, the party seeking access to the records must show the records 

are necessary as evidence in the disciplinary proceedings. Id. This 

requirement can be satisfied by an in camera review of the records by the 

district court. Id. Third, the party seeking access to the records must 

notify the patient and request a waiver from the patient prior to issuing 

the subpoena. Id. at 760. Fourth, the party seeking access to the 

records should establish the existence of adequate safeguards to avoid 

unauthorized disclosure. Id. Last, the patient’s privacy interest in the 
9

records will yield to a competing interest of the State only if there is an 

articulated public policy, recognized public interest, or an express 

statutory mandate “ ‘militating toward access.’ ” Id. (quoting United 

States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980)).

Our most recent case to apply the balancing test was Heemstra. In 

Heemstra, we allowed “limited disclosure” of the victim’s medical records

based on the unique facts presented in the case. Heemstra, 721 N.W.2d 

at 563. We held “the records [should] be made available to defense and 

prosecution counsel . . . under a protective order prohibiting any further 

dissemination without court order.” Id. 

C. Third Party’s Right to Privacy in her Mental Health

Records. We recognize a patient’s right to privacy in his or her mental 

health records because

“[p]sychotherapy probes the core of the patient’s personality. 

The patient’s most intimate thoughts and emotions are 

exposed during the course of the treatment. The psychiatric 

patient confides [in his therapist] more utterly than anyone 

else in the world. . . . [H]e lays bare his entire self, his 

dreams, his fantasies, his sin, and his shame. The patient’s 

innermost thoughts may be so frightening, embarrassing, 

shameful or morbid that the patient in therapy will struggle 

to remain sick, rather than to reveal those thoughts even to 

himself. The possibility that the psychotherapist could be 

compelled to reveal those communications to anyone . . . can 

deter persons from seeking needed treatment and destroy 

treatment in progress.”

McMaster, 509 N.W.2d at 758 (quoting Haw. Psychiatric Soc’y v. Ariyoshi,

481 F. Supp. 1028, 1038 (D. Haw. 1979) (citations omitted)). 

Accordingly, these reasons are important in our application of the 

balancing test.

D. Public Interest in Allowing the Defendant to Obtain the 

Records. Excluding evidence from a criminal trial for some purpose 

other than enhancing the truth-seeking process of the proceeding 
10

increases the danger of convicting an innocent person. Under the United 

States Constitution, a criminal defendant has a due process right to 

present evidence to a jury that might influence the jury’s determination 

of guilt. Ritchie, 480 U.S. at 56, 107 S. Ct. at 1000–01, 94 L. Ed. 2d at 

56–57. The Supreme Court has also said that “disclosure, rather than 

suppression, of relevant materials ordinarily promotes the proper 

administration of criminal justice.” Dennis v. United States, 384 U.S. 

855, 870, 86 S. Ct. 1840, 1849, 16 L. Ed. 2d 973, 984 (1966). Thus, a 

defendant’s right to produce evidence that is relevant to his or her 

innocence is an important public interest that we must consider in 

applying the balancing test.

E. The Proper Protocol for Requesting the Privileged Mental 

Health Records of a Victim. The purpose of providing a defendant with 

the privileged records of a victim is to lessen the chance of wrongfully 

convicting an innocent person. Society shares this interest. In fact, the 

Federal and Iowa Constitutions include numerous safeguards to prevent 

the wrongful conviction of the innocent. See, e.g., U.S. Const. amend. VI 

(guaranteeing an accused the right to a speedy and public trial by an 

impartial jury, to be informed of the accusations against him or her, to 

confront witnesses, to have compulsory process, and to have the 

assistance of counsel in a criminal prosecution); Iowa Const. art. I, § 10 

(same). On the other hand, the interest in preventing wrongful 

convictions does not justify giving defendants access to all of a victim’s 

privileged records from the time of birth. 

We continue to adhere to a balancing test, and now take the 

opportunity to articulate a standard that judges can consistently apply to 

identify those circumstances when the defendant’s right to a fair trial 

outweighs the victim’s right to privacy. This standard allows a defendant 
11

to obtain the records necessary to put forth evidence tending to show the 

defendant’s innocence, but does not permit the defendant to go on a 

fishing expedition into a victim’s privileged records. Because of the 

importance of the public interest in not convicting an innocent person of 

a crime, any standard should resolve doubts in favor of disclosure.

In McMaster, we developed a protocol that balanced the interest of 

the State against the privacy interest of the patient when an agency

sought to obtain the patient’s privileged mental health records. 

McMaster, 509 N.W.2d at 759–60. Today, we formulate a similar protocol 

when a criminal defendant, who is represented by counsel, requests the 

privileged mental health records of a victim.2 The protocol we adopt 

today strikes the proper balance between a victim’s right to privacy in his 

or her mental health records and a defendant’s right to produce evidence 

that is relevant to his or her innocence.

First, we want to emphasize that a defendant is not entitled to 

engage in a fishing expedition when seeking a victim’s mental health 

records. Before a subpoena may issue for a victim’s privileged records, 

the defendant must make a showing to the court that the defendant has 

a reasonable basis to believe the records are likely to contain exculpatory 

evidence tending to create a reasonable doubt as to the defendant’s guilt. 

Ritchie, 480 U.S. at 58 n.15, 107 S. Ct. at 1002 n.15, 94 L. Ed. 2d at 58 

n.15. In doing so, the defendant need not show the records actually 

contain information for establishing the unreliability of a charge or 

witness. Commonwealth v. Bishop, 617 N.E.2d 990, 996–97 (Mass. 

1993), abrogated by Commonwealth v. Dwyer, 859 N.E.2d 400, 414, 417–

19 (Mass. 2006). A defendant need only advance some good faith factual 

 2We express no opinion as to the applicability of this protocol when the 

defendant is self-represented.
12

basis indicating how the records are relevant to the defendant’s 

innocence. Id. Thus, to begin this process, a defendant’s counsel must 

file a motion with the court demonstrating a good faith factual basis that

the records sought contain evidence relevant to the defendant’s 

innocence. The motion shall be marked confidential, filed under seal,

and set forth specific facts establishing a reasonable probability the 

records sought contain exculpatory evidence tending to create a 

reasonable doubt as to the defendant’s guilt. The motion shall also 

request the court issue a subpoena requiring the custodian of the 

records to produce the records sought by the defendant. Defendants or 

their attorneys shall not subpoena a victim’s privileged records without a 

court order.

Second, the county attorney shall notify the victim that the

defendant has made a request for the victim’s privileged records. After 

conferring with the victim, the county attorney shall provide the court 

with an affidavit signed by the victim stating the victim either consents to

or opposes the disclosure of the records. If the victim consents to the 

disclosure, the court shall issue a subpoena for the records to be 

produced under seal to the court. If the victim opposes the disclosure, 

the court shall hold a hearing to determine if a reasonable probability 

exists that the records contain exculpatory evidence tending to create a 

reasonable doubt as to the defendant’s guilt. If the court determines a 

reasonable probability exists that the records contain such evidence, the 

court shall issue a subpoena for the records to be produced under seal to 

the court. 

Before issuing the subpoena, the court shall enter a protective 

order containing stringent nondisclosure provisions. The protective 

order shall prohibit any attorney, county attorney, or third party who is 
13

allowed to inspect or review the records under this protocol from copying, 

disclosing, or disseminating the information contained in the records to 

any person, including the defendant, unless otherwise authorized by this 

protocol or the court. In addition, the Health Insurance Portability and 

Accountability Act of 1996 (HIPAA) requires the Secretary of the 

Department of Health and Human Services to issue regulations to insure 

the privacy of health care records. 42 U.S.C. § 1320d-2(d)(2) (2003). To 

comply with the privacy and security rules enacted by the Secretary, the 

protective order shall also contain provisions: (1) prohibiting the parties 

from using or disclosing the records or the information contained in the 

records for any purpose other than the criminal proceeding for which the 

records were sought, and (2) requiring an attorney, county attorney, or 

third party who is allowed to inspect or review the records under this 

protocol to destroy the records (including all copies made) at the end of 

the proceeding. 45 C.F.R. § 164.512(e)(1)(ii)(B), .512(e)(1)(v) (2010). The 

subpoena shall contain language stating that prior to the court issuing 

the subpoena, the court has entered a protective order complying with 

the requirements of HIPAA’s privacy and security rules. A copy of the 

protective order shall be served with the subpoena. Id.

§ 164.512(e)(1)(ii)(B), .512(e)(1)(iv).

Third, if the records are produced, the attorney for the defendant 

who obtained the subpoena shall have the right to inspect the records at 

the courthouse. An in camera review of the records by the court is 

insufficient. Only the attorneys representing the parties know what they 

are looking for in the records. The court cannot foresee what may or may 

not be important to the defendant. Heemstra, 721 N.W.2d at 563; see 

also Dwyer, 859 N.E.2d at 418 (“Despite their best intentions and 

dedication, trial judges examining records before a trial lack complete 
14

information about the facts of a case or a defense . . . and are all too 

often unable to recognize the significance, or insignificance, of a 

particular document to a defense.”). 

Fourth, after the attorney for the defendant has identified the 

records he or she believes contain exculpatory evidence, the attorney 

shall notify the county attorney and the court of the specific records the 

defendant desires and ask that the matter be set for hearing. Prior to the 

hearing, the county attorney may review the designated records at the 

courthouse. If the county attorney reviews the records, he or she is 

subject to the protective order entered by the court. 

Fifth, the court shall hold a hearing to determine if the designated 

records contain exculpatory evidence. The court shall close the hearing 

to the public to protect the victim’s privacy. The court shall give notice of 

the hearing to the defendant’s attorney and the county attorney. If the 

court determines the designated records contain such evidence, the court 

shall provide a copy of any such records to the defendant’s attorney and 

the county attorney. Before providing these records to counsel, the court 

shall order that all non-exculpatory matters in the records provided be 

redacted prior to the records being removed from the courthouse. In 

order to protect the privacy rights of the victim, these records will 

continue to be subject to the protective order entered by the court. 

Before either attorney can disclose the records to a third party, including 

potential expert witnesses, the attorney must obtain an order from the 

court allowing such disclosure and requiring the person to whom the 

records are disclosed to be bound to the same nondisclosure provisions 

imposed on the attorneys. A copy of the protective order shall be given to 

the third party when the party receives copies of the records. 
15

The protocol we have outlined for discovery purposes does not 

necessarily mean the victim’s mental health records are admissible at 

trial. Whether the records meet the requirements for admission under 

our rules of evidence is a separate determination that the court will make 

at trial or in ruling on a motion in limine. If the court ultimately decides

the records are admissible, the court shall consider alternatives to the 

introduction of the records as proffered. These alternatives may include 

stipulations by the parties or the introduction of redacted portions of the 

records.

All records produced under seal to the court pursuant to a 

subpoena shall be preserved for appeal purposes. After completion of the 

appeal, all persons who have copies of the records shall destroy their 

copies and certify to the court that the records in their possession have 

been destroyed.

In formulating this protocol, we have considered whether a 

defendant should be required to make a showing that the information 

sought in the records could not be obtained from another source, such 

as the victim’s testimony, before the defendant is allowed to seek 

production of the victim’s mental health records. We reject such a 

requirement because we do not believe a patient’s rendition of his or her 

medical condition and treatment is necessarily reliable. For example, 

without examining Doe’s records, Cashen cannot be sure the information 

provided in Doe’s deposition testimony accurately reflects her true 

mental health condition. Sometimes individuals are less than candid 

concerning their condition when talking to others. In other instances, 

individuals may not fully understand their condition, notwithstanding 

their health care providers’ efforts to explain it to them. Finally, such 

records often contain information not given to a patient or information 
16

forgotten by a patient. The only way to assure that Cashen has adequate 

and accurate information to defend properly against the criminal charges 

is to give him access to those portions of Doe’s records that are relevant 

to Cashen’s innocence. By using the protocol outlined above, the 

invasion of Doe’s right to privacy in her mental health records is 

minimized. 

F. Application of the Protocol. In her deposition, Doe admitted 

punching the defendant. On two prior instances, she has been charged 

with domestic abuse against her ex-husband. She admits to having 

posttraumatic stress disorder for which she has sought counseling. She 

also admitted to being frustrated easily and having difficulty controlling 

impulsive behavior. Based on this testimony, the district court found the 

mental health history of Doe, relating to her propensities for violence and 

explosive behavior, was relevant to Cashen’s defense of self-defense and 

to Doe’s credibility as a witness. This evidence is exculpatory because it 

tends to create a reasonable doubt as to Cashen’s guilt. 

We agree with the district court that Doe’s deposition testimony 

satisfies Cashen’s requirement to establish a reasonable probability 

exists that the records contain exculpatory evidence. On remand, the 

court shall issue a subpoena for the records to be produced under seal to 

the court. Thereafter, the court and the parties shall comply with the 

remaining requirements of the protocol.

IV. Disposition.

We affirm the district court decision to the extent it allowed 

Cashen’s attorney to inspect the mental health records of Doe. We 

reverse that part of the decision requiring Doe to execute a patient’s 

waiver in favor of Cashen’s attorney. Therefore, we vacate the decision of 

the court of appeals and remand the case to the district court to follow 
17

the protocol contained in this opinion pertaining to the disclosure of a 

victim’s privileged records.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF 

DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND 

REMANDED WITH INSTRUCTIONS.

All justices concur except Cady, J., who dissents.
18

#95/07–2109, State v. Cashen

CADY, Justice (dissenting). 

I respectfully dissent. The majority announces and professes to 

apply a balancing test to reach its conclusion that Doe must turn over 

her confidential counseling records for examination by Cashen and his 

attorney (and others) under a protocol directed by the trial court. In 

truth, the majority has abandoned the balancing test without 

acknowledgement. In its place, the majority has substituted a policy 

judgment that all defendants in a criminal case are entitled to view 

confidential medical and counseling records of a victim to an alleged 

crime when the defendant asserts a legal claim or issue that makes the 

contents of the confidential records relevant to the claim or issue in the 

case. The balancing test is unceremoniously abandoned because 

confidential records must now be disclosed once relevance is shown 

regardless of any particular surrounding circumstances of the case that 

may reveal a diminished need for the particular records by the defendant 

and regardless of a heightened need to protect the confidentiality of the 

records. The majority adopts one of the weakest tests known to the law 

in an area of the law that deals with the clash of two of the most 

compelling and venerable interests known to the law. This is a step 

backwards. It gives the defendant 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. This new test may also 

ultimately cause victims to decline to report domestic abuse in order to 

protect themselves from being required to disclose very personal and 

private information to the alleged abusers and other parties to the 

prosecution. 
19

One fundamental interest at stake in this case involves a belief of 

most Iowans that information communicated by a patient to a doctor or 

counselor will be confidential. For over 150 years, Iowa has recognized 

that confidential communications between a physician and a patient 

constitute privileged information. See Iowa Code § 622.10 (2007) 

(establishing current privilege of confidentiality between physician and 

patient); 7 Laurie Kratky Dorè, Iowa Practice Series: Evidence § 5.504:2, 

at 365 & n.2 (2009) (tracing the root of the physician-patient privilege 

statute to the 1851 Iowa Code) [hereinafter Dorè]. Although this privilege 

did not exist at common law, it has been a cornerstone of the 

professional ethics of physicians for over a century.3 See 1 Kenneth S. 

Broun et al., McCormick on Evidence § 98, at 446–47 (6th ed. 2006) 

[hereinafter McCormick]. The privilege surfaced in Iowa as an enactment 

by our legislature in 1851, shortly after we became a state. Iowa Code 

§ 2393 (1851). Today, the venerable statutory privilege not only 

precludes physicians from disclosing through testimony any confidential 

communication by a patient, but also prohibits the disclosure of medical 

records containing confidential communications. State v. Heemstra, 721 

N.W.2d 549, 560 (Iowa 2006). The rationale for a law protecting 

 3The American Medical Association (AMA) was the first national professional 

medical organization in the world. American Medical Association, History of AMA 

Ethics, http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/codemedical-ethics/history-ama-ethics.shtml (last visited June 22, 2010). The AMA 

promulgated the first code of ethics for physicians in 1847. Id. The current version of 

the ethical code still remains the authority governing physicians’ conduct. Id. In its 

first version of the code, the AMA declared that the “obligation of secrecy” should be 

observed by all physicians. See American Medical Association, Code of Medical Ethics of 

the American Medical Association ch. 1, art. I § 2, at 93 (1847), available at 

http://www.ama-assn.org/ama/upload/mm/369/1847code.pdf. The AMA also 

pointed out in this early ethics code, “[t]he force and necessity of this obligation [of 

confidentiality to patients] are indeed so great, that professional men have, under 

certain circumstances, been protected in their observance of secrecy, by courts of 

justice.” Id. Over 160 years later, this ethical rule of confidentiality still governs 

practicing physicians. 
20

information acquired by a physician from disclosure is to promote 

complete and open communication by a patient to enable the physician 

to make a proper diagnosis and render appropriate treatment. State v. 

Deases, 518 N.W.2d 784, 787 (Iowa 1994). If patients know or fear the 

information they tell their doctor may be disclosed in the future, they 

may be reluctant to disclose information embarrassing to them but 

needed by the doctor to render proper care. 

While our rules and cases applying Iowa Code section 622.10 

generally reflect “great solicitude for the physician-patient privilege,” the 

privilege is deemed to be even more important in the treatment of mental 

health. Heemstra, 721 N.W.2d at 560–61. The greater protections in the 

area of mental health treatment are justified primarily because of the 

enhanced need for a strong relationship of trust and confidence between 

the patient and provider and the extremely personal and sensitive 

information frequently disclosed in the course of mental health 

counseling. See id. at 561. Any threat of disclosure of such information 

would obstruct, if not bar, successful treatment. See McCormick § 98, at 

447. Moreover, unwanted disclosure of highly personal information 

separately implicates one of the most fundamental tenets of all law—the 

right to privacy. Heemstra, 721 N.W.2d at 561. Thus, we are not just 

dealing with a strong belief recognized by statute, but a right with roots 

found in our constitution. The privilege necessarily recognizes a right to 

protect the privacy interests of the individual to keep private information 

from public disclosure, independent from the need for optimum medical 

treatment recognized by statute. See McMaster v. Bd. of Psychology

Exam’rs, 509 N.W.2d 754, 758–59 (Iowa 1993) (recognizing a 

constitutional right of privacy in mental health records). Nevertheless, 

all fifty states and the District of Columbia have statutes that protect the 
21

communication between patients and their therapists. Jaffee v. 

Redmond, 518 U.S. 1, 12, 116 S. Ct. 1923, 1929, 135 L. Ed. 2d 337, 346 

(1996). Our legislature has separately considered the special interest 

involved in mental health and psychological information and has 

provided comprehensive rules prohibiting disclosure except under very 

limited circumstances.4 See generally Iowa Code ch. 228 (providing rules 

of limited disclosure for a patient’s mental health records). These rules, 

however, do not specifically address the disclosure of mental health 

information in a criminal proceeding, but the right to privacy derived 

from our constitution remains a forceful protection against disclosure. 

I recognize the privilege expressed in section 622.10 does not 

expressly apply to discovery disputes. Yet, the purpose and rationale of 

the statute unmistakably applies to pretrial discovery in a criminal case 

with the same vigor and importance as to the testimonial stage of trial. 

See Newman v. Blom, 249 Iowa 836, 844, 89 N.W.2d 349, 354–55 (1958) 

(recognizing medical records contain the same protected confidential 

information as a physician’s direct testimony about the 

communications). Discovery of witness records is a predicate step to 

trial testimony and is guarded by the same basic underlying 

considerations. Moreover, it is important to discuss the privilege in the 

context of the statute because the statute has been the forum largely 

responsible for the development of the law, even though the privilege also 

has its roots in the broad constitutional right to privacy. See McMaster, 

509 N.W.2d at 758 (recognizing the roots of the right to privacy in mental 

 4For example, Cashen’s access to the records obtained in this case would 

presumably violate Iowa Code section 228.2, as the disclosure of the records to 

Cashen’s private detective does not appear to qualify under any of the five listed 

exceptions stated in section 228.2(1). Furthermore, under this record, there is no 

evidence that the custodians of Doe’s medical records complied with the mandatory 

procedures associated with disclosure. See Iowa Code § 228.2(2).
22

health records). Nevertheless, our legislature has left discovery disputes 

over confidential records for the courts to resolve, and it is incumbent on 

courts to develop a workable standard and resolve each dispute. The 

statutory privilege is not a legal defense to a discovery dispute, but the 

rationale of the privilege provides an important perspective in gaining a 

full understanding of the privacy interest at stake. 

The competing fundamental interest at stake in this case is derived 

from constitutional protections provided to an accused to confront 

witnesses in a criminal trial and to be given a fair trial. A defendant in a 

criminal case not only has a right to confront witnesses with effective 

cross-examination, but due process and the right to a fair trial also 

demand an accused be given a full and fair opportunity to present a 

claim of self-defense. See Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct.

1105, 1110, 39 L. Ed. 2d 347, 353 (1974) (recognizing defendant’s right 

to confront witnesses with adequate cross-examination); see also 

Chambers v. Mississippi, 410 U.S. 284, 297–98, 93 S. Ct. 1038, 1047, 35 

L. Ed. 2d 297, 310 (1973) (recognizing defendant’s right to due process 

includes the right to present a defense by cross-examining witnesses). 

Although a defendant’s constitutional right of confrontation is not 

limitless, a decision denying a defendant access to “ ‘a certain class of 

evidence, even for the purpose of preventing a witness from suffering 

embarrassment on the stand, should not limit the Sixth Amendment 

right of a defendant to confront the witness against him.’ ” State v. 

Howard, 426 A.2d 457, 460 (N.H. 1981) (quoting State of 

New Hampshire’s appellate brief); see also Chambers, 410 U.S. at 295, 

93 S. Ct. at 1046, 35 L. Ed. 2d at 309 (“Of course, the right to confront 

and to cross-examine is not absolute and may, in appropriate cases, bow 

to accommodate other legitimate interests in the criminal trial process.”). 
23

Moreover, despite the power vested in state legislatures to protect the 

privacy rights of victims, “[c]riminal defendants have been guaranteed 

numerous rights by the fourth, fifth, and sixth amendments, and states 

may not infringe upon them regardless of general legislative power.” 

J. Alexander Tanford & Anthony J. Bocchino, Rape Victim Shield Laws 

and the Sixth Amendment, 128 U. Pa. L. Rev. 544, 554–55 (1980).

The clash between the two fundamental constitutional interests 

occurs in this case largely due to the presence of the self-defense claim. 

Normally, mental health information of a victim is not admissible as 

character evidence in a criminal proceeding. See generally State v. 

Jacoby, 260 N.W.2d 828, 837 (Iowa 1977) (noting the general 

inadmissibility of evidence relating to homicide victim’s character). When 

the defense of self-defense is raised, however, evidence of a victim’s 

quarrelsome or violent disposition may become relevant to help establish 

the victim as the initial aggressor or the state of mind of the defendant. 

Dorè § 5.404:3, at 206–08. Such evidence of the victim’s character may 

be introduced through testimony concerning the victim’s reputation or by 

opinion testimony of a witness familiar with the victim. Iowa R. Evid. 

5.405(a). It may also be shown by specific conduct. Iowa R. Evid. 

5.405(b). In this case, Cashen asserts the mental health records of Doe 

are relevant to help formulate his self-defense claim through an expert 

witness and to impeach Doe on cross-examination in the event she is 

inconsistent or untruthful in her testimony on direct examination. There 

is also a suggestion that the records may help determine if Doe’s ability 

to accurately recall the incident is impaired. Cashen asserts his right to 

a fair trial demands discovery of the records. 

In Heemstra, we developed a compelling-need test to resolve the 

clash between the competing interests of confidentiality and a fair trial in 
24

the context of a criminal prosecution.5 721 N.W.2d at 563. The test is 

based on the premise that a point exists when even the strong interest of 

confidentiality of mental health information must give way to a 

defendant’s right to confront witnesses and the right to present a defense 

in a criminal case. Id. at 562–63. In other words, this case involves a 

clash of two constitutional rights, and each case must be carefully 

examined to determine the point where one right must give way to the 

other. See Chidester v. Needles, 353 N.W.2d 849, 853 (Iowa 1984). 

We relied on four factors in Heemstra in balancing the interests at 

stake to conclude limited disclosure of confidential mental health records 

was required in that case. First, disclosure was not only sought in the 

course of a criminal case, but the defendant faced the most severe 

penalty possible under the law. Heemstra, 721 N.W.2d at 563. This 

factor indicated the weight of the consequential harm of nondisclosure to 

the accused. Second, the person who was the subject of the medical 

records was deceased. Id. Although the physician-patient privilege 

continues after death, this factor tended to diminish the importance of 

protecting the records from disclosure because the fear of disclosure for a 

patient after death is not as compelling for the patient as the fear of 

 5The seeds of this test were planted in Chidester v. Needles, 353 N.W.2d 849 

(Iowa 1984), a contempt proceeding involving the issuance of a county attorney 

subpoena seeking medical records in the course of an investigation into suspected 

criminal activity. We recognized the issue involved a clash between the privacy 

interests of patients and the public interests in the fair administration of justice, and 

indicated the issue was resolved by balancing the two competing interests. Chidester, 

353 N.W.2d at 853. We subsequently amplified this test in McMaster, where we 

imposed the burden on the entity seeking the confidential records to show the interests 

in disclosure were greater than the interests of confidentiality. 509 N.W.2d at 759. We 

also developed a five-factor test for an administrative agency to follow in attempting to 

satisfy the burden to obtain confidential records to investigate a complaint made to the 

agency. Id. at 759–60. Thus, the balancing test took root in the context of investigative 

proceedings and was adopted in Heemstra as the test in the context of criminal 

proceedings. 
25

disclosure before death. See McCormick § 102, at 462 (recognizing 

privilege continues after the patient’s death); see also United States v. 

Hansen, 955 F. Supp. 1225, 1226 (D. Mont. 1997) (“The holder of the 

privilege has little private interest in preventing disclosure, because he is 

dead.”). Third, some of the information subject to disclosure in the case 

had been voluntarily placed in the public domain during the pendency of 

the case by virtue of a civil lawsuit filed by the executor of the victim’s 

estate. Heemstra, 721 N.W.2d at 563. This factor tended to diminish the 

need to protect the confidential interests of the particular patient. 

Finally, the nature of the confidential information was such that it could 

reasonably be viewed as an aid to the defendant in his self-defense claim. 

Id. This factor was considered to be the most important criteria in the 

case because it not only placed the constitutional right to a fair trial into 

play, but it identified the specific need for the information and the 

particular prejudice that would be suffered by the accused without the 

information. See United States v. Alperin, 128 F. Supp. 2d 1251, 1255 

(N.D. Cal. 2001) (recognizing records material to self-defense claim 

outweigh victim’s interest in confidentiality). 

The factors we identified in Heemstra were not exhaustive, but 

instructive of the general approach courts should take in applying a 

balancing test in criminal cases. This test focuses on all the facts and 

circumstances of each case to fully assess a compelling need for the 

information. The burden to establish a need for the victim’s records is on 

the defendant. See McMaster, 509 N.W.2d at 759 (imposing burden on 

entity seeking the records). The relevant factors essentially allow the 

strength of the competing interests to be compared within the context of 

each individual case. This is the best method to achieve a just result. 
26

The problem with the decision of the majority is the important 

case-specific balancing of the competing interests is discarded. As a 

clash between constitutional rights, this approach seems inconceivable. 

The majority claims to adhere to the balancing process through the use 

of protocol, but the protocol requires the disclosure of the confidential 

records based merely on a showing of relevancy. This new test does not 

consider any particular need for the victim to maintain privacy, nor does 

the test allow any particular circumstances of the defendant to be 

identified that may militate against full disclosure. More importantly, it 

fails to balance the competing interests by flushing out a compelling 

need for the confidential records. Instead, the new test presumes mere 

relevancy satisfies the compelling need and uses the protocol to realign 

the interests of the victim from preventing disclosure to minimizing 

disclosure. The right of the victim to keep records private from the court, 

defendant, attorneys, and various court and attorney employees is 

completely ignored.

In this case, the majority orders Doe to turn over all her medical 

and counseling records from the time she was a young teenager because 

Cashen has asserted a claim of self-defense and Doe has admitted she 

has a history of counseling that includes impulsive behavior and that she 

becomes frustrated easily due to posttraumatic stress disorder. Absent 

from the analysis is any consideration that could diminish Cashen’s need 

for the confidential reports. 

First, Doe is available to testify at trial, and she has already 

provided Cashen with an abundance of testimony under oath relevant to 

the claim of self-defense. Second, Cashen was married to Doe and likely 

possesses personal knowledge of the propensity and character of Doe to 

assist him in his claim of self-defense, including any propensity for 
27

aggression or violence, based on his past relationship with her. Third, 

there was no proof by Cashen that relevant evidence of Doe’s character 

could not be obtained from other witnesses familiar with her 

background, disposition, and general reputation. Finally, although 

Cashen may utilize an expert witness to assist him to present his claim 

of self-defense, there was no proof that such assistance would not be 

available without additional medical records. Cashen has not argued, let 

alone established, his expert could not effectively present the desired

opinion testimony about Doe’s character and propensities derived from 

her various medical diagnoses without first reviewing the medical records 

he seeks. Importantly, Cashen has failed to articulate specific grounds 

to explain how the records would aid in his self-defense claim in light of 

the evidence he possesses and the evidence available to him without the 

records. 

Conversely, the public policy embedded in the battle against 

domestic abuse should heighten the need to protect the confidentiality of 

medical and counseling records of victims in domestic-abuse cases. 

While domestic abuse was rarely prosecuted as a crime in the not-toodistant past, it is now a common subject of civil and criminal 

enforcement in this state and nationwide.6 Moreover, it is not 

uncommon for victims of domestic abuse to suffer from anxiety, 

depression, and posttraumatic stress disorder. Evan Stark, Re-

 6Domestic violence is recognized almost universally as “an ever-widening 

epidemic” for which the legal system has continued to work towards a cure. See Betsy 

Tsai, Note, The Trend Towards Specialized Domestic Violence Courts: Improvements on 

an Effective Innovation, 68 Fordham L. Rev. 1285, 1287 (2000). While domestic abuse 

was generally socially and legally acceptable for centuries, the trend to end such 

violence has progressed substantially. In Iowa, statistics show that from 1990 to 1993, 

domestic abuse civil filings rose from 188 to 2677. Supreme Court Task Force on 

Courts’ and Communities’ Response to Domestic Abuse, Final Report 6 (1994), available 

at http://www.iowacourts.gov/wfdata/frame9830-1152/File9.pdf. 
28

Presenting Woman Battering: From Battered Women Syndrome to Coercive 

Control, 58 Albany L. Rev. 973, 997 (1995). Consequently, as the 

number of domestic-abuse prosecutions increases, so does the threat of 

disclosure of confidential records of prosecuting witnesses. Likewise, as 

the threat of disclosure of confidential records of victims increases, the 

public policy responsible for the greater reporting and prosecution of 

domestic abuse that is part of the overall effort to address domestic 

violence is likely to suffer. If victims of domestic violence must suffer the 

embarrassing and debilitating loss of their physician-patient privilege 

once they become a witness in a criminal domestic-abuse prosecution, a 

chilling effect will be cast over the reporting of domestic abuse, the 

disclosure of information to treatment providers by victims, the ability of 

physicians and psychotherapists to treat psychological disorders arising 

from domestic abuse, and the willingness of victims to testify against 

their abusers. The relevancy test of the majority fails to consider the 

impact of simple relevancy-based disclosure on society in general. 

Finally, the holding of the majority deprives victims of domestic 

abuse crimes, and perhaps other victims of crimes, of a constitutional 

right of privacy without an opportunity to show how the deprivation of 

the right will impact their privacy interest. The victim is treated as if the 

right to privacy does not apply to judges, court staff, attorneys, 

defendants, and other people connected to the court system.

The majority has, without explanation, decided to paint with broad 

brushstrokes by making an implicit judgment that the presence of 

potentially relevant records trumps confidentiality in the context of a 

criminal prosecution. Even though this judgment may be justified in 

many cases, it is not a justification to paint with a broad brush. Justice 

within a case involving strong competing constitutional interests requires 
29

a careful analysis of the particular facts and circumstances. Experience 

reveals that a one-size-fits-all test can present a serious risk of injustice 

in a particular case. This case may very well be one. Sadly, without an 

opportunity to fully explore all the compelling interests at stake, this will 

never be known. 

The new test developed by the majority may be easy and beneficial 

to defendants, but it is a step back both for victims and for the progress 

made in addressing domestic violence over the last decade. The only way 

victims of domestic abuse with a history of counseling will be able to 

ensure the confidentiality of their private counseling records is to not 

report domestic abuse. The law should be able to do better.