IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

CRIME VICTIMS R.S. and S.E., Petitioners,

v.

THE HONORABLE PETER A. THOMPSON, Judge of the SUPERIOR 

COURT OF THE STATE OF ARIZONA, in and for the County of 

MARICOPA, Respondent Judge,

TEDDY CARL VANDERS, Real Party in Interest.

No. 1 CA-SA 19-0080

Petition for Special Action from the Superior Court in Maricopa County

No. CR2017-132367-001

The Honorable Peter A. Thompson, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Jamie Balson Attorney at Law, Sun City

By Jamie Balson

Counsel for Petitioners

Maricopa County Office of the Legal Advocate, Phoenix

By Elyse Anne Fune, James P. Leonard

Counsel for Real Party in Interest

FILED 11-21-2019
RS/SE v. HON. THOMPSON/VANDERS

Opinion of the Court

2

OPINION

Chief Judge Peter B. Swann delivered the opinion of the court, in which 

Presiding Judge James B. Morse Jr. and Judge Kenton D. Jones joined.

S W A N N, Chief Judge:

¶1 In this case, we hold that the physician-patient privilege does 

not yield to the request of a criminal defendant for information merely 

because that information may be helpful to his defense.

¶2 Teddy Carl Vanders is charged with second-degree murder. 

On his request, the superior court ordered a hospital to disclose the

deceased victim’s privileged mental health records for an in camera review. 

Siblings of the victim petition for special action relief from that order.

¶3 Vanders’s argument is that his constitutional rights overcome 

a statutory privilege. While it is true that the privilege cannot withstand a 

direct conflict with a constitutional right, a defendant’s due process right to 

a fair trial does not create a right to discovery any greater than those rights 

created by Ariz. R. Crim. P. (“Rule”) 15.1 and Brady v. Maryland, 373 U.S. 83 

(1963). We hold that to be entitled to an in camera review of privileged 

records as a matter of due process, the defendant must establish a 

substantial probability that the protected records contain information 

critical to an element of the charge or defense or that their unavailability 

would result in a fundamentally unfair trial. Because Vanders did not 

establish such a probability, the court erred by granting an in camera review 

of the victim’s privileged records. We therefore accept jurisdiction and 

grant relief.

FACTS AND PROCEDURAL HISTORY

¶4 On July 13, 2017, Vanders called 9-1-1 and told the operator 

that he had just shot and killed his long-term girlfriend, M.S., during a 

domestic dispute. He described the incident to the operator, saying “[M.S.] 

was acting evil and possessive. She was crawling around. It was insane 

and not normal.” He also said that M.S. had abused him throughout their 

relationship, and that he had “been threatened for many years.” He told 

the operator that M.S. had been to a mental hospital and that he thought 

she had been diagnosed with a mental illness.
RS/SE v. HON. THOMPSON/VANDERS

Opinion of the Court

3

¶5 Before trial, Vanders requested that the court compel 

“Magellan Hospital/Urgent Psychiatric Care Center” to disclose for an in 

camera review M.S.’s privileged mental health records from a visit six years 

before her death. Vanders claimed that “the nature of the requested records 

are essential to his listed [justification] defenses and to his ability to 

effectively examine witnesses.” In support of his motion, Vanders cited his 

statements to the 9-1-1 operator and two police reports from 2009 and 2011, 

both of which listed him as the victim of domestic assault. In the 2009 

incident, M.S. was taken into custody after she admitted to hitting Vanders 

while both were intoxicated. In the 2011 incident, while the couple were 

intoxicated, M.S. broke open the couple’s gun safe to get a gun to kill 

herself, and Vanders physically restrained her. According to the report, 

M.S. was “hysterical and kept saying she wanted to kill herself,” and, once 

in custody, asked for an officer’s gun so she could kill herself. The police 

took her to Magellan Hospital “due to [her] current mental state,” where 

she voluntarily checked herself in and told staff that “she did need help and 

wanted to talk to them about suicide.”

¶6 Relying on State ex rel. Romley v. Superior Court (Roper), 172 

Ariz. 232 (App. 1992), the superior court found that Vanders’s due process 

rights required disclosure of M.S.’s privileged records for an in camera 

review. The court granted Vanders’s motion, and M.S.’s siblings, as victims 

under Arizona’s Victims’ Bill of Rights (“VBR”), brought this special action 

challenging the ruling. See A.R.S. §§ 13-4401(19), -4437(A).

JURISDICTION

¶7 Special action jurisdiction is appropriate when there is no

equally plain, speedy, and adequate remedy by appeal, Ariz. R.P. Spec. Act. 

1(a), and when the case presents a purely legal issue of statewide 

importance and first impression, Gilbert Prosecutor’s Office v. Foster, 245 

Ariz. 15, 17, ¶ 5 (App. 2018). We accept jurisdiction because there is no 

adequate remedy by appeal when a party challenges an order to produce 

privileged documents, see Roman Catholic Diocese of Phx. v. Superior Court 

(State), 204 Ariz. 225, 227, ¶ 2 (App. 2003), and this case presents a legal 

question of statewide importance that will arise again, cf. Duquette v. 

Superior Court (Lamberty), 161 Ariz. 269, 271 (App. 1989).

DISCUSSION

¶8 The petitioners argue that the superior court erred by 

granting Vanders’s request for an in camera review of M.S.’s medical 

records because the records are protected under the VBR and the physician-
RS/SE v. HON. THOMPSON/VANDERS

Opinion of the Court

4

patient privilege, and because Vanders failed to establish a superseding 

constitutional right to the protected records. Generally, we will not disturb

the superior court’s ruling on a discovery matter absent an abuse of 

discretion. State v. Fields, 196 Ariz. 580, 582, ¶ 4 (App. 1999). But we review 

the legal principles on which the court bases its discovery ruling, including

whether a privilege applies, de novo. State v. Zeitner, 246 Ariz. 161, 164, ¶ 

8 (2019). Because we can resolve this special action based on the statutory 

privilege, we need not reach the court’s ruling regarding the VBR. See 

Goodman v. Samaritan Health Sys., 195 Ariz. 502, 505, ¶ 11 (App. 1999) (“It is 

sound judicial policy to avoid deciding a case on constitutional grounds if 

there are nonconstitutional grounds dispositive of the case.”).

I. VANDERS’S DISCOVERY RIGHT DOES NOT OVERCOME THE 

PHYSICIAN-PATIENT PRIVILEGE.

¶9 It is well-established that “[t]here is no general constitutional 

right to discovery in a criminal case, and Brady did not create one.”

Weatherford v. Bursey, 429 U.S. 545, 559 (1977); see Brady, 373 U.S. 83; State v. 

Connor, 215 Ariz. 553, 561–62, ¶ 21 (App. 2007). In Brady, the Supreme Court 

held that the government’s failure to disclose evidence in its possession that 

was both favorable to the defendant and material to guilt or punishment 

violated the defendant’s due process rights. 373 U.S. at 87; see United States

v. Bagley, 473 U.S. 667, 682 (1985) (“[E]vidence is material only if there is a 

reasonable probability that, had the evidence been disclosed to the defense, 

the result of the proceeding would have been different.”). Even considering 

the right established in Brady, “[t]he federal constitution gives the defense 

no greater right to discovery than exists under state law.” Roper, 172 Ariz. 

at 236 (citing Pennsylvania v. Ritchie, 480 U.S. 39 (1987)).

¶10 We first examine whether Vanders’s state right to discovery 

entitles him to access M.S.’s privileged records. In Arizona, a criminal 

defendant’s right to disclosure is governed by Rule 15.1, which provides, 

along with other discovery rights, that when a defendant claims a need for 

material or information, the court may order “any person” to produce that 

material or information if the court finds “(A) the defendant has a 

substantial need for the material or information to prepare the defendant’s 

case; and (B) the defendant cannot obtain the substantial equivalent by 

other means without undue hardship.” Rule 15.1(g). On the other hand, a 

person’s medical records are protected from disclosure in a criminal case 

by A.R.S. § 13-4062(4), which prohibits the examination of “[a] physician or 

surgeon, without consent of the physician’s or surgeon’s patient, as to any 

information acquired in attending the patient which was necessary to 
RS/SE v. HON. THOMPSON/VANDERS

Opinion of the Court

5

enable the physician or surgeon to prescribe or act for the patient.”1 This 

statute, though framed as a testimonial privilege, also protects against 

disclosure of privileged medical records. Zeitner, 246 Ariz. at 166, ¶ 18. The 

privilege continues after the patient’s death. Sun Health Corp. v. Myers, 205 

Ariz. 315, 319, ¶ 11 (App. 2003).

¶11 The physician-patient privilege is not absolute, but its 

exceptions generally are limited to those circumstances in which the 

legislature determined that society’s interests in disclosure outweigh a 

patient’s interest in privacy. See, e.g., A.R.S. § 46-453(A) (exempting the 

privilege in cases involving “a vulnerable adult’s exploitation, abuse or 

neglect”); A.R.S. § 13-3806 (requiring physicians to report wounds that may 

have resulted from illegal activity); but see Benton v. Superior Court (State), 

182 Ariz. 466, 469 (App. 1994) (suggesting that the judiciary also has limited

the privilege, but focusing on cases holding that there was no valid

privilege—not creating exceptions to a validly held privilege). The 

privilege-holder may enforce the privilege, but may also waive it. See Bain 

v. Superior Court (Mills), 148 Ariz. 331, 334 (1986). Notably, there is no 

exception for court-ordered disclosure stemming from a defendant’s 

pretrial discovery requests or his constitutional right to present evidence. 

Cf. N.C. Gen. Stat. § 8-53 (North Carolina statute allowing disclosure of 

physician-patient privileged records if a court determines it is “necessary 

to a proper administration of justice”).

¶12 When the defendant’s rule-based right to demand documents 

conflicts with a person’s statutory physician-patient privilege, the privilege 

must prevail. See State v. Hansen, 215 Ariz. 287, 289, ¶¶ 7–8 (2007) (holding

that if the court is unable to harmonize an apparently conflicting statute 

and rule, it must determine whether the matter regulated is procedural or 

substantive, and if substantive, then the statute prevails). Such is the case 

here: both Rule 15.1(g) and A.R.S. § 13-4062(4) provide substantive rights, 

and § 13-4062(4) prevails when the two conflict.

 

1 The petitioners argue that the records are protected by A.R.S. § 13-

4062(4) (physician-patient privilege) and § 32-2085(A) (psychologist-patient 

privilege). The record in this case does not indicate whether the requested 

records were the product of a physician-patient relationship, a 

psychologist-patient relationship, or both. Because § 13-4062(4) and § 32-

2085(A) apply the same protections, the ambiguity in the record does not 

affect our analysis. See Cabanas v. Pineda, 246 Ariz. 12, 17, ¶ 18 (App. 2018).
RS/SE v. HON. THOMPSON/VANDERS

Opinion of the Court

6

II. WE DO NOT EMBRACE ROPER’S BROAD EXTENSION OF A 

DEFENDANT’S RIGHT TO PRESENT A COMPLETE DEFENSE.

¶13 Citing Roper, Vanders suggests that the due process right to 

present a complete defense transforms discovery into a constitutional right, 

which would overcome the statutory privilege.

¶14 Due process requires that a defendant receive a 

fundamentally fair trial, including “a meaningful opportunity to present a 

complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984); see also 

Oshrin v. Coulter, 142 Ariz. 109, 111 (1984). In Roper, this court extended that

right to entitle the defendant to an in camera review, and potentially full 

disclosure, of the victim’s physician-patient privileged records, even when 

those records were not in the possession of the state. Roper, 172 Ariz. at 239.

¶15 The facts in Roper were unique and, importantly, the court did 

not know when it ruled whether the privileged records were in the state’s 

possession. The defendant in that case had stabbed her husband, who 

allegedly suffered from a multiple-personality disorder and was 

manifesting one of his violent personalities at the time of the offense. Id. at 

237. The defendant alleged that she acted in self-defense, and asserted that 

she knew her husband suffered from multiple personalities and that she 

had joined him in at least some counseling sessions for treatment of the 

disorder. Id. at 235, 237. Before trial, the defendant requested disclosure of 

her husband’s medical records. Id. at 234. The superior court granted the 

request and ordered an in camera review of the records based on its finding 

that the defendant showed that the records were “important” and that the 

privilege had been partially waived. Id. at 234–35.

¶16 On appeal, this court held that when a defendant’s due 

process right to a fair trial directly conflicts with the physician-patient 

privilege or the VBR, then due process is the superior right. Id. at 239. 

Although the court acknowledged that a defendant has no constitutional 

right to discovery, it nevertheless held that certain due process rights—like 

the right to a complete defense and effective cross-examination—could 

extend to pretrial proceedings and require disclosure of information in 

preparation for trial. Id. at 236, 240–41. Based on the facts of the case, the 

court concluded that the defendant’s due process rights did require pretrial 

discovery, and because the physician-patient privilege limits discovery, the 

court found that the privilege directly conflicted with the defendant’s due 

process right. Id. at 237–38, 240–41. The court further suggested that the 

Sixth Amendment rights to confrontation and compulsory process may also 
RS/SE v. HON. THOMPSON/VANDERS

Opinion of the Court

7

entitle the defendant to access the privileged records in order to effectively

confront the witnesses against her. Id. at 240.

¶17 This court instructed the superior court to examine the 

records in camera and order disclosure of those records that were “essential 

to presentation of the defense of self-defense” or “essential to the 

determination of the ability of the victim to perceive, recall, and/or 

accurately relate the events of the day in question.” Id. at 235. The court 

did not discuss what standard the superior court should have applied to 

determine whether the defendant was entitled to an in camera review in the 

first place.

¶18 Roper largely based its holding on cases involving privileged 

materials already in the state’s possession (and therefore subject to Brady), or

on cases concerning a defendant’s Sixth Amendment trial-based

confrontation rights. For example, the court cited United States v. Agurs, 427 

U.S. 97 (1976), and McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988)—both

involving information known to the government—for the proposition that 

“a defendant’s due process rights were generally recognized to be violated 

if the victim possessed exculpatory information that was not disclosed to 

the defendant.” Roper, 172 Ariz. at 238. And the court cited Michigan v. 

Lucas, 500 U.S. 145 (1991), and Davis v. Alaska, 415 U.S. 308 (1974)—both 

analyzing, under a Sixth Amendment framework, a trial court’s erroneous 

exclusion of protected records relevant to impeachment—for the broad

proposition that “state laws providing for nondisclosure of information to 

defendants must, in some situations, yield to the constitutional 

confrontation rights of the accused.” Roper, 172 Ariz. at 240. These 

Confrontation-Clause-based cases did not concern court-ordered 

disclosure of privileged records by third parties, but instead addressed

whether the defendant could use protected information, to which the 

defendant already had access, for impeachment. Lucas, 500 U.S. at 147–48, 

152–53; Davis, 415 U.S. at 318–20; see also Ritchie, 480 U.S. at 52 (explaining

that the effect of interpreting the Confrontation Clause to require pretrial

access to information “would be to transform the Confrontation Clause into 

a constitutionally compelled rule of pretrial discovery”).

¶19 No decision binding on this court has held that a defendant’s 

due process right to a fair trial evolves into a general constitutional right to 

discovery, which could then work to overcome an individual’s physicianpatient privilege. And those cases that have allowed invasion of the 

privilege are distinguishable. One line of cases, which generally relies on 

Davis, requires juvenile records to be disclosed to the defendant so the 

defendant can impeach adverse witnesses. See, e.g., State v. Morales, 129 
RS/SE v. HON. THOMPSON/VANDERS

Opinion of the Court

8

Ariz. 283, 285–86 (1981) (holding that, based on the defendant’s showing of 

the content within a protected record, the statute protecting confidentiality 

of juvenile records maintained by the department of corrections was 

defeated by the defendant’s constitutional right to effective crossexamination); State v. Rodriguez, 126 Ariz. 28, 30–31 (1980) (finding an 

exception to the confidentiality of juvenile case dispositions under Ariz. R. 

Evid. 609(d)); State v. Myers, 117 Ariz. 79, 88 (1977) (weighing the state’s 

policy of protecting juvenile offenders against a defendant’s right to 

confront witnesses). But these cases focus on a witness’s juvenile records 

held by the department of corrections, not a person’s physician-patient 

privileged records held by a private entity. The interests involved in 

protecting juvenile records and physician-patient records are distinct.

¶20 Another line of cases has required disclosure of physicianpatient privileged records where there is an exception to the privilege. See 

Ritchie, 480 U.S. at 43–44, 57–58 (noting a Pennsylvania statutory exception 

allowing disclosure of privileged documents to a “court of competent 

jurisdiction pursuant to court order”); Zeitner, 246 Ariz. at 163, ¶ 1 (finding 

a valid statutory exception to A.R.S. § 13-4062(4) for investigations into 

AHCCCS fraud); but see Benton, 182 Ariz. 466 (granting prosecution the 

right to secure a victim’s records after the victim refused to cooperate with 

the prosecution), cited favorably by Zeitner, 246 Ariz. at 166–67, ¶¶ 21, 24. 

Because we are unable to find a legal basis for Roper’s broad proposition

that a defendant’s right to a fair trial creates a constitutional right to pretrial 

discovery, we cannot embrace that decision as a basis for overriding the

physician-patient privilege in the circumstances of this case.

¶21 We agree with Roper that when a defendant’s established due 

process right directly conflicts with a non-federal constitutional right, the 

due process right must prevail. See 172 Ariz. at 236; see also Chambers v. 

Mississippi, 410 U.S. 284, 302 (1973) (holding a defendant’s right to present 

“trustworthy” and “critical” evidence outweighed state’s interest in 

adhering to hearsay rules). The physician-patient privilege often will 

directly conflict with the defendant’s ability to perfect his trial presentation, 

but only in the exceptional case will it directly conflict with a defendant’s 

fundamental right to a fair trial such that the privilege must yield to due 

process. Indeed, the privilege is designed to withstand even a party’s 

demonstrated need for the information it protects—if mere relevance were 

enough to defeat the privilege, it would provide no meaningful protection 

at all. See Jaffee v. Redmond, 518 U.S. 1, 18 (1996) (“An uncertain privilege, 

or one which purports to be certain but results in widely varying 

applications by the courts, is little better than no privilege at all.” (citation 

omitted)); see also Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“[T]he 
RS/SE v. HON. THOMPSON/VANDERS

Opinion of the Court

9

Confrontation Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and 

to whatever extent, the defense might wish.”).

¶22 Accordingly, we reiterate that a defendant does not have a 

general constitutional right to discovery from a third party, and we depart 

from Roper to the extent it implies that such a right exists. We also 

recognize, however, that the physician-patient privilege is not entirely 

impenetrable because in the exceptional case, the privilege could be applied 

to violate a defendant’s due process right to present a defense. See Swidler 

& Berlin v. United States, 524 U.S. 399, 408 n.3 (1998); see also Trombetta, 467 

U.S. at 485; Edward J. Imwinkelried, The New Wigmore: A Treatise on 

Evidence: Evidentiary Privileges §§ 11.1, 11.3 (3d ed. 2019) (noting that even 

purportedly absolute privileges must occasionally yield to a defendant’s 

showing of truly compelling need).

III. A DEFENDANT MUST MAKE A SHOWING OF PREJUDICE 

BEFORE HE IS ENTITLED TO AN IN CAMERA REVIEW OF 

PRIVILEGED RECORDS.

¶23 In State v. Connor, this court deduced that Roper authorized 

infringement of the physician-patient privilege for in camera review “in the 

context of a reasonable possibility that the information sought by the 

defendant included information to which she was entitled as a matter of 

due process.” 215 Ariz. at 558, ¶ 10 (emphasis added). Despite the 

relatively permissive language of this standard for in camera review, 

defendants have not been successful in challenging the privilege. See, e.g., 

State v. Kellywood, 246 Ariz. 45, 48–49, ¶¶ 9–15 (App. 2018) (holding that the 

defendant did not make a specific enough showing that the victim’s 

communications with her counselor, during the time frame that the crime 

was committed, contained exculpatory information); State v. Sarullo, 219 

Ariz. 431, 436–37, ¶¶ 19–21 (App. 2008) (affirming the superior court’s 

denial of the defendant’s request for the victim’s privileged records because 

“nothing in the record” supported the defendant’s assertion that the 

victim’s mental health issues caused her to fabricate the assault); Connor, 

215 Ariz. at 558–59, ¶¶ 11, 13 (affirming superior court’s denial of 

defendant’s request for an in camera review, finding that defendant’s 

broadly worded request for the victim’s mental health records “presented 

no sufficiently specific basis” for infringing on privilege, and that certain 

requested information would be inadmissible under Rules of Evidence). In 

practice, courts arguably have applied a stricter standard than that of a 

“reasonable possibility.” See Kellywood, 246 Ariz. at 52, ¶¶ 30–33 

(Eckerstrom, J., dissenting) (citing applications of the standard and arguing 
RS/SE v. HON. THOMPSON/VANDERS

Opinion of the Court

10

that the majority applied the standard more stringently than its language 

requires). Yet Connor’s extraction of the “reasonable possibility” standard 

from Roper was a result of Roper’s overbroad view of a defendant’s 

constitutional right to discover privileged records, and therefore stands on

shaky ground.

¶24 An in camera review is inherently less intrusive than outright 

disclosure, but it is nevertheless an intrusion and an encroachment on the 

rights guaranteed by A.R.S. § 13-4062(4). We hold that the “reasonable 

possibility” standard for in camera review is inadequate. Instead, a

defendant is entitled to an in camera review of physician-patient privileged 

records not subject to Brady when the defendant demonstrates (1) a 

substantial probability that the protected records contain information that 

is trustworthy and critical to an element of the charge or defense, or (2) that 

their unavailability would result in a fundamentally unfair trial. See

Chambers, 410 U.S. at 302 (holding that due process required allowing the 

defendant to present hearsay testimony that “bore persuasive assurances of 

trustworthiness” and “was critical to [his] defense”); Samiuddin v. Nothwehr, 

243 Ariz. 204, 211, ¶ 20 (2017) (“[D]ue process is flexible and calls for such 

procedural protections as the particular situation demands.” (citing 

Mathews v. Eldridge, 424 U.S. 319, 334 (1976)); Connor, 215 Ariz. at 561, ¶ 22 

(requiring the defendant to demonstrate that his need for the privileged 

information “amount[s] to one of constitutional dimension”).

¶25 While we cannot expect a defendant to know the exact 

contents of the privileged records he has not yet seen, this standard does 

require that the defendant demonstrate a document-specific basis for 

invading the privilege. See Connor, 215 Ariz. at 558, ¶ 11. Because a 

defendant does not have an established constitutional right to discovery, 

the court must start with a strong presumption that the privilege prevents 

access to the information it protects.

IV. VANDERS FAILED TO ESTABLISH A SUBSTANTIAL 

PROBABILITY THAT HE IS ENTITLED TO THE PRIVILEGED 

DOCUMENTS AS A MATTER OF DUE PROCESS.

¶26 Vanders argues that A.R.S. § 13-4062(4) is unconstitutionally 

applied to block access to information to which he is entitled as a matter of 

due process. There is no indication that M.S.’s privilege has been waived 

or that any express or implied legislative exception applies. To demonstrate 

a constitutional entitlement to information and therefore qualify for an in 

camera review, Vanders must demonstrate a substantial probability that 

the information sought is fundamental to an element of the state’s charge 
RS/SE v. HON. THOMPSON/VANDERS

Opinion of the Court

11

against him or his justification defense. He must further demonstrate that 

there is no alternative evidence, and that he would therefore be prejudiced 

by the unavailability of the requested records.

¶27 Vanders argued to the superior court that M.S.’s mental 

health records “are essential to his listed defenses and to his ability to 

effectively examine witnesses.” Vanders showed that M.S. had been the 

aggressor in at least two domestic disputes. On one of those occasions, in 

2011, M.S. checked into a mental health facility to address suicidal 

tendencies after telling police and Vanders that she wanted to kill herself,

and attempting to do so. Vanders also showed that he was the one to call 

9-1-1 after he shot M.S., and that he made several statements to the 9-1-1 

operator consistent with his story that he acted in self-defense. For 

example, he said that M.S. had abused him throughout their long-term

relationship and that she had been acting “insane” that night. These are 

important facts, but Vanders already has possession of the evidence he 

needs to present them.

¶28 Vanders has made no showing to suggest that M.S.’s hospital 

records from six years before her death would likely contain noncumulative information to bolster his defense, and he does not articulate 

how diagnosis of a mental health condition from six years earlier would 

make his case or break the state’s case. And because Vanders was not aware 

of any specific diagnosis at the time he shot M.S., he did not—and cannot—

establish how such a diagnosis may have impacted his actions that day. 

Vanders already has access to similar reliable evidence via a recording of 

the 9-1-1 call and the police reports from the two earlier domestic violence 

incidents. The police narrative in the 2011 incident report, for instance, 

vividly describes M.S.’s aberrant behavior. While the hospital records may 

be helpful corroborating evidence, there is little in this record to show that 

excluding the deceased victim’s medical records would deprive Vanders of 

the ability to refute an element of the state’s charge or to establish an 

element of his justification defense.
RS/SE v. HON. THOMPSON/VANDERS

Opinion of the Court

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CONCLUSION

¶29 For the foregoing reasons, we accept jurisdiction and grant 

relief. M.S.’s mental health records are privileged, and Vanders has not 

established that upholding the privilege and denying his request for an in 

camera review of the records would violate his due process right to a 

fundamentally fair trial.