IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30084

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JOHN C. AUSTER,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Knowing that his therapist, Dr. Fred Davis, would convey his threat to its

target, John Auster informed Davis that unless the managers of his workers’

compensation claim continued to pay the benefits that he believed he was owed,

he would “carry out his plan of violent retribution” againstthem and others. The

authorities were called, Auster arrested and indicted for extortion. Though denying his motion to dismiss the indictment, the district court ruled that communications between Auster and his therapist were inadmissible at trial under

United States Court of Appeals

Fifth Circuit

F I L E D

February 11, 2008

Charles R. Fulbruge III

Clerk
No. 07-30084

1 See, e.g., Hutchinson v. Patel, 637 So. 2d 415, 424 (La. 1994) (citing LA. REV. STAT.

ANN. 9:2800.2).

2

In argument to the district court, Auster’s lawyer conceded that Auster “was in fact

on occasion told that his threats of violence would be communicated to CCMSI.” Likewise,

when Ginzburg related to Auster, after Auster had threatened CCMSI on a separate occasion,

that CCMSI had been warned, Auster stated that “he had expected that [Ginzburg] would do

justthat.” Auster introduced into evidence a letter from Davis to CCMSI wherein Davis stated

that “I have had to exercise my duty to warn, with [Auster’s] knowledge, several times when

he was in danger of acting violently . . . . Mr. Auster is well aware of my position regarding

violence and has agreed that he understands that I have such an obligation. This understanding has not interfered in his reporting of homicidal intentions in the past.”

2

the psychotherapist-patient privilege. The government appeals that interim order, and we reverse and remand, because Auster had no reasonable expectation

of confidentiality when he made his threat.

I.

Auster, a retired New Orleans police officer, has been receiving workers’

compensation benefits since 1989. Cannon Cochran Management Services, Inc.

(“CCMSI”), manages Auster’s benefit claim. Auster is treated for paranoia, anger, and depression and has threatened various individuals over the years. He

often makes his threats during sessions with his two therapists, Davis and Dr.

Harold Ginzburg, and his therapists then relaySSpursuant to their “duty to

warn”1SShis threats to their targets. Auster admits that he is aware that his

threats are communicated in that way.2

Auster’s relationship with CCMSI is strained. His anger regarding the

administration of workers’ compensation settlement is a frequenttopic of therapy. In the past, after particularly troubling sessions, Auster’s therapists have

felt compelled to warn CCMSI employees about his potential for violence.

In September 2006, CCMSI informed Auster that it would stop paying a

portion of his benefits beginning on October 1, 2006. On September 13, Auster

discussed the pending partial termination of benefits with Davis, specifically
No. 07-30084

3 Title 18 U.S.C. § 1951 states that

(a) Whoever in any way or degree obstructs, delays, or affects commerce or

the movement of any article or commodity in commerce, by robbery or extortion

or attempts or conspires so to do, or commits or threatens physical violence to

any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than

twenty years, or both.

. . . .

(2) The term “extortion” means the obtaining of property from another, with

his consent, induced by wrongful use of actual or threatened force, violence, or

fear, or under color of official right.

3

threatening CCMSI personnel, city authorities, and police officials. Davis sent

Keith Smith, a CCMSI employee responsible for Auster’s claim, a letter warning

that it was Auster’s position that if “CCMIS [sic] persists in their position,” that

would “serve as a provocation for him to carry out his plan of violent retribution

against a list of persons he feels have caused him injury.” Davis alerted CCMSI

that Auster had stated that he possessed “stockpiles of weapons and supplies to

provide the basis for his actions.” October 2 was marked as the date of “violent

retribution.”

When Smith received Davis’s letter, he became concerned, bought a gun

for self-defense, and called the police, who notified the FBI; Auster was arrested

on September 29. The United States filed an extortion complaint against Auster

under 18 U.S.C. § 1951,3 alleging that he made his threat with knowledge and

intent that Davis would convey it to CCMSI, thereby causing CCMSI to submit

to his demands. The magistrate judge and district court, respectively, held detention hearings and took evidence. 

Auster unsuccessfully moved to dismiss the complaint; a grand jury indicted him for “attempt[ing] to obtain property of CCMSI with the consent of

CCMSI having been induced by the wrongful use of threatened force, violence

and fear, in that the defendant did communicate to CCMSI, via his treating psy-
No. 07-30084

4

“In every state, the therapist-patient relationship is given some level of protection in

court cases; but all such privilege laws contain exceptions that allow a psychologist’s records

or testimony to be admitted as evidence in certain circumstances.” Mary Alice Fisher, Protect-

(continued...)

4

chotherapist,” his threat of violence if his benefits were reduced.

Before the indictment issued, Auster unsuccessfully argued to the magistrate judge that the communications between him and Davis were privileged.

After a hearing, the court suppressed the communications, citing the psychotherapist-patient privilege.

II.

A.

“‘Except as otherwise required by the Constitution of the United States’

or other authority listed in Rule 501, . . . privilege[s] ‘shall be governed by the

principles of the common law as they may be interpreted by the courts of the

United States in the light of reason and experience.’” United States v. Robinson,

121 F.3d 971, 974 (5th Cir. 1997) (quoting FED. R. EVID. 501). We review factual

findings underlying a privilege ruling for clear error and the application of legal

principles de novo. Id.

B.

“For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a

right to every man’s evidence.” United States v. Bryan, 339 U.S. 323, 331 (1950)

(internal citations and quotations omitted). This “fundamental principle,”Trammel v. United States, 445 U.S. 40, 50 (1980), counsels that privileges “are not

lightly created nor expansively construed, for they are in derogation of the

search for truth.” United States v. Nixon, 418 U.S. 683, 710 (1974). 

The psychotherapist-patient privilege is a recognized privilege.4 Though
No. 07-30084

4

(...continued)

ing Confidentiality Rights: the Need for an Ethical Model, AM.PSYCHOLOGIST, Jan. 2008, at 10.

5 The Court added that

[a]lthough it would be premature to speculate about most future developments

in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of

harm to the patient or to others can be averted only by means of a disclosure by

the therapist.

Jaffee, 518 U.S. at 18 n.19. Although we decline to rule on whether there is a dangerous-patient exception to the psychotherapist-patient privilege, we note that the foregoing footnote

demonstrates that the Court viewed the privilege as limited in scope. Moreover, because the

Court contemplated that the privilege must give way in some instances involving dangerous

patients, even where there is confidentiality, it follows a fortiorithat the privilege is inapplicable in similar situations involving dangerous patients where there is no confidentiality.

5

declining to “delineate [the privilege’s] full contours”in a way that would “govern

all conceivable future questions in this area,” Jaffee v. Redmond, 518 U.S. 1, 18

(1996), the Court recognized that this privilege can be appropriate in certain

circumstances.5 The Court, however, mindful of the burden imposed on the judiciary’s truth-seeking function, unambiguously limited the psychotherapist-patient privilege’s applicability to those instances in which the patient’s statement

was made in confidence, holding thatthe “privilege covers confidential communications made to licensed psychiatrists and psychologists[, and] confidential communications made to licensed social workers in the course of psychotherapy.” Id.

at 15 (emphasis added). 

Jaffee’s explicit confidentiality requirement is fatal to Auster’s claim of

privilege. Because Auster knew, when he made the September 13 threat, that

it would be forwarded to CCMSI, his privilege claim fails, because he had no

reasonable basis to conclude that the statement was confidential. As a matter

of law, where the confidentiality requirement has not been satisfied, the psycho-
No. 07-30084

6 See, e.g., 1 CHARLES MCCORMICK, MCCORMICK ON EVIDENCE § 72 (Kenneth S. Broun

ed., 6th ed. 2006) (requiring for all privileges that “[t]he communications must originate in a

confidence that they will not be disclosed . . . .”) (quoting 8 JOHN H. WIGMORE, EVIDENCE IN

TRIALS AT COMMON LAW § 2285 (John T. McNaughton ed., rev. ed. 1961)). For a helpful discussion of the privilege as recognized in federal court under rule 501 and as recognized in Jaffee, see generally 2 STEPHEN A. SALTZBURG,MICHAEL M.MARTIN & DANIEL J. CAPRA, FEDERAL

RULES OF EVIDENCE MANUAL § 501.02[6] (LexisNexis 9th ed. 2006).

7 The district courtfoundthat“[t]he communicationtohis ongoing,treating psychotherapist was confidential and concerned the subject matter of Auster’s treatment.” That factual

finding of confidentiality is clearly erroneous. As noted, see supra note 2, Auster’s lawyer conceded that Auster “was in fact on occasion told that his threats of violence would be communicated to CCMSI.” Davis and Ginzburg also have informed Auster that they have a legal duty

to convey his threats to those at risk, and, in a letter Auster introduced into evidence, Davis

stated unequivocally that “Mr. Auster is well aware of my position regarding violence and has

agreed that he understands that I have such an obligation.” 

8 Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976) (recognizing duty of

mental health therapists to warn third parties of potential violence in certain circumstances).

Tarasoff, a nationally recognized authority,triggered what has beendescribedas “ethical-legal

confusion” for mental health practitioners. Fisher, supra note 4, at 4.

9 Under Louisiana law, “[w]hen a patient has communicated a threat of physical violence, which is deemed to be significant in the clinical judgment of the treating psychologist

or psychiatrist . . . against a clearly identified victim or victims, coupled with the apparent intent and ability to carry out such threat, the psychologist . . . or the psychiatrist . . . treating

such patient and exercising reasonable professional judgment, shall not be liable for a breach

of confidentiality for warning of such threat or taking precautions to provide protection from

the patient’s violent behavior.” LA. REV. STAT. ANN. 9:2800.2. This has been construed as a

“duty to warn.” Hutchinson, 637 So. 2d at 424.

10 See, e.g., Jaffee, 518 U.S. at 13 n.12 (“At the outset of their relationship, the ethical

therapist must disclose to the patientthe relevantlimits onconfidentiality.”)(internal citations

and quotations omitted).

6

therapist-patient privilegeSSas with other privileges6SSdoes not apply.

Auster was informed repeatedly by his therapists that his violent threats,

although made during therapy, would be communicated to his potential victims.7

That is unremarkable; his therapists have a Tarasoff duty8to convey “significant”“threat[s] of physical violence” against“clearly identified . . . victims,”9 and

they also have an ethical duty to inform Auster of thatlegal duty.10 Consequent-
No. 07-30084

11 Auster argues that the letter Davis sent was not a Tarasoff letter, given that on September 20, 2006, Davis sent CCMSI another letter indicating that if Auster persisted in his

threats, Davis would send a Tarasoff letter. Auster does not explain how Davis legally and

ethically could have sent the September 13 letter to CCMSI, detailing Auster’s therapy, unless

thatletter fell under the Tarasoff exception to the confidentiality obligation. The district court,

likewise, ruled that “Dr. Davis complied with the duty to protect by informing CCMSI of

potential threats,” a factual finding that we see no reason to question. But whether it was a

Tarasoff letter, in Davis’s clinical opinion, is ultimately beside the point: The controlling question is whether Auster had a “reasonable expectation of confidentiality,” Robinson, 121 F.3d

at 976, when he made the threat. Because he knew he was making a threat of physical

violence against specific victims to commence on a specific date, he also knew that his statement was of the sort that Davis had a duty to disclose. Under these circumstances, any expectation of confidentiality would have been “manifestly unreasonable.” Id.

12 See United States v. Chase, 340 F.3d 978 (9th Cir. 2003) (en banc); United States v.

Hayes, 227 F.3d 578 (6th Cir. 2000). 

13 See United States v. Glass, 133 F.3d 1356 (10th Cir. 1998) (recognizing a dangerouspatient exception to the psychotherapist-patient privilege).

7

ly, when Auster made the threat, he knew it would be relayed to CCMSI.11 He

therefore had no “reasonable expectation of confidentiality,” Robinson, 121 F.3d

at 976, in his threatening statement, and without such a reasonable expectation,

there is no privilege. 

C.

The federal circuits are in disagreement in this regard. The Sixth and

Ninth Circuits have held that such statements, though made without a reasonable expectation of confidentiality, are nonetheless privileged,12 and the Tenth

Circuit has held that, in such situations, the psychotherapist-patient privilege

must give way, though for reasons different from those we have articulated.13

We respectfully disagree with those circuits that have extended Jaffee by holding

that even if a patient knows that a threat is not made in confidence, any statements made to the therapist are privileged in a federal trial. Those courts have

held, thus, that confidentiality is not a requirement for the applicability of the

psychotherapist-patient privilege, the Ninth Circuit’s holding being explicit in
No. 07-30084

14 See Chase, 340 F.3d at 985-87. 

15 See Hayes, 227F.3dat 589 (Boggs, J., dissenting)(“Hayes waived any privilege purely

and simply . . . by continuing to threaten after he had been given notice that his threats would

not be held in confidence.”).

16 See, e.g., United States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976) (“It is vital to a

claim of privilege that the communication have [sic] been made and maintained in confidence.

Thus courts have refused to apply the privilege to information that the client intends his attorney to impart to others, or to communications made in the presence of third parties.”) (internal citations omitted). 

8

that regard.14 That viewSSwhich is notin accord with Jaffee or testimonial privileges generally15SSis open to question.

In support for their position, the Sixth and Ninth Circuits assert that “[i]f

the federal evidentiary privilege were tied to the states’ disclosure laws, then

similarly situated patients would face different rules of evidence in federal criminal trials,” Chase, 340 F.3d at 987, and “it cannot be the case that the scope of

a federaltestimonial privilege should vary depending upon state determinations

of what constitutes ‘reasonable’ professional conduct,” Hayes, 227 F.3d at 584.

But this misunderstands the effect of state law. Federal law does not depend on

state law but instead is turning on the lack of confidentiality, regardless of the

reason. Though, in certain instances, state law may play a role in negating

confidentiality (just as other factors can nullify it, e.g., the presence ofthird parties16),the operative testis a federal one: whether there was a “reasonable expectation of confidentiality” when the statement was made.

Likewise, both the Sixth and Ninth Circuits erroneously conclude that in

weighing the pros and cons of extending the psychotherapist-patient privilege,

the harm in permitting material obtained from a therapy session into a criminal

trial outweighs its benefits. This is a miscalculation. It is true that in Jaffee,

518 U.S. at 10, the Court noted that the “private ends” served by a psychotherapist-patient privilege include “an atmosphere of confidence and trust,” something

that is necessary for effective therapy. And, at the same time, the Court ob-
No. 07-30084

17 In fact, after “hold[ing] that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled

disclosure,” Jaffee, 518 U.S. at 15, the Court added a footnote that underscores the appropriateness of a per se rule requiring confidentiality before the privilege is applicable: “Like

other testimonial privileges, the patient may of course waive the protection,” id. at 15 n.14.

By both expressly noting the possibility of waiver and tying the psychotherapist-patient privilege to other testimonial privileges (which all require that the statements be made in confidence), the Court reiterated the fundamental nature of confidentiality. 

18 Cf. Case Comment, Sixth Circuit Holds That Tarasoff Disclosures Do Not Vitiate

Psychotherapist-Patient Privilege, 114 HARV.L. REV. 2194, 2199 (2001) (“The critical question

is thus whether a significant number of patients who disclose their violent impulses to their

psychotherapists even after learning of the Tarasoff exception would become unwilling to do

so when advised that if they actually acted on those impulses, their psychotherapists might

have to testify against them. The Hayes majority offered no rationale for its belief that there

would be many such patients, and, in fact, psychological literature suggests that few patients

would react in this way. Those patients who remain in therapy even after being advised of the

limits on confidentiality typically do so because they recognize their need for help and believe

that psychotherapy may provide it.”) (internal citations omitted).

19 The Sixth and Ninth Circuits concedeSSas they mustSS that these warnings have at

least some marginal effect on a patient’s willingness to speak openly with his therapist. See

Hayes, 227 F.3d at 584-85; Chase, 340 F.3d at 990. 

9

served that the privilege can be relatively costless, because “[w]ithout a privilege, much of the desirable evidence to which litigants . . . seek access . . . is unlikely to come into being.” Id. at 12. These considerations led the Court to conclude that the psychotherapist-patient privilege, at least in some form, should

be recognized.

But, as the Jaffee Court implicitly recognized by explicitly requiring confidentiality,17

this cost-benefit calculation is inapt where the patient already

knows the confidence will not be kept. Consider the marginal impact on effective

therapy of allowing a statement into evidence that the patient knew would be

communicated to third parties when he uttered it.18 In such a case, the “atmosphere of confidence and trust” has already been severely undermined.19 Now,

the patient’s target and deepest enemy, “the person the deranged individual

hates so much that he plans to kill him,” Chase, 340 F.3d at 997 (Kleinfeld, J.,

concurring), knows the patient’s secret. And for sincere threats, the target can
No. 07-30084

20 All are “concerned about deranged murderous individuals stopping valuable therapy

because” they do not trust their therapists, but if that were to happen, “it doubtless already

[will]have occurred [when the patientlearns that]the psychotherapist[will] betray[]their confidences to their worst enemies.” Chase, 340 F.3d at 997 (Kleinfeld, J., concurring).

21 “[O]nce information is released, both client and psychologistlose control over redisclosure.” Fisher, supra note 4, at 10.

10

now defend himself. If the therapist’s professional duty to thwart the patient’s

plans has not already chilled the patient’s willingness to speak candidly, it is

doubtful thatthe possibility thatthe therapist might also testify in federal court

will do so.20

The deleterious effect of a Tarasoff warning on the “atmosphere of confidence and trust” is further reinforced by the knowledge thatthe intimate details

of therapy will be spread to more than just the target of the threat.21 There is,

after all, no obligation that the target keep the Tarasoff warning confidential,

and itis unrealistic to believe that he will do so;there are likely mutual acquaintances between the target and the patientSSe.g., friends, co-workers, familySS

and the target will almost certainly tell them, if for no other reason than to let

them know that there is a potentially serious problem with the patient and that

everyone ought to be on the lookout for trouble. 

Thus, knowing that anyone, or everyone, might be privy to the secret will

embarrass the patient and will detrimentally affect his relationships with others. Such a Tarasoff disclosure might also cost the patient his job. The marginal

increase,therefore, in effective therapy achieved by privileging psychotherapistpatient communications at trial, but still allowing the therapist to warn threatened third parties, is de minimis.

Moreover, it is not even true, under the Sixth and Ninth Circuits’ standard,that a therapist cannot assistin having a patientlocked away. Both courts

acknowledge that a psychotherapist can testify in civil commitment hearings.

See id. at 991; Hayes, 227 F.3d at 585. Though there is a legal distinction be-
No. 07-30084

22 Cf. O’Connor v. Donaldson, 422 U.S. 563, 575 (1975) (“A finding of ‘mental illness'

alone cannot justify a State’s locking a person up against his will . . . .”) (emphasis added).

23 Moreover, “[i]n the event that a patient actually carried out or attempted to carry out

threats that his psychotherapist had already disclosed, the psychotherapist’s testimony could

be critically important in establishing such elements as identity, motive, and absence of mistake.” Case Comment, supra note 18, at 2199.

24 The Ninth Circuit posits that the lack of confidentiality is not dispositive, because it

is a legal “fiction that the patient knows that a disclosure for one purpose (warning a potential

target of violence) is a disclosure for all purposes (including incriminating testimony in a federal criminal trial),” and, if “a patient actually does know the law[, then] . . . the legal rule itself, whatever it may be, will govern the patient’s expectations.” Chase, 340 F.3d at 988-89.

(continued...)

11

tween criminal incarceration and involuntary civil commitment, the nuanceSSin

terms of trust and confidenceSSlikely does not matter much to the fellow committed.22 Because, “by definition,” patients “reject the prospect of [forced] hospitalization,” Hayes, 227 F.3d at 585, “reason and experience” dictate that it is unlikely that many patients will be dissuaded from seeking therapy by the additional chance that, aside from being committed against their will because of

whatthey say to their therapists,they may also be criminally incarcerated based

in part on those same statements.

The slight marginal therapeutic benefit of allowing the therapist to divulge

confidences and to testify in civil commitment hearings, but not in federal criminaltrials, mustthen be weighed againstthe marginal increase in “having truth

vindicated and justice done.” Chase, 340 F.3d at 997 (Kleinfeld, J., concurring).

The public interest at stake in a criminal trial of any sort is substantial, more

so than in a civil case like Jaffee. But the criminal issues that are raised by cases like Auster’s are of a more serious sort still, because the Tarasoff duty does

not come into play lightly. Those cases are the ones that are the most serious,

so any marginal increase in the admissibility of probative evidence in criminal

proceedings is especially valuable.23 Consequently, where a patient has no reasonable expectation of confidentiality, the cost-benefit scales favor disclosure.24
No. 07-30084

24 (...continued)

Even if we were to accept that Jaffee permits us to interpret “confidential” to mean merely confidential-at-law and not (the more intuitive) confidential-in-fact, the above discussion demonstrates that we should not. As explained, the slight marginal benefit on effective therapy

achieved by recognizing the privilege’s applicability where a patient knows a threat will be conveyed is substantially outweighed by the marginal costs. The Ninth Circuit’s position is thus

a doctrinal cul-de-sac, interesting but leading nowhere.

25 See, e.g., id. at 986 (“Almost all states . . . recognize the distinction between confidentiality (which is affected by the Tarasoff duty) and testimonial privilege (which is not).”). 

26 See Jaffee, 518 U.S. at 12 (“[A]ll 50 states and the District of Columbia have enacted

into law some form of psychotherapist privilege.”).

27 See Guerrier v. Florida, 811 So. 2d 852, 855 (Fla. App. Ct. 2002) (“[T]he Legislature

intended to allow admission of the psychiatrist’s testimony in a subsequent prosecution of the

dangerous patient for offenses committed against the victim.”).

28 See W. VA.CODE § 27-3-1 (“Confidential information may be disclosed . . . . [p]ursuant

to an order of any court based upon a finding that the information is sufficiently relevant to

a proceeding before the courtto outweigh the importance of maintaining the confidentiality established by this section . . . [in order t]o protect against a clear and substantial danger of imminent injury by a patient or client to himself, herself or another . . . .”); CONN. GEN. STAT. §

52-146c (“[I]n civil and criminal actions . . . all communications shall be privileged and a psychologist shall not disclose any such communications . . . . [unless i]f the psychologist believes

in good faith that there is risk of imminent personal injury to the person or to other individuals

(continued...)

12

The Sixth and Ninth Circuits also opine that because the majority of states

permit psychotherapists to issue Tarasoff or other similar warnings but not to

testify at trial, the federal courts should not let them testify either.25 This justification too is wanting. There is not a uniform consensus among the states regarding statements made with no reasonable expectation of confidentiality.26

Even a cursory review of the laws of the states reveals wide divergences.

For instance, in California “a psychotherapist not only must disclose to authorities or intended victims the existence of a dangerous patient, [he] also may testify to threats made during the course of therapy.” Chase, 340 F.3d at 986 (citing

CAL. EVID. CODE § 1024). A decision from an appellate court suggests that Florida follows California.27 States like West Virginia, Connecticut, and Wyoming

also seem to favor the testimony’s admission.28 North Carolina’s code
No. 07-30084

28 (...continued)

or risk of imminent injury to the property of other individuals.”); WYO.STAT. ANN. § 33-27-123

(“In judicial proceedings, whether civil, criminal, or juvenile . . . a patient. . . may refuse to

disclose or prevent the disclosure of confidential information [except] . . . . [w]here an

immediate threat of physical violence against a readily identifiable victim is disclosed to the

psychologist . . . .”).

29 See N.C. GEN. STAT. § 8-53.3 (“Any . . . judge in the district in which the action is

pending may . . . compel disclosure, either at the trial or prior thereto, if in his or her opinion

disclosure is necessary to a proper administration of justice.”).

30 See Tex. R. Evid. 510 (limiting the privilege to civil cases). It is uncertain whether

Virginia follows Texas in this regard. The particular provision of the Virginia code cited in Jaffee is expressly limited to civil matters. See Jaffe, 518 U.S. at 11 n.12 (citing VA. CODE ANN.

§ 8.01-400.2). 

31 The Sixth and Ninth Circuits also focus on the fact that it does not benefit the mentally ill to incarcerate them, and, implicitly, that it is not particularly blameworthy where the

mentally ill make threatening remarks during therapy, even if the threats violate the law.

This is a policy question for Congress, notthe courts, because “such tender concern for criminal

evidence is [not] required by the common law, or by reason and experience, when the patient

has been put on notice.” Hayes, 227 F.3d at 588 (Boggs, J., dissenting). 

13

contemplates judges’ deciding on a case-by-case basis whether to exclude such

evidence,29 and Texas does not recognize the psychotherapist-patient privilege

at all in criminal cases.30

Moreover, for the reasons laid out above, it would not significantlySSif at

allSSundermine state laws to hold that a defendant cannot claim the protections

of the psychotherapist-patient privilege if he had actual knowledge, when making the statements, that they would not be kept confidential. It is unlikely that

any patient, knowing that his threats will be relayed to the relevant target, will

be substantially deterred from seeking therapy by the additional possibility that,

although the therapist will not testify in a state criminal trial, the patient may

some day be on trial for a federal crime, and his therapist might be called to testify. In summary, because Auster concedes that he had actual knowledge that

his threat would be conveyed to CCMSI, his threat was not confidential, and,

under Jaffee, the psychotherapist-patient privilege does not apply.31
No. 07-30084

14

III.

Because Auster’s non-confidential statement cannot, as a matter of law,

be privileged, we need not address whether the district court improperly suppressed evidence sua sponte, erroneously placed the burden of disproving the

privilege on the government, or abused its discretion in failing to hold an evidentiary hearing. We also need not decide whether there is a dangerous-patient or

crime-fraud exception to the psychotherapist-patient privilege.

For the foregoing reasons, the order of suppression is REVERSED, and

this matter is REMANDED for further proceedings.