State v. Lammi

Under ORS 419B.040(1), in the case of abuse of a child, the privileges created in ORS 40.230 to 40.255, including the psychotherapist-patient privilege, shall not be a ground for excluding evidence regarding a child’s abuse, or the cause thereof, in any judicial proceeding resulting from a report made pursuant to ORS 419B.010 to 419B.050.

Defendant was convicted of 47 sex offenses against his daughter, and sentenced to 600 months of incarceration. The arrest and prosecution stemmed from an investigation where a friend of Defendant alleged that he observed interactions between Defendant and Defendant’s daughter that seemed sexual. Additionally, the friend reported that he was told things about their relationship that caused further concerns. Defendant assigned error to the trial court’s refusal to conduct an in camera review of his daughter's counseling records. In State v. Reed, 173 Or App 185, 197 (2001), the defendant was entitled to an in camera review of his daughter’s counseling records if the defendant demonstrated that such a review “might yield” evidence subject to disclosure. In this case, the Court held that Defendant did so. The Court found that Defendant demonstrated that his daughter started counseling soon after his arrest, and in her counseling sessions, there might have been statements about whether the abuse had, in fact, occurred. The Court held that the trial court erred in concluding otherwise. Vacated and remanded.