In the early 1990s, Duke University Health System (DUHS) researchers began a longitudinal study of psychiatric disorders and the need for mental health services among rural and urban youth (the “Study”). Researchers obtained a Certificate from the National Institute of Mental Health because they planned to gather information about psychosocial adversities, substance abuse, illegal behaviors, and genetic information.
The challenge to the Study’s Certificate arose in 2004 from a criminal proceeding in which the defendant was charged with indecent liberties with a minor and statutory rape. His attorney believed that a prosecution witness was a Study participant and requested a court order directing DUHS to supply all Study records about the witness.
The court granted this request, noting that the defendant was entitled to the documents for any exculpatory evidence they might contain, citing Constitutional rights under the 14th
Amendments (due process and the right to confront and cross-examine witnesses), as well as the court’s inherent authority to provide for discovery. Although the order directed that documents remain confidential unless used at trial or sentencing, it allowed them to be read by the state’s chief investigating officer, the witness, the District Attorney’s office staff, the defendant and his wife, the Public Defender’s office staff, the Assistant Public Defender, and any expert the defendant or state might consult (10
The judge issued this order without knowledge of the Certificate; DUHS first learned of the attempt to obtain Study records upon receiving the subpoena. DUHS filed a motion for a protective order, asserting that the records were protected by a Certificate and should not be disclosed. DUHS also argued that the person whose records were sought was only a witness, not the alleged victim; therefore, Study records were unlikely to contain exculpatory evidence. Consistent with the Certificate, DUHS took no position regarding whether the witness was a Study participant.
Based on its review of the motions, an affidavit from the Principal Investigator (PI), and arguments made at the hearing, the court vacated its initial order and granted DUHS’s motion for a protective order, but instructed DUHS to maintain a sealed copy of the records until the final resolution of the case.
A review of the hearing transcript (11
) shows that the judge regarded the defendant’s initial request to access Study records as a routine discovery motion, and was unfamiliar with Certificates. He told DUHS that he had not realized “what kind of egg [he was] cracking open,” but “obviously it had lit a fire under somebody” [p. 9]. Further, although the DUHS attorney and the PI forcefully argued the critical importance of upholding the Certificate, the judge seemed to be most swayed by the argument that the defense was unlikely to find exculpatory evidence. When the judge queried defense counsel about this, the attorney responded that if the witness had never mentioned anything to researchers concerning events about which she was to testify, it would be highly probative. The judge responded, “You mean to say … that you plan to use that in some sort of negative way by impeaching her that she didn’t tell it to [the researchers] but she told it to others? … Well, under those circumstances … I’m reversing the order” [p. 21]. Thus, despite the Certificate, the court weighed other interests and issued the protective order only after deeming the defendant’s reasons for seeking the records insufficient.
The defendant was tried and convicted of all charges. Months later, the defendant’s appellate lawyer filed a motion requesting access to the sealed records. DUHS responded that no information had been presented that justified altering the court’s previous decision, and that the records were not relevant to the issues on appeal.
A hearing was held before the same judge who had previously denied the defendant access to the documents. This time, however, he ordered that a copy of the sealed documents be given to the defendant’s counsel. The judge limited dissemination of the materials to the defendant’s counsel and the state’s counsel. They could not be disclosed to anyone else and arguments based on their contents could only be made in a separate sealed brief or addendum.
The hearing transcript (12
) again provides insight into the judge’s reasoning. He suggested that it would be puzzling to ask the appellate court to decide if the sealed records were relevant when the defense attorney arguing their relevance had never seen them. The judge decided, “Let’s just produce [the records]; let [the defense] review it. If there’s something in there for them, fine. If not, close them up and send them back” [p. 8]. Again, the court balanced the importance of confidentiality against the defendant’s interests, but this time resolved the conflict by allowing the defense attorney tightly restricted access.
DUHS filed a notice of appeal, again asserting the Certificate and citing Newman
as particularly relevant, arguing that participants “must be given genuine assurances of confidentiality for investigators to obtain candid, meaningful, and wide participation in the study” (13
). DUHS also argued that the defendant had failed to show the documents were relevant to his defense. Pursuant to the court order, however, DUHS delivered the documents to the defendant’s appellate counsel.
The defendant’s brief contained an 83-page sealed appendix based on the Study records. In the unsealed portion of the brief, the defendant’s attorney argued that Newman
did not govern this situation because “[Newman
] involves the State seeking information for use in a criminal prosecution as opposed to [this] case which involves a criminal defendant who has been afforded the constitutional right to due process and confrontation to gain favorable and material information for his defense” (14
After hearing from DUHS and defense counsel, the Court of Appeals concluded that the Study records were not material. It vacated the order granting defense counsel access, but confidentiality had already been compromised. Having decided the defendant was not entitled to the records because they were not material, the Court declined to consider DUHS’ argument that the confidentiality of the documents was statutorily privileged (15
), thus failing to address whether the Certificate would have protected the records, had they been material to the defendant’s case.