NCJ Number
51102
Journal
Journal of Criminal Law and Criminology Volume: 69 Issue: 3 Dated: (FALL 1978) Pages: 311-321
Date Published
1978
Length
11 pages
Annotation
THE EVOLVING BODY OF LAW CONCERNING THE CONFIDENTIALITY OF COMMUNICATIONS BETWEEN A CRIMINOLOGIST AND HIS SUBJECT IS REVIEWED, WITH ATTENTION TO PROBLEMS EXPERIENCED BY RESEARCHERS, AND STATUTORY AND CONSTITUTIONAL PROTECTION.
Abstract
ALTHOUGH CASE AND STATUTORY LAW SUGGEST THAT A RESEARCHER-SUBJECT TESTIMONIAL PRIVILEGE IS RECOGNIZED IN CERTAIN SITUATIONS, NUMEROUS INCIDENTS INVOLVING THE CONFIDENTIALITY OF CRIMINAL JUSTICE RESEARCH DATA HAVE OCCURRED DURING THE LAST DECADE. THE MOST SERIOUS OF THESE AROSE IN 1976, WHEN TWO RESEARCHERS, UNDER THE SPONSORSHIP OF THE LEAA TO STUDY THE BEHAVIOR AND TREATMENT OF ALLEGED SEX-CRIME VICTIMS, WERE SUBPOENAED BY A COLORADO COURT AND ORDERED TO DISCLOSE THE RESEARCH RECORDS PERTAINING TO TWO ALLEGED VICTIMS. THE FILES WERE SOUGHT IN CONNECTION WITH IMPENDING PROSECUTION OF TWO JUVENILE SUSPECTS; IN RESPONSE TO PLEAS BY THE RESEARCHERS THAT ANONYMITY HAD BEEN PROMISED TO ALL RESEARCH PARTICIPANTS, THE JUDGE HELD THAT SUCH INFORMAL PROMISES DO NOT JUSTIFY THE REFUSAL TO PRODUCE RECORDS AS ORDERED. THE RESEARCHERS WERE HELD IN CONTEMPT AND INCARCERATED UNTIL COUNSEL SECURED WRITTEN CONSENT FOR DISCLOSURE FROM THE TWO VICTIMS IN QUESTION. ONE OF THE MAJOR APPROACHES TO EXTENDING LEGAL PROTECTION TO CRIMINOLOGISTS IS THROUGH LEGISLATION UPHOLDING THE PRIVILEGED STATUS OF RESEARCHER-SUBJECT COMMUNICATIONS. EXISTING FEDERAL IMMUNITY STATUTES OFFER ONLY NARROW PROTECTION FOR RESEARCH DATA GENERATED UNDER GOVERNMENT CONTRACT, WHILE AT THE STATE LEVEL SEVERAL LEGISLATURES HAVE ENACTED STATUTES WHICH MAY PROTECT CERTAIN FORMS OF RESEARCH DATA, ALTHOUGH NONE OF THEM PROTECT A BROAD SEGMENT OF THE CRIMINAL RESEARCH COMMUNITY. SEVERAL OF THE STATE NEWSMEN SHIELD LAWS MAY ALSO PROTECT SUCH RESEARCH DATA. PRIVILEGES CAN BE CREATED THROUGH REFERENCE TO AND EXTENSIONS OF THE FIRST AMENDMENT PROVISIONS OF THE CONSTITUTION. WITH RESPECT TO THE FIRST AMENDMENT, THE COURTS HAVE WITHOUT VARIANCE USED A BALANCING TEST AND HAVE HELD THAT THE INTERESTS OF SOCIETY AND THE ADMINISTRATION OF JUSTICE ARE GREATER IN CRIMINAL MATTERS AS OPPOSED TO CIVIL PROCEEDINGS. THE COURTS ARE MORE LIKELY TO REJECT A PRIVILEGE CLAIM IN A CRIMINAL CASE AND ACCEPT SUCH A CLAIM IN A CIVIL SUIT. AS SUCH NO ABSOLUTE PRIVILEGE EXISTS AND CRIMINAL JUSTICE RESEARCHERS COULD BE EXPOSED TO POSSIBLE PENALTIES FOR REFUSING TO BREACH CONFIDENCES. JUDICIAL DECISIONS AND OTHER REFERENCES ARE FOOTNOTED. (KBL)