The Aurora, Colorado Massacre And The Psychiatrist-Patient Privilege — An Update

Prosecutors responsible for the case against James Holmes — the man charged with the massacre at a screening of The Dark Knight Rises in Aurora, Colorado — have decided to drop their effort to see a notebook Holmes allegedly mailed to a psychiatrist.

If the prosecutors had pursued a forced disclosure of the notebook, the case would have tested the application of the psychiatrist-patient privilege.  Prosecutors decided to avoid the delay that would result from such a fight and worked out an arrangement with the defense team instead.  Under the agreement, the defense will be allowed to review the notebook under circumstances that will ensure no potential evidence will be destroyed.  Then, if Holmes’ defense team raises his mental health during the trial, prosecutors will be able to review the notebook.

It would have been interesting to see how the privilege issue was resolved in a contested setting, but prosecutors should be presumed to know their case — and often an agreement is the best way to advance the ball.  If prosecutors can make their case without the notebook, let’s move forward to a speedy trial, to learn what really happened in that Aurora, Colorado movie theater.

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