Defendant's Right to Third Party Confidential Records

Suppose Defendant is charged with sex offense against a child. He knows that DSS previously investigated similar allegations made by the child against other people and heard that DSS found those charges to be unfounded. When Defendant subpoenas the records from DSS, the agency moves to quash. Is Defendant entitled to the records? The answer is: Sort of. On these facts, Defendant has a right to have the court do an in camera review of the records. If the court finds that they contain favorable, material evidence, it has to be turned over to the defendant. This post outlines the relevant law, which stems from a U.S. Supreme Court case called Pennsylvania v. Ritchie, 480 U.S. 39 (1987). In Ritchie, the Court held that the defendant had a due process right to have a judge conduct an in camera review of a child protective services agency file on the victim to determine whether it contained favorable and material evidence, and if so, to turn it over to the defense. Ritchie was charged with rape and other crimes committed against his daughter. During discovery, Ritchie issued a subpoena seeking access to the agency’s file related to the charges against him, as well as certain records that he claimed were compiled a year earlier when the agency investigated a separate report that Ritchie's children were being abused. Ritchie argued that the file “might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence.” The agency refused to comply with the [...]