By Margaret Schmid, Esq.
Massachusetts General Laws Annotated chapter 233, section 20B establishes a privilege for communications between a patient and a psychotherapist “relative to the diagnosis or treatment of the patient’s mental or emotional condition.” The purpose of the privilege is to “protect justifiable expectations of confidentiality that people who seek psychotherapeutic help have a right to expect.” In Commonwealth v. Dung Van Tran, the Supreme Judicial Court of Massachusetts (“SJC”) further clarified its interpretation of the psychotherapist-patient privilege.
In Commonwealth v. Dung Van Tran, the defendant entered the apartment inhabited by his estranged wife and children, poured gasoline in such a manner that it landed on himself, one of his children, and the children’s caretaker, and set the gasoline on fire. The defendant was indicted and convicted by a Massachusetts Superior Court jury on charges of armed assault with intent to murder, aggravated assault and battery by means of a dangerous weapon, assault and battery by means of a dangerous weapon, arson of a dwelling, and armed home invasion.
On appeal, the defendant argued that the trial court judge erred by admitting evidence of prior bad acts and by admitting privileged statements made by the defendant to a psychiatrist. The defendant also argued that the evidence at trial was insufficient to support his convictions for armed assault with intent to murder, aggravated assault and battery by means of a dangerous weapon, assault and battery by means of a dangerous weapon, arson of a dwelling, and armed home invasion.
Following a transfer of the case on its own motion, the SJCconcluded that the trial court judge did not err in admitting evidence concerning the defendant’s prior bad acts arising out of the defendant’s hostile relationship with his estranged wife. The SJC held that it was within the trial court judge’s discretion to decide that the challenged evidence was relevant to establish the defendant’s motive and intent.
The SJC did, however, find that the trial court erred in admitting statements made by the defendant to his psychiatrist. At trial, the defense theory was one of excuse; the defendant testified that while he intended to commit suicide in his estranged wife’s apartment by self-immolation, injury to anyone other than himself was purely accidental. To cast doubt upon the defendant’s stated intent and to call into question the defendant’s frame of mind, the Commonwealth argued that Tran had “essentially testified that he was ‘not thinking rationally at the time’ due to a ‘suicidal ideation,’” and thus, the psychotherapist-patient privilege should yield in the interest of justice. The trial court judge found the Commonwealth’s argument to be persuasive and permitted the defendant’s psychiatrist to testify as a rebuttal witness regarding the defendant’s actual, specific intent.
On appeal, the SJC disagreed and ruled that the “Commonwealth may not introduce against a defendant statements protected by the psychotherapist-patient privilege, on grounds that the defendant himself placed his mental or emotional condition in issue, unless the defendant has at some point in the proceedings asserted a defense based on his mental or emotional condition, defect, or impairment.” The SJC concluded that, “lack of intent does not, without more, suffice to put in issue a defendant’s mental or emotional condition.”
Finally, the SJC considered the defendant’s argument that the evidence presented at trial was insufficient to support his convictions for the charged crimes. Without taking into consideration the psychiatrist’s improperly admitted testimony, the court concluded that the evidence was sufficient to support each of the convictions. However, since the convictions of armed assault with intent to murder rested directly upon the psychiatrist’s improperly admitted testimony concerning the defendant’s intent, the case was remanded for a new trial on those indictments. The SJC affirmed the remaining convictions.
Margaret Schmid is an attorney working for Donoghue, Barrett, & Singal, P.C. Prior to working for Donoghue, Barrett, & Singal, Ms. Schmid interned at Massachusetts Executive Office of Health and Human Services. She also worked for the U.S. Department of Health and Human Services, Office of the General Counsel, Public Health Division during her third year of law school. Ms. Schmid received her law degree from The Catholic University, Columbus School of Law in Washington, D.C., where she was a Note and Comment Editor on the Journal of Contemporary Health Law and Policy. She received her undergraduate degree from Kenyon College.
 Commonwealth v. Clancy, 524 N.E.2d 395, 397 (Mass. 1988).
 972 N.E.2d 1, 4 (Mass. 2012).
 Id. at 5.
 Id. at 8; The defendant’s estranged wife testified to the defendant’s abusive behavior toward her and defendant’s threats to kill her and their children within weeks of the fire. Id. at 5.
 972 N.E.2d at 13.
 Id. at 12.
 Id. at 11.
 Id. at 10.
 Id at 12.; The psychiatrist testified that the defendant stated that he intended “to take [his daughter] with him.” Id. at 10.
 972 N.E.2d at 12; essentially, the mere desire to commit suicide is not enough to place one’s mental or emotional condition in issue.
 Id. at 11 (citing Commonwealth v. McLaughlin, 729 N.E.2d 252 (2000)).
 Id. at 13-14.
 Id. at 17.