The Catholic University of America



Professor Clifford Fishman's Scholarship Cited by
Both Sides of a Divided Iowa Supreme Court


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In companion cases decided by Iowa’s Supreme Court on the same day in 2013, Catholic University law school Professor Clifford Fishman’s article, Defense Access to a Prosecution Witness’s Psychotherapy or Counseling Records, 86 Or. L. Rev. 1 (2007), was quoted by both the majority and by three judges dissenting from the rule endorsed by the majority.
It is rare to have the same example of legal scholarship cited by disagreeing judges. The unusual development stems from two cases, State v Thompson, 836 N.W.2d 470; and State v Neiderbach, 837 N.W.2d 180.
Background: In 2010, Iowa’s Supreme Court ruled that upon a proper showing of need, the counseling or psychotherapy records of a prosecution witness should be turned over to defense counsel. The Iowa court relied heavily on a similar decision by Massachusetts’ Supreme Judicial Court in its reasoning.  In response, the state legislature enacted a law mandating that such records should be disclosed not to defense counsel, but to the trial judge for an in camera determination of what information, if any, was “sufficiently material” to the defense to be turned over.
In upholding the constitutionality of this aspect of the statute, the court quoted the following paragraph from Fishman’s article:
“Consider the circumstance of a woman who has been raped. The crime itself likely has had a traumatic, shattering, and destructive impact on her ability to live the life she had before it was committed. In an effort to deal with and recover from her ordeal, she has undergone counseling, during which she may have disclosed information, thoughts, fears, and self-doubts of the most intensely personal and private kind. It is bad enough that, come the trial, she must relive her ordeal before an audience of strangers, and that the judge will examine her records to determine whether they contain information that must be disclosed to the defense. In Massachusetts, however, she must take the witness stand knowing that her rapist’s lawyer, whose primary responsibility is to attack her testimony, credibility and character, has read the entire file of her counseling. The lawyers in the case may have every confidence that defense counsel has adhered and will adhere to the rules. To the witness, by contrast, this may provide little comfort compared to the sense of betrayal, humiliation, and exposure she is likely to experience.”

Applying the statute in the companion case, State v Neiderbach, the court held that the trial judge should have conducted an in camera review.  Though concurring in the result, three judges criticized the majority for upholding two provisions of the statute.

Judge Brent R. Appel objected to the statute’s mandate that before a defendant is entitled to an in camera review of the records by the trial judge, the defendant must show a “reasonable probability” that the records contain information material to the defense.

In disagreeing with the majority of his colleagues on the court, Appel, too, cited Fishman’s article, writing, “As commentators have explained, terms such as ‘reasonable probability’ in mental health records statutes are extremely elastic and subject to judicial interpretation…”

Fishman acknowledged that having his expertise relied upon by a state supreme court, especially by judges who were divided over aspects of their ruling, was a gratifying experience.

“Though my articles and treatises have been have been cited or quoted in a gratifying number of court opinions over the years, this is the first time the same article has been quoted and cited by both the majority and (in effect) the dissent,” he said.