Confidential medical records CAN be evidence at trial.

We are often asked whether we can get a complainant’s medical or counseling records. As with most criminal cases, the answer is “it depends.”

Criminal defendants generally have no right to privileged medical records during the discovery process (discovery is the process of exchanging information between the government and defense counsel about the witnesses and evidence they will present at trial). MCR 6.201(C)(1) and (2). For privileged, confidential documents like medical records the Supreme Court has balanced the opposing interests of protecting the confidentiality of privileged records with a criminal defendant’s right to obtain evidence necessary to his defense. People v Stanaway, 446 Mich. 643 (Mich. 1994). Under this balancing test, a defendant must show the judge that they have good cause to request confidential medical records before the court will consider an order to disclose such records to a defendant. If the defendant cannot show good cause, the court does not have authority to order this discovery in criminal cases.

So what exactly is good cause? When considering whether a defendant has good cause, the Court will determine whether the defendant has demonstrated a good-faith belief, grounded in articulable fact, that there is a reasonable probability that the records are likely to contain material information necessary to the defense. That is, the defendant must tell the court exactly what records they are requesting and exactly why those records are necessary to defend their client from the charges against them. If the defendant makes such a preliminary showing, then the Court may inspect the medical records using a special procedure called an “in-camera inspection” to determine whether disclosure is truly necessary. An ‘in camera inspection” is simply a trial judge’s private consideration of evidence before ruling on its admissibility or ordering its disclosure. After this review, the judge will determine whether the defendant’s constitutional right to obtain evidence necessary to his defense in a criminal trial overcomes the compelling interest in protecting confidential medical records, and this determination is solely within the discretion of the trial judge. If the Court agrees that the medical records contain material information necessary to the defense – the Court will order the release of the medical records to defendant. If not, the medical records will stay confidential and will not be released.

In sum, requesting privileged, confidential documents such as medical records can be a laborious and technical process, but is certainly possible if those records are truly helpful to defend yourself in court. If you have more questions, contact us today!


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