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SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NO OPPORTUNITY FOR APPELLATE REVIEW, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s rape conviction, determined Supreme Court should have ordered the victim’s psychiatric records for an in camera review for relevance:

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Prior to trial, the People disclosed that the victim had indicated that she had received treatment for bipolar disorder and depression and, further, produced a copy of the medical record from the sexual assault examination that was conducted on the day after the incident in which the victim had also reported a past medical history of “bipolar” and that she was taking prescription medications for that condition. Defendant requested that the court issue a subpoena duces tecum to obtain the victim’s mental health records and conduct an in camera review to ascertain whether they contained any information relevant and material to the victim’s credibility. …

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Supreme Court erred when it declined to order production of the victim’s mental health records and to review them in camera. Inasmuch as those records were never produced and were not part of the record, we are unable to remit the matter for a reconstruction hearing … . Moreover, without knowing the content of those records, we are unable to determine whether the information that they contain is merely cumulative to the information provided to defendant about the victim’s mental health history that was used as a basis for cross-examination, or whether the records contain additional relevant and material information bearing on her credibility. Similarly, our lack of knowledge of the contents of the victim’s mental health records precludes us from determining whether the court’s error in this regard was harmless. Accordingly, the judgment of conviction must be reversed and the matter remitted for a new trial. People v Kiah, 2017 NY Slip Op 08752, Third Dept 12-13-17

 

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