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60 N.C. L. Rev. 893 (1981-1982)
Privilege Study: An Empirical Examination of the Psychotherapist--Patient Privilege, The

handle is hein.journals/nclr60 and id is 919 raw text is: THE PRIVILEGE STUDY: AN EMPIRICAL EXAMINATION OF THE PSYCHOTHERAPIST-PATIENT PRIVILEGE DANIEL W. SHUMANt MYRON S. WEINE4 The recognition of a privileged relationship between psychothera- pist andpatient that grants the patient the right to bar the introduction of some relevant evidence in judicial proceedings, is based on the as- sumption that without such an assurance of confidentiality there will be no effective therapy. In this Article Professors Shuman and Weiner examine this assumption and the opposing belief that granting a privi- lege seriously undermines the judicial process. Their research focuses on the effect of enactment of a privilege statute in Texas, asperceived by therapists, patients, lay-persons and judges. The authors conclude that both proponents and opponents of the privilege have overstated their case, the existence of theprivilege is of consequence tofewpatients and in few cases. Through their analysis the authors have clarffed the stakes in the controversy and have made it possible to weigh the com- peting policy interests more intelligently. I. INTRODUCTION The recognition of a privileged relationship, a rule of evidence that con- fers upon a person a right to prevent introduction of relevant evidence in judi- cial proceedings, stands in stark contrast to the predilection of courts to receive all relevant evidence in judicial proceedings.' A privilege is the result of a balancing process; the relationship in question and its underlying values must be thought more important than the accurate outcome of judicial proceedings, t Associate Professor of Law, Southern Methodist University. B.S. 1969, J.D. 1972, Uni- versity of Arizona. t Professor of Clinical Psychiatry and Vice Chairman, Department of Psychiatry, Univer- sity of Texas Health Science Center at Dallas, Texas. M.D. 1957, Tulane University. This research was supported by a grant from the Southern Methodist University School of Law. Maureen Armour, Meg Davidson and Rande Herrell, former and present law students at Southern Methodist University School of Law, provided valuable assistance in the library and field research for this Article. 1. Testimonial exclusionary rules and privileges contravene the fundamental principle that the public.., has a right to every man's evidence. United States v. Bryan, 339 U.S. 323, 331 (1950). As such, they must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth. E1kakr v. United States, 364 U.S. 206, 234 (1960) (Frank- furter, J., dissenting). Accord, Unted States v. Nixon, 418 U.S. 683, 709-10 (1974). Trammel v. United States, 445 U.S. 40, 50-51 (1980).

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