No "Threat Exception" to Psychologist-Client Privilege: MN Appeals Court

Minnesota case law summary by Attorney Richard Clem: psychologist-client privilege.

State of Minnesota v. Jerry Expose, Jr.. MN psychologist-client privilege

In this criminal appeal from Ramsey County, the Minnesota Court of Appeals held that Minnesota law does not recognize a "threats exception" to the statutory psychologist-client testimonial privilege in Minnesota Statutes section 595.02. Absent a client’s knowing and intentional waiver of the privilege, a psychologist may not testify in a criminal trial about threats of physical violence made by the client during an individual therapy session.

Jerry Expose, Jr., had been attending court-ordered counseling sessions as part of a child-protection case. During one session, he told the counselor that if the next court session didn't go well, he would break the back of the child protection worker, and that if he couldn't get to her, he could make a couple of phone calls and have someone else do it.

The counselor believed that this triggered an ethical duty to warn, and contacted her supervisor. Based on this threat, Expose was convicted of one count of terroristic threats, after the counselor was allowed to testify. Expose argued that the comments were privileged, but the district court held that there was a "threats exception" to the privilege.

Even though the counselor told Expose that she was a mandated reporter and had to warn the victim, she never warned him that she would testify in a later criminal proceeding. Therefore, there was no consent. The appeals court carefully examined the statute and held that it contained no "threat" exception.

No. A13-1285 (Minn. Ct. App. July 14, 2014)

Please see the original opinion for the court's exact language.


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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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