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Kane County Bar Briefs, October 1993
By Kathleen Colton

In recent years, there seems to be developing within the prosecution of criminal cases the use of co-defendant testimony at trial. Prosecutors have become fond of “locking in” a co-defendant’s testimony when he or she pleads guilty to a charge, thereby assuring that the remaining co-defendant who chooses to proceed to trial is stuck with certain eyewitness testimony.

As defense attorneys, our initial instinct is to attempt to attack the credibility of witnesses, especially co defendants who have gone on the record against our clients. The usual means employed range from impeachment as to bias, interest or motive, the use of drugs, and prior convictions, as well as any “deals” made with the prosecution in exchange for testimony.

One forum that has been largely ignored by the defense bar is the mental history of witnesses, especially co-defendants. Courts in Illinois have long held that the mental history of a witness is relevant to his credibility and therefore is a permissible area of impeachment. (People v. Lindsey (1979), 73 Ill. App. 3d 436). The Lindsey court noted that a thorough examination of a witness’ credibility is especially important when it is that witness’ testimony which is being used to convict the accused.

People v. Phipps (1981), 98 Ill. App. 3d 413, dealt directly with the mental health records of witnesses, and the statutory privilege afforded to such records by the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et seq). In enacting the Act, the Illinois legislature expressed a strong public policy in maintaining the confidentiality of records and statements made in connection with seeking mental health treatment.

The Act is triggered when the patient or a physician objects to disclosure and asserts the privilege, usually in response to a subpoena duces tecum. However, the Phipps court held that when a statutory privilege comes into direct conflict with a defendant’s constitutional rights of confrontation and due process, that those constitutional rights must prevail. The court in Phipps resolved the dilemma by ordering an in camera hearing with both counsel present, for the purpose of determining which information was relevant and material.

Over the next few years, prosecutors attempted to limit this right of discovery by arguing that the defendant must first make a showing of relevancy in order to subpoena or discover mental health records. The impossibility of that position was recognized by the Supreme Court in People v. Dace (1984), 104 Ill. 2d 96, 114 Ill. App. 3d 908. The court in Dace ruled that not only was the mental history of a witness relevant to credibility and therefore discoverable (particularly in accomplice cases), but refusal of a defendants request for such discovery amounted to reversible error. The Dace court set out the procedure for an in camera hearing for the determination of relevant or material impeachment evidence, leaving the final decision to the discretion of the trial court, and relieving the defense of the burden of first proving that undiscovered material was relevant. The trial court is to review the records with appropriate regard to the defendant’s sixth and fourteenth amendment rights. As a footnote to Dace it is interesting to note that the records involved there related to treatment obtained approximately two years prior to the offense.

Disclosure to the accused is governed in criminal cases by Supreme Court Rule 412. While mental health records are not specifically discoverable, Rule 412(h) provides for discretionary disclosures of relevant information not specifically covered. However, the test is still one of information which relates to the truth or veracity of the witness, his or her ability to perceive and remember events, and other factors relating to the witness’ credibility.

In People v. Bean (1990), 137 Ill. 2d 65, our Supreme Court further defined the scope of disclosure of mental health records. The defendant in Bean had argued that he was entitled to full disclosure of all records, in order to ascertain which information might be relevant in cross-examination. The trial court reviewed the witness’ records in camera and later held two in camera hearings during which both counsel were present. At the latter hearings, the judge disclosed information to the defense, both orally and in the form of six pages of records. Those records were in turn used during cross-examination, and related to alcohol and drug use, as well as mental health treatment. Again, after having reviewed the records on appeal, the Supreme Court concluded that the sound discretion of the trial court should prevail.


As defense attorneys, we do not (or should not) lose our sense of humanity when defending our clients. While our jobs require us to do all that is ethically permissible to defend our clients, our humanity tells us that persons who seek treatment in confidence for mental health and substance abuse problems deserve to have that confidence protected. Question your client to ascertain whether or not any of the State’s witnesses may have received mental health or substance abuse treatment. Better yet, file a motion for supplemental disclosure which seeks such information. If you are aware of such treatment, it is incumbent upon you to explore this possible area of impeachment, using the subpoena duces tecum as a tool. Courts in Illinois have developed a mechanism by which we as attorneys can “have at” information which might aid us in defending our clients and impeaching the State’s witnesses, while still protecting the confidentiality which the law demands for those who seek treatment.

Copyright 1993, Kathleen Colton. All Rights Reserved.