Testimonial Privilege and the Problem of Death: The Vincent Foster Case and Beyond

S. H. Behnke,
Journal of the American Academy of Psychiatry and the Law 26(4): 639-648, 1998.
This article discusses what happens to testimonial privilege following a patient's death. First, the article reviews the concepts of confidentiality and testimonial privilege. Second, the article discusses the case of Jaffe v. Redmond, in which the Supreme Court ruled that testimonial privilege applies to licensed psychotherapists under Rule 501 of the Federal Rules of Evidence. Third, the article examines the case of Swidler & Berlin v. United States, in which the Supreme Court directly addressed the question of whether testimonial privilege survives death. Finally, the article comments on the implications of these rulings for mental health professionals.