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One Step Forward, Two Steps Back: The Recognized But Undefined Federal Psychotherapist-Patient Privilege, M. Brett Fulkerson

Missouri Law Review

Instead of demanding every man's evidence, as is the general presumption, courts recognize the need for some evidence to remain private. Federal Rule of Evidence 501 governs federal evidentiary privileges without defining or identifying specific privileges. As a result, courts have developed privileges on a case-by-case basis, including the recognition of a psychotherapist-patient privilege. As different circuits pass judgment on the psychotherapist-patient privilege, conflict inevitably arises. Some circuits simply reject the privilege, while others recognize the privilege but apply it differently. The recognition of the psychotherapist-patient privilege was the necessary first step, but leaving the privilege undefined encourages litigation and …