Judicial Notebook

A recent case with facts that read like a cloak-and-dagger novel raises serious questions about the psychotherapist-patient privilege and the role mental health experts should play in law enforcement.

Theresa Squillacote, a Defense Department lawyer, was suspected of spying. Pursuant to a secret court order, she and her husband, Kurt Stand, were placed under round-the-clock surveillance for more than a year. The order permitted federal agents to tap the couple's phones, bug their bedroom, secretly search their home and download their computer files. Among the telephone conversations intercepted and transcribed were calls involving Squillacote's psychotherapist.

The FBI used the information gathered by federal agents, including the intercepted conversations with the psychotherapist, to create a psychological profile of Squillacote. The profile, developed by the FBI's Behavioral Analysis Program (BAP) team, which included a psychologist, was designed to examine Squillacote's personality and to obtain evidence regarding her espionage activity. The profile traced Squillacote's family history, including her older sister's suicide and her mother's depression. The profile indicated that Squillacote suffered from depression, was taking antidepressant medications, had a narcissistic and histrionic personality, showed poor impulse control, demonstrated a need for reassurance, approval and praise, and displayed excessively emotional behavior.

Finally, the profilers made specific recommendations on how investigators could exploit Squillacote's "emotional vulnerability." They suggested using a sting operation conducted by a mature male undercover agent, who should "capitalize on [Squillacote's] fantasies and intrigue." According to the plan, "the initial meeting should be brief and leave Squillacote beguiled and craving more attention."

The operation was effective. Squillacote met four times with an undercover FBI agent who posed as a South African intelligence official, and provided him with classified documents she had obtained from the Defense Department. After several months of meeting and corresponding with the agent, she was arrested and later convicted of conspiracy to transmit information relating to the national defense, attempted transmission of national defense information, obtaining national defense information and making false statements. Squillacote was sentenced to 21 years in prison.

Her appeal

Squillacote argued that federal agents used information from the intercepted telephone calls with her psychotherapist to help formulate the "false flag" operation that led to her arrest. Since the intercepted calls were privileged, she argued that any evidence derived from these calls should be suppressed.

In United States v. Squillacote (221 F.3d 542 [2001]), the U.S. Court of Appeals for the Fourth Circuit affirmed Sqillacote's convictions. The court agreed that the intercepted telephone conversations with Squillacote's psychotherapist were privileged under the U.S. Supreme Court's 1996 decision in Jaffee v. Redmond (518 U.S. 1). In Jaffee, the Supreme Court held that "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence."

However, the Court of Appeals also noted the Supreme Court's 1980 decision in Trammel v. United States (445 U.S. 40) that since "testimonial exclusionary rules and privileges contravene the fundamental principle that the public...has a right to every man's evidence," any such privilege "must be strictly construed."

The Court of Appeals then rejected Squillacote's argument. The court stated: "[W]e do not believe that suppression of any evidence derived from the privileged conversations would be proper in this case, given that the privilege is a testimonial or evidentiary one, and not constitutionally based." In 2001, the U.S. Supreme Court formally refused to hear Squillacote's further appeal.

Future implications

The Court of Appeals decision is significant because it limits the extent to which privileged communications between psychologists and their patients are protected. While under Jaffee these communications enjoy a testimonial privilege, under Squillacote, with proper court authorization, these privileged communications may be legally intercepted and used against the patient.

The Squillacote case also calls into question the role of psychologists and other mental health professionals in the law enforcement process. As part of the BAP team, a psychologist helped authorities take advantage of the suspect's emotional vulnerabilities. Does such conduct comport with the ethical standards that guide professional practice in psychology and the other mental health professions? Some have argued that the professional conduct in this case was unethical in that it involved deception, disrespect for the rights of others and a failure to obtain informed consent from the subject of the "evaluation."

Others have suggested that since the courts have found the conduct here to be legal, an ethical inquiry is not warranted. Still others have noted that psychologists and other mental health professionals have ethical obligations not only to individuals but also to society as a whole, and that it is sometimes difficult to reconcile these competing interests, especially in a case where national security is at stake.