State v. Worthen

2009 UT 79
222 P.3d 1144
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	Nos. 20080128
Plaintiff and Co-Petitioner, 	20080163
v.
Leroy Worthen,
Defendant and Respondent,
Guardian Ad Litem, 	F I L E D
Party in Interest and
Co-Petitioner. 	December 8, 2009
---
Eighth District, Vernal Dep’t
The Honorable A. Lynn Payne
No. 051800543
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Marian Decker,
Asst. Att’y Gen., Salt Lake City, for plaintiff
John J. Easton, Provo, for defendant
Martha M. Pierce, Salt Lake City, for the Office
of the Guardian Ad Litem
Paul G. Cassell, Salt Lake City, Margaret Garvin,
Susanna Cowen, Portland, OR, for amicus National
Crime Victim Law Institute
Heidi M. Nestel, Salt Lake City, for amicus Utah
Crime Victims Legal Clinic
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	The State charged the Respondent, Mr. Worthen, with ten
counts of aggravated sexual abuse of his adopted teenage daughter
B.W. 	After the district court bound him over for trial, Mr.
Worthen subpoenaed B.W.’s mental health records relating to

Nos. 20080128, 20080163 	2
treatment she received between July and October 2005. 	Mr.
Worthen claimed that the records contained evidence supporting
his defense that B.W. had extreme hatred and frustration toward
the Worthens and therefore had a motive to fabricate the
allegations in order to be removed from the Worthen home. 	Mr.
Worthen conceded the requested records were privileged under the
psychotherapist-patient privilege found in rule 506 of the Utah
Rules of Evidence. 	He contended, nevertheless, that the records
fell under an exception to the psychotherapist-patient privilege,
which allows access to otherwise privileged records when a
party’s physical, mental, or emotional condition is an element of
any claim or defense. 	If the elements of the exception are met,
the records are made available to the trial judge for in camera
review. 	Mr. Worthen argued that B.W.’s motive to lie was an
element of his defense. 	The district court granted in camera
review of the requested records.
¶2 	The State successfully petitioned for interlocutory
review. 	The State argued to the Utah Court of Appeals that Mr.
Worthen had not met the elements of the rule 506(d)(1) exception
because (1) he had not sufficiently alleged that B.W.’s mental or
emotional condition was an element of his defense,
(2) impeachment evidence cannot be an element of a defense,
(3) he failed to show to a reasonable certainty that the
requested records contained exculpatory evidence favorable to his
defense, and (4) the requested records were both immaterial and
cumulative. 	The court of appeals affirmed the district court.
We granted certiorari.
BACKGROUND
¶3 	After evidence surfaced that B.W.’s biological
relatives had abused her, the State removed B.W. from her home.
She was eventually placed in the home of Mr. and Mrs. Worthen in
Vernal, Utah. 	The couple later adopted B.W. 	In July 2005, after
an argument with Mrs. Worthen, B.W. attempted suicide and was
admitted to the inpatient program at the University of Utah
Neuropsychiatric Institute. 	B.W. remained at UNI for nineteen
days where she underwent individual, group, and family therapy.
Her discharge summary states that “significant family issues
existed, and that very significant cognitive issues were
observed.” 	The discharge summary also states that B.W. “was
highly skeptical that her family could care for her or love
her[,] . . . looked for ways to interpret statements and behavior
in a way to mesh with her negative thinking . . . [and] was very
prone to major misinterpretations.”
¶4 	After her release from UNI, B.W. returned to the
Worthen home in Vernal and began outpatient counseling with

3 	Nos. 20080128, 20080163
Dr. Carolyn Henry at the Ashley Family Clinic. 	During this time,
B.W. kept a journal in which she expressed her frustration and
anger at her mother, general hatred of her adoptive parents, and
her desire to be with a new family. 	For example, the entry on
October 1, 2005, states as follows:
My mom has pissed me off for the last time.
She thinks that just because she’s in pain
I’m always mean to her . . . I can count on
one hand how many times she’s cooked our food
in 4 years, how many times she’s cleaned the
house and how many times she’s actually acted
as if she cares. 	She’s the one without
responsibility! 	I feel as if I want to run
out the door to [B.W.’s friend’s house] and
stay there 4-ever. 	Next time my mom gets me
as pissed off as I am not [sic], I will KILL
her, and that’s a promise, I don’t care what
happens to me I just want her to die in her
bed all alone in her own pain and blood! 	I
will kill her if she gets me as pissed of[f]
as I am now . . . I swear I’ll kill the both
of them! 	No matter what it takes.
¶5 	On October 27, 2005, B.W. disclosed to Dr. Henry that
Mr. Worthen had repeatedly sexually abused her and, as required
by law, Dr. Henry reported the allegation to the authorities.
Mr. Worthen was charged with ten counts of aggravated sexual
abuse of a child.
¶6 	At Mr. Worthen’s preliminary hearing, B.W. testified to
numerous incidents of abuse spanning the years she lived at the
Worthens’ home. 	Although cross-examination of B.W. revealed some
inconsistencies between her allegations and the journal entries,
the district court bound Mr. Worthen over for trial. 	Mr. Worthen
then filed a motion to subpoena B.W.’s medical records from July
to October 2005. 	Specifically, Mr. Worthen sought in camera
review of B.W.’s medical and therapy records for communications
relating to: 	(1) B.W.’s denial of abuse by Mr. Worthen,
(2) “cognitive problems and major misinterpretation problems,”
and (3) a motive to fabricate the allegations stemming from her
hatred of her parents. 	Mr. Worthen conceded the records were
generally subject to the doctor-patient privilege and the
psychotherapist-patient privilege found in rule 506 of the Utah
Rules of Evidence.

1 The district court’s order initially stated that the
judge’s law clerk would perform the in camera review. 	On appeal,
both parties agreed that the judge himself should be the one to
review the records. 	This issue has not been pursued on
certiorari.
Nos. 20080128, 20080163 	4
¶7 	Mr. Worthen argued, however, that the mental health
records he sought fell under rule 506(d)(1), an exception to the
psychotherapist-patient privilege. 	The exception concerns
communications relevant to a physical, mental, or emotional
condition when that condition is an element of any claim or
defense. 	Attached to Mr. Worthen’s Memorandum in Support of
Defendant’s Subpoena for Medical and Therapy Records were copies
of passages from B.W.’s journal, the discharge summary from UNI,
and a calendar disclosing the specific days on which B.W. saw Dr.
Henry.
¶8 	The district court granted in camera review of the
requested records “to discover any statements concerning the
complainant’s feelings toward her parents.” 	The district court
denied in camera review of the requested records for evidence
that B.W. “suffers from a disorder which affects her ability to
accurately perceive, remember, or relate events in her life,” or
“suffers from a disorder which would affect her ability to be
trustworthy” because Mr. Worthen had not shown to a reasonable
certainty the records contained exculpatory evidence pertaining
to those issues. 	Similarly, the district court also denied in
camera review of the requested records for evidence that B.W.
denied that Mr. Worthen had abused her.
¶9 	The State petitioned for interlocutory review of the
order granting in camera review, which was granted. 	The Utah
Court of Appeals affirmed the district court’s order. 1 	First,
the court of appeals held that “the trial court sufficiently
addressed whether Defendant’s request fell within an exception”
to the privilege “before addressing the reasonable certainty
test.” 	State v. Worthen, 2008 UT App 23, ¶ 13, 177 P.3d 664.
Second, the court of appeals held that communications related to
an “element of a claim or defense” under rule 506(d)(1) refers to
“evidence that would interject doubt into the State’s assertion
that [Mr. Worthen] committed the crime.” 	Id. ¶¶ 14-16. 	The
court of appeals specifically noted that impeachment evidence
“‘directed toward revealing possible biases, prejudices, or
ulterior motives of the witness as they may relate directly to
issues or personalities in the case at hand’” would satisfy the
rule 506(d)(1) exception while general impeachment evidence that
challenged the general credibility of a witness would not. 	Id.
¶ 19 (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)).
Finally, the court ruled that Mr. Worthen had shown to a

5 	Nos. 20080128, 20080163
reasonable certainty that B.W.’s records existed and that they
contained exculpatory evidence. 	Id. ¶ 30. 	The court of appeals
also declined to remand for a consideration of materiality based
on the State’s contention that the records were cumulative of
communications made in B.W.’s journal, and therefore immaterial,
and instead held that any determination of materiality made
before in camera review would be premature. 	Id. ¶ 26.
¶10 	The State and guardian ad litem petitioned this court
for certiorari review, which we granted. 	We have jurisdiction
pursuant to Utah Code section 78A-3-102(3)(a) (2008).
STANDARD OF REVIEW
¶11 	“On certiorari, we review the decision of the court of
appeals, not the decision of the trial court.” 	Bluemel v. State,
2007 UT 90, ¶ 9, 173 P.3d 842. 	“We review the court of appeals’
decision for correctness;” we grant no deference to its
conclusions of law. 	Id.
DISCUSSION
¶12 	We granted the State’s petition for certiorari on the
following issues: 	(1) whether impeachment evidence relating to
Mr. Worthen’s assertion of the alleged victim’s motivation to lie
may qualify as a claim or defense for the purposes of rule 506
(d)(1) of the Utah Rule of Evidence and (2) whether the court of
appeals erred in its assessment of the State’s argument that the
mental health records in this case are immaterial. 	We also
granted the guardian ad litem’s petition for certiorari on the
following issues: 	(1) whether the court of appeals erred in its
evaluation of the determinations a district court must make to
ascertain whether the requirements of rule 506(d)(1) have been
met and (2) whether the court of appeals erred by failing to
consider constitutional and statutory provisions relating to a
victim’s rights.
¶13 	The State’s first issue presents a narrower question
than the issue presented by the guardian ad litem. 	The guardian
ad litem calls into question the court of appeals’ formulation of
the analytical method a district court should follow when
confronted with the rule 506(d)(1) exception. 	We will take up
both issues together, with a focus on the court of appeals’
assessment of the determinations a district court must make to
ascertain whether the requirements of rule 506(d)(1) have been
met. 	We will then discuss the court of appeals’ assessment of
the materiality of the evidence sought. 	We will conclude our

2 This court has addressed the meaning of rule 506(d)(1) in
three other cases, all of which considered whether a defendant
accused of sexual abuse could be granted in camera review of the
mental health records of his alleged victims. 	State v. Gonzales,
2005 UT 72, 125 P.3d 878; State v. Blake, 2002 UT 113, 63 P.3d
56; and, State v. Cardall, 1999 UT 51, 982 P.2d 79.
Nos. 20080128, 20080163 	6
analysis with a discussion of the court of appeals’ obligation to
analyze any effect the rights of victims may have on this appeal.
I. 	ALTHOUGH THE COURT OF APPEALS ERRED IN ITS ANALYSIS OF
WHETHER THE VICTIM’S MENTAL HEALTH RECORDS FALL UNDER THE RULE
506(d)(1) EXCEPTION BECAUSE IT DID NOT ANALYZE WHETHER B.W.’S
EMOTIONAL OR MENTAL CONDITION IS AN ELEMENT OF ANY CLAIM OR
DEFENSE, THIS ERROR DOES NOT REQUIRE REVERSAL
¶14 	Rule 506(b) of the Utah Rules of Evidence protects, as
privileged, communications between a health care provider and a
patient if the communications are made “in confidence and for the
purpose of diagnosing and treating the patient.” 	Utah R. Evid.
506(b). 	The privilege described in rule 506(b) has three
exceptions. 	Only the exception set out in rule 506(d)(1) is
relevant to this appeal. 2 	Rule 506(d)(1) states that the
privilege does not exist if the patient’s “physical, mental, or
emotional condition” is relevant “in any proceeding in which that
condition is an element of any claim or defense.”
¶15 	This court has interpreted the rule 506(d)(1) exception
to contain the additional requirement that a defendant show to a
reasonable certainty that the records sought contain exculpatory
evidence. 	In State v. Cardall, we stated, “if a defendant can
show with reasonable certainty that exculpatory evidence exists
which would be favorable to his defense,” the defendant is
entitled to review of the evidence by the trial court for a
determination of materiality. 	1999 UT 51, ¶ 30, 982 P.2d 79. 	In
State v. Blake, we explained that to meet the reasonable
certainty test, a defendant must show “that the sought-after
records actually contain ‘exculpatory evidence . . . which would
be favorable to his defense.’” 	2002 UT 113, ¶ 19, 63 P.3d 56
(quoting Cardall, 1999 UT 51, ¶ 30).
¶16 	We will first discuss whether the court of appeals
properly determined that Mr. Worthen met the requirements of rule
506(d)(1). 	This discussion will include an inquiry into
(1) whether the court of appeals properly determined that B.W.’s
mental or emotional condition was an element of Mr. Worthen’s
defense and (2) the meaning of an element of a defense under rule
506(d)(1). 	We will then discuss whether the court of appeals

7 	Nos. 20080128, 20080163
erred in determining that Mr. Worthen met the reasonable
certainty test.
A. 	The Court of Appeals Erred in Failing to Determine Whether
the District Court Properly Concluded That B.W.’s Emotional or
Mental Condition Was an Element of Mr. Worthen’s Defense
¶17 	The court of appeals erred by failing to first analyze
whether B.W.’s mental or emotional condition was an element of
Mr. Worthen’s defense and not merely fuel for impeachment of
B.W’s expected testimony. 	Specifically, the court of appeals did
not assess whether B.W.’s “feelings towards her parents” is a
physical, mental, or emotional condition under rule 506(d)(1).
We hold this was error because the communication of a “feeling”
or emotional state to a therapist, is not itself a mental or
emotional condition. 	Nevertheless, we conclude that in this case
the error does not require reversal because Mr. Worthen does not
seek communications of a general emotional state, but rather
statements that express B.W.’s animus toward the Worthens or a
motive to fabricate allegations of abuse based on her feelings.
¶18 	Rule 506(d)(1) provides an exception to the
psychotherapist-patient privilege for “a communication relevant
to an issue of the physical, mental, or emotional condition of
the patient,” in proceedings “in which that condition is an
element of any claim or defense.” 	(Emphasis added.) 	In
addressing whether the trial court properly applied the
requirements of rule 506(d)(1), the court of appeals did not
analyze whether “B.W.’s feelings toward her parents” is a mental
or emotional condition under the rule or whether the trial court
failed to make a similar inquiry. 	Instead, the court of appeals
focused its inquiry on whether B.W.’s motive to lie was an
element of Mr. Worthen’s defense. 	Although the court of appeals
examined B.W.’s motive to lie, it did not explore whether a
motive to lie constitutes a mental or emotional condition under
the rule such that in camera review of the records for statements
made to B.W.’s therapist about her “feelings” is warranted.
¶19 	We hold that the threshold test of a rule 506(d)(1)
exception is whether the party seeking in camera review of
privileged records has sufficiently alleged that the witness’
mental or emotional condition itself is an element of any claim
or defense. 	Only after this first question is answered may a
reviewing court evaluate whether the person seeking access to the
exception has shown that the records contain exculpatory evidence
to a reasonable certainty.

3 Although a physical condition also is included within the
exception, in this case we need only focus on the meaning of
mental or emotional condition. 	We acknowledge, however, that the
presence of the doctor-patient privilege and mention of physical
conditions in rule 506 informs our interpretation of a mental or
emotional condition. 	We also acknowledge that the rule
contemplates both mental and emotional conditions. 	Because
neither party has suggested a difference between a mental
condition and an emotional condition, and because it is unclear
whether B.W. has a mental or an emotional condition in this
instance, we leave a discussion of any distinction between the
two for another day.
Nos. 20080128, 20080163 	8
¶20 	This is our first occasion to explore the contours of
what constitutes a condition under rule 506(d)(1). 3 	The State
urges us to rule that only a condition subject to a formal
medical diagnosis can qualify as a condition under the rule.
Mr. Worthen argues for a more expansive definition that would
include as a condition B.W’s expressed hatred of her adoptive
parents.
¶21 	We conclude that while a mental or emotional condition
under rule 506(d)(1) is not limited to diagnosable disorders or
illnesses, the rule does not include mere expressions of emotion.
The challenge that we confront is how to distinguish between
mental or emotional conditions and mental or emotional phenomena
that are not conditions. 	A useful tool that may be used to
differentiate between phenomena that rises to the level of a
condition and those that do not is temporality. 	A condition is
not transitory or ephemeral. 	A mental or an emotional condition
is a state that persists over time and significantly affects a
person’s perceptions, behavior, or decision making in a way that
is relevant to the reliability of the person’s testimony.
Professor Wigmore developed this thought in his treatise, in
which he stated, “An interpretation that most readily comes to
mind is the reading that ‘condition’ denotes a longer-lasting
. . . mental state than momentary ‘emotion,’ ‘feeling,’ or
‘pain.’” 	Wigmore on Evidence: 	Evidentiary Privileges § 6.13.3,
991, 1001 (2002).
¶22 	It would be unrealistic and ill-advised for this court
to believe that we could craft a definition of “mental or
emotional condition” that includes all phenomena subject to
traditional diagnostic labeling yet excludes in a principled
manner lesser phenomena. 	See State v. Killpack, 2008 UT 49,
¶ 35, 191 P.3d 17 (“Over the past several decades, healthcare
professionals have made broad advances in the diagnosis and
treatment of mental disease.”) 	We look to a similar case, State
v. Cardall, for general guidance on what constitutes a mental or

4 We do not mean to suggest that a victim may not have a
mental or emotional condition that manifests itself in lying,
hatred, animosity, or need to falsely accuse those around him or
her. 	We cite Cardall simply as an illustration of a circumstance
in which we have found a mental or emotional condition to be
present and do not wish to limit the universe of possible mental
or emotional conditions.
9 	Nos. 20080128, 20080163
emotional condition under rule 506(d)(1). 	In Cardall, a
defendant accused of sexual abuse sought in camera review of an
“anxiety exam” administered at the alleged victim’s school and
documents regarding the alleged victim’s allegations of abuse
against a school janitor. 	1999 UT 51, ¶ 10. 	We granted in
camera review of the requested privileged records. 	We found it
important to note that the focus of the defendant’s defense was
that the alleged victim was a “habitual liar,” that she
“fabricated her story,” that she was “mentally and emotionally
unstable,” and that “on at least one previous occasion these
psychological traits led her to lie about an attempted rape or
sexual touching by the school janitor.” 	Id. ¶ 29.
¶23 	The result in Cardall on the issue of privilege invites
closer inspection. 	We seized upon the term “psychological
traits” to describe Mr. Cardall’s assertions that his alleged
victim was a habitual liar, a fabricator, and mentally and
emotionally unstable. 	Id. 	Tellingly, these psychological traits
were accompanied by false allegations of sexual misconduct
against a school janitor. 	Although we cannot infer from Cardall
the nature and degree of psychological traits necessary to
constitute a mental or emotional condition, it appears to us more
likely than not that none of the victim’s traits, taken alone,
would have established the existence of an emotional condition. 4
¶24 	Having described the correct method to evaluate the
rule 506(d)(1) exception, we turn to the merits of this case.
The court of appeals erred because it did not discuss whether
B.W.’s mental or emotional condition, as distinguished from
statements made to mental health professionals that might be used
to impeach her at trial, was itself an element of Mr. Worthen’s
defense.
¶25 	Mr. Worthen argued to the district court that B.W. had
extreme hatred towards her parents, which drove her to explore a
way to escape the Worthens’ home. 	He argued that her hatred
motivated her attempted suicide, found voice in her violent
journal entries, and led her to fabricate abuse allegations.
While the district court held that Mr. Worthen had not shown to a

5 The State puts particular importance on the district
court’s statement that “[Mr. Worthen] has conceded that there is
no reasonable certainty concerning the alleged victim’s mental
(continued...)
Nos. 20080128, 20080163 	10
reasonable certainty “with respect to allegations that [B.W.]
suffers from a disorder which affects her ability to accurately
perceive, remember, or relate events in her life . . . [or] that
[B.W.] suffers from a disorder which would affect her ability to
be trustworthy,” the district court allowed in camera review of
the records to “discover any statements concerning the
complainant’s feelings toward her parents.” 	The court reasoned
that Mr. Worthen had shown to a reasonable certainty that the
records contained exculpatory evidence of B.W.’s feelings towards
her parents by providing thirteen diary entries that “express[ed]
the complainant’s frustration with, and hatred toward, her
parents.”
¶26 	The district court did not state whether the “feelings”
were a manifestation of a mental or emotional condition, but only
found that Mr. Worthen had shown to a reasonable certainty that
B.W.’s records contained statements demonstrating her feelings
towards her parents. 	While B.W. may indeed have a mental or an
emotional condition that manifests itself through hatred of her
parents and her propensity to lie, the district court did not
incorporate such a finding into its order and the court of
appeals erred in its failure to analyze this shortcoming.
¶27 	B.W.’s communications to mental health professionals
concerning her feelings towards her parents may provide valuable
evidence of her motive. 	We conclude, however, that the fact that
B.W. communicated her feelings to her therapist does not lead to
the conclusion that B.W.’s mental or emotional condition is an
element of Mr. Worthen’s defense. 	Humans are from moment to
moment in a state of one emotional feeling or another. 	While a
mental or emotional condition encompasses a state of being that
is broader than a diagnosable disorder, feelings themselves are
not a mental or emotional condition contemplated under the rule.
If feelings themselves were to constitute a mental or emotional
condition, the exception to the psychotherapist-patient privilege
would devour the privilege.
¶28 	Having determined that the court of appeals was
mistaken when it failed to address whether B.W.’s mental or
emotional condition was an element of Mr. Worthen’s defense, we
address whether Mr. Worthen has met the requirements of rule
506(d)(1). 	We find that B.W.’s “frustration with, and hatred
toward” her parents is an emotional condition contemplated by the
rule. 5 	The UNI discharge statements and journal entries

5 (...continued)
condition.” 	Because rule 506(d)(1) mentions both mental
conditions and emotional conditions, the concession that B.W. did
not have a mental condition is not fatal to Mr. Worthen’s request
for in camera review.
11 	Nos. 20080128, 20080163
presented to the district court by Mr. Worthen sufficiently
supported his argument that B.W.’s emotional condition was an
element of his defense that she had a specific motive to lie.
B.W. demonstrated persistent hostility towards her parents and
repeatedly expressed her desire to leave the home. 	While anger
and hatred are “feelings” in the particular sense, the chronic
and persistent nature of such feelings in the mental life of a
person amount to a condition. 	We stress however that the fact
that B.W. may have made statements to her therapist that simply
conveyed her emotions or feelings does not by itself constitute a
mental or emotional condition under the rule merely because those
communications may be used for specific impeachment purposes.
B. 	The Court of Appeals Did Not Err When It Held That Evidence
Which May Qualify as Impeachment Evidence May Also Qualify as an
Element of a Claim or Defense
¶29 	The State argues that because Mr. Worthen’s request for
in camera review of B.W.’s mental health records is for the
purpose of obtaining impeachment evidence, he has not met the
rule 506(d)(1) requirements. 	Specifically, the State questions
whether impeachment evidence can ever qualify as an element of a
claim or defense under rule 506(d)(1). 	We will first discuss the
meaning of “element of a claim or defense” under rule 506(d)(1)
and whether impeachment evidence can be an element of a claim or
defense within this rule.
1. 	An Element of a Claim or Defense Is a Necessary Argument to
Interject Doubt Into the State’s Burden to Prove Each Element of
the Offense
¶30 	The State argued, both to the court of appeals, and
before us, that rule 506(d)(1) should only apply when the
condition can be linked to a statutorily defined defense and the
defendant has asserted such defense. 	See Utah Code Ann. §§ 76-2-
301 to 407 (2008) (setting forth statutory defenses to criminal
responsibility). 	The court of appeals rejected the State’s
argument and took a less formalistic position, holding that any
argument that interjects doubts into the State’s obligation to
prove every element of the offense beyond a reasonable doubt
qualifies as an element of a claim or defense under rule

Nos. 20080128, 20080163 	12
506(d)(1). 	We affirm the court of appeals and reject the State’s
narrow definition.
¶31 	In our system of justice, “a defendant in a criminal
case bears no burden of persuasion.” 	State v. Spillers, 2007 UT
13, ¶ 19, 152 P.3d 315. 	Subject to evidentiary restraints, a
defendant may present evidence that casts doubt on the State’s
ability to prove all the elements of the crime. 	See Black’s Law
Dictionary 451-52 (8th ed. 2004) (defining “defense” as, inter
alia, “1. 	A defendant’s stated reason why the . . . prosecutor
has no valid case,” and “2. 	A defendant’s method and strategy in
opposing the plaintiff or the prosecution.”). 	An element of a
claim or defense under rule 506(d)(1) therefore encompasses
evidence that interjects reasonable doubt into the elements the
State bears the burden to prove.
2. 	Rule 506(d)(1) Contemplates All Defenses of Which a Party’s
Mental or Emotional Condition Is an Element, Even If the Type of
Evidence Presented Is Impeachment Evidence
¶32 	The State argues that even if Mr. Worthen’s defense is
a defense in broad terms, an “I didn’t do it” or “she’s lying”
defense cannot be a defense of which impeachment evidence is an
element. 	The court of appeals concluded that because Mr. Worthen
sought review of the records for evidence of B.W.’s motive, bias,
or prejudice as opposed to evidence of her general
trustworthiness, the requirements of rule 506(d)(1) were
satisfied. 	State v. Worthen, 2008 UT App 23, ¶ 19, 177 P.3d 664.
¶33 	The State suggests that impeachment evidence is only a
part of a “defense strategy” and can never be an element of the
defense. 	We acknowledge that our prior case law has obscured and
not illuminated this topic. 	In Blake, we stated “[i]t is
unlikely that impeachment evidence qualifies as an element of a
claim or defense.” 	2002 UT 113, ¶ 19 n.2, 63 P.3d 56. 	We
declined to further probe the issue because the defendant in that
case had “not shown with reasonable certainty that the records he
[sought] contain[ed] exculpatory evidence.” 	Id. 	In Gonzales, we
further suggested that impeachment of the victim’s credibility
was not actually an element of an “I didn’t do it” defense, but
only “part of his defense strategy.” 	2005 UT 72, ¶ 43, 125 P.3d
878 (internal quotation marks omitted). 	In Gonzales, the
defendant argued the victim’s “relevant mental state to be an
inability to tell the truth” and “because of the likelihood of
finding exculpatory evidence that [the victim]‘cannot be
believed’ in her mental health records, the defense was entitled
to an in camera review.” 	Id. ¶ 16. 	We again declined to
thoroughly analyze the issue of what constitutes an element of a
claim or defense because we determined that the fraudulent and

6 The defense attorney in Gonzales used a flawed subpoena
process to obtain privileged mental health records from UNI and
did not seek in camera review of the records once he received
them. 	2005 UT 72, ¶¶ 44-45.
13 	Nos. 20080128, 20080163
flawed means by which the mental health records in that case were
obtained resulted in their inadmissibility. 	Id. ¶ 43. 6
¶34 	The court of appeals’ analysis indicated that our case
law creates a distinction between “specific” impeachment evidence
of motive, bias or prejudice and “general” impeachment evidence
of the general credibility of the witness. 	On review of our case
law, we find that the court of appeals misinterpreted Gonzales as
holding that “general” impeachment evidence is not an element of
a defense under rule 506(d)(1). 	Rather, Mr. Gonzales’
articulated defense was similar to the defense Mr. Worthen has
articulated and the defense articulated in Cardall. 	Mr. Gonzales
argued in his brief to this court “that [the victim] had
fabricated the allegations to prevent him from marrying [her
mother],” that “[her] psychological disorders directly address
her ability to accurately perceive reality and to tell the
truth,” and that she “had a history of telling lies” and has
“engaged in illegal activity.” 	Brief for Petitioner Add. D at
29. 	The factual differences between Cardall and Gonzales
therefore do not create foundation upon which to erect a
principled distinction between “specific” and “general”
impeachment evidence. 	See Cardall, 1999 UT 51, ¶ 29 (stating the
“focus of his defense was that [the victim] is a habitual liar,
that she fabricated her story . . . , that she is mentally and
emotionally unstable, and that the records show that on at least
one previous occasion these psychological traits led her to lie
about an attempted rape”). 	After careful review of the case law
and arguments, we must conclude that our brief treatment of
impeachment evidence under rule 506(d)(1) provides only
nonbinding dicta.
¶35 	We hold therefore that the correct inquiry then becomes
not whether the records may contain a certain type of impeachment
evidence but whether the specifically pled defense renders a
party’s mental or emotional condition a necessary element to that
defense. 	Communications made as a result of that condition are
only subject to review under rule 506(d)(1) when the condition
itself is an element of the defense.
¶36 	There may be circumstances in which a defendant
presents merely an “I didn’t do it” or a “she’s lying” defense in
which impeachment evidence takes the form of a defense strategy

7 Indeed, the difficulty in meeting the reasonable certainty
test “is deliberate and prudent in light of the sensitivity of
these types of records and the worsening of under-reporting
problems in the absence of a strong privilege.” 	Blake, 2002 UT
113, ¶ 19.
Nos. 20080128, 20080163 	14
rather than an element. 	We generally agree with the court of
appeals’ determination that impeachment evidence that only
challenges the general credibility of the witness, is likely not
an element of any claim or defense contemplated under rule
506(d)(1). 	See also Davis v. Alaska, 415 U.S. 308, 311 (1974)
(distinguishing between general impeachment evidence and evidence
that addresses possible biases, motives and prejudices in cases
dealing with review of privileged juvenile record). 	Our holding
today does not preclude a district court from using its
discretion to deny in camera review in these instances.
¶37 	Mr. Worthen’s case, however, does not present such a
set of circumstances. 	Mr. Worthen has argued that B.W. harbored
extreme hatred towards her parents, which created a motive to
fabricate allegations of abuse so that she would be removed from
her parents’ home. 	Mr. Worthen is not simply arguing “I didn’t
do it,” but rather is making the claim that B.W. has a mental or
emotional condition of extreme hatred, which has caused her to
fabricate abuse allegations. 	Mr. Worthen’s defense has narrowly
defined B.W.’s motive to lie, not her general credibility as a
witness, as a crucial element of his defense.
C. 	The Court of Appeals Did Not Err by Holding That Mr.
Worthen’s Request for B.W.’s Mental Health Records Met the
Reasonable Certainty Test
¶38 	The court of appeals held that Mr. Worthen met the
stringent “reasonable certainty” test we have imposed on a rule
506(d)(1) inquiry. 	“[I]t is not enough [for the defendant] to
show that the counseling records exist.” 	Blake, 2002 UT 113,
¶ 19. 	Mr. Worthen must also show “with reasonable certainty,
that the sought-after records actually contain ‘exculpatory
evidence . . . which would be favorable to his defense.’” 	Id.
(quoting Cardall, 1999 UT 51, ¶ 30) (alteration in original). 	We
have noted “[t]his is a stringent test, necessarily requiring
some type of extrinsic indication that the evidence within the
records exists and will, in fact, be exculpatory.” 7 	Id. 	In
Blake, we likened “reasonable certainty” in sexual abuse cases to
“the more stringent side of ‘more likely than not.’” 	Id. ¶ 20.
¶39 	We affirm the court of appeals’ determination that
Mr. Worthen’s request shows “with reasonable certainty that
exculpatory evidence exists [in the requested records that] would

8 Mr. Worthen’s brief conflates the proper analytical
sequence in a rule 506(d)(1) determination. 	Mr. Worthen argues
that because he could show to a reasonable certainty that the
requested records contained exculpatory evidence, B.W.’s mental
or emotional condition was necessarily an element of Mr.
Worthen’s defense. 	We emphasize that a defendant must meet the
plain language of rule 506(d)(1) independently of meeting the
reasonable certainty test.
15 	Nos. 20080128, 20080163
be favorable to his defense.” 	Cardall, 1999 UT 51, ¶ 30. 	The
court of appeals first began with a discussion of Mr. Worthen’s
particular defense and then analyzed whether the requested
records exist and whether they contain exculpatory evidence
favorable to Mr. Worthen’s articulated defense. 	Worthen, 2008 UT
App 23, ¶¶ 29-30. 	We agree that the court of appeals’ approach
applied the correct analytical framework here and reached the
proper result. 8
¶40 	First, Mr. Worthen has sufficiently pled a defense that
is amenable to a finding of exculpatory evidence in the requested
records that would be favorable to that defense. 	As discussed in
Part I(A), Mr. Worthen’s defense is that B.W. harbored extreme
hatred toward her parents, which created a motivation to falsely
accuse Mr. Worthen so that she would be removed from the
Worthens’ home. 	Mr. Worthen’s articulation of the defense
differs from the defense in Blake that we declared did not
qualify as a defense to which the reasonable certainty test could
apply. 	In Blake, the defendant made a general request for all of
the alleged victim’s mental health records, arguing that:
the mental health records . . . are important
because it [sic] may have information about
medication she’s taking that effect [sic] her
credibility; about whether she has recanted
or not . . . also, she may have a mental
illness where part of the diagnosis is
chronic lying.
Blake, 2002 UT 113, ¶ 21. 	Mr. Worthen’s defense and explanation
for the requested in camera review, in contrast, is limited to a
specific and narrow defense focused on B.W.’s extreme hatred.
¶41 	Second, Mr. Worthen has shown with reasonable certainty
that the requested records contain exculpatory evidence favorable
to the proffered defense. 	In Blake, we explained that a request
for in camera review “accompanied by specific facts justifying
the review” may meet the reasonable certainty test. 	Id. ¶ 22.

Nos. 20080128, 20080163 	16
We also suggested, however, that “when the request is a general
one, such as the request in this case for any impeachment
material that might happen to be found in the privileged
records,” it would be error for a district court to find that the
defendant had met the reasonable certainty test and grant in
camera review. 	Id. 	We noted that the specific facts required to
meet the reasonable certainty test include, but are not limited
to
references to records of only certain
counseling sessions, which are alleged to be
relevant, independent allegations made by
others that a victim has recanted, or
extrinsic evidence of some disorder that
might lead to uncertainty regarding a
victim’s trustworthiness.
Id.
¶42 	We agree with the court of appeals that Mr. Worthen
presented an appropriate amount of specific evidence to show to a
reasonable certainty the requested records contained exculpatory
evidence favorable to his defense. 	Mr. Worthen presented the
district court thirteen journal entries that suggested B.W. hated
the Worthens and wished to be removed from their home. 	These
journal entries constitute extrinsic evidence that B.W.’s therapy
records contain statements concerning her hatred of and
frustration toward the Worthens. 	The UNI discharge summaries
also document B.W.’s cognitive problems and propensity for
misinterpretations. 	Furthermore, Mr. Worthen has narrowed his
request to the time period between July and October 2005 and
provided the district court with a calendar documenting B.W.’s
therapy appointments to show that the requested records actually
exist. 	We conclude Mr. Worthen met the reasonable certainty
test.
II. 	THE COURT OF APPEALS DID NOT ERR IN ITS CONCLUSION THAT THE
MATERIALITY OF THE MENTAL HEALTH RECORDS IS A PREMATURE
CONSIDERATION
¶43 	The court of appeals held that an analysis of the
materiality of the requested privileged records, including
whether the records are cumulative of other admitted evidence, is
properly made at the time of the in camera review by the trial
court, not prior. 	We agree. 	In Blake, we stated after
satisfaction of the reasonable certainty test, “the court would
then conduct an in camera review for materiality.” 	State v.
Blake, 2002 UT 113, ¶ 23, 63 P.3d 56. 	The trial court must deem
evidence material “where there is a reasonable probability that,

17 	Nos. 20080128, 20080163
if the evidence is disclosed to the defense, the result of the
proceeding will be different.” 	Id. 	(citing State v. Cardall,
1999 UT 51, 982 P.2d 79). 	The State argues that Mr. Worthen has
a burden to show that the privileged records he seeks are
material to his defense before the court can grant in camera
review. 	The State also argues that an analysis of the
materiality of B.W.’s mental records is not premature in this
case because the health records are cumulative and do not hold
any additional probative value to B.W.’s journals.
¶44 	We will first discuss whether Mr. Worthen must show
that the records contain material information and then discuss
whether the possibility that the records are cumulative preclude
in camera review.
A. 	A Defendant Is Not Obligated to Prove Materiality of the Requested
Records Prior to In Camera Review Above What Is Already Required
by the Reasonable Certainty Test
¶45 	The court of appeals held that a defendant “must show
only that the evidence he seeks would be favorable to his
defense; the issue of materiality is one for the trial court to
determine when reviewing the records.” 	State v. Worthen, 2008 UT
App 23, ¶ 25, 177 P.3d 664. 	Although the court of appeals
acknowledged that the defendant is not precluded from arguing the
requested records are material, it held that the defendant bears
no burden of proving materiality before in camera review is
granted. 	Id. ¶ 25 n.4.
¶46 	The State points to cases in other jurisdictions for
its argument that a defendant must make some sort of showing that
the requested privileged records are material even if the
defendant has satisfied the reasonable certainty test. 	The State
relies on other courts’ mention of the importance of materiality
in determining whether an exception to the
psychotherapist-patient privilege applies.
¶47 	Other jurisdictions have implemented the word
“material” in describing the level to which a defendant must
prove the privileged records contain the evidence sought. 	See
State v. Stanaway, 521 N.W.2d 557, 574 (Mich. 1994) (stating, in
camera review is appropriate “on a showing that the defendant has
a good-faith belief, grounded on some demonstrable tact [sic],
that there is a reasonable probability that the records are
likely to contain material information necessary to the
defense”); State v. Cressey, 628 A.2d 696, 703 (N.H. 1993) (“The
trial court must conduct an in camera review of the

Nos. 20080128, 20080163 	18
psychologist’s privileged records should the defendant establish
a reasonable probability that the records contain information
relevant and material to his defense.”).
¶48 	On review of these cases, we find the use of the word
“material” is meant to further articulate that respective
jurisdiction’s reasonable certainty test. 	In terms of the
reasonable certainty test, “material” refers to evidence in the
records that is exculpatory, or in other words, favorable to the
defense. 	Given the stringency of the reasonable certainty test
in Utah, Mr. Worthen is not under an obligation to show
materiality apart from and in addition to the requirement that he
show to a reasonable certainty that the records contain
exculpatory evidence favorable to his defense in order to obtain
in camera review. 	Certainly the State may challenge the
materiality of any communications for purposes of contesting
admissibility. 	Nonetheless, a defendant is not required to make
an independent showing of materiality, prior to in camera review,
separate from meeting the requirements of the reasonable
certainty test to obtain in camera review.
B. 	A Court Can Only Determine if the Requested Records Are
Cumulative of Other Evidence After In Camera Review Takes Place
¶49 	The State argues that the court of appeals erred in its
conclusion that a decision on whether the records are cumulative,
and therefore immaterial, is premature. 	Although the State
argued that the journal entries and other evidence already in Mr.
Worthen’s possession provide more than enough evidence of B.W.’s
emotional state and motive to lie, the court of appeals reasoned
that communications contained within the records may contain
evidence that is independently probative of the wealth of
evidence already in Mr. Worthen’s possession. 	Worthen, 2008 UT
App 23, ¶ 26. 	We agree.
¶50 	Although communications in the requested records may be
cumulative of the evidence already in Mr. Worthen’s possession,
the trial court can only make such a determination after the
actual in camera review takes place. 	Even if the State is
correct in its assertion that the requested records will reveal
only cumulative information, there is also an equal likelihood
that the records will contain independently probative information
or probative information of a better quality. 	See State v.
Shiffra, 499 N.W.2d 719, 724 (Wis. Ct. App. 1993) (stating in
camera review still allowable even though sexual abuse defendant
was in possession of evidence that the alleged victim had
psychiatric diagnoses, struggled with substance abuse, and had

9 The State argues that the records can only contain
information that is independently probative if the in camera
review is for purposes of discovering psychiatric illnesses. 	The
State cites State v. Green, a Wisconsin case, which held the
defendant was required to show the requested privileged evidence
was “independently probative” and “not cumulative.” 	646 N.W.2d
298, 311 (Wis. 2002). 	The court held the defendant had not met
this requirement because he was in possession of police and
social services reports that showed the alleged victim had
changed her story over time. 	Id. 	We decline to adopt such a
narrow view of the application of rule 506(d)(1) and the function
of in camera review.
19 	Nos. 20080128, 20080163
accused others in the past of sexual abuse). 9 	Whether the
requested records provide only cumulative evidence is a
determination best left to the trial judge after review of the
records.
III. 	WE WILL NOT ADDRESS WHETHER THE COURT OF APPEALS DID
OR DID NOT IMPROPERLY CONSIDER UTAH’S VICTIMS’ RIGHTS AMENDMENT
OR UTAH’S VICTIMS’ RIGHTS STATUTORY SCHEME
¶51 	The guardian ad litem and the amici curiae argue that
the court of appeals erred by failing to address the
constitutional and statutory rights of B.W. 	They argue that the
court of appeals had a duty to consider B.W.’s rights by
considering B.W.’s constitutional and statutory interest in
nondisclosure of the requested records. 	The court of appeals’
opinion does not address the Victims’ Rights Amendment to the
Utah Constitution or Utah’s victims’ rights statutory scheme and
does not analyze the extent to which Utah law recognizing
victims’ rights is relevant to a trial court’s evidentiary
decisions. 	This was not error because the issues were not
properly presented to the court of appeals.
¶52 	The Victims’ Rights Amendment grants victims of crimes
the right “[t]o be treated with fairness, respect, and dignity,
and to be free from harassment and abuse throughout the criminal
justice process.” 	Utah Const. art. I, § 28(1)(a). 	The Rights of
Crime Victims Act defines dignity as “treating the crime victim
with worthiness, honor, and esteem”; fairness as “treating the
crime victim reasonably, even-handedly, and impartially”; and
respect as “treating the crime victim with regard and value.”
Utah Code Ann. § 77-38-2(2), (3), & (8) (2008).
¶53 	The court of appeals’ opinion does not address whether
victims’ rights protections should or must be taken into account

10 The 2009 amendments to section 78-38-11(2)(b) deleted
this language. 	We use the 2008 version because it was the
version in effect at the time of the appeal.
Nos. 20080128, 20080163 	20
when considering an exception to the victim’s
psychotherapist-patient privilege.
¶54 	The amici curiae argues that such judicial silence
violated Utah Code section 77-38-11, which states that “[a]n
appellate court shall review all such properly presented issues.”
Utah Code Ann. § 77-38-11(2)(c) (2008). 	Reliance on section
77-38-11 as standing for the proposition that an appellate court
must consider all arguments relating to victims’ rights on appeal
in its determination of an issue is misplaced. 	Section 77-38-11
relates to appeals made from an adverse ruling on a claim for
injunctive relief, declaratory relief, or a writ of mandamus made
to the court with proper jurisdiction, or of a “motion or request
brought by a victim of a crime.” 	Id. § 77-38-11(2)(b). 10 	The
court of appeals did not err by failing to include an analysis of
the affect of the victims’ rights amendment or statute because it
appears from the record that no such appeal from an adverse
ruling was made.
¶55 	B.W.’s rights as a victim support considerable policy-
based arguments for supporting evidentiary privileges. 	Indeed,
in State v. Blake and State v. Gonzales, we discussed the
problems associated with under-reporting among victims of sexual
abuse and considerations of privacy when one seeks counseling for
recovery. 	2005 UT 72, ¶ 33, 125 P.3d 878 (victims rights
implicated when victim did not receive proper notice that her
counseling records had been subpoenaed); 2002 UT 113, ¶ 16, 63
P.3d 56. 	These strong policy considerations however do not
mandate analysis from the court of appeals if the issue has not
been properly preserved for appellate review.
CONCLUSION
¶56 	We hold that the court of appeals erred in failing to
analyze whether B.W.’s mental or emotional condition was an
element of Mr. Worthen’s claim or defense, but conclude that in
this case B.W.’s emotional condition of extreme hatred and
frustration towards the Worthens is an element of Mr. Worthen’s
claim or defense. 	We also hold that the court of appeals did not
err in its determination that Mr. Worthen met the reasonable
certainty test and was not required to make a separate showing
that the requested records would provide material and
noncumulative evidence. 	Additionally, we hold that the impact of
the Victims’ Rights Amendment and the Rights of Crime Victims Act
was not properly presented for appeal to the court of appeals.

21 	Nos. 20080128, 20080163
Therefore, we affirm the court of appeals’ determination that Mr.
Worthen is entitled to in camera review of B.W.’s mental health
records for statements of B.W.’s feelings towards her parents.
---
¶57 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.