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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 118671
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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In the State of New York What is electronic discovery

Resolved Question:

In the State of New York:

What is "electronic discovery?" Under what conditions can a rape victim's personal writings and photographs on electronic devices such as a laptop computer or iPhone be submitted for psychiatric evaluation in a rape case or in the context of a petition for guardianship?

Doesn't the person have a right to know they are subject to a court order of any kind, in particular for legal guardianship or psychiatric evaluation? What if she finds out that her writings are being motored and evaluated by third parties without her knowledge or consent?
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 6 years ago.
Electronic discovery is seeking information that is stored in some type of digital format. As far as getting a rape victim's information, you must prove that there is some very strong compelling need, since the court will not just order the intrusion into a victim's life such as that. The victim's writings cannot be monitored without a court order and the victim would have had to have been present when that court order was issued. If there is no court order to monitor those writings then this is considered an illegal wiretap and can lead to federal and state criminal felony charges.

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Customer: replied 6 years ago.
Under what conditions can the Southern District of New York effect a gag order on a rape victim's out-of -state family, in this way concealing the investigation into her rape?

Under what conditions can the government discuss a rape victim's psychological health with third parties behind her back and then place gag orders on these parties?

Under what conditions can the government undertake various types of forensic psychiatric evaluations and social service interventions without the victim's knowledge or consent?

If a victim of drug-faciliated kidnapping and sexual assault in the Southern District of New York has total amnesia of incidents that have been illegally covered up, meaning that the victim was surreptitiously drugged by psychiatrists and returned to her bed after the assault, to what extent can the government and its psychiatrists proceed to discuss these incidents with her out-of-state family while they are keeping them hidden from the victim?

Expert:  Law Educator, Esq. replied 6 years ago.
The Courts can institute a gag order when they have reasonable belief that failure to do so can impair or impede any justice in the case. This is done at the request of the prosecutor or defense or can be done on the initiative of the court when they believe there is a compelling interest of justice.

The government is not bound by any confidentiality in these matters and can discuss the matters involving the psychological condition of the victim. In fact, if this psychological condition is something that is pertinent to the defense of the case, the prosecution MUST release it to the defense.

These documents are not protected and as such are available to the defense and prosecution. However, the Rape Shield Act prevents the defense for making issue of the victim's background in most cases as a defense to the charges.

The doctors CANNOT discuss any information with anyone regarding this under HIPAA unless they are using the information with their defense to defend themselves against charges.
Customer: replied 6 years ago.
I don't understand how the above conditions operate in light of the following from NY State Justice Department Eric Schneiderman's Domestic Violence Rights and Resources:

"You may refuse to submit to a polygraph or psychological stress evaluator examinations during the investigation and prosecutions of the sexual offense. Absolutely no one, including a District Attorney, police officer or employee of law enforcement can require you to submit to this kind of testing."

What kind of testing are they referring to? I am particular interested in how the law applies to the evaluation of victims presented to psychiatrists while still incompetent from crime-faciiating drugs administrated by the assailant. In this case, the victim has no memory of the interview and retains no paperwork.

And regarding the discussion of the case behind the victims's back without notification, how can this take place in light of this paragraph from the same published guidelines:

"Whenever disclosure of rape crisis counselor-client communication is sought on the grounds that the privilege has been waived or that the disclosure is required in a criminal case, the party seeking disclosure must file a written request with the court."

Wouldn't this requirement also apply to forensic psychiatrists and medical personal attending to the amnesiac victim?

You are saying that a victim of a crime committed with facilitating drugs can be evaluated without her knowledge or consent and without notification of court proceedings utilizing these evaluations?
Expert:  Law Educator, Esq. replied 6 years ago.
The testing they are referring to would be sending you for new testing, not for getting your other records. While you may be a victim and entitled to some protections under the law, the defense is also entitled to defend themselves and if they can demonstrate to the court those records are necessary to their defense the court will allow them to use them. The court nor the DA or defense can order you to undergo new testing, but that does not prevent evaluation of your prior records.
Customer: replied 6 years ago.
I understand what you are saying. This is not a case of the victim's prior medical history or records: there is none. The victim has no history of psychiatric evaluation--at least that she is aware of.

The issue is that the victim is being evaluated after the assailant has rendered her incompetent and without her knowledge or competent consent or that of her immediate family, namely her husband. As a result of the crime-facilitating drugs, the victim has amnesia, which leads to the other issue: her medical records are being withheld from her as all notification of all legal proceedings taking place that concern her.

Isn't this prosecutorial abuse to allow the defense to operate in this way? Isn't notification of the victim part of "due process?"
Expert:  Law Educator, Esq. replied 6 years ago.
Now you are getting into an area that is way too in depth for this service because I cannot properly evaluate the case file and the circumstances leading to the legal necessity for these evaluations. This was not the point of your original question and actually requires you to get your own local attorney to intercede with the prosecutor's office on your behalf and file motions in the court to stop the conduct. It is NOT prosecutorial abuse, it is something you need to go to court and resolve and get protective orders, but again, we cannot review all of the facts and files in your matter to give you more specific answers.
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