- Posted by Mary's Advocates
- On August 6, 2016
Dear Rev. Name Named
Exception to sealing proofs from psychologist expert witness
As allowed in canon 1459 §1 and §2, I am raising an exception to the requirement of the (ARCH)DIOCESE OF NAMED that states “[quote sentence from policy]” (attached, [enter title/description of documents that you received], dated MONTH XX, 20XX).
I seek to read the psychologist expert’s report that is described in Dignitas Connubii article 210 and canon 1578 §§ 1-2, transcripts of judicial exam of expert, and explanations supplied by the expert to the judge (cf. DC Art. 162, c. 1558 §1, DC Art. 211, c. 1578 §3). I ask that you reply to my exception as quickly as possible (cf. DC Art. 77 §2, c. 1459 §2).
Given that I cannot rebut statements in the expert witness’ report unless I view the report, to seal it would violate my right to defense. Or, if the expert report includes statements about which I would want to comment or propose other proofs or other witnesses’ proofs, I would be ill equipped to defend unless I viewed the report itself. Further, after the conclusion of the cause, I may need to refer to statements from the expert when I prepare my defenses and observations (DC Art. 242 §1, c. 1603 §1). If there is any appeal, I may need to refer to the statements from the expert when I prepare my observations for the ponens of the tribunal of appeal (DC Art. 265 §2, c. 1682 §2).
It is not a violation of federal privacy rules for psychologists for the diocese to have me read proofs from the psychologist witness because federal privacy rules limit a medical practitioner, a psychologist, or a health insurance company from giving information to others. To avoid violating the federal privacy rules, the psychologist would need to have already obtained from any party permission for the psychologist to give the tribunal an opinion about the party’s mental health. The federal privacy rules are not applicable to an ecclesiastic entity to which a psychologist gives information.
As a remedy, I suggest you could ask both parties to sign a waiver when the parties give the psychologist permission to release information to the tribunal:
By releasing this information to the Tribunal, I intend it to be released to Tribunal officials at every potential stage of the trial, namely, the Judges, Defenders of the Bond, Promoters of Justice, Advocates, Experts, Procurators, Curators, and Notaries involved in this case. And I also make it available to the other party in this case, who is authorized only to read it under the supervision of Tribunal authorities and to the extent that it is included in the text of the definitive sentence.
Moreover, for your consideration, I am providing Rotal jurisprudence to support my request. This passage is a quote from another decree from the same auditor. Doran is quoting himself in an earlier decree (coram Doran, 29 November 1990, n. 9, in RRT Decreta, 8:191).
“To Prohibit one or another party from an inspection of the acts, by restricting either all or an indeterminate number of documents under secrecy, entails a nullity of the process. Neither can it be said that the right of defense is protected by the faculty conceded to the advocate to inspect the act of the instruction. The law determines the nullity of the acts not from the denied right of defense, but from the denied faculty for the parties to examine the notes and procedural records. For this nullity, beyond any questions of a denied right of defense through a defective property publication, is a textual nullity, deriving from the positive disposition of the Chief Legislator” (Coram Doran, decree of Nov 26, 1992, n. 6. In Rotæ Romanæ Tribunal decreta, 10 (1992), pp. 197-205).