I once represented a guy charged with a sex offense. The case went to trial.
Right before the trial I acquired a lot of information about the alleged “victim”, also known as the chief complaining witness, including that she had an extensive psychological history. The details indicated that this person might have been quite unstable.
I worried that if she were cross examined the way I intended to she might harm herself. I called the ADA prosecuting the case to inform him of what I had learned, outlining these concerns, and suggesting that a conviction was hopeless and the risk to the victim didn’t justify proceeding. The “hopeless” part was an exaggeration, to put it mildly: obtaining convictions is ridiculously easy.
The ADA already knew about the psych history; I wondered when, if at all, he had planned on telling me.
But that’s not the point.
I subpoenaed the relevant psychologist. The ADA moved to quash the subpoena. We went before the judge on the day the trial was to begin, the day we would pick the jury.
The psychological information is privileged, said the ADA. Yes, the information is privileged, said the judge. I agreed. It was unarguable that if the witness invoked it, the privilege applied. But, if the witness invokes a privilege, I said, I am entitled to an instruction from the judge to the jury that the jury is allowed to draw what is known as an “adverse inference” regarding her testimony.
The judge refused to give the instruction, and precluded me from asking the witness anything about her psych history, so that she wouldn’t have to invoke her privilege in open court.