Access to Counseling and Medical Records in Michigan CSC Cases

In a Michigan criminal case there is no right to discover information that is protected by privilege, and several statutory privileges cover counseling, psychological and medical records.^[1][3][6][7] The court rule sets a threshold: only if the defendant shows "a good-faith belief, grounded in articulable fact, that there is a reasonable probability that records protected by privilege are likely to contain material information necessary to the defense" does the judge inspect the records privately, and only what is necessary to the defense is passed on.^[2][5]

If you are in immediate danger, call 911.^[8] The National Sexual Assault Hotline offers free, confidential support 24/7 at 800-656-HOPE (4673).^[9] Michigan's VOICES4 Hotline is free, confidential and anonymous, with advocates available 24/7 by call or text at 855-864-2374.^[10]

This page explains the privileges involved, the court rule's in camera test, the Michigan Supreme Court case associated with it, how courts have applied it, and what happens after the judge reads the records.

Which privileges protect these records?

Under the Michigan Rules of Evidence, the common law governs a claim of privilege unless a statute or court rule provides otherwise.^[11] Several statutes matter in sexual assault cases.

Relationship	What the statute says
Sexual assault or domestic violence counselor	A confidential communication, or any report or working paper, made in connection with a consultation "shall not be admissible as evidence in any civil or criminal proceeding without the prior written consent of the victim."[3]
Physician	Except as otherwise provided by law, a person authorized to practice medicine or surgery "shall not disclose any information that the person has acquired in attending a patient in a professional character," if it was necessary to treat the patient.[6]
Psychologist	A licensed psychologist "cannot be compelled to disclose confidential information acquired from an individual consulting the psychologist in his or her professional capacity if the information is necessary to enable the psychologist to render services."[7]
Psychiatrist or psychologist (Mental Health Code)	Privileged communications "shall not be disclosed in civil, criminal, legislative, or administrative cases or proceedings, or in proceedings preliminary to such cases or proceedings, unless the patient has waived the privilege," except in listed circumstances.[12]
Social worker	A communication between a registered or licensed social worker and a client is a confidential communication that "shall not be disclosed" except as part of a required supervisory process or where the client waives the privilege.[13]
Clergy, physician and attorney (Code of Criminal Procedure)	Communications are "privileged and confidential when those communications were necessary to enable" the professional to serve in that role.[14]

The counselor privilege in more detail

The counselor statute has its own definitions. A "sexual assault or domestic violence counselor" is "a person who is employed at or who volunteers service at a sexual assault or domestic violence crisis center, and who in that capacity provides advice, counseling, or other assistance to victims." A "victim" includes a person "who alleges to have been the subject of a sexual assault."^[15] The section defines "sexual assault" as "assault with intent to commit criminal sexual conduct."^[15]

The Sexual Assault Benchbook notes that if a counselor is also licensed, certified or identified as a social worker, psychologist or other specified professional, the other privileges in the table may apply as well.^[16]

Where privileges give way: child protective proceedings and mandated reports

The counselor statute begins with an exception for section 11 of the Child Protection Law.^[3] That section abrogates "any legally recognized privileged communication except that between attorney and client or that made to a member of the clergy in his or her professional character in a confession or similarly confidential communication." A privilege is not a ground for excusing a report the act requires, or for excluding evidence in a civil child protective proceeding resulting from a report.^[17]

The benchbook states that the counselor privilege is abrogated in child protective proceedings and also if the counselor has a duty to report suspected child abuse or neglect.^[16] Who has that duty is covered in mandated reporters of child abuse. Note the statute's wording: the abrogation concerns required reports and civil child protective proceedings.^[17]

The court rule: MCR 6.201(D)

MCR 6.201 governs discovery in criminal cases. Subrule (D)(1), as the Sexual Assault Benchbook quotes it, says: "Notwithstanding any other provision of this rule, there is no right to discover information or evidence that is protected from disclosure by constitution, statute, or privilege, including information or evidence protected by a defendant's right against self-incrimination, except as provided in" subrule (D)(2).^[1]

Subrule (D)(2) is the exception: "If a defendant demonstrates a good-faith belief, grounded in articulable fact, that there is a reasonable probability that records protected by privilege are likely to contain material information necessary to the defense, the trial court shall conduct an in camera inspection of the records."^[2] "In camera" means the judge reads the records privately rather than in open court.

A lettering change to watch for. An amendment to MCR 6.201 effective July 31, 2026 relettered its subrules, so what was MCR 6.201(C) is now MCR 6.201(D).^[1] The privileged-records test formerly cited as MCR 6.201(C)(2) is MCR 6.201(D)(2) as of October 2026, and the prosecutor's general disclosure list, formerly subrule (B), is now subrule (C).^[2][18]

Where the test comes from: People v Stanaway

The test comes from People v Stanaway, a 1994 Michigan Supreme Court decision that also decided a companion case, People v Caruso. The Court stated it this way: if the defendant "has demonstrated a good-faith belief, grounded in articulable fact, that there is a reasonable probability that the records contain material information necessary to his defense," an in camera inspection "should be conducted by the trial judge."^[19] In Stanaway's own case the Court affirmed the denial of in camera review, because the "generalized assertion of a need to attack the credibility of his accuser did not establish the threshold showing."^[19] In Caruso it sent the case back for the trial court to decide whether review was warranted.^[19]

The Evidence Benchbook describes the same passage: the defendant was "fishing," had not stated "any specific articulable fact that would indicate that the requested confidential communications were necessary to a preparation of his defense," and had not stated "a good-faith basis for believing that such statements were ever made."^[20]

In Stanaway, the Court rejected defendant's assertion that review of confidential records was "necessary to his attempt to unearth any prior inconsistent statements made by the complainant or any other relevant rebuttal evidence," finding that defendant was "fishing"; had failed to state "any specific articulable fact that would indicate that the requested confidential communications were necessary to a preparation of his defense"; and had failed to state "a good-faith basis for believing that such statements were ever made or what the content might be and how it would favorably affect his case."^[20]

How courts have applied the test

Each of the following is described as the benchbooks describe it.

• People v Leonard (Court of Appeals, 2026). Three complainants alleged assaults when they were under 13. The defendant sought in camera review of one complainant's therapy records. The complainant had testified that he attended therapy, but "there [was] nothing in the record to show that the complainant ever discussed the alleged sexual assaults with a therapist," and the defendant did not identify a specific piece of evidence he expected to find. The trial court did not abuse its discretion in denying the motion; the request was "essentially, a fishing expedition."^[21]
• People v Davis-Christian (Court of Appeals, 2016). A trial court that granted in camera review under its own standard abused its discretion; that standard would have allowed review "of most–if not all–of the counseling records of alleged sexual assault victims."^[22]
• People v Masi (Court of Appeals, 2023). A motion for discovery of a complainant's privileged medical, psychological and school records is properly denied where the records reviewed in camera do not contain material necessary to the defense.^[22]

The common thread in the quoted language is specificity. In the words the benchbook quotes from Leonard, "[a] defendant is fishing for information when he or she relies on generalized assertions and fails to state any specific articulable fact that indicates the privileged records are needed to prepare a defense."^[23]

What happens after the judge reads the records?

The rule's five lettered paragraphs set out the steps.^[5]

• Nothing necessary is found. A discovery motion is properly denied where the records reviewed in camera do not contain material necessary to the defense.^[22]
• Necessary evidence is found. "If the court is satisfied, following an in camera inspection, that the records reveal evidence necessary to the defense, the court shall direct that such evidence as is necessary to the defense be made available to defense counsel."^[5]
• The privilege is absolute and is not waived. If the privilege is absolute and the holder refuses to waive it, either to permit the in camera inspection or to permit disclosure afterward, "the trial court shall suppress or strike the privilege holder's testimony."^[5][4]
• Findings and sealing. Whichever way it rules, the court "shall make findings sufficient to facilitate meaningful appellate review" and "shall seal and preserve the records for review in the event of an appeal."^[5]
• Limits on use. Records that are disclosed "shall remain in the exclusive custody of counsel for the parties" and "shall be used only for the limited purpose approved by the court."^[5]

The third point means the holder of an absolute privilege keeps the choice whether to waive it, with a consequence for that person's testimony if the choice is not to.^[5] Which privileges are absolute is not addressed in the sources used for this page, so the page does not classify them.

Phone data is handled in a similar way

Leonard also dealt with a complainant's cell-phone data, and adopted a two-step approach there too. The prosecution is not required "to surrender the entirety of a complainant's cellular phone data to a defendant"; the trial court reviews the data in camera for evidence "reasonably necessary, and therefore essential, to the defense," and the complainants must be allowed an opportunity to be heard on the least intrusive method.^[24][25] See texts, apps and digital evidence.

What people get wrong

"The defense gets to see everything about the accuser." The rule starts from the opposite position: there is no right to discover privileged information.^[1]

"Therapy records can never be reached." The rule requires in camera inspection once the threshold showing is made, and provides for disclosure of evidence the court finds necessary to the defense.^[2][5]

"Seeing a counselor will be used against me in court." A communication with a sexual assault counselor is not admissible without the victim's prior written consent, subject to the Child Protection Law exception.^[3] The Mental Health Code separately restricts disclosing even the fact that a patient has been examined or treated by a psychiatrist or psychologist, where the communications themselves are protected.^[26]

Related pages: privacy and rights of victims in sex crime cases, rights of sexual assault survivors, the rape shield law, statements to doctors and SANE nurses and impeachment and prior false accusations. General discovery, including what the prosecutor turns over on request, is explained in the sister guide's page on discovery in Michigan criminal cases, and marital privileges are in spousal privilege.