518 U.S. 1116 S.Ct. 1923135 L.Ed.2d 337
JAFFEE, SPECIAL ADMINISTRATOR FOR ALLEN, DECEASEDv.REDMOND et al.Certiorari to the United States Court of Appeals for the Seventh Circuit.
No. 95-266.
Argued February 26, 1996
Decided June 13, 1996

Syllabus
Petitioner, the administrator of decedent Allen's estate, filed this  action alleging that Allen's constitutional rights were violated when he  was killed by respondent Redmond, an on-duty police officer employed by  respondent village.  The court ordered respondents to give petitioner  notes made by Karen Beyer, a licensed clinical social worker, during  counseling sessions with Redmond after the shooting, rejecting their  argument that a psychotherapist-patient privilege protected the contents  of the conversations.  Neither Beyer nor Redmond complied with the order.  At trial, the jury awarded petitioner  damages after being instructed that the refusal to turn over the notes was legally unjustified and the jury could presume that the notes would have been  unfavorable to respondents.  The Court of Appeals reversed and remanded,  finding that "reason and experience," the touchstones for acceptance of  a privilege under Federal Rule of Evidence 501, compelled recognition of  a psychotherapist-patient privilege.  However, it found that the  privilege would not apply if in the interests of justice, the  evidentiary need for disclosure outweighed the patient's privacy  interests.  Balancing those interests, the court concluded that Beyer's  notes should have been protected.
Held:  The conversations between Redmond and her therapist and the notes  taken during their counseling sessions are protected from compelled  disclosure under Rule 501.  Pp. 5-17.
(a) Rule 501 authorizes federal courts to define new privileges by  interpreting "the principles of the common law . . . in the light of  reason and experience."  The Rule thus did not freeze the law governing  privileges at a particular point in history, but rather directed courts  to "continue the evolutionary development of testimonial privileges."  Trammel v. United States, 445 U. S. 40, 47.  An exception from the  general rule disfavoring testimonial privileges is justified when the proposed privilege "promotes sufficiently important interests to outweigh the need for probative evidence . . . ."   at 51.  Pp. 5-7.
(b) Significant private interests support recognition of a psychotherapist privilege.  Effective psychotherapy depends upon an  atmosphere of confidence and trust, and therefore the mere possibility  of disclosure of confidential communications may impede development of  the relationship necessary for successful treatment.  The privilege also  serves the public interest, since the mental health of the Nation's  citizenry, no less than its physical health, is a public good of  transcendent importance.  In contrast, the likely evidentiary benefit  that would result from the denial of the privilege is modest.  That it  is appropriate for the federal courts to recognize a psychotherapist  privilege is confirmed by the fact that all 50 States and the District  of Columbia have enacted into law some form of the privilege, see Trammel v. United States, 445 U. S., at 48-50, and reinforced by the  fact that the privilege was among the specific privileges recommended in  the proposed privilege rules  that were rejected in favor of the more  open-ended language of the present Rule 501. Pp. 7-13.
(c) The federal privelege, which clearly applies to psychiatrists and psychologists, also extends to confidential communications made to  licensed social workers in the course of psychotherapy.  The reasons for  recognizing the privilege for treatment by psychiatrists and  psychologists apply with equal force to clinical social workers, and the  vast majority of States explicitly extend a testimonial privilege to  them.  The balancing component implemented by the Court of Appeals and a  few States is rejected, for it would eviscerate the effectiveness of the privilege by making it impossible for participants to predict whether  their confidential conversations will be protected. Because this is the  first case in which this Court has recognized a psychotherapist  privilege, it is neither necessary nor feasible to delineate its full  contours in a way that would govern all future questions.  Pp. 13-16.  51 F. 3d 1346, affirmed.
Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined.  Scalia, J.,  filed a dissenting opinion, in which Rehnquist, C. J., joined as to Part  III.
NOTICE: This opinion is subject to formal revision before publication in  the preliminary print of the United States Reports.  Readers are  requested to notify the Reporter of Decisions, Supreme Court of the  United States, Washington, D.C. 20543, of any typographical or other  formal errors, in order that corrections may be made before the  preliminary print goes to press.
Justice Stevens delivered the opinion of the Court.


1
After a traumatic incident in which she shot and killed a man, a  police officer received extensive counseling from a licensed clinical  social worker.  The question we address is whether statements the  officer made to her therapist during the counseling sessions are  protected from compelled disclosure in a federal civil action brought by  the family of the deceased. Stated otherwise, the question is whether  it is appropriate for federal courts to recognize a "psychotherapist  privilege" under Rule 501 of the Federal Rules of Evidence.

I.

2
Petitioner is the administrator of the estate of Ricky Allen.  Respondents are Mary Lu Redmond, a former police officer, and the  Village of Hoffman Estates, Illinois, her employer during the time that  she served on the police force.1  Petitioner commenced this action  against respondents after Redmond shot and killed Allen while on patrol  duty.


3
On June 27, 1991, Redmond was the first officer to respond to a  "fight in progress" call at an apartment complex.  As she arrived at the  scene, two of Allen's sisters ran toward her squad car, waving their  arms and shouting that there had been a stabbing in one of the  apartments. Redmond testified at trial that she relayed this information  to her dispatcher and requested an ambulance.  She then exited her car  and walked toward the apartment building.  Before Redmond reached the  building, several men ran out, one waving a pipe.  When the men ignored  her order to get on the ground, Redmond drew her service revolver.  Two other men then burst out of the building, one, Ricky Allen, chasing the  other.  According to Redmond, Allen was brandishing a butcher knife and  disregarded her repeated commands to drop the weapon.  Redmond shot  Allen when she believed he was about to stab the man he was chasing.  Allen died at the scene.  Redmond testified that before other officers  arrived to provide support, "people came pouring out of the buildings,"  App. 134, and a threatening confrontation between her and the crowd  ensued.


4
Petitioner filed suit in Federal District Court alleging that Redmond had violated Allen's constitutional rights by using excessive  force during the encounter at the apartment complex. The complaint  sought damages under Rev. Stat. Section(s) 1979, 42 U. S. C. Section(s)  1983 and the Illinois wrongful death statute, Ill. Comp. Stat., ch. 740,  Section(s) 180/1 et seq. (1994).  At trial, petitioner presented  testimony from members of Allen's family that conflicted with Redmond's  version of the  incident in several important respects.  They testified,  for example, that Redmond drew her gun before exiting her squad car and  that Allen was unarmed when he emerged from the apartment building.


5
During pretrial discovery petitioner learned that after the shooting Redmond had participated in about 50 counseling sessions with  Karen Beyer, a clinical social worker licensed by the State of Illinois  and employed at that time by the Village of Hoffman Estates.  Petitioner  sought access to Beyer's notes concerning the sessions for use in  cross-examining Redmond.  Respondents vigorously resisted the discovery.  They asserted that the contents of the conversations between Beyer and  Redmond were protected against involuntary disclosure by a psychotherapist-patient privilege.  The district judge rejected this  argument.   Neither Beyer nor Redmond, however, complied with his order  to disclose the contents of Beyer's notes.  At depositions and on the  witness stand both either refused to answer certain questions or  professed an inability to recall details of their conversations.


6
In his instructions at the end of the trial, the judge advised  the jury that the refusal to turn over Beyer's notes had no "legal  justification" and that the jury could therefore presume that the  contents of the notes would have been unfavorable to respondents.2  The jury awarded petitioner $45,000 on the federal claim and $500,000 on  her state-law claim.


7
The Court of Appeals for the Seventh Circuit reversed and remanded for a new trial.  Addressing the issue for the first time, the  court concluded that "reason and experience," the touchstones for  acceptance of a privilege under Rule 501 of the Federal Rules of  Evidence, compelled recognition of a psychotherapist-patient  privilege.3  51 F. 3d 1346, 1355 (1995). "Reason tells us that  psychotherapists and patients share a unique relationship, in which the  ability to communicate freely without the fear of public disclosure is  the key to successful treatment."   at 1355-1356.  As to experience,  the court observed that all 50 States have adopted some form of the psychotherapist-patient privilege.   at 1356.  The court attached particular significance to the fact that Illinois law expressly extends  such a privilege to social workers like Karen Beyer.4 at 1357.  The court also noted that, with one exception, the federal decisions  rejecting the privilege were more than five years old and that the "need  and demand for counseling services has skyrocketed during the past  several years."   at 1355-1356.


8
The Court of Appeals qualified its recognition of the privilege  by stating that it would not apply if "in the interests of justice, the  evidentiary need for the disclosure of the contents of a patient's  counseling sessions outweighs that patient's privacy interests."    at 1357.  Balancing those conflicting interests, the court observed, on  the one hand, that the evidentiary need for the contents of the  confidential conversations was diminished in this case because there  were numerous eyewitnesses to the shooting, and, on the other hand, that  Officer Redmond's privacy interests were substantial.5   at 1358.  Based on this assessment, the court concluded that the trial court had  erred by refusing to afford protection to the confidential  communications between Redmond and Beyer.


9
The United States courts of appeals do not uniformly agree that  the federal courts should recognize a psychotherapist privilege under  Rule 501.  Compare In re Doe, 964 F. 2d 1325 (CA2 1992) (recognizing  privilege); In re Zuniga, 714 F. 2d 632 (CA6), cert. denied, 464 U. S.  983 (1983) (same), with United States v. Burtrum, 17 F. 3d 1299 (CA10),  cert. denied, 513 U. S. ___ (1994) (declining to recognize privilege);  In re Grand Jury Proceedings, 867 F. 2d 562 (CA9), cert. denied sub nom.  Doe v. United States, 493 U. S. 906 (1989) (same); United States v. Corona, 849 F. 2d 562 (CA11 1988), cert. denied, 489 U. S. 1084 (1989)  (same); United States v. Meagher, 531 F. 2d 752 (CA5), cert. denied, 429  U. S. 853 (1976) (same).  Because of the conflict among the courts of  appeals and the importance of the question, we granted certiorari.  516  U. S. ___ (1995).  We affirm.

II.

10
Rule 501 of the Federal Rules of Evidence authorizes federal courts to define new privileges by interpreting "common law principles  . . . in the light of reason and experience."  The authors of the Rule  borrowed this phrase from our opinion in Wolfle v. United States, 291 U.  S. 7, 12 (1934),6 which in turn referred to the oft-repeated  observation that "the common law is not immutable but flexible, and by  its own principles adapts itself to varying conditions."  Funk v. United  States, 290 U. S. 371, 383 (1933).  See also Hawkins v. United States,  358 U. S. 74, 79 (1958) (changes in privileges may be "dictated by  `reason and experience'").  The Senate Report accompanying the 1975 adoption of the Rules indicates that Rule 501 "should be understood as  reflecting the view that the recognition of a privilege based on a  confidential relationship . . . should be determined on a case-by-case  basis."  S. Rep. No. 93- 1277, p. 13 (1974).7  The Rule thus did not  freeze the law governing the privileges of witnesses in federal trials  at a particular point in our history, but rather directed federal courts  to "continue the evolutionary development of testimonial privileges."  Trammel v. United States, 445 U. S. 40, 47 (1980); see also University  of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990).


11
The common-law principles underlying the recognition of testimonial privileges can be stated simply.  "`For more than three  centuries it has now been recognized as a fundamental maxim that the  public . . . has a right to every man's evidence.  When we come to  examine the various claims of exemption, we start with the primary  assumption that there is a general duty to give what testimony one is  capable of giving, and that any exemptions which may exist are  distinctly exceptional, being so  many derogations from a positive  general rule.'"  United States  v. Bryan, 339 U. S. 323, 331 (1950)  (quoting 8 J. Wigmore, Evidence Section(s) 2192, p. 64 (3d ed.  1940)).8  See also United States v. Nixon, 418 U. S. 683, 709 (1974).  Exceptions from the general rule disfavoring testimonial privileges may  be  justified, however, by a "`public good transcending the normally  predominant principle of utilizing all rational means for ascertaining  the truth.'" Trammel, 445 U.  S., at 50, quoting Elkins v. United  States, 364 U. S. 206, 234 (1960) (Frankfurter, J., dissenting).


12
Guided by these principles, the question we address today is whether a privilege protecting confidential communications between a  psychotherapist and her patient "promotes sufficiently important  interests to outweigh the need for probative evidence . . . ."  445 U.  S., at 51.  Both "reason and experience" persuade us that it does.

III.

13
Like the spousal and attorney-client privileges, the psychotherapist-patient privilege is "rooted in the imperative need for  confidence and trust."  Trammel, 445 U. S., at 51. Treatment by a  physician for physical ailments can often proceed successfully on the  basis of a physical examination, objective information supplied by the  patient, and the results of diagnostic tests.  Effective psychotherapy,  by contrast, depends upon an atmosphere of confidence and trust in which  the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.  Because of the sensitive nature of the  problems for which individuals consult psychotherapists, disclosure of  confidential communications made during counseling sessions may cause  embarrassment or disgrace.  For this reason, the mere possibility of  disclosure may impede development of the confidential relationship  necessary for successful treatment.9 As the Judicial Conference  Advisory Committee observed in 1972 when it recommended that Congress  recognize a psychotherapist privilege as part of the Proposed Federal  Rules of Evidence, a psychiatrist's ability to help her patients


14
"is completely dependent upon [the patients'] willingness and ability to talk freely.  This makes it difficult if not impossible for   [a psychiatrist] to function without being able  to assure . . . patients  of confidentiality and, indeed, privileged communication.  Where there  may be exceptions to this general rule . . ., there is wide agreement  that confidentiality is a sine qua non for successful psychiatric  treatment." Advisory Committee's Notes to Proposed Rules, 56 F. R. D.  183, 242 (1972) (quoting Group for Advancement of Psychiatry, Report No.  45, Confidentiality and Privileged Communication in the Practice of Psychiatry 92 (June 1960)).


15
By protecting confidential communications between a psychotherapist and her patient from involuntary disclosure, the proposed privilege thus serves important private interests.


16
Our cases make clear that an asserted privilege must also "serv[e] public ends."  Upjohn Co. v. United States, 449 U. S. 383, 389   (1981). Thus, the purpose of the attorney-client privilege is to  "encourage full and frank communication between attorneys and their  clients and thereby promote broader public interests in the observance  of law and administration of justice."  Ibid.  And the spousal  privilege, as modified in Trammel, is justified because it "furthers the  important public interest in marital harmony," 445 U. S., at 53.  See  also United States v. Nixon, 418 U. S., at 705; Wolfle v. United States,  291 U. S., at 14.  The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for  individuals suffering the effects of a mental or emotional problem.  The  mental health of our citizenry, no less than its physical health, is a  public good of transcendent importance.10


17
In contrast to the significant public and private interests supporting recognition of the privilege, the likely evidentiary benefit  that would result from the denial of the privilege is modest.  If the  privilege were rejected, confidential conversations between  psychotherapists and their patients would surely be chilled,  particularly when it is obvious that the circumstances that give rise to  the need for treatment will probably result in litigation.  Without a  privilege, much of the desirable evidence to which litigants such as  petitioner seek access-for example, admissions against interest by a  party-is unlikely to come into being.  This unspoken "evidence" will therefore serve no greater truth-seeking function than if it had been  spoken and privileged.


18
That it is appropriate for the federal courts to recognize a psychotherapist privilege under Rule 501 is confirmed by the fact that  all 50 States and the District of Columbia have enacted into law some  form of psychotherapist privilege.11  We have previously observed  that the policy decisions of the States bear on the question whether  federal courts should recognize a new privilege or amend the coverage of  an existing one.  See Trammel, 445 U. S., at 48-50; United States v.  Gillock, 445 U. S. 360, 368, n. 8 (1980).  Because state legislatures  are fully  aware of the need to protect the integrity of the factfinding  functions of their courts, the existence of a consensus among the States indicates that "reason and experience" support recognition of the privilege.  In addition, given the importance of the patient's understanding that her communications with her  therapist will not be  publicly disclosed, any State's promise of confidentiality would have  little value if the patient were aware that the privilege would not be  honored in a federal court.12  Denial of the federal privilege  therefore would frustrate the purposes of the state legislation that was  enacted to foster these confidential communications.


19
It is of no consequence that recognition of the privilege in the  vast majority of States is the product of legislative action rather than  judicial decision.  Although common-law rulings may once have been the  primary source of new developments in federal privilege law, that is no  longer the case.  In Funk v. United States, 290 U. S. 371 (1933), we  recognized that it is appropriate to treat a consistent body of policy  determinations by state legislatures as reflecting both "reason" and "experience."   at 376-381.  That rule is properly respectful of the  States and at the same time reflects the fact that once a state  legislature has enacted a privilege there is no longer an opportunity  for common-law creation of the protection.  The history of the  psychotherapist privilege illustrates the latter point.  In 1972 the  members of the Judicial Conference Advisory Committee noted that the  common law "had indicated a disposition to recognize a  psychotherapist-patient privilege when legislatures began moving into  the field."  Proposed Rules, 56 F. R. D., at 242 (citation omitted).  The present unanimous acceptance of the privilege shows that the state  lawmakers moved quickly.  That the privilege may have developed faster legislatively than it would have in the courts demonstrates only that  the States rapidly recognized the wisdom of the rule as the field of  psychotherapy developed.13


20
The uniform judgment of the States is reinforced by the fact that a psychotherapist privilege was among the nine specific privileges  recommended by the Advisory Committee in its proposed privilege rules.  In United States v. Gillock, 445 U. S. 360, 367-368 (1980), our holding  that Rule 501 did not include a state legislative privilege relied, in  part, on the fact that no such privilege was included in the Advisory  Committee's draft.   The reasoning in Gillock thus supports the opposite  conclusion in this case.  In rejecting the proposed draft that had  specifically identified each privilege rule and substituting the  present  more open-ended Rule 501, the Senate Judiciary Committee explicitly stated that its action "should not be understood as disapproving any  recognition of a psychiatrist-patient . . . privileg[e] contained in the   [proposed] rules."  S. Rep. No. 93-1277, at 13.


21
Because we agree with the judgment of the state legislatures and  the Advisory Committee that a psychotherapist-patient privilege will  serve a "public good transcending the normally predominant principle of  utilizing all rational means for ascertaining truth," Trammel, 445 U.  S., at 50, we hold that confidential communications between a licensed  psychotherapist and her patients in the course of diagnosis or treatment  are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence.14

IV.

22
All agree that a psychotherapist privilege covers confidential  communications made to licensed psychiatrists and psychologists.  We  have no hesitation in concluding in this case that the federal privilege  should also extend to confidential communications made to licensed  social workers in the course of psychotherapy.  The reasons for  recognizing a privilege for treatment by psychiatrists and psychologists  apply with equal force to treatment by a clinical social worker such as  Karen Beyer.15  Today, social workers provide a significant amount of mental health treatment.  See, e.g., U. S. Dept. of Health and Human  Services, Center for Mental Health Services, Mental Health, United  States, 1994 pp. 85-87, 107-114; Brief for National Association of  Social Workers et al. as Amici Curiae 5-7 (citing authorities).  Their  clients often include the poor and those of modest means who could not  afford the assistance of a psychiatrist or psychologist,  at 6-7   (citing authorities), but whose counseling sessions serve the same  public goals.16 Perhaps in recognition of these circumstances, the  vast majority of States explicitly extend a testimonial privilege to  licensed social workers.17  We therefore agree with the Court of  Appeals that "[d]rawing a distinction between the counseling provided by costly psychotherapists and the counseling provided by more readily  accessible social workers serves no discernible public purpose."  51 F.  3d, at 1358, n. 19.


23
We part company with the Court of Appeals on a separate point.  We reject the balancing component of the privilege implemented by that  court and a small number of States.18 Making the promise of  confidentiality contingent upon a trial judge's later evaluation of the  relative importance of the patient's interest in privacy and the  evidentiary need for disclosure would eviscerate the effectiveness of  the privilege. As we explained in Upjohn, if the purpose of the  privilege is to be served, the participants in the confidential  conversation "must be able to predict with some degree of certainty  whether particular discussions will be protected.  An uncertain privilege, or one which purports to be certain but results in widely  varying applications by the courts, is little better than no privilege  at all." 449 U. S., at 393.


24
These considerations are all that is necessary for decision of  this case.  A rule that authorizes the recognition of new privileges on  a case-by-case basis makes it appropriate to define the details of new  privileges in a like manner.  Because  this is the first case in which we  have recognized a psychotherapist privilege, it is neither necessary nor  feasible  to delineate its full contours in a way that would "govern all  conceivable future questions in this area."   at 386.19

V.

25
The conversations between Officer Redmond and Karen Beyer and the notes taken during their counseling sessions are protected from  compelled disclosure under Rule 501 of the Federal Rules of Evidence.  The judgment of the Court of Appeals  is affirmed.


26

It is so ordered.



27
djq  Justice Scalia, with whom The Chief Justice  joins as to Part III, dissenting.


28
The Court has discussed at some length the benefit that will be  purchased by creation of the evidentiary privilege in this case: the  encouragement of psychoanalytic counseling.  It has not mentioned the  purchase price: occasional injustice.  That is the cost of every rule  which excludes reliable and probative evidence-or at least every one  categorical enough to achieve its announced policy objective.  In the  case of some of these rules, such as the one excluding confessions that  have not been properly "Mirandized," see Miranda v. Arizona, 384 U. S.  436 (1966), the victim of the injustice is always the impersonal State  or the faceless "public at large."  For the rule proposed  here, the victim is more likely to be some individual who is prevented from proving a valid claim-or (worse still) prevented  from establishing a  valid defense.  The latter is particularly unpalatable for those who  love justice, because it causes the courts of law not merely to let  stand a wrong, but to become themselves the instruments of wrong.


29
In the past, this Court has well understood that the particular  value the courts are distinctively charged with preserving-justice-is  severely harmed by contravention of "the fundamental principle that  `"the public . . . has a right to every man's evidence."'"  Trammel v.  United States, 445 U. S. 40, 50 (1980) (citation omitted).  Testimonial  privileges, it has said, "are not lightly created nor expansively  construed, for they are in derogation of the search for truth."  United  States v. Nixon, 418 U. S. 683, 710 (1974) (emphasis added).  Adherence to that principle has caused us, in the Rule 501 cases we have considered to date, to reject new privileges, see University of Pennsylvania v. EEOC, 493 U. S. 182 (1990) (privilege against disclosure  of academic peer review materials); United States v. Gillock, 445 U. S.  360 (1980) (privilege against disclosure of "legislative acts" by member  of state legislature), and even to construe narrowly the scope of  existing privileges, see, e.g., United States v. Zolin, 491 U. S. 554,  568-570 (1989) (permitting in camera review of documents alleged to come  within crime-fraud exception to attorney-client privilege); Trammel, supra (holding that voluntary testimony by  spouse is not covered by  husband-wife privilege).  The Court today ignores this traditional  judicial preference for the truth, and ends up creating a privilege that  is new, vast, and ill-defined.  I respectfully dissent.

I.

30
The case before us involves confidential communications made by  a police officer to a state-licensed clinical social worker in the  course of psychotherapeutic counseling.  Before proceeding to a legal  analysis of the case, I must observe that  the Court makes its task  deceptively simple by the manner in which it proceeds.  It begins by  characterizing the issue as "whether it is appropriate for federal  courts to recognize a `psychotherapist privilege,'" ante, at 1, and  devotes almost all of its opinion to that question.  Having answered  that question  (to its satisfaction) in the affirmative, it then devotes  less than a page of text to answering in the affirmative the small  remaining question whether "the federal privilege should also extend to confidential communications made to licensed social workers in the course of psychotherapy," ante, at 13.


31
Of course the prototypical evidentiary privilege analogous to the one asserted here-the lawyer-client privilege-is not identified by  the broad area of advice-giving practiced by the person to whom the  privileged communication is given, but rather by the professional status  of that person.  Hence, it seems a long step from a lawyer-client  privilege to a tax advisor-client or accountant-client privilege.  But  if one recharacterizes it as a "legal advisor" privilege, the extension  seems like the most natural thing in the world.  That is the illusion  the Court has produced here: It first frames an overly general question ("Should there be a psychotherapist privilege?") that can be answered in  the negative only by excluding from protection office consultations with  professional psychiatrists (i.e., doctors) and clinical psychologists.  And then, having answered that in the affirmative, it comes to the only  question that the  facts of this case present ("Should there be a social  worker-client privilege with regard to psychotherapeutic counseling?")   with the answer seemingly a foregone conclusion.  At that point,  to conclude against the privilege one must subscribe to the difficult proposition, "Yes, there is a psychotherapist privilege, but not if the  psychotherapist is a social worker." Relegating the question actually  posed by this case to an afterthought makes the impossible possible in a  number of wonderful ways.  For example, it enables the Court to treat  the  Proposed Federal Rules of Evidence developed in 1972 by the Judicial  Conference Advisory Committee as strong support for its holding, whereas  they in fact counsel clearly and directly against it.  The Committee did  indeed recommend a "psychotherapist privilege" of sorts; but more  precisely, and more relevantly, it recommended a privilege for  psychotherapy conducted by "a person authorized to practice medicine" or  "a person licensed or certified as a psychologist," Proposed Rule of Evidence 504, 56 F. R. D. 183, 240 (1972), which is to say that it recommended against the privilege at issue here.  That condemnation is  obscured, and even converted into an endorsement, by pushing a  "psychotherapist privilege" into the center ring. The Proposed Rule  figures prominently in the Court's explanation of why that privilege  deserves recognition,  ante, at 12-13, and is ignored in the single page  devoted to the sideshow which happens to be the issue presented for  decision, ante, at 13-14.


32
This is the most egregious and readily explainable example of how the Court's misdirection of its analysis makes the difficult seem  easy; others will become apparent when I give the social-worker question  the fuller consideration it deserves.  My initial point, however, is  that the Court's very methodology-giving serious consideration only to  the more general, and much  easier, question-is in violation of our duty to proceed cautiously when erecting barriers between us and the truth.

II.

33
To say that the Court devotes the bulk of its opinion to the much easier question of psychotherapist-patient privilege is not to say  that its answer to that question is convincing.  At bottom, the Court's  decision to recognize such a privilege is based on its view that  "successful [psychotherapeutic] treatment" serves "important private  interests" (namely those of patients undergoing psychotherapy) as well  as the "public good"  of "[t]he mental health of our citizenry."  Ante,  at 7-9.  I have no quarrel with these premises.  Effective psychotherapy  undoubtedly is beneficial to individuals with mental problems, and  surely serves some larger social interest in maintaining a mentally stable society.  But merely mentioning these values does not answer the  critical question: are they of such importance, and is the contribution  of psychotherapy to them so  distinctive, and is the application of  normal evidentiary rules  so destructive to psychotherapy, as to justify  making our federal courts occasional instruments of injustice?  On that  central question I find the Court's analysis insufficiently convincing  to satisfy the high standard we have set for rules that "are in  derogation of the search for truth."  Nixon, 418 U. S., at 710.


34
When is it, one must wonder, that the psychotherapist came to play such an indispensable role in the maintenance of the citizenry's  mental health?  For most of history, men and women have worked out their  difficulties by talking to, inter alios, parents, siblings, best friends  and bartenders-none of whom was awarded a privilege against testifying  in court.  Ask the average citizen: Would your mental health be more  significantly  impaired by preventing you from seeing a psychotherapist,  or by preventing you from getting advice from your mom?  I have little doubt what the answer would be.  Yet there is no mother-child privilege.


35
How likely is it that a person will be deterred from seeking psychological counseling, or from being completely truthful in the course of such counseling, because of fear of later disclosure in litigation?  And even more pertinent to today's decision, to what extent  will the evidentiary privilege reduce that deterrent?  The Court does  not try to answer the first of these questions; and it cannot possibly  have any notion of what  the answer is to the second, since that depends  entirely upon the scope of the privilege, which the Court amazingly  finds it "neither necessary nor feasible to delineate," ante, at 16. If,   for example, the psychotherapist can give the patient no more assurance  than "A court will not be able to make me disclose what you tell me, unless you tell me about a harmful act," I doubt whether there would be  much benefit from the privilege at  all.  That is not a fanciful example,  at least with respect to extension of the psychotherapist privilege to  social workers.  See Del. Code Ann., Tit. 24, Section(s) 3913(2) (1987);  Idaho Code Section(s) 54-3213(2) (1994).


36
Even where it is certain that absence of the psychotherapist privilege will inhibit disclosure of the information, it is not clear to  me that that is an unacceptable state of affairs.  Let us assume the  very worst in the circumstances of the present case: that to be truthful  about what was troubling her, the police officer who sought counseling  would have to confess that she shot without reason, and wounded an  innocent man. If (again to assume the worst) such an act constituted the  crime of negligent wounding under Illinois law, the officer would of course have the absolute right not to admit that she shot without reason  in criminal court.  But I see no reason why she should be enabled both  not to admit it in criminal court (as a good citizen should), and to get  the benefits of psychotherapy by admitting it to a therapist who cannot  tell anyone else.  And even less reason why she should be enabled to  deny her guilt in the criminal trial-or in a civil trial for  negligence-while yet  obtaining the benefits of psychotherapy by  confessing guilt to a social worker who cannot testify.  It seems to me  entirely fair  to say that if she wishes the benefits of telling the  truth she  must also accept the adverse consequences.  To be sure, in  most  cases the statements to the psychotherapist will be only marginally relevant, and one of the purposes of the privilege (though not one relied upon by the Court) may be simply to spare patients needless intrusion upon their privacy, and to spare psychotherapists needless  expenditure of their time in deposition and trial.  But surely this can  be achieved by means  short of excluding even evidence that is of the  most direct and  conclusive effect.


37
The Court confidently asserts that not much truth-finding capacity would be destroyed by the privilege anyway, since "[w]ithout a  privilege, much of the desirable evidence to which litigants such as  petitioner seek access . . . is unlikely to come into being."  Ante, at  10.  If that is so, how come psychotherapy got to be a thriving practice  before the "psychotherapist privilege" was invented?  Were the patients paying money to lie to their analysts all those years?  Of course the  evidence-generating effect of the privilege (if any) depends entirely  upon its scope, which the Court steadfastly declines to consider.  And  even if one assumes that scope to be the broadest possible, is it really  true that most, or even many, of those who seek psychological counseling  have the worry of litigation in the back of their minds?  I doubt that,  and the Court provides no evidence to support it.


38
The Court suggests one last policy justification: since psychotherapist privilege statutes exist in all the States, the failure  to recognize a privilege in federal courts "would frustrate the purposes  of the state legislation that was enacted to foster these confidential  communications."  Ante, at 11.  This is a novel argument indeed.  A sort  of inverse pre-emption: the truth-seeking functions of federal courts  must be adjusted so as not to conflict with the policies of the States.  This reasoning cannot be squared with Gillock, which declined to  recognize an evidentiary privilege for Tennessee legislators in federal prosecutions, even though the Tennessee Constitution guaranteed it in  state criminal proceedings.  Gillock, 445 U. S., at 368. Moreover,  since, as I shall discuss, state policies regarding the psychotherapist  privilege vary considerably from State to State, no uniform federal  policy can possibly honor most of them.  If furtherance of state  policies is the name of the game, rules of privilege in federal courts  should vary from  State to State, a la Erie.


39
The Court's failure to put forward a convincing justification of  its own could perhaps be excused if it were relying upon the unanimous  conclusion of state courts in the reasoned development of their common  law.  It cannot do that, since no State has such a privilege apart from  legislation.20  What it relies upon, instead, is "the fact that all  50 States and the District of Columbia have [1] enacted into law [2]  some  form of psychotherapist privilege."  Ante, at 10 (emphasis added).  Let us consider both the verb and its object: The fact [1] that all 50 States have enacted this privilege argues not for, but against, our  adopting the privilege judicially.  At best it suggests that the matter  has been found not to lend itself to judicial treatment-perhaps because  the pros and cons of adopting the privilege, or of giving it one or  another shape, are not that clear; or perhaps because the rapidly  evolving uses of psychotherapy demand a flexibility that only  legislation can provide.  At worst it suggests that the privilege  commends itself only to decisionmaking bodies in which reason is  tempered, so to speak, by political pressure from organized interest  groups (such as psychologists and social workers), and  decisionmaking  bodies that are not overwhelmingly concerned (as  courts of law are and should be) with justice.


40
And the phrase [2] "some form of psychotherapist privilege" covers a multitude of difficulties.  The Court concedes that there is  "divergence among the States concerning the types of therapy relationships protected and the exceptions recognized."  Ante, at 12, n.  13.  To rest a newly announced federal common-law psychotherapist  privilege, assertable from this day forward  in all federal courts, upon  "the States' unanimous judgment that some form of psychotherapist  privilege is appropriate," ibid. (emphasis added), is rather like  announcing a new, immediately applicable, federal common law of torts,  based upon the States' "unanimous judgment" that some form of tort law  is appropriate. In the one case as in the other, the state laws vary to  such a degree that the parties and lower federal judges confronted by the new "common law" have barely a clue as to what its content might be.

III.

41
Turning from the general question that was not involved in this  case to the specific one that is: The Court's conclusion that a  social-worker psychotherapeutic privilege deserves recognition is even  less persuasive.  In approaching this question, the fact that five of  the state legislatures that have seen fit to enact "some form" of  psychotherapist privilege have elected not to extend any form of  privilege to social workers, see ante, at 15, n. 17, ought to give one  pause.  So should the fact that the Judicial Conference Advisory  Committee was similarly discriminating in its conferral of the proposed  Rule 504 privilege, see supra.  The Court, however, has "no hesitation in concluding . . . that the federal privilege should also extend" to  social workers, ante, at 13-and goes on to prove that by polishing off  the reasoned analysis with a topic sentence and two sentences of  discussion, as follows (omitting citations and nongermane footnote):


42
"The reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a  clinical social worker such as Karen Beyer. Today, social workers  provide a significant amount of mental health treatment.  Their clients  often include the poor and those of modest means who could not afford  the assistance of a psychiatrist or psychologist, but whose counseling  sessions serve the same public goals."  Ante, at 13-14.


43
So much for the rule that privileges are to be narrowly construed.


44
Of course this brief analysis-like the earlier, more extensive,  discussion of the general psychotherapist privilege-contains no  explanation of why the psychotherapy provided by social workers is a  public good of such transcendent importance  as to be purchased at the  price of occasional injustice.  Moreover, it considers only the respects  in which social workers providing therapeutic services are similar to licensed psychiatrists and psychologists; not a word about the respects  in which they are different.  A licensed psychiatrist or psychologist is  an expert in psychotherapy-and that may suffice (though I think it not  so clear that this Court should make the judgment) to justify the use of  extraordinary means to encourage counseling with him, as opposed to  counseling with one's rabbi, minister, family or friends.  One must  presume that a social worker does not bring this greatly heightened  degree of skill to bear, which is alone a reason for not encouraging  that consultation as generously.  Does a social worker bring to bear at least a significantly heightened degree of skill-more than a minister or  rabbi, for example?  I have no idea, and neither does the Court.  The  social worker in the present case, Karen Beyer, was a "licensed clinical  social worker" in Illinois, App. 18, a job title whose training  requirements consist of "master's degree in social work from an approved  program," and "3,000 hours of satisfactory, supervised clinical  professional experience."  Ill. Comp. Stat., ch. 225, Section(s) 20/9 (1994).  It is not clear that the degree in social work requires any  training in psychotherapy.  The "clinical professional experience"  apparently will impart some such training, but only of the vaguest sort,  judging from the Illinois Code's definition of "[c]linical social work  practice," viz., "the providing of mental health services for the  evaluation, treatment, and prevention of mental and emotional disorders  in individuals, families and groups based on knowledge and theory of  psychosocial development, behavior, psychopathology, unconscious  motivation, interpersonal relationships, and environmental stress."  Ch.  225, Section(s) 20/3(5).  But the rule the Court announces today-like the Illinois evidentiary privilege which that rule purports to respect,  Ch. 225, Section(s) 20/16.21-is not limited to "licensed clinical  social workers," but includes  all "licensed social workers."  "Licensed  social workers" may also provide "mental health services" as described  in Section(s) 20/3(5), so long as it is done under supervision of a  licensed clinical social worker. And the training requirement for a  "licensed social worker" consists of either (a) "a degree from a  graduate program of social work" approved by the State, or (b) "a degree in social work from an undergraduate program" approved by the State,  plus "3 years of supervised professional experience."  Ch. 225,  Section(s) 20/9A.  With due respect, it does not seem to me that any of  this training is comparable in its rigor (or indeed in the precision of  its subject) to the training of the other experts (lawyers) to whom this  Court has accorded a privilege, or even of the experts (psychiatrists  and psychologists) to whom the Advisory Committee and this Court  proposed extension of a privilege in 1972.  Of course these are only  Illinois' requirements for "social workers."  Those of other States, for all we know, may be even less demanding.  Indeed, I am not even sure  there is a nationally accepted definition of "social worker," as there  is of psychiatrist and psychologist.  It seems to me quite irresponsible  to extend the  so-called "psychotherapist privilege" to all licensed  social workers, nationwide, without exploring these issues.


45
Another critical distinction between psychiatrists and psychologists, on the one hand, and social workers, on the other, is  that the former professionals, in their consultations with patients, do  nothing but psychotherapy.  Social workers, on the other hand, interview  people for a multitude of reasons.  The Illinois definition of  "[l]icensed social worker," for example, is as follows:


46
"Licensed social worker" means a person who holds a license authorizing the practice of social work, which includes social services  to individuals, groups or communities in any one or more of the fields  of social casework, social group work, community organization for social  welfare, social work research, social welfare administration or social  work education."  Ch. 225, Section(s) 20/3(9).


47
Thus, in applying the "social worker" variant of the "psychotherapist" privilege, it will be necessary to determine whether  the information provided to the social worker was provided to him in his  capacity as a psychotherapist, or in his capacity as an administrator of  social welfare, a community organizer, etc.  Worse still, if the  privilege is to have its desired effect (and is not to mislead the  client), it will presumably be necessary for the social caseworker to  advise, as the conversation with his welfare client proceeds, which  portions are privileged and which are not.


48
Having concluded its three sentences of reasoned analysis, the  Court then invokes, as it did when considering the psychotherapist  privilege, the "experience" of the States-once again an experience I  consider irrelevant (if not counter-indicative) because it consists  entirely of legislation rather than common-law decision.  It says that  "the vast majority of States explicitly extend a testimonial privilege  to licensed social workers."  Ante, at 15.  There are two elements of  this impressive statistic, however, that the Court does not reveal.


49
First-and utterly conclusive of the irrelevance of this supposed  consensus to the question before us-the majority of the States that  accord a privilege to social workers do not do so as a subpart of a  "psychotherapist" privilege.  The privilege applies to all confidences  imparted to social workers, and not just those provided in the course of  psychotherapy.22  In Oklahoma, for example, the  social-worker-privilege statute prohibits a licensed social worker from  disclosing, or being compelled to disclose, "any information acquired  from persons consulting the licensed social worker in his or her  professional capacity" (with certain exceptions to be discussed infra).  Okla. Stat., Tit. 59, Section(s) 1261.6 (1991) (emphasis added).  The social worker's "professional capacity" is expansive, for the "practice  of social work" in Oklahoma is defined as:


50
"[T]he professional activity of helping individuals, groups, or  communities enhance or restore their capacity for physical, social and  economic functioning and the professional application of social work  values, principles and techniques in areas such as clinical social work,  social service administration, social planning, social work consultation  and social work research to one or more of the following ends: Helping  people obtain tangible services; counseling with individuals families  and groups; helping communities or groups provide or improve social and health services; and participating in relevant social action.  The practice of social work requires knowledge of human development and  behavior; of social economic and cultural institutions and forces; and  of the interaction of all of these  factors.  Social work practice  includes the teaching of relevant subject matter and of conducting  research into problems of human behavior and conflict."  Tit. 59,  Section(s) 1250.1(2) (1991).


51
Thus, in Oklahoma, as in most other States having a social-worker privilege, it is not a subpart or even a derivative of the  psychotherapist privilege, but rather a piece of special legislation  similar to that achieved by many other groups, from accountants, see,  e.g., Miss. Code Ann. Section(s) 73-33-16(2) (1995) (certified public  accountant "shall not be required by any court of this state to  disclose, and shall not voluntarily disclose" client information), to  private detectives, see, e.g., Mich. Comp. Laws Section(s) 338.840   (1979) ("Any communications . . . furnished by a professional man or  client to a [licensed private detective], or any information secured in  connection with an assignment for a client, shall be deemed privileged  with the same authority and dignity as are other privileged  communications recognized by the courts of this state").23  These  social-worker statutes give no support, therefore, to the theory   (importance of psychotherapy) upon which the Court rests its  disposition.


52
Second, the Court does not reveal the enormous degree of disagreement among the States as to the scope of the privilege. It  concedes that the laws of four States are subject to such gaping  exceptions that they are "`little better than no privilege at all,'"  ante, at 16 and n. 18, so that they should more appropriately be  categorized with the five States whose laws contradict the action taken  today.  I would add another State to those whose privilege is illusory.  See Wash. Rev. Code Section(s) 18.19.180 (1994) (disclosure of  information required "[i]n response to a subpoena from a court of law").  In adopting any sort of a social worker privilege, then, the Court can  at most claim that it is following the legislative "experience" of 40 States, and contradicting the "experience" of 10.


53
But turning to those States that do have an appreciable privilege of some sort, the diversity is vast.  In Illinois and Wisconsin, the social-worker privilege does not apply when the confidential information pertains to homicide, see Ill. Comp. Stat., ch.  740, Section(s) 110/10(a)(9) (1994); Wis. Stat. Section(s) 905.04(4)(d)  (1993-1994), and in the District of Columbia when it pertains to any  crime "inflicting injuries" upon persons, see D. C. Code Section(s)  14-307(a)(1) (1995).  In Missouri, the privilege is suspended as to  information that pertains to a criminal act, see Mo. Rev. Stat.  Section(s) 337.636(2) (1994), and in Texas when the information is  sought in any criminal prosecution, compare Tex. Rule Civ. Evid. 510(d) with Tex. Rule Crim. Evid. 501 et seq.  In Kansas and Oklahoma, the  privilege yields when the information pertains to "violations of any  law," see Kan. Stat. Ann. Section(s) 65-6315(a)(2) (Supp. 1990); Okla.  Stat., Tit. 59, Section(s) 1261.6(2) (1991); in Indiana, when it reveals  a "serious harmful act," see Ind. Code Ann. Section(s) 25-23.6-6-1(2)  (1995); and in Delaware and Idaho, when it pertains to any "harmful  act," see Del. Code Ann., Tit. 24, Section(s) 3913(2) (1987); Idaho Code  Section(s) 54-3213(2) (1994).  In Oregon, a state-employed  social worker  like Karen Beyer loses the privilege where her supervisor determines  that her testimony "is necessary in the performance of the duty of the social worker as a public employee."  See Ore. Rev. Stat. Section(s)  40.250(5) (1991). In  South Carolina, a social worker is forced to  disclose confidences "when required by statutory law or by court order  for good cause shown to the extent that the patient's care and treatment  or the nature and extent of his mental illness or emotional condition  are reasonably at issue in a proceeding."  See S. C. Code Ann.  Section(s) 19-11-95(D)(1) (Supp. 1995).  The majority of  social-worker-privilege States declare the privilege inapplicable to  information relating to child abuse.24  And the  States that do not  fall into any of the above categories provide exceptions for commitment  proceedings, for proceedings in which  the patient relies on his mental  or emotional condition as an element of his claim or defense, or for communications made in the course of a court-ordered examination of the  mental or emotional condition of the patient.25


54
Thus, although the Court is technically correct that "the vast  majority of States explicitly extend a testimonial privilege to licensed  social workers," ante, at 15, that uniformity exists only at the most  superficial level.  No State  has adopted the privilege without  restriction; the nature of the restrictions varies enormously from  jurisdiction to jurisdiction; and 10 States, I reiterate, effectively  reject the privilege entirely. It is fair to say that there is scant  national consensus even as to the propriety of a social-worker  psychotherapist privilege, and none whatever as to its appropriate  scope.  In other words, the state laws to which the Court appeals for  support demonstrate most convincingly that adoption of a social-worker  psychotherapist privilege is a job for Congress.


55
The question before us today is not whether there should be an  evidentiary privilege for social workers providing therapeutic services.  Perhaps there should.  But the question before us is whether (1) the  need for that privilege is so clear, and (2) the desirable contours of  that privilege are so evident, that it is appropriate for this Court to  craft it in common-law fashion, under Rule 501.  Even if we were writing  on  a clean slate, I think the answer to that question would be clear.  But given our extensive precedent to the effect that new  privileges "in derogation of the search for truth" "are not lightly created," United  States v. Nixon, 418 U. S., at 710, the answer the Court gives today is  inexplicable.


56
In its consideration of this case, the Court was the beneficiary  of no fewer than 14 amicus briefs supporting respondents, most of which  came from such organizations as the American Psychiatric Association,  the American Psychoanalytic Association, the American Association of  State Social Work Boards, the Employee Assistance Professionals  Association, Inc., the American Counseling Association, and the National  Association of Social Workers.  Not a single amicus brief was filed in support of petitioner.  That is no surprise.  There is  no self-interested organization out there devoted to pursuit of  the truth  in the federal courts.  The expectation is, however, that this Court  will have that interest prominently-indeed, primarily-in mind.  Today we  have failed that expectation, and that responsibility.  It is no small  matter to say that, in some cases, our federal courts will be the tools  of injustice rather than unearth the truth where it is available to be  found.  The common law has identified a few instances where that is tolerable. Perhaps Congress may conclude that it is also tolerable for  the purpose of encouraging psychotherapy by social workers. But that  conclusion assuredly does not burst upon the  mind with such clarity that  a judgment in favor of suppressing the truth ought to be pronounced by  this honorable Court.  I respectfully dissent.



1
 Redmond left the police department after the events at  issue in this lawsuit.


2
 App. to Pet. for Cert. 67.


3
 Rule 501 provides as follows: "Except as otherwise required  by the Constitution of the United States or provided by Act of Congress,  or in rules prescribed by the Supreme Court pursuant to statutory  authority, the privilege of a witness, person, government, State, or  political subdivision thereof shall be governed by the principles of the  common law as they may be interpreted by the courts of the United States  in the light of reason and experience.  However, in civil actions and proceedings, with respect to an element of a claim or defense as to  which State law supplies the rule of decision, the privilege of a  witness, person, government, State or political subdivision thereof  shall be determined in accordance with State law."


4
 See Illinois Mental Health and Developmental Disabilities Confidentiality Act, Ill. Comp. Stat., ch. 740, Section(s) 110/1-110/17   (1994).


5
 "Her ability, through counseling, to work out the pain and anguish undoubtedly caused by Allen's death in all probability depended  to a great deal upon her trust and confidence in her counselor Karen  Beyer. Officer Redmond, and all those placed in her most unfortunate  circumstances, are entitled to be protected in their desire to seek  counseling after mortally wounding another human being in the line of  duty.  An individual who is troubled as the result of her participation  in a violent and tragic event, such as this, displays a most commendable  respect for human life and is a person well-suited `to protect and to serve.'"  51 F. 3d, at 1358.


6
 "[T]he rules governing the competence of witnesses in  criminal trials in the federal courts are not necessarily restricted to those local rules in force at the time of the admission into the Union  of the particular state where the trial takes place, but are governed by  common law principles as interpreted and applied by the federal courts  in the light of reason and experience. Funk v. United States, 290 U. S.  371." Wolfle v. United States, 291 U. S., at 12-13.


7
 In 1972 the Chief Justice transmitted to Congress proposed Rules of Evidence for United States Courts and Magistrates.  56 F. R. D.  183 (hereinafter Proposed Rules).  The rules had been formulated by the  Judicial Conference Advisory Committee on Rules of Evidence and approved  by the Judicial Conference of the United States and by this Court.  Trammel v. United States, 445 U. S. 40, 47 (1980).  The proposed rules  defined nine specific testimonial privileges, including a  psychotherapist-patient privilege, and indicated that these were to be  the exclusive privileges absent constitutional mandate, Act of Congress,  or revision of the Rules.  Proposed Rules 501-513, 56 F. R. D., at  230-261. Congress rejected this recommendation in favor of Rule 501's  general mandate.  Trammel, 445 U. S., at 47.


8
 The familiar expression "every man's evidence" was a  well-known phrase as early as the mid-18th century.  Both the Duke of  Argyll and Lord Chancellor Hardwicke invoked the maxim during the May 25, 1742, debate in the House of Lords concerning a bill to grant immunity to witnesses who would give evidence against Sir Robert Walpole, first Earl of Orford.  12 T. Hansard, Parliamentary History of  England 643, 675, 693, 697 (1812).  The bill was defeated soundly.    at 711.


9
 See studies and authorities cited in the Brief for American Psychiatric Association et al. as Amici Curiae 14-17, and the Brief for  American Psychological Association as Amicus Curiae 12-17.


10
 This case amply demonstrates the importance of allowing individuals to receive confidential counseling.  Police officers engaged in the dangerous and difficult tasks associated with protecting the safety of our communities not only confront the risk of physical harm  but also face stressful circumstances that may give rise to anxiety,  depression, fear, or anger.  The entire community may suffer if police  officers are not able to receive effective counseling and treatment  after traumatic incidents, either because trained officers leave the  profession prematurely or because those in need of treatment remain on  the job.


11
 Ala. Code Section(s) 34-26-2 (1975); Alaska Rule Evid.  504; Ariz. Rev. Stat. Section(s) 32-2085 (1992); Ark. Rule Evid. 503; Cal. Evid. Code Ann. Section(s) 1010, 1012, 1014 (1995); Colo. Rev.  Stat. Section(s) 13-90-107(g)(1) (1987); Conn. Gen. Stat. Section(s)  52-146c (1995); Del. Uniform Rule Evid. 503; D. C. Code Ann. Section(s)  14-307 (1995); Fla. Stat. Section(s) 90.503 (Supp. 1992); Ga. Code Ann.  Section(s) 24-9-21 (1995); Haw. Rules Evid. 504, 504.1; Idaho Rule Evid.  503; Ill. Comp. Stat., ch. 225 Section(s) 15/5 (1994); Ind. Code  Section(s) 25-33-1-17 (1993); Iowa Code Section(s) 622.10 (1987); Kan.  Stat. Ann. Section(s) 74-5323 (1985); Ky. Rule Evid. 507; La. Code Evid.  Ann., Art. 510 (West 1995); Me. Rule Evid. 503; Md. Cts. & Jud. Proc.  Section(s) 9-109 (1995); Mass. Gen. Laws Section(s) 233:20B (1995);  Mich. Comp. Laws Ann. Section(s) 333.18237 (Supp. 1996); Minn. Stat. Ann. Section(s) 595.02 (1988 and Supp. 1996); Miss. Rule Evid. 503; Mo.  Rev. Stat. Section(s) 491.060 (1994); Mont. Code Ann. Section(s)  26-1-807 (1995); Neb. Rev. Stat. Section(s) 27-504 (1995); Nev. Rev.  Stat. Ann. Section(s) 49.209 (Supp. 1995); N. H. Rule Evid. 503; N. J.  Stat. Ann. Section(s) 45:14B-28 (West 1995); N. M. Rule Evid. 11-504; N.  Y. Civ. Prac. Law Section(s) 4507 (McKinney 1992); N. C. Gen. Stat.  Section(s) 8-53.3 (Supp. 1995); N. D. Rule Evid. Section(s) 503; Ohio  Rev. Code Ann. Section(s) 2317.02 (1995); Okla. Stat., Tit. 12  Section(s) 2503 (1991); Ore. Rules Evid. 504, 504.1; 42 Pa. Cons. Stat. Section(s) 5944 (1982); R. I. Gen. Laws Section(s) 5-37.3-3, 5-37.3-4   (1995); S. C. Code Ann. Section(s) 19-11-95 (Supp. 1995); S. D. Codified  Laws Section(s) 19-13-6 to 19-13-11 (1995); Tenn. Code Ann. Section(s)  24-1-207 (1980); Tex. Rules Civ. Evid. 509, 510; Utah Rule Evid. 506;  Vt. Rule Evid. 503; Va. Code Ann. Section(s) 8.01-400.2 (1992); Wash.  Rev. Code Section(s) 18.83.110 (1994); W. Va. Code Section(s) 27-3-1   (1992); Wis. Stat. Section(s) 905.04 (1993-1994); Wyo. Stat. Section(s) 33-27-123 (Supp. 1995).


12
 At the outset of their relationship, the ethical therapist must disclose to the patient "the relevant limits on confidentiality."  See American Psychological Association, Ethical Principles of  Psychologists and Code of Conduct, Standard 5.01 (Dec. 1992).  See also  National Federation of Societies for Clinical Social Work, Code of  Ethics V(a) (May 1988); American Counseling Association, Code of Ethics  and Standards of Practice A.3.a (effective July 1995).


13
 Petitioner acknowledges that all 50 state legislatures  favor a psychotherapist privilege.  She nevertheless discounts the relevance of the state privilege statutes by pointing to divergence  among the States concerning the types of therapy relationships protected  and the exceptions recognized.  A small number of state statutes, for  example, grant the privilege only to psychiatrists and psychologists,  while most apply the protection more broadly.  Compare Haw. Rules Evid.  504, 504.1 and N. D. Rule Evid. 503 (privilege extends to physicians and psychotherapists), with Ariz. Rev. Stat. Ann. Section(s) 32-3283 (1992)  (privilege covers "behavioral health professional[s]"); Tex. Rule Civ.  Evid. 510(a)(1) (privilege extends to persons "licensed or certified by  the State of Texas in the diagnosis, evaluation or treatment of any  mental or emotional disorder" or "involved in the treatment or  examination of drug abusers"); Utah Rule Evid. 506 (privilege protects  confidential communications made to marriage and family therapists,  professional counselors, and psychiatric mental health nurse  specialists).  The range of exceptions recognized by the States is  similarly varied.  Compare Ark. Code Ann. Section(s) 17-46-107 (1987)  (narrow exceptions); Haw. Rules Evid. 504, 504.1 (same), with Cal. Evid.  Code Ann. Section(s) 1016-1027 (West 1995) (broad exceptions); R. I.  Gen. Laws Section(s) 5-37.3-4 (1956) (same).  These variations in the scope of the protection are too limited to undermine the force of the  States' unanimous judgment that some form of psychotherapist privilege  is appropriate.


14
 Like other testimonial privileges, the patient may of  course waive the protection.


15
 If petitioner had filed her complaint in an Illinois state court, respondents' claim of privilege would surely have been upheld, at  least with respect to the state wrongful death action. An Illinois  statute provides that conversations between a therapist and her patients  are privileged from compelled disclosure in any civil or criminal  proceeding.  Ill. Comp. Stat., ch. 740, Section(s) 110/10 (1994).  The  term "therapist" is broadly defined to encompass a number of licensed professionals including social workers.  Ch. 740, Section(s) 110/2.  Karen Beyer, having satisfied the strict standards for licensure,  qualifies as a clinical social worker in Illinois.  51 F. 3d 1346, 1358,  n. 19 (CA7 1995).
Indeed, if only a state-law claim had been asserted in federal court, the second sentence in Rule 501 would have extended the privilege  to that proceeding.  We note that there is disagreement concerning the  proper rule in cases such as this in which both federal and state claims  are asserted in federal court and relevant evidence would be privileged  under state law but not under federal law.  See C. Wright & K. Graham,  23 Federal Practice and Procedure Section(s) 5434 (1980).  Because the parties do not raise this question and our resolution of the case does  not depend on it, we express no opinion on the matter.


16
 The Judicial Conference Advisory Committee's proposed psychotherapist privilege defined psychotherapists as psychologists and  medical doctors who provide mental health services.  Proposed Rules, 56  F.R.D., at 240.  This limitation in the 1972 recommendation does not  counsel against recognition of a privilege for social workers practicing  psychotherapy.  In the quarter-century since the Committee adopted its  recommendations, much has changed in the domains of social work and  psychotherapy. See generally Brief for National Association of Social  Workers et al. as Amici Curiae 5-13 (and authorities cited).  While only  12 States regulated social workers in 1972, all 50 do today.  See American Association of State Social Work Boards, Social Work Laws and  Board Regulations: A State Comparison Study 29, 31 (1996). Over the  same period, the relative portion of therapeutic services provided by  social workers has increased substantially. See U. S. Dept. of Health  and Human Services, Center for Mental Health Services, Mental Health,  United States, 1994, pp. 85-87, 107-114.


17
 See Ariz. Rev. Stat. Ann. Section(s) 32-3283 (1992); Ark.  Code Ann. Section(s) 17-46-107 (1995); Cal. Evid. Code Section(s) 1010, 1012, 1014 (West 1995); Colo. Rev. Stat. Section(s) 13-90-107 (1987);  Conn. Gen. Stat. Section(s) 52-146q (1991); Del. Code Ann., Tit. 24  Section(s) 3913 (1987); D. C. Code Section(s) 14-307 (1995); Fla. Stat.  Section(s) 90.503 (1991); Ga. Code Ann. Section(s) 24-9-21 (1995); Idaho  Code Section(s) 54-3213 (1994); Ill. Comp. Stat., ch. 225, Section(s)  20/16 (1994); Ind. Code Section(s) 25-23.6-6-1 (1993); Iowa Code Section(s) 622.10 (1987); Kan. Stat. Ann. Section(s) 65-6315 (Supp.  1990); Ky. Rule Evid. 507; La. Code Evid. Ann., Art. 510 (West 1995);  Me. Rev. Stat. Ann., Tit. 32, Section(s) 7005 (1988); Md. Cts. & Jud.  Proc. Code Ann. Section(s) 9-121 (1995); Mass. Gen. Laws Section(s)  112:135A (1994); Mich. Comp. Stat. Ann. 339.1610 (1992); Minn. Stat.  Section(s) 595.02(g) (1994); Miss. Code Ann. Section(s) 73-53-29 (1972);  Mo. Ann. Stat. Section(s) 337.636 (Supp. 1996); Mont. Code Ann.  Section(s) 37-22-401 (1995); Neb. Rev. Stat. Ann. Section(s) 71-1,335 (1995); Nev. Rev. Stat. Ann. Section(s) 49.215, 49.225, 49.235 (Supp.  1995); N. H. Rev. Stat. Ann. Section(s) 330-A:19 (1995); N. J. Stat.  Ann. Section(s) 45:15BB-13 (1995); N. M. Stat. Ann. Section(s) 61-31-24   (Supp. 1995); N. Y. Civ. Prac. Law Section(s) 4508 (1992); N. C. Gen.  Stat. Section(s) 8-53.7 (1986); Ohio Rev. Code Ann. Section(s) 2317.02   (1995); Okla. Stat., Tit. 59, Section(s) 1261.6 (1991); Ore. Rev. Stat. Section(s) 40.250 (1991); R. I. Gen. Laws Section(s) 5-37.3-3, 5-37.3-4   (1995); S. C. Code Ann. Section(s) 19-11-95 (Supp. 1995); S. D. Codified  Laws Section(s) 36-26-30 (1994); Tenn. Code Ann. Section(s) 63-23-107   (1990); Tex. Rule Civ. Evid. 510; Utah Rule Evid. 506; Vt. Rule Evid.  503; Va. Code Ann. Section(s) 8.01-400.2 (1992); Wash. Rev. Code  Section(s) 18.19.180 (1994); W. Va. Code Section(s) 30-30-12 (1993);  Wis. Stat. Section(s) 905.04 (1993-1994); Wyo. Stat. Section(s)  33-38-109 (Supp. 1995).


18
 See, e.g., Me. Rev. Stat. Ann., Tit. 32, Section(s) 7005 (1964); N. H. Rev. Stat. Ann. Section(s) 330-A:19 (1995); N. C. Gen.  Stat. Section(s) 8-53.7 (1986); Va. Code Ann. Section(s) 8.01-400.2   (1992).


19
 Although it would be premature to speculate about most  future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way,  for example, if a serious threat of harm to the patient or to others can  be averted only by means of a disclosure by the therapist.


20
 The Court observes: "In 1972 the members of the Judicial Conference Advisory Committee noted that the common law `had indicated a  disposition to recognize a psychotherapist-patient privilege when  legislatures began moving into the field.' Proposed Rules, 56 F. R. D.,  at 242 (citation omitted)."  Ante, at 12.  The sole support the  Committee invoked was a student Note entitled Confidential  Communications to a Psychotherapist: A New Testimonial Privilege, 47 Nw.  U. L. Rev. 384 (1952).  That source, in turn, cites (and discusses) a  single case recognizing a common-law psychotherapist privilege: the  unpublished opinion of a judge of the Circuit Court of Cook County,  Illinois, Binder v. Ruvell, No. 52-C-2535 (June 24, 1952)-which, in  turn, cites no other cases.
I doubt whether the Court's failure to provide more substantial support for its assertion stems from want of trying.  Respondents and  all of their amici pointed us to only four other state-court decisions  supposedly adopting a common-law psychotherapist privilege.  See Brief  for the American Psychiatric Association et al. as Amici Curiae 8, n. 5;  Brief for the American Psychoanalytic Association et al. as Amici Curiae  15-16; Brief for the American Psychological Association as Amicus Curiae  8. It is not surprising that the Court thinks it not worth the trouble  to cite them: (1) In In re "B", 482 Pa. 471, 394 A. 2d 419 (1978), the  opinions of four of the seven Justices explicitly rejected a  nonstatutory privilege; and the two Justices who did recognize one  recognized, not a common-law privilege, but rather (mirabile dictu) a  privilege "constitutionally based," "emanat[ing] from the penumbras of  the various guarantees of the Bill of Rights, . . . as well as from the  guarantees of the Constitution of this Commonwealth."   at 484, 394  A. 2d, at 425. (2) Allred v. State, 554 P. 2d 411 (Alaska 1976), held  that no privilege was available in the case before the court, so what it says about the existence of a common-law privilege is the purest dictum.  (3) Falcon v. Alaska Pub. Offices Comm'n, 570 P. 2d 469 (1977), a later  Alaska Supreme Court case, proves the last statement.  It rejected the  claim by a physician that he did not have to disclose the names of his  patients, even though some of the physician's practice consisted of  psychotherapy; it made no mention of Allred's dictum that there was a  common-law psychiatrist-patient privilege (though if that existed it  would seem relevant), and cited Allred only for the proposition that there was no statutory privilege,  at 473, n. 12.  And finally, (4)  State v. Evans, 104 Ariz. 434, 454 P. 2d 976 (1969), created a limited  privilege, applicable to court-ordered examinations to determine  competency to stand trial, which tracked a privilege that had been  legislatively created after the defendant's examination.
In light of this dearth of case support-from all the courts of  50 States, down to the county-court level-it seems to me the Court's assertion should be revised to read: "The common law had indicated scant  disposition to recognize a psychotherapist-patient privilege when (or  even after) legislatures began moving into the field."


21
 Section 20/16 is the provision of the Illinois Statutes  cited by the Court to show that Illinois has "explicitly extend[ed] a testimonial privilege to licensed social workers."  Ante, at 15, and n.  17.  The Court elsewhere observes that respondent's communications to  Beyer would have been privileged in state court under another provision  of the Illinois Statutes, the Mental Health and Developmental  Disabilities Confidentiality Act, Ill. Comp. Stat., ch. 740, Section(s)  110/10 (1994).  Ante, at 14, n. 15.  But the privilege conferred by  Section(s) 110/10 extends to an even more ill-defined class: not only to  licensed social workers, but to all social workers, to nurses, and  indeed to "any other person not prohibited by law from providing [mental  health or developmental disabilities] services or from holding himself out as a therapist if the recipient reasonably believes that such person  is permitted to do so." Ch. 740, Section(s) 110/2.


22
 See Ariz. Rev. Stat. Ann. Section(s) 32-3283 (1992); Ark.  Code Ann. Section(s) 17-46-107 (1995); Del. Code Ann., Tit. 24, Section(s) 3913 (1987); Idaho Code Section(s) 54-3213 (1994); Ind. Code  Section(s) 25-23.6-6-1 (1993); Iowa Code Section(s) 154C.5 and  Section(s) 622.10 (1987); Kan. Stat. Ann. Section(s) 65-6315 (Supp.  1990); Me. Rev. Stat. Ann., Tit. 32, Section(s) 7005 (1988); Mass. Gen.  Laws Section(s) 112:135A (1994); Mich. Comp. Laws Ann. Section(s)  339.1610 (1992); Miss. Code Ann. Section(s) 73-53-29 (1995); Mo. Rev.  Stat. Section(s) 337.636 (1994); Mont. Code Ann. Section(s) 37-22-401   (1995); Neb. Rev. Stat. Section(s) 71-1,335 (Supp. 1994); N. J. Stat.  Ann. Section(s) 45:15BB-13 (1995); N. M. Stat. Ann. Section(s) 61-31-24   (1993); N. Y. Civ. Prac. Section(s) 4508 (McKinney 1992); N. C. Gen. Stat. Section(s) 8-53.7 (1986); Ohio Rev. Code Ann. Section(s) 2317.02(G)(1) (1995); Okla. Stat., Tit. 59 Section(s) 1261.6 (1991);  Ore. Rev. Stat. Section(s) 40.250 (1991); S. D. Codified Laws Section(s)  36-26-30 (1994); Tenn. Code Ann. Section(s) 63-23-107 (1990); Wash. Rev.  Code Section(s) 18.19.180 (1994); W. Va. Code Section(s) 30-30-12   (1993); Wyo. Stat. Section(s) 33-38-109 (Supp. 1995).


23
 These ever-multiplying evidentiary-privilege statutes,  which the Court today emulates, recall us to the original meaning of the  word "privilege."  It is a composite derived from the Latin words "privus" and "lex": private law.


24
 See, e.g., Ariz. Rev. Stat. Ann. Section(s) 32-3283   (1992); Ark. Code Ann. Section(s) 17-46-107(3) (1995); Cal. Evid. Code Ann. Section(s) 1027 (West 1995); Colo. Rev. Stat. Section(s) 19-3-304   (Supp. 1995); Del. Rule Evid. 503(d)(4); Ga. Code Ann. Section(s)  Code Evid. Ann., Art. 510(B)(2)(k) (West 1995); Md. Cts. & Jud. Proc.  Code Ann. Section(s) 9-121(e)(4) (1995); Mass. Gen. Laws, Section(s)  119:51A (1994); Mich. Comp. Laws Ann. Section(s) 722.623 (1992 Supp.  Pamph.); Minn. Stat. Section(s) 595.02.2(a) (1988); Miss. Code Ann.  Section(s) 73-53-29(e) (1995); Mont. Code Ann. Section(s) 37-22-401(3)  (1995); Neb. Rev. Stat. Section(s) 28-711 (1995); N. M. Stat. Ann.  4508(a)(3) (McKinney 1992); Ohio Rev. Code Ann. Section(s)  2317.02(G)(1)(a) (1995); Ore. Rev. Stat. Section(s) 40.250(4) (1991); R.  I. Gen. Laws Section(s) 5-37.3-4(b)(4) (1995); S. D. Codified Laws Section(s) 36-26-30(3) (1994); Tenn. Code Ann. Section(s) 63-23-107(b)  (1990); Vt. Rule Evid. 503(d)(5); W. Va. Code Section(s) 30-30-12(a)(4)  (1993); Wyo. Stat. Section(s) 14-3-205 (1994).


25
 See, e.g., Fla. Stat. Section(s) 90.503(4) (Supp. 1992)  (all three exceptions); Ky. Rule Evid. 507(c) (all three); Nev. Rev. Stat. Section(s) 49.245 (1993) (all three); Utah Rule Evid. 506(d) (all  three); Conn. Gen. Stat. Section(s) 52-146q(c)(1) (1995) (commitment  proceedings and proceedings in which patient's mental condition at  issue); Iowa Code Section(s) 622.10 (1987) (proceedings in which  patient's mental condition at issue).


