April 18, 2023

In camera review – it’s a victims’ rights violation too.

Meg Garvin, MA, JD, Mst

Executive Director

When victims’ private records are sought in a criminal case often an in camera review is conducted.  “In camera” is a Latin term which means “in chambers” or “in private.”  

In camera review is a process by which a judge privately orders the sought after records to be brought to the court. The judge then reviews the confidential, privileged, or sensitive information in order to determine what, if any, of the information will be turned over to the person seeking them.  

Often the judge’s review is not just by the judge, but includes their clerks and other staff.  On a daily basis across this country, prosecution, defense, and the court treat in camera review as an acceptable compromise because while the records get reviewed by the judge, they are only disclosed to the requesting party if the judge determines something must be disclosed.  

But this “compromise” misses the point.  

ANY unconsented to review of a victim’s records results in a permanent erosion of the victim’s privacy.  Not only is this an erosion of victims’ state and federal rights, it is also an independent and discrete harm.*

NCVLI is committed to ensuring every state and federal court recognizes that in camera review as a violation of victims’ rights – and we are making progress!

For example, in In re Hope Coalition, 971 N.W.2d 651 (Minn. 2022), the court held that the Minnesota state statutory sexual assault counselor privilege did not permit disclosure of privileged records in a criminal proceeding without the victims’ consent – even when disclosure is for the purposes of in camera review.

The tenacity of the amazing lawyering of those at Standpoint and Saul Ewing LLP ensured the issue was before the courts and rallied many of us to be amici in the case!  

It’s time for us to rally in every jurisdiction and secure a similar outcome.  Victims should not have to choose between their privacy and access to justice.

*See Ann Bartow, A Feeling of Unease About Privacy Law, 155 U Pa L Rev PENNumbra 52, 61 (2007) (stating that individuals may be “harmed in a significant, cognizable way when their personal information is distributed against their will”)