People v. Stanaway

Stanaway PEOPLE STANAWAY PEOPLE v CARUSO (Calendar 13, 92269, January Nos. Argued Nos. 96823. Docket 12-13). 29, by August the Su- 1994. Certiorari denied Decided 1995, 17, January US preme of the United States on Court _ (1995). Marquette by jury in S. was convicted Brian J., Court, Quinnell, three of third- counts Edward A. Circuit trial, degree the defendant conduct. Before criminal sexual the records a social worker twice for direct access to moved regarding complainant, counselor and sexual assault or arguing they might statements contain inconsistent evidence, admitting exculpatory had might that he but lead good-faith such information would for a belief that no basis Appeals, The Court of motions were denied. found. Both Sawyer P.J., JJ., in an un- Weaver, and affirmed Griffin, and 130448). (Docket opinion per The defendant published curiam No. appeals. charged Stanley Court with in the Kent Circuit H. Caruso was court, H. second-degree The David sexual conduct. criminal Soet, production J., granted motion for defendant’s complainant’s counseling The for a review in camera. records P.J., Marilyn Appeals, Neff, J. Kelly, and Court of unpublished opinion J., concurring), affirmed an (Mackenzie, 157437). (Docket appeal. people per No. curiam opinion by joined Brickley, Chief Justice In Justice an Griffin, Mallett, and Levin, Cavanagh, and Justices Supreme Court held: probability a reasonable a defendant can establish Where privileged counseling juvenile records are diversion defense, necessary likely information contain material References 436, 437, 2d, Depositions Discovery 449. §§ Am Jur extending patient’s medical Physician-patient privilege as hospital 552. 10 ALR4th records. Books, discovery subject to defendant papers, and documents ALR Rules Criminal Procedure. 16 of Federal under Rule Fed 380. a review of those records in camera must be conducted to they reasonably ascertain whether contain evidence necessary, essential, Only and therefore to the defense. when provided the trial court finds such evidence should it be defendant. privileged 1. Statutes that render records of contacts between sexual assault counselors and victims and social and workers kept pursuant juvenile pro- clients and records to diversion grams potentially attempt shield reliable evidence in an to trust, relationships foster of and inhibit rather than facilitate Thus, privileges easily the search for truth. such are not found courts, scope or endorsed and their existence and ulti- mately language meaning turn on the and of the statutes that cases, unambiguous create them. In these clear lan- guage precludes sought of the statutes admission of the records purposes impeachment exculpatory of or as evidence in civil or criminal trials. general right discovery 2. no There is constitutional in a minimum, criminal case. At a criminal defendants have put jury might to before a that evidence influence the guilt. case, appropriate option determination of In an inspection information camera the trial judge showing by should be available aon defendant of belief, good-faith grounded fact, on some demonstrable that probability is a likely there reasonable that the records are to necessary contain material information to the defense. Such inspection strikes the delicate balance between the defendant’s rights exculpatory federal and state constitutional to discover by privilege, Legislature’s evidence shielded and the interest protecting confidentiality therapeutic setting. Only of the inspection after the court has conducted the and is satisfied necessary the records reveal evidence to the defense supplied should the pres- evidence be to defense counsel. The inspection ence of defense counsel at the is not essential to protect rights privi- the defendant’s and would undermine lege unnecessarily. Stanaway, generalized 3. In the defendant’s assertion of a credibility need to attack the of his accuser is not suflicient showing necessary probability establish the of a reasonable the records contain information material to his defense to statutory privileges. prosecutor’s overcome the While the refer- during closing argument ence to the substance of the confiden- improper, require tial disclosures was it does not reversal objection, cautionary because was there no and a instruction misleading However, could have cured the inference. it anwas allow, despite defense the trial court abuse of discretion for prosecution improper impeachment witness objections, of a requiring prejudicial, hearsay highly testimony that was with remand for a new of the defendant’s conviction reversal trial. Caruso, particularized facts 4. In the defendant’s assertion support of the victim’s that a review would a determination counseling required. the defen- Because records in camera belief, grounded arguable good-faith dant demonstrated fact, probability records at that the there is a reasonable defense, necessary to his information issue material contain Appeals judgment the Court of and remand vacation required whether for a determination trial court counseling in camera must be records review of the victim’s ordered. despite concurring, the limited Riley, stated that Justice rules, guidance the court statute and of the harmless-error yet Supreme fully examine the relevant considera- Court has harmless error and to set forth tions for nonconstitutional vague concept of concise harmless-error test. The clear and gleaned plain reading injustice of the statute and to from a be meaningful appellate help provide to not court rules does reviewing harmless error. courts in nonconstitutional assumption harmless-error An that the federal constitutional recognize applies to that fails rule to nonconstitutional error important to the in- state considerations relevant there are rules, quiry, including policies the in the and court statute yet to examined. have be briefing full full must await While consideration issue argument, the in the admission of officer’shear- and this case testimony miscarriage say justice a of and cannot be resulted in harmless. deemed Riley, concurring, joined by stated Boyle, Justice Justice privileged is a in of information that the test for review camera materiality. showing plausible The test for disclo- of need and probability that is sure use is whether there a reasonable and necessary the would affect factfind- material and information guilt the innocence. The issues are er’s determination of or camera, asserted, privilege review in of the test for nature the materiality determining re- the for when constitutional test information, quires discovery protected the rem- or use of and rigid edy majority too a The creates barrier for nondisclosure. camera, privi- request treats all a for review in to defendant’s equivalent, leges functionally the for confuses standard as disclosure, the for and assumes in camera with test review remedy appropriate discovery the to to resistance of all infor- protected by privilege striking mation an absolute wit- is testimony. grounds, ness’ Its on rationale is based two dubious unnecessarily one that limits a defendant’s to review in camera, viability privileges. a and second that limits the of all types privileges: qualified There of are two conditional or privileges privileges. protecting and absolute Statutes confiden- protect tial communications are construed to the communica- extrajudicial privileges tions from disclosure. Absolute are expressly disclosure, protect those that all in court as as well qualified privileges, out of court. Conditional which do court, expressly exception in bar disclosures do not create an to judicial control under the in Rules Evidence. Review camera showing plausible should be available on a need and materi- ality. majority distinguish privi- failure to between leges that do not bar in court disclosure and those that do leads to the erroneous a conclusion where defendant makes requisite camera, showing for in review an holder of privilege may pro- absolute continue to refuse to submit the resulting testimony being tected information in the holder’s privileges appropriately struck. When can be narrowed avoid clashes, showing privilege such a and sufficient overrides a confidentiality, camera, order the holder to disclose in protects information, and the of noncom- result pliance may contempt. Only absolute, privilege be when the is purpose invasion, destroyed by and its will be will disclosure be dependent privilege on waiver holder. process right discovery Where a due is asserted and invoked, privilege step the first is to examine the basis request. plausi- the defendant’s Where the defendant makes showing materiality case, favorability ble further order, consideration is in determination whether the privilege necessary is absolute or conditional to assess whether further deliberation is called for before review establishing privi- camera is warranted. Where the statute lege fairly permits a construction that disclosure camera can required device, screening as a examination in camera is appropriate. absolute, if Even invoked is if it cannot destroy be said that review camera would the ends sought through privileged communication, the such review still However, may proper. be privilege where the be cannot nar- rowed, destroy purpose, and review in camera itself would its scrutiny inappropriate may continued is and not be conducted that, yields. Failing prosecutor unless the holder the accept upholding privilege. must the burden of protected The test for is disclosure whether the is material constitutionally necessary The standard material. and both privilege. vary with the nature of does not psychologist-patient privilege in Caruso is an involved Although privilege protecting private communications. absolute showing initially a sufficient did not make the defendant plausible consider materiality, the trial court should on remand counseling, prior stemming sex- allegedly from truncated how abuse, If plausibly to the claim of fabrication. material ual is made, showing whether is the court must determine a such destroy privilege. review camera would plausi- Stanaway, failed to demonstrate the In the defendant requested protected materiality the sexual records ble Although privilege. the social worker- counselor-victim assault sought by juvenile records defendant client and diversion privi- possess the other absolute character as do not same cases, generalized asser- leges in these defendant’s issue materiality, plausible showing of make tions also failed to a properly thus of the records was denied. and review lawyer writing separately, for Levin, that a Justice stated permitted participate in an in camera the accused should be privileged examination of documents. experi- extremely even the most able and It is difficult for conducting pressures judge a trial to enced trial under the pick impeaching that would be useful out all the information court’s a Nor is it realistic to assume that trial witness. impeachment utility judgment regarding the of material for adversary system, possibilities. it In would exhaust the an may enough judges judge. of what The determination effectively only properly can be made useful the defense by an advocate. Although procedures result in counsel for the these would state, just judge, viewing defendant and the rather than taken, records, precautions are such if careful confidentiality not be more intrusive or breaches of need attending in camera review of records than those harmful judge alone. Stanaway, reversed and remanded.

Caruso, remanded. vacated and — — Records Review In Camera. Evidence Confidential probability reasonable Where defendant can establish juvenile likely privileged counseling are diversion records defense, necessary to the information to contain material to ascer- in camera must be conducted review those records reasonably they neces- contain evidence that tain whether op Opinion the Court essential, sary, defense; only and therefore when provided trial court finds such it evidence should defendant. Kelley, Attorney Frank General, J. L. Thomas Casey, Gary General, Walker, Solicitor L. Pros- ecuting Attorney, E. Terrence Dean and Prosecuting Wiese, Matthew J. Assistant Attor- neys, people Stanaway. for the Kelley, Attorney

Frank General, L. Thomas Casey, Forsyth, General, Solicitor William A. Prosecuting Attorney, Timothy McMorrow, K. Appellate Attorney, people

Chief for the in Caruso. Stanaway. Mark Peter Stevens for (by Office, Vander Werff Law P.C. E. Sara Werff), Vander for Caruso. Amici Curiae: (by Summers & Pence L. Steven Pence and Moon)

Lynn Alger-Marquette Community A. for Mental Health. (by Andrews, Fosmire, Solka Stenton, & P.C. Hill),

Cheryl L. Maarel, for Francis van der Diver- sion Counselor of the Juvenile Division of Mar- quette County Probate Court. (by Burnham, Finkbeiner & P.C. Priscilla S.

Burnham), Cathy O’Day Preston, Kim Gustaf- Marquette son, and Women’s Center. Attorneys

David A. Moran for Criminal Defense Michigan. presents question J. This case Brickley, whether, and circumstances, under what records op the Court counselor, psychologist, a social sexual assault

a worker, a. regarding juvenile a in a officer diversion or a the accused be discoverable witness should privi- are To extent records trial. criminal 14.800(750), leged MCL MSA 330.1750; MCL under 27A.2157(1)(2), 600.2157a(2); 339.1610; MCL MSA 18.425(1610), 722.826-722.829; MSA and MCL MSA 25.243(56)-25.243(59), respectively, resolution re- quires fed- defendant’s whether determination process rights due of constitutional and state eral require requested pretrial records of review trial.1 before of the difficult task This faced with Court pro- compelling

reconciling tecting interest the state’s counseling juve- confidentiality and of federal the defendant’s records with nile diversion rights to obtain state constitutional and evidence necessary in a criminal trial. We his defense to a rea- can establish that where a defendant hold probability records are that the sonable necessary likely to information to contain material records defense, review of those his an in camera 1 arguments presented is a case. Both defendants This consolidated compul right regarding sory process. analysis, of confrontation and the Sixth Amendment process case on the basis a due Because we decide this beyond stating we issues rights implicated do address these sufficiently compulsory process are confrontation compels process protected by when due an camera review 39, 989; Ritchie, 56; L Pennsylvania S Ct 94 Ed v 480 US 107 result. 2d (1987). adopted Michigan routinely federal law 40 courts have LaLone, examining v 432 when Mich confrontation. (1989). 103; 437 611 NW2d Michigan virtu- Constitutions contain Where United States ally provisions, Sixth Amendment of as is the case when the identical 1, compared art 20 § Constitution is the United States Michigan of the constitu- construction Constitution of federal expansive compelling reasons an should followed absent tion be Police, Dep’t interpretation of State constitution. Sitz v state (1993). 744; 506 NW2d 209 443 Mich directly implicated by the Sixth Amendment would be We note that privilege. subject statutory request to use at trial evidence 1105; (1974); 308; Alaska, 39 L Ed 2d 347 v 415 US S Ct Davis People Adamski, App LaLone, supra; People Mich v NW2d op the Court they must be conducted to whether con- ascertain reasonably necessary, tain therefore evidence that Only essential, to the defense. when the pro- evidence, trial court finds such it should be vided to the defendant. procedure adopt today attempts The we bal- Legislature’s protecting

ance the interest confidentiality setting therapeutic with the possibility may exculpatory that there evidence necessary prevent in such records the conviction person. of an innocent People Stanaway,

In we affirm trial court’s denial of an in camera review of the victim’s counseling generalized records. defendant’s credibility assertion aof need to attack the of his showing accuser did not establish the threshold probability a reasonable the records contain information material to his defense sufficient to statutory privileges. overcome the various How- ever, we hold that the trial court its abused discre- improper impeachment tion when it allowed the prosecution hearsay testimony a witness with that highly prejudicial. Stanaway’s was We reverse conviction and remand for a new trial because the error was not harmless. People Caruso,

In we remand to the trial court for a determination of whether an in camera counseling review of the victim’s records is war- good- ranted. If the defendant has demonstrated a grounded belief, faith fact, that articulable probability there is a reasonable the records necessary contain material information to his de- inspection fense such an should be conducted judge. the trial

i A. PEOPLE v STANAWAY charged Stanaway Defendant Brian was with Opinion of the Court third-degree sexual con- criminal counts three involving the com- with intercourse sexual duct2 plainant during separate occasions three

on years old. fourteen she was of 1988 when summer during complainant examina- direct testified The with mese incidents discussed that she tion happened. they year The after over counselor police allegations reported to the counselor pursuant require- mandatory disclosure 25.248(3).3 722.623; MSA of MCL ments. Stanaway’s filed a counsel trial, defense Before sought records of a to the access direct motion that program juvenile diversion in the worker social regarding the com- counselor assault and a sexual plainant. argued the records The defendant might might or statements inconsistent contain exculpatory he had evidence, admitted but lead to probable good-faith that it was belief for a no basis request This found.4 would be information such morning repeated mo- trial. Both on the was by the trial court.5 denied tions were complaining trial witness testified MCL MCL 722.623(1); 750.520d(l)(a); MSA MSA 25.248(3)(1) 28.788(4)(l)(a). provides in part: nurse, examiner, dentist, coroner, physician, medical A care, audiologist, emergency provide person psychologist, worker, medical licensed worker, social family therapist, certified social administrator, technician, school school work social officer, teacher, regulated child or enforcement or law counselor care suspect abuse child provider cause to who has reasonable otherwise, telephone immediately, by or neglect make shall made, report report, oral or cause an an oral suspected department. neglect child abuse or Privilege April Memorandum Defendant’s Law— Discovery. paragraphs 8-11 of requests challenged discovery were The discovery: April for 1990 motion defendant’s addresses, names and also demands

8. The Defendant Opinion of the Court baby-sat she the defendant and for him and knew his wife for incident had sneaked out time. some She stated that the first night on a

occurred summer in 1988. She during night her home nephew, Terry Stanaway. talk to the defendant’s nephew staying The defendant’s was tent outside She

house. said the defendant asked responded her to have sex him with and she she did dant want to. She related that defen- pulled pants down her and underwear and outside, sexual intercourse occurred in the yard, near the tent.

A second incident occurred two weeks later. The visiting stated witness on she was her aunt who lived same block as the defendant. She was in backyard nephew the dant, when another of the defen-

Ricky Stanaway, Ricky called to her. indi- cated that the defendant inwas the house and Ricky house, wanted to talk her. Once in the was told her the defendant in the bathroom and just that she should knock he would let her in. She knocked and entered and the defendant closed the door behind her. She said the defendant was naked and indicated to her that he wanted to repeated have sex. She she said that she did not Again pulled want to. the defendant down her person, any agency, program, counseling and the contact assistance that or or complainant] sought [the either treatment diagnosis alleged after the occurrence of the sexual assault. any observation, 9. The Defendant also demands written document, prepared by O’Day Cathy record or memoranda or or any Center, Marquette other member of the Woman’s Crisis Marquette County member of the Juvenile Diversion Counseling Program pertains to this matter or the afore- agencies programs complainant], said contact with [the 10. Defendant also demands the records of the Juvenile Program pertaining complainant]. Center Diversion to [the any psychia- 11. The Defendant also demands names of psychologist, trist or plainant] social worker or counselor com- that [the diagnosis consulted for or treatment al- before the leged sexual occurrence. op Opinion the Court pants intercourse oc- sexual underwear and floor. on the bathroom curred the third incident The witness testified happened not re- She could that summer. later it came to be of how the member circumstances but she said the defendant’s house was at that she sexual single place in a on a bed intercourse took the defendant remembered bedroom. She back getting afterwards. to clean off bed a towel He his own behalf. testified on

The defendant having any the com- with sexual contact denied yard plainant. in the there was no tent He said question. in never his He said she was the time except baby-sit and his wife would and he to house have been together.

gone jury three on all the defendant The convicted Appeals, chal- defendant In the Court of counts. lenged discovery, the admittance the denial regarding police testimony by officer statement nephew by defendant, statements of the made arguments during closing prosecutor made (cid:127) of his trial counsel. ineffectiveness and the Appeals convic- defendant’s affirmed the Court of opinion per unpublished curiam, issued tion in an 130448). (Docket August 14, 1991 No. pros- by statements made the basis of On suggested the records access to ecutor question, directing order Court entered an this judge of the in camera review conduct an trial requested modi- order was later That documents. response filed to intervene to motions fied rape counselor, and worker, crisis the social the Although the motions clinic. mental health prosecutor eventually denied, were intervene response to file a written ordered instead was explaining dur- made for the statements the basis regarding closing arguments ing the com- what Specifically, plaining told counselors. witness Mich Court prosecutor identify was directed which counsel- ing records were made available to him were in possession Upon receipt his before trial. of the prosecutor’s response, indicating he did not have pretrial counseling records, access judge this Court directed the trial to make a finding hearing of fact on the issue. After testi- mony prosecutor case, from who tried the judge trial determined that the source of by prosecutor during closing made references arguments complainant’s testimony. was the trial judge further determined that none of the counseling provided pros- records had been granted appeal. ecutor. We leave 444 Mich 876 (1993).

B. v PEOPLE CARUSO Stanley charged Defendant Caruso with sec- ond-degree charges criminal sexual conduct.6 The allegations by are on based his niece that private during defendant rubbed her a visit with his hand eight years allega- she when was old. The tion when the child surfaced wrote a note to her boyfriend alleged mother’s live-in about the inci- dent. trial,

Before defense counsel moved to obtain the complainant’s counseling asserting records, good complainant there was reason to believe the biologi- had been the victim of sexual abuse her suggested may cal father. It was further this not have been first note written to the live-in boyfriend aof sexual nature. It was believed the defense that the child had written at least one prior suggested in which note she she wanted to 750.520c; 28.788(3).

6 MCL MSA People the Court court The circuit him in the car.7 sex with have order entered an motion and defendant’s granted an in camera records for production for review. prosecutor’s granted Appeals

The Court for immediate motion emergency interlocutory order consideration, the trial court’s affirmed but review.8 an camera requiring production 25, curiam, May issued opinion per Unpublished 157437). (Docket granted This Court No. 444 Mich Stanaway. with appeal leave to ii the various to decide is whether The first issue to shield disclo- are intended statutory privileges and, so, they if whether evidence sure of this Const, rights under US the defendants’ violate 1, 17, 20. VI, XIV, art and Const Ams §§ A. THE STATUTORY PRIVILEGES discovery Stanaway’s In to defendant opposition records at motion, asserted that the prosecutor 7 preliminary supported examination This assertion was testimony stated he had read for the defense who óf a witness presented present the mother’s note was when the note and was boyfriend. 8 Adamski, supra, Appeals n 1 as cited The Court of authority constitutional patient of the collision between correct resolution for the statutory psychologist- right and the of confrontation privilege. confidential had somehow obtained in Adamski The defendant complainant health coun- and a mental communications between selor. trial, judge were inadmissible ruled that the statements At privileged purposes they under MCL impeachment were because for 14.800(750). proper Appeals 330.1750; inquiry regarding held that The Court of MSA admissibility whether must include a determination "unduly statutory would on the basis of exclusion so, privi- If infringe! lege of confrontation. the defendant’s on ]” Id., p yield. 141. must 656 op the Court issue were under Michigan’s statutory- sexual privilege, assault counselor-victim MCL 600.2157a(2); 27A.2157(1)(2);9 MSA social worker- 339.1610; client privilege, 18.425(1610);10 MCL MSA 27A.21570) 600.2157a; provides: MCL MSA (1) purposes of For this section: (a) "Confidential communication” means information trans- mitted a victim between sexual assault or domestic counselor, violence or between victim or sexual assault or person domestic violence counselor and other to whom reasonably necessary disclosure is to further the interests of victim, advice, rendering the ing, violence in connection with the counsel- or other assistance the sexual assault or domestic counselor victim. (b) violence” that term "Domestic means as defined in section 1978, being of Act No. of the Public Acts of section Michigan Compiled 400.1501 of the Laws. (c) assault” "Sexual means assault with intent commit criminal sexual conduct. (d) "Sexual assault or violence domestic counselor” means a at a person employed who at or who service volunteers center, sexual assault or domestic violence crisis and who in or other assistance to provides capacity advice, counseling, victims of sexual assault or their domestic violence and fami- lies. (e) assault or "Sexual domestic violence crisis center” means institution, office, agency, an or center which offers assistance to families sexual victims of assault domestic or violence and their through counseling. crisis intervention and (f) person alleges "Victim” means a who was or who to have subject been the of a sexual or of assault domestic violence. (2) Except provided by protection as section of the child law, 1975, being Act 238 of the Michigan No. Public Acts of section Laws, Compiled 722.631 of the a confidential commu- nication, any report, paper, working or or statement contained report working paper, given in a or or made in connection with between consultation a victim and a sexual shall assault domes- counselor, tic violence admissible as evidence in any consent proceeding prior civil or criminal without written victim. 18.425(1610) 339.1610; provides: MCL MSA (1) registered worker, person A as a certified social social worker, employee or social work technician or an or officer of worker, agency worker, an whom the certified social social employed required or social work technician is disclose a communication or a shall not be portion of a communication the Court of regarding provisions statutory records and the kept pursuant program, juvenile diversion 25.243(58)-25.243(59).11 722.828-722.829; MSA MCL The juvenile prosecutor that because asserted degree in social a master’s held diversion officer counseling provided services to had work and given person in the course or advice a client to made professional employment. section, (2) provided a communi- Except in this as otherwise worker, worker, social or social social between a certified cation social, agency certified of which the or an work technician worker, worker, agent is an or social work technician social privilege is not person This counseled is confidential. and a subject required part except when the disclosure to waiver agency supervisory process for which the within the worker, worker, or social work technician social social certified is person except or a employed; the client where so waived or The certified act in the client’s behalf. authorized to worker, worker, technician shall or social work social social submit to the prospect appropriate written evaluation court a divulging particular prognosis without of a case or requested by revealing disclosure when or a confidential fact court for a court action. provides regarding juvenile of records statutes disclosure §8: (2), (1) required Except a record in subsection as otherwise only by kept open

required order under this act shall be to be persons having legitimate interest. the court to (2) open kept required under this act shall be A record to be only agency for or court intake worker to a law enforcement the purpose deciding to divert a minor. whether (3) destroyed kept under this act shall be A minor’s record age. years days minor becomes 17 [MCL within 28 after the 722.828; 25.243(58).] MSA following penalty provides for violations Section 9 of the statute juvenile regarding record: diversion the use of (1) by. any kept this act shall not be used A record under official, including person, any minor. law enforcement a court official or making purpose except whether to divert a a decision on (2) guilty of a misde- person this section is A who violates meanor, days, 722.829; imprisonment than 180 punishable by for not more $1,000.00, or both. than [MCL a fine of not more 25.243(59).] MSA 446 658 643 Opinion of the Court complainant part diversion, as of the social privilege worker-client barred disclosure. opposition discovery In to defendant Caruso’s request, prosecutor asserted the records requested absolutely privileged were Michi- under gan’s statutory psychologist-patient privilege, MCL 14.800(750).12 330.1750; MSA evidentiary Unlike other rules that exclude evi- potentially it unreliable, dence because potentially statutes shield attempt reliable evidence an relationships. Westen, foster com- The process pulsory clause, 71, 73 Mich LR 160-161 (1974). confidentiality may While the assurance of encourage relationships privileges trust, inhibit than rather Cormick, facilitate search for truth. Mc- (4th ed), pp 72,§ Evidence 268-270. Privi- leges easily therefore not are found or endorsed scope statutory the courts. "The existence and of a privilege ultimately language turns on the meaning of the statute itself.” Howe v Detroit Press, Free 203, 211; 440 Mich NW2d (1992). goal statutory so, Even construction is to ascertain and facilitate the intent of the Legislature. People Love, 691, 425 Mich NW2d 738 Legislature expressly provided

The that confi- dential communications made or sexual do- mestic assault counselor not "shall be admissible proceeding as evidence in civil or criminal prior without written consent the victim.” 750(2) provides: Section of the statute Privileged civil, communications shall disclosed in criminal, legislative, proceedings, or administrative cases or or proceedings preliminary proceedings, to such cases unless patient privilege, except the stances has waived in the circum- 330.1750(2); set forth this section. MSA [MCL 14.800(750X2).] the Court 27A.2157(1)(2). 600.2157a(2); The House MSA MCL Legislative Analysis, 16, 1983, HB November who consult victims a desire to afford indicates crisis interven- assault counselors at a sexual with confidentiality assurance tion center the same psychia- psychologists, who consult with that those trists, analysis are afforded. or social workers plays confidentiality in effective the role discusses therapy: obligedto warn assault] [counselors feel

[Sexual that communications be- clients beforehand their may court, and in be used as evidence tween them they report knowledge often has an this willingness important chilling effect on the client’s forthcoming. often intervention centers to be Crisis practice keep in minimal records make it a order possible, protect privacy much as but as resumption counseling practice after makes this lapse more counselormuch of time or another difficult. [Id.] exception recognized only MCL The 27A.2157(1) mandatory is the dis-

600.2157a; MSA provisions Act, Child Protection closure 25.248(3)(1).13 722.623(1); MCL MSA addressing worker-client the social The statute 18.425(1610X1) 339.1610(1); privilege, MSA MCL part provides "shall the social worker one that required a communication” not be in disclose part communications confidential. are two privilege exceptions are disclosures for The internal sures supervision worker, disclo- of the social parties, duty third to warn made under the 14.800(946), 330.1946; MSA forth in MCL as set privilege. the client has waived and where privilege, psychologist-patient MCL The 14.800(750), eviden- an 330.1750; MSA establishes n 3 for text. See Opinion of the Court tiary privilege proceedings in court unless the patient privilege. excep- has waived the The few provided by tions the statute include when the pa- communication is relevant to a condition the tient has introduced as an element of a claim and malpractice brought against when a action is treating psychologist. privilege The extends not just to the communications made in the course of treatment, but to the fact of treatment as well. request

Defendant included a for the juvenile complainant diversion records of the discovery prosecutor his motion. The asserted that privileged by those records were both the social worker-client and under the Juvenile Act, Diversion 25.243(58)-25.243(59).14 MCL 722.828-722.829; MSA juvenile diversion offi- cer in this case was a licensed social worker. Her juvenile probate contract with the division of the stipulated provide counseling court that she would juveniles program. services to in the diversion The Juvenile Diversion Act15mandates the cre- containing specific, ation of a limited record some basic information to document the fact of diver- Legislative sion.16 An examination of the House 14See n 11 for text. 25.243(51) seq.; seq. MCL 722.821 et MSA et 25.243(56) Specifically, 722.826; provides: MCL MSA minor, When a decision is made to divert a the law enforce- ment official or court intake worker shall file with the court in county in which the minor resides or is found all of the following information: (a) name, address, The minor’s date birth. (b) apprehended. The act or offense for which the minor was (c) place The date and of the act or offense for which the apprehended. minor was (d) made, The diversion decision whether referred or re- leased. (e) compliance The nature of the minor’s with the diversion

agreement. Opinion op the Court Analysis, 10, 1987, 4597, reveals HB December recordkeeping require- purpose of this provide future event trail in the a ment was regarding whether or made needed to be decisions program.17 place juvenile in the diversion not to requirements pursuant to these Records created by if it is determined court order are accessible that interest.18 legitimate requesting person them has a 25.243(59) However, 722.829; MSA MCL "legitimate arguably re- in the interest” defines considering being only purpose for cords as divert a minor.19 whether to required under the act the records We hold that by subject the act. established are juvenile Any records created additional capacity a social worker in her as diversion officer are statutory protected by worker-client social privilege. does for the records Defendants’ need exceptions afforded under fit statutes. give programs not be used should diversion] [Juvenile parts youths their under who do not take "free rides” to diversion recordkeeping agreements seriously. on Consistent youth provide law en information needed diverted would appropri deciding diversion is courts in whether forcement and ate for 4597, Analysis, Legislative given youngster. HB [House December 1987.] 722.828; by MCL records controlled We note that the diversion 25.243(58) required kept under the to be relate to those records

MSA Diversion Act. Juvenile provides the the act for is moot because the We also note that this issue days twenty-eight after record within destruction of a minor’s minor’s seventeenth 25.243(58)(3). 722.828(3); birthday. MSA MCL 25.243(59) 722.829; provides: MCL MSA (1) by any kept act not be used A under this shall record official, including

person, any purpose minor. or law enforcement a court official making except to divert a decision on whether (2) guilty misde- person of a this section A who violates meanor, by imprisonment than 180 punishable for not more $1,000.00, days, or both. of not more than or a fine Opinion op the Court privileges legislative All cited indicate a evidentiary privilege pre- intent to create an cludes a defendant’s access to confidential commu- unambiguous nications. Under the clear and lan- guage Legislature statutes, used in the intends preclude having any defendants from access to counseling settings. communications made in these These communications are not intended to be impeach- evidence, available for use as either for exculpatory ment or criminal trial. evidence, as in a civil or agree prosecutors’ We with the views that these privileges counseling juvenile shield the diver- complainants. sion records of the B. DUE PROCESS CHALLENGE We now must consider whether the constitu- rights process20 tional supersede of the defendants to due statutory privileges. controversy At the heart of this is the defen- premise dants’ that if relevant evidence is shielded by privilege purpose for some other than enhanc- ing truth-seeking trial, function of a then danger convicting an innocent defendant in- duty provide may creases. While the involve a sacrifice of evidence privacy, public has everyone’s Wigmore, evidence. 8 Evidence 20 Const, provides pertinent US Am part: XIV No any State shall make abridge or enforce law which shall privileges States; or immunities of citizens of the United any deprive any person life, nor shall property, liberty, State or process without due of law .... Michigan counterpart, 1, 17, provides part: Const art § person compelled No shall be criminal case to be a against himself, life, deprived witness property, liberty nor be process without due of law. the Court rev), pp (McNaughton 2192, 70-74. "All that soci- § expected fairly that it will ety to concede be can necessity knowledge does when this not exact exacting gained by it, the benefit or when demand general than less valuable be it would p disadvantage Id., In United . .” 72. . . caused 3090; 41 94 Ct Nixon, 710; S 418 US v States explained (1974), Supreme Court 1039 L Ed 2d that every "exceptions man’s the demand expansively lightly nor created are not evidence derogation they of the search construed, for are Supreme However, States the United for truth.” Stubbs, 204; 408 US v also held Mancusi Court 92 S Ct tiary rights (1972), that eviden- 2308; 33 L Ed 2d placed may on confrontation be limitations legitimate interests other to accommodate testimony prior recorded trial where in a criminal was unavailable a witness was admitted because sufficient indicia bore a and the statements reliability. highest struck down a court has The nation’s hearsay Mississippi because, combined rule when rule, the defendant was voucher with that state’s prevented presenting in his de- witnesses from Mississippi, 284, 302; 93 410 US v fense. Chambers (1973). . . . rule "[T]he 1038; 35 L Ed 2d S Ct mechanistically applied may to defeat not be justice,” fundamental meet the but must ends of Evidentiary process. rules must due standards of applied for a determination evaluated when be potential justify served the interests whether imposed constitutional on a defendant’s limitation rights. 44, 56; 107 S Ct Arkansas, 483 US Rock v (in (1987) an eviden- which L Ed 2d 37 2704; 97 post- inadmissibility regarding tiary hypnotic tionally rule to unconstitu- determined memories was right process due the accused’s limit behalf). testify However, United on her own op the Court Supreme States Court has vacated and remanded Michigan Court Appeals opinion, Lucas, 692; (1987), 160 Mich App 408 NW2d holding a ten-day regarding notice rule criminal defendant’s intention to introduce evi- did dence not violate se the Sixth per Amendment Michigan Lucas, the federal constitution.21 145; 1743; US 111 Ct 114 L S Ed 2d 205 A protective prohibiting order cross-examination regarding a witness’ juvenile granted pur- offenses suant to a similar providing state statute for juve- nile kept records confidential was struck Alaska, Davis v down in 1105; 415 US 94 S Ct (1974), 39 L Ed 2d 347 as violative of the defen- dant’s of confrontation under the Sixth and Fourteenth Amendments: The policy protecting State’s in interest confidentiality juvenile of a offender’s record can- require yielding of so vital a constitutional right as the effective cross-examination for bias of cannot, an . adverse witness. . . State con- [T]he confrontation, right sistent with the require the petitioner bear full vindicating to burden of secrecy

the State’s juvenile interest in the crimi- [Id., p nal records. 320.] The issue in case this discovery access information that would be useful at trial im- peachment purposes or useful as evi- exculpatory dence. "There is no general right constitutional in . . .” Weatherford v discovery a criminal case . Bursey, 545, 559; US 97 Ct 837; S L 2d Ed (1977). leading United Supreme States Court case on the issue of pretrial access to privi- Appeals The Court of thereafter trial remanded court for hearing requirement an in camera to determine whether the notice rights light would violate the defendant’s Sixth Amendment in (On Remand), People App evidence. v Lucas 193 Mich 484 NW2d (1992). Opinion op the Court counseling Pennsylvania Ritchie,

leged records 2d 40 989; 94 L Ed 56; 107 S Ct 480 US charged crimi- with in was Ritchie The defendant requested daughter. He of his nal sexual assault state service files of the confidential access agency p investigating Id., charged child abuse. with Supreme majority States of the United 43. A procedure ordered in camera that Court held federal by defendant’s trial court satisfied disagreed p rights. Id., 61. The Court constitutional regarding pelled pretrial com- Clause the Confrontation whether discovery result was or whether plurality process analysis. by compelled A a due right. right is a trial to confrontation that the held p on discov- limitations Id., the extent that 54. To right infringe ery may pulsory to com- on the defendant’s

process, of the case before under the facts protection greater right Court, affords no that the than afforded p process.22 Id., 56. due minimum, crimi- before a establish, that at a cases "Our put . . . have the nal defendants might jury the determina- influence evidence p supra, guilt.” Ritchie, The Court held 56. tion of process interests seek- due that the defendant’s ing satisfied would be favorable evidence acknowledged review. The Court camera conducted, de- review is an camera where of the advo- the benefit not receive fendant does eye, full disclo- the Court observed but cate’s unnecessarily the Common- "sacrifice sure would 22 Blackmun, opinion writing separately, that the of the was Justice right encompassed of effective cross- right confrontation This, view, right pretrial may discov a in his mean examination. ery: accept plurality’s confronta- effort to divorce If I were effectiveness of analysis into the from examination

tion cross-examination, con- situations the I in some believe [Ritchie, formality. empty an would become frontation supra, p 62.] 643 Mich Opinion op the Court interest[23] compelling protecting wealth’s its p Id., 60. child-abuse information.” upholding Part of the Court’s rationale for inspection camera was the fact that the records government pp agency. Id., were of a those 57-60. process right Defendants have a due to obtain possession prosecutor evidence in if it is guilt favorable to the accused and material punishment. Brady Maryland, 83, 87; 373 US (1963); People 1194; S Ct 10 L Carter, Ed 2d 215 (1982). 558, 593; 415 Mich NW2d Material interpreted exculpatory has been to mean evidence that would raise a reasonable about doubt guilt. Agurs, defendant’s United States v 427 US 97, 104; 96 CtS 49 L Ed 2d 342 The prosecution regard- must turn over such evidence request. less of whether the defendant makes a Id. defendant Ritchie had been convicted in agency having the trial court without records been p supra, Ritchie, furnished. inspection 57. The in camera investiga- towas determine whether the tory exculpatory records contained material provided p should been Id., have to him. 58. The test for whether the material have should been provided him it "whether contains informa- probably changed tion would have the out- come of his trial.” If there was no such material or if the nondisclosure was beyond

harmless reason- doubt, then, able held, the Court the conviction could footnote, be reinstated. In indi- Court require may "Ritchie, course, cates that not through trial court to search [Children cys establishing Youth Services] file without first might recognize exculpatory The risk that a trial court justify thwarting evidence does not the state’s commendable effort to confidentiality assure difficulty of child abuse records in the wake of the unwillingness prosecution of detection and and the of vic Ritchie, supra, pp tims and to come witnesses forward. 60-61. 667 ay People v Stan aw op the Court evi- it material that contains for his claim

basis p Id., 58, n 15. dence.” has established remand

Our any prosecutor time had access has not at the requested by Nor were the defendant. records the governmental "investigative” records of these Brady, requirements agency. su- disclosure prosecutor pra, directly applicable the where are possesses Reed, Mich 393 record. v the (1975); People Dellabonda, 224 867 353; NW2d in An 486, 500-501; 251 Mich NW appropriate to determine camera review would prosecutor he evidence withheld whether the duty-bound the That is not situa- disclose.24 was considering today. in the cases we are tion privilege The Ritchie Court also noted "qualified” investigatory regarding in was files contemplated Pennsylvania some statute25 judiciary proceedings. The Court use of files opinion express explicitly on "[w]e no stated: have result in this case would been whether the protected files if had different the statute cys including anyone, law- from disclosure personnel.” p judicial Id., 57, n enforcement and 14. deciding very limited use

Other than likely juvenile candidate diver- whether Court is asked to sion, this statutes judicial contemplate apply today use do not proceedings. such, do not create As our statutes Supreme qualified privilege the United States 1990) (in State, (Ala, See, e.g., Kirby camera 581 So 2d 1136 prosecutor psychiatric those records ordered for examination was of). knowledge had (there (1993) Little, is no 861 P2d 154 260 Mont But see State v them). prosecutor counseling use does not records if access to 6340(a)(5). Ann 23 Pa Cons Stat Opinion of the Court Court addressed in Ritchie.26 do not it We believe necessary generally is to delve into the subtle privileges distinctions between the various as- in serted this case.27 While the aforementioned privileges arguably gradations, of we consist be- equivalent qualified lieve none are the the privilege interpreted by Supreme the Court. The Supreme qualified privileges Court definition in contemplates judi- Ritchie use the some file proceedings. p Id., cial 58. privileges privileges providing Absolute — anyone information is not to be disclosed to —have despite abrogated govern-

been ment’s the existence of the privilege to withhold disclosure of the iden- tity of an informant where disclosure was com- pelled satisfy to the defendant’s Sixth Amendment rights. States, confrontation US Roviaro v United 353 v (1957);People 53; 623; 77 1 S Ct L 2dEd 639 App Poindexter, 90 599; Mich 282 NW2d 411 respect fixed "[N]o rule with to disclosure is justifiable. problem The is one that calls for bal- ancing public protecting the interest the flow of against right pre- information the individual’s to pare supra, p Roviaro, his defense.” 62. statutory privileges may

Common-law and have 26 unqualified statutory privilege for communications between victims, 5945.1(b), sexual assault counselors and Pa Cons Stat Ann specifically by privilege was cited the Court as it was address Ritchie, ing. supra, p 57 and n 14. Supreme The Rhode Island Court has ruled that the creation of an evidentiary privilege absolute of the rights would violate the constitutional compulsory process. Advisory defendant confrontation and 1983). Representatives, (RI, to the House of 469 A2d 1161 statutory privileges The consideration of today all the examined "plausible showing test, materiality” suggested by under the as separate opinion, sufficiently important would not balance the state’s legitimate protecting confidentiality and interest evidenced privileges. position ignores the establishment of the Such a privileges presently distinction between the before this Court privilege Pennsylvania contained in the statute construed position ignores Ritchie Court. The the harm in camera review in and privileged relationship. of itself does- People v Opinion op the Court privileges yielded if inter- those narrowed or

to be rights of defen- constitutional with certain fere e.g., Roviaro, Lucas, Ritchie, Davis, See, dants. (even supra Nixon, afforded the executive process yield president demands to due must justice); v of criminal in the administration (1993); App 133; 497 NW2d Adamski, 198 Mich (the statutory supra Press, v Detroit Free Howe reports probation privilege precluding access yield with certain constitu- it conflicts must where rights); People Bellanca, 386 Mich tional (1972) secrecy, (despite need for 194 NW2d grand jury tran- to a the defendant has prepared script for cross- in order witnesses); Lhim, 124 Davis examination (1983) (endorsing App 291; 335 Mich NW2d reasoning Regents of Univ of Tarasoff v Rptr 14; 551 P2d California, 425; 131 17 Cal 3d Cal finding psychiatrists have a [1976], 334 duty danger patient parties a to third of the warn made); People pose may v threats have been where (1973) (a Mobley, 57; 327 390 210 NW2d Mich against a takes the stand defen- codefendant who privilege against self- cannot claim the dant testimony having avoid his incrimination and cross-examination); People credibility v tested (1965) (if Hunter, 129; 132 NW2d 95 374 Mich proof rape prosecution case, in a submits medical operates as admission that submission an any an of will not assertion there offered); testimony In re medical when rebuttal (1980) (a App Baby X, 111; 293 736 97 Mich NW2d right confidentiality drug parent’s treatment to yield aif court determines records must necessary to the state’s and material records are neglect proceeding); proof neglect in a child of App 378 Walton, 478; 247 NW2d v 71 Mich (confidential (1976) police made to statements 670 643 op the Court inspected witnesses should be in camera to requires determine whether fundamental fairness that the defendant to have access the information defense). prepare in order to his jurisdictions specifically Where other have ad- counseling privileges, validity dressed the of most attempted have to balance the defendant’s consti- right complainant’s tutional to a fair trial with the require therapy. Many interest in confidential showing preliminary defendant to make a that the likely information is to contain evidence showing useful to his defense.28 such Once a 28See, Co, e.g., Romley Court, Superior Maricopa Arizona ex rel v (1992) (where 232; 172 Ariz right 836 P2d 445 a state constitutional process right afforded to the victim to with conflicts the defendant’s due defense, present discovery yield the victim’s to refuse must need); People showing if the Turley, defendant makes a sufficient v (Colo 1993) (the App, P2d 870 498 defendant failed to make a suffi preliminary showing cient to warrant in camera review when he alleged that the victim’s mental health records were related to her general credibility App, Exline, (Colo reliability); People P2d 775 48 1988) (the request anything reports defendant’s in the credibility specific preliminary showing to relates is not the sufficient records); counseling Joyner, warrant in camera review State v (in 450; (1993) inspection Conn psychiatric 225 625 A2d 791 camera proper and substance abuse records is where the defendant failed to likely offer evidence establish reasonable connection between alleged reliability); People the victim’s alcohol abuse and testimonial McMillan, (1993) App 467; (the Ill 3d NE2d 585 defendant psychiatric failed show that records of his codefendant were sufficiently So 2d 531 privilege); Ortiz, relevant overcome the Louisiana v (La 1991) (in App, psychological camera review records process requirements); State, 54; met due (1992) (review Zaal v Md A2d 1247 protects of a victim’s school records both interest of rights accused); Dep’t the state and the Baltimore of Social Stein, (1992); Hummel, Services v 328 Md 612 A2d 880 State v 1992) (a (Minn, 68 of NW2d defendant is not entitled to in camera psychiatric showing review a murder victim’s records absent likely defense); Morgan, how the file could 477 NW2d 527 be related to the State v 1991) (Minn (relevance App, materiality of confi review); dential medical documents is determined in camera State 402; (1993) (in Cressey, v 137 NH 628 A2d 696 camera review of a psychologist’s counseling necessary notes is if the defendant estab probability a lishes reasonable the notes contain information defense); Ramos, 718; relevant and material v State 115 NM (the (1993) 858 P2d 94 defendant must show there is some informa psychiatric tion in suggests the of records a witness that a mental 671 v op the Court yield to de-

demonstrated, must rights.29 inAn camera constitutional fendant’s access); People affecting credibility v disorganization to have in order (1991) (if requests Arnold, 633; a defendant 576 339 177 AD2d NYS2d witness, proper procedure is reports to psychiatric of the defendant shows a the records review after the conduct an in camera might accuracy reliability "bearing of on the contain material (Tenn, Middlebrooks, 840 SW2d 317 testimony”); v State the witness’ 1992) (because in psychiatric of a were relevant records witness determining veracity, have conducted an the trial court should 525; inspection); Kalakosky, 852 P2d v 121 Wash 2d State camera (1993) (a showing for of need review of must make a 1064 defendant greater allegation counseling an that is than records of victim State, statements); might vGale that 792 P2d 570 terial contain inconsistent the records 1990) (in constitutionally (Wy, for ma- camera review discretion). of was not an abuse evidence 29 jurisdictions following examples have how other are of rights privileges: with other defendant’s constitutional balanced the 1993) (in (Ala State, App, review of 615 2d 1260 camera Coats v Department tion); So exculpatory Brady informa Resources file for of Human 1991) (Ala (once State, App, an 587 2d 1260 Duncan v So government, for the the defendant undercover officer testifies report); inspection State v in camera of his entitled at least an (Alas 1993) (a showing March, App, 859 717 threshold P2d admissibility tial process right in camera access to confiden to entitle a defendant to safeguard personnel due file fails a criminal defendant’s information); Harris, exculpatory discovery of State v (in (1993) personnel 751; review of files 227 631 A2d 309 camera Conn process Brady exculpatory defendant’s due for evidence satisfies rights; the produce bard, impeachment should be conducted if examination for evidence ground a reasonable to believe failure defendant establishes defense); likely impair his State v Hub records would (1993) (in 178; inspection App A2d 626 camera 32 Conn police properly where the defendant failed to records was denied the records would contain demonstrate a reasonable likelihood States, case); 614 A2d 913 to his Carter v United information relevant 1992) (DC (denial hearing regarding App, location of an in camera proper general police post where the defendant’s of a ized need to know did not maintaining observation was outweigh government’s interest confidentiality); Dep’t Health & Rehabilitative Ser (Fla 1992) Lopez, (agency App, 2d records must be vices v 604 So State, violation); inspected 474; including videotaped App Brady v Ga Stewart camera for (1993) (in file, review of children’s services 436 SE2d camera victim, exculpatory with the ma interview State, 29; App SE2d Brady); v 200 Ga satisfies Anderson terial (in (1991) necessary prosecutor’s if the of the review of file not 791 defendant did not camera identify materiality or favorable nature (1991) (in State, sought); Stripling 401 SE2d 500 261 Ga evidence camera requirements); parole process inspection records met due 1992) (in (La SP, inspection App, camera 608 So 2d State request juvenile makes if counsel records must be conducted defense 672 446 Mich 643 Opinion op the Court evidence); (La specific, Jackson, for relevant State v 608 So 949 2d 1992) (in App, exculpatory inspection prosecutor’s camera of a file to determine if disclosed); Hutchinson, material should have been State v 1991) (in (Me, Department 597 A2d 1344 camera of review of Human exculpatory process); Services records for information satisfies due (1993) Reynolds State, (in 348; App v 98 Md A2d 633 455 camera production hospital require review and of records more than the fact complainant stand); Goodwin, that the Mont took the witness v State 249 (1991) (information 1; 813 P2d 953 determined to be relevant necessary to the defense should be forwarded the defendant if during inspection family files); discovered an camera of services (1992) (denial Dedrick, 502; State v camera of the 135 NH 607 A2d 127 of review in prosecutor’s proper notes was where the defendant did evidence); Baker, prosecutor not show the withheld v 112 State NC (1993)(it App 410; 435 SE2d 812 was error the trial court to refuse posses- to conduct review in camera of the witness’ statements in the prosecutor); Ellis, People 1043; sion of the v 188 AD2d 592 NYS2d 200 (1992) (in prosecutor’s Brady camera review of the file revealed (1991) violations); camera Monroe, 93; (in People v 588 AD2d NYS2d 547 personnel review files for information that is relevant impeachment credibility); Gallardo, People 636; of witness v 173 AD2d (1991) (defendant inspection 570 of NYS2d is entitled to in camera prosecutor’s support- notes if can he articulate a factual basis ing information); Black, 771; App his need for the State v 85 Ohio 3d (1993) (conducting inspection 621 NE2d 484 educational records rather than is 666; in camera of confidential allowing the defendant direct access Wadsworth, discretion); not an App abuse of State v 86 Ohio 3d (1993) (in inspection required 621 NE2d 773 camera not when proper challenge prosecutor’s defendant failed make a requested product); claim that the sheriff’s records were work Chilli- Knight, (1992) (where App 544; cothe v 75 Ohio 3d 599 NE2d 871 plaintiff under materiality, failed to assert facts to establish trial court was obligation police records); no to conduct review of "use force” Co, (Okla 502, 1991) Mayes App, Amos v Dist Court of 814 P2d (the trial court must conduct. an in camera examination of the Investigation though State they Oklahoma privileged by Bureau of file even are "[e]xculpatory always statute because evidence is avail- statutory provisions deny access”); able to a defendant and cannot Dugan Tiktin, (1992) (a 607; State ex judge rel v 313 Or 837 P2d 959 may delegate statutory duty not to examine a children’s services upon good showing disclosure); division file cause for State v Leslie, (1993) (in 249; App 119 Or 850 P2d 1134 camera examination personnel interests); appropriately Pena, files balances v State (1991) App (Brady 108 Or exculpatory 813 P2d 1134 standard records); applied eye Christopherson, witness State v 482 NW2d 1992) (the (SD, failure the trial court to disclose confidential juvenile records an after in camera examination was not error be- information); cause the records State, did contain relevant Crawford v (Tex 1993) (the App, 863 SW2d defendant is entitled to Stoppers” report in camera review of confidential "Crime to deter- Brady therein); Washington State, mine if 856 information is contained (Tex 1993) (when App, product privilege SW2d 184 Crim a work Opinion op the Court inspection conducted. records is Supreme Hampshire example, Court For the New privi- requires process access to that due has ruled way leged psychological records medical inspection if estab- the defendant in camera an probability that the records lishes a reasonable is material and relevant information that contain Gagne, 101; 612 v 136 NH defense. State to his (1992). A2d 899 Pennsylvania refused to both have

Illinois and privilege statutory was where the disclose records Foggy, 121 Ill v be absolute. determined (1988); v 337; 86 Commonwealth 2d 521 NE2d (1992); Wilson, 268, 278; 1290 Pa 602 A2d 529 Super Kennedy, 95; 604 v 413 Pa Commonwealth gave Foggy, the court two A2d 1036 In request. denying The reasons for the defendant’s public support strong policy first for the was underlying privilege. against The disclosure that defendant had failed second was the fact informa to show that the files contained relevant impeach. might exculpate or tion that be useful merely Foggy, request was Under the facts of because, in the words statements inconsistent defendant, to a the trial would amount of the credibility if it The court stated that were contest. the defendant had established to be held that showing likely contained that the records sufficient this case information on the basis relevant claimed, to in camera review documents the defendant is entitled discoverable). they for a determination of whether are 1992) (in (Ala State, App, 597 So 2d But cf. DeFries impeaching prohibition against jurisdiction one’s own that retains a witness, inspection not entitled to an in camera defendant was report police report prepared the was called where the officer who (Ritchie Little, witness); applies supra as a defense State n Family psychological Department not to Services files but access to records); (1992) (where Super Kennedy, A2d 1036 Pa Commonwealth v protective service file is the statute establishes allowed). absolutely privileged, in is not to be camera review op the Court credibility privi- contest, to a amounted lege then the abrogated every virtually would be in case. p Id., 350. Pennsylvania appellate

The courts have also held privilege camera violates the review absolute legislature.30

established the state Wil- Kennedy, supra. Pennsylvania son and The Su- preme interpreted inapplicable Court Ritchie as privilege pp Wilson, when the is absolute. 280-281. Pennsylvania Appeals Court of held Ritchie applies only to cases in which records are in possession prosecution. p Kennedy, 114. " 'Subjecting the confidential file camera (as appellate review the trial court well as the members) jeopardize courts and staff would process public treatment and undermine the inter- supporting privilege. Simply stated, ests an type absolute of this these circum- ” requires confidentiality.’ pp stances Id., absolute quoting Kyle, 115-116, v Commonwealth 367 Pa (1987). Super 484, 505; 533 120 A2d concurring opinion Kennedy expressed The in it concern that was unconstitutional a hold statutory privilege superior rights to a defendant’s process. compelling of due It is the "state’s interest confidentiality counseling in the of relation- ship yield greater [that] must to the in interest promoting protecting the defendant’s constitu- rights.” p protections Id., tional 119. Constitutional by way for the accused should not be sacrificed 5945.1(b)(1) provides: 42 Pa Cons Stat Ann (b) Privilege— (1) may, No sexual assault counselor without the written victim, consent of the disclose victim’s confidential oral or written communications nor counselor consent to be proceeding. in examined court or criminal v Opinion of the Couet sympathetic per a se as of nondisclosure a rule response physical trauma and emotional " of this Constitution 'The victims. suffered legislative en- is the absolute —a Commonwealth ” quot- privilege statutory Id., is not.’ actment ing supra, p Wilson, 286. v Commonwealth privi- judicial only camera review Not possible leged situations, in certain material attempted Supreme Court has Massachusetts "eye in its of the advocate” the so-called include privileged v documents. Commonwealth review 570 NE2d Stockhammer, 882-883; 409 Mass (1991). multistep procedure involves a The inspec- inquiry. in camera to receive an In order good-faith belief, tion, having a defendant must advance basis, factual some likely in the relevant to an issue records are to be judge will then conduct an camera case. Bishop, review of records. Commonwealth upon If 169; 417 Mass inspection, 617 NW2d judge trial finds the records fact relevant, he then defense counsel to be will allow dis- to those records to determine whether access communications is neces- closure of relevant sary pp Id., disclo- "[F]ull for a fair trial. 179-180. predicated solely sure, on a defendant’s un- request nothing may yield for the de- informed pierced fense, been and the would have unnecessarily.” p Id., 177. Shiffra,

In 175 Wis 2d NW2d State (1993), prosecutor provided defendant sexual information that accused of assault with complainant psychi- history had a indicated might credibility. problems that affect her On atric information, the defendant moved the basis of this complainant’s inspection for in camera an Applying past mental health records. Wisconsin 676 643 Court Appeals precedent,31 Court of court trial ruled provided that for the defendant had a sufficient basis inspection an camera if to determine records contained evidence that would be material complainant the defendant.32 The refused to to. waive her statutory privilege.33 The Wisconsin Appeals Court affirmed the order issued barring testifying trial court the witness from stating appropri- trial, that no other sanction was obligation ate because the witness had no to waive privilege pp her Id., to the records.34 611-612. writings The numerous contributed plurality holding discussed, Ritchie and the factors therein, but not resolved it make difficult to divine precise balancing against for formula a defen- process rights pronounced dant’s due the state’s evidentiary counseling privileges in its interest healing process that enhance the in the wake jurisprudence However, abuse.35 our review of the 31 Appeals previously The Court of Wisconsin had held that Penn Ritchie, sylvania supra, applicable even when the information is possession possession private not in the of the state but is in the of a counseling agency long by statutory privilege. as as it is shielded SH, 730; KKC, (1990); State v Wis 159 2d 465 NW2d 238 In re (1988). 508; Wis 2d 422 NW2d 142 analogized court privilege The to cases in which informant abrogated by process right has been the defendant’s due ato fair guilt. determination of (the States, supra public See Roviaro protecting v United interest in confidentiality give way of an informant must aif defendant can helpful demonstrate that disclosure would be relevant and to his cause); defense Outlaw, essential for a fair determination State v (1982). 112; 108 Wis 2d NW2d 33Wis Stat Ann 905.04. 34Similarly, Supreme the Illinois Court has ruled that the event complainant expert that a refuses to allow defendant’s to conduct examination, prosecutor precluded offering an rape from syndrome guilt. People trauma evidence to establish the defendant’s Wheeler, 151 Ill 2d 602 NE2d 826 35Hogan, constitutionality privilege rape of an absolute counseling: rights crisis A criminal defendant’s sixth amendment rape therapeutic counseling, versus a victim’s to conñdential testimonial (1989) (the BC L R for communications op the Court precedent along in states, with our own

of other evidentiary principles, dealing discovery and with coupled prudent in to resolve doubts a need with prompts constitutionality, hold that us to favor of appropriate available be case there should in an inspection by option trial the an in camera the of showing judge that on a record of the grounded good-faith belief, on the defendant has fact, reasonable that there is a some demonstrable likely probability are to contain that the records necessary to the defense. material information approach reject the fashioned the novel We place separate opinion trial before the would regarding impor- inquiry how the court additional privilege question the in is to tant the absolute suggested privilege particular in- holder.36 This privilege weight quiry depending of the the into variable privilege sensitivity of the holder on the unprecedented It unworkable.37 be would both important promotes rape the counselor between a victim and her prosecution the goals the of rehabilitation of victim and social rapist). of materiality, plausible showing After the has made defendant holder, privilege representing prosecutor, "the the interests the regarding respective arguments present their the defendant should Post, p goals privilege.” the the disclosure have on the effect would 719. standard, fluctuating to be asked the trial court would Under this importance of the statu assessment of conduct an individualized tory privilege privilege judge particular is a to holder. How grave injury will cause a determine an disclosure of records how partial privilege knowing, particular sense, in a holder without least represent prosecutor what the contain? How can records knowing importance privilege particularized records contain? establish records would be more what the of the without many necessary partial cases disclosure inspection privilege of the for non holder’s need inspection. intrusive than the camera instances, many is the As where the accuser will be the case accuser, holder, privilege the it that the more unstable would seem abrogation privilege be greater of the would the likelihood however, instability, Correlating with the accuser’s deemed harmful. greater health to access mental will need the defendant instability prove rather from the accusation arises records seeking protect reality. clashes with a victim than Where a statute Opinion op the Court remotely suggested by Supreme is not even Court in Ritchie. privileges

The creation various discussed opinion Legislature’s in this establishes the as- sumption forced disclosure infor- protected injury privilege mation will cause weight holder. The the need for privilege incorporated the is relevant to and is into balancing today. the Court test this articulates adopt anticipates privi- today The test we lege that the privilege holder if would be better off the intact.38 remains upholding general pur-

We believe we are the poses statutory privileges prevent of the to the routine disclosures that would undermine thera- peutic relationships. recognize, however, We must that in certain circumstances an in camera review necessary of the records is so as not to undermine confidence in the outcome of a trial. In camera inspection privileged by information the court is step a "useful intermediate full between disclosure and total nondisclosure.” v United States Gam- (SD Supp 1990); bino, People 412, NY, 741 F Hackett, 421 Mich 365 NW2d 120 required Where the defendant has made the showing, inspection in camera docu- judge ments the strikes the delicate balance between the defendant’s federal and state constitu- rights, the defendant’s federal and state constitutional the statute yield. It legal must should be the remembered that status of an accuser as victim does not obtain until a conviction is entered. suggestion separate opinion The stringent in the less test abrogation privileges Legislature for of all in which the had not used language given accept recognition waiver is difficult to this Court’s evidentiary privilege privilege the in courtroom where less than an absolute Press, supra. was established. Howe v Detroit Free The test suggested by separate opinion the unnecessarily could burden trial inspections courts with the need to conduct more in camera under its "plausible showing materiality legislative test” and undermine the purposes establishing statutory privileges question. in the in op the Court exculpatory rights evidence discover tional shielded to Legislature’s privilege, inter- and confidentiality protecting thera- in est peutic Only setting.39 has the court conducted after inspection and satisfied the in camera records reveal necessary the defense is to

evidence supplied to counsel.40 to defense the evidence We judges to will be able trial are confident presence recognize of defense The evidence. such inspection to is not essential such an counsel at protect rights and defendant’s constitutional unnecessarily. would undermine preserving the confiden- interest The state’s rape- tiality diversion, worker, of the social underappreciating privileges overvaluing Far from accuses, opinion issue, post, p today’s separate opinion see as the permissi privileges narrowly preserve the extent is ble tailored under the federal and state constitutions. opinion suggests separate new and different also that a The judge trying whether to inquiry to decide of be conducted when conducting the file over or all of the course turn camera inquiry inspection. that determined We believe the basic inspection decision whether to controls the whether give conduct separate opinion mischaracter information defendant. inspec grant in camera an izes as identical our tests whether the The to the documents to defendant. tion and whether inquiry there is to disclose similar, The initial threshold is whether is but not identical. necessary probability, information that material reasonable likely to be record. The determination the defense is to be the looking evidence is material at record whether the made after and evidence the is defense, meaning exculpatory necessary with material raising capable about the defendant’s of a reasonable doubt guilt. unnecessarily overcomplicate separate opinion this deci- The would 1) policy by requiring base for the trial court to determine sion 2) issue, significance privileged privilege of information the in a 3) privilege case, given has on the defen- the effect the assess 4) defense, theory of and to effective cross-examination dant’s determine whether there the substantial to obtain alternative means are available equivalent of the information. simply whether the evidence the trial court to decide We ask being in fact there. The suspected weighing in the records was of contained privileges creating legislative purpose various of the today by Court. There no presented by need importance this this case has been done court the trial because further assessment the tests for in camera for in accounted today. and disclosure we announce review op the Court counseling yield records must to a criminal defen- process right dant’s due to a fair trial when the likely defendant can show those records are necessary to contain information to his defense.

c application We turn now of the test specific enunciated facts circumstances of the cases before us. It was not an abuse counseling discretion to find the communications protected privileges or discov- erable in Caruso. general rights

Criminal defendants do not have discovery. Discovery MCR 6.001. in criminal cases, however, is left to the discretion the trial court: Discovery cases, will in criminal be ordered

when, in the sound discretion of judge, the trial the thing inspected to be is admissible in evidence and a failure justice may result sup from its pression. showing burden the trial court indicating facts to a that such information is necessary preparation of its defense and in the interests trial, of a fair not simply part a fishing expedition, upon moving rests party. [People v Maranian, 361, 368; 359 Mich 102 NW2d 568 (1960).] general, discovery request In when is made disclosure should not occur when the record re- party seeking flects that disclosure is on "a fishing expedition may up.” to see what turn Bow- Dairy man States, Co v United 221; US S L Ct 95 Ed 879 inspection

In camera is often utilized deter- sought mine whether evidence is discoverable. The Legislature expressly provided proce- has for this People Stanaway op the Court evaluating a defendant’s the context dure in generally proposed inadmissible evidence use of 750.520j(2); rape MCL shield statute. under MSA 28.788(10)(2). hearing pro- The in camera protecting privacy interest the state’s motes safeguarding alleged victim, while interests the right fair trial. to a defendant’s supra, p Hackett, 350. Stanaway the records asserts that

Defendant sought necessary attempt to unearth were to his any prior made statements inconsistent any complainant evi- other relevant rebuttal generalized more asser- This no than dence. counseling may contain evi- tion that records impeachment on cross-examina- dence useful for might every case involv- tion.41This need exist ing De- of criminal sexual conduct. an accusation specific Stanaway has arti- fendant not stated requested would indicate that culable fact that confidential preparation good-faith necessary to a communications were He has not stated of his defense. believing statements such basis might the content be and were ever made or what how it would favorably his The defen- affect case. alleged may merely contain dant that the records prior The over- statements. defendant inconsistent he his his when asserts that states case discovery, confrontation, cross-exami- and effective opportunity compels granted that he be an nation exculpatory any potentially evidence. to discover specific request, is fish- Without a more ing. defendant justifica- request specific falls short of counseling records for defendant asserted Counsel complainant they exculpatory had if revealed that would be incidents, alleged opportunities regarding but sexual confide negative reject evidence. Silence this asserted need for was silent. We prove not the offense did not occur. circumstance would this (the (1991) Scheffelman, 250 Mont 820 P2d 1293 absence State v counseling symptoms during psychological not rape does trauma occur). logically prove sexual assault did Opinion of the Court necessary privilege.42 tion to overcome the The refusing trial court did not abuse its in discretion inspection. to order an in camera may Defendant Caruso have demonstrated a possibility realistic and substantial that the ma- requested might terial he essary contain information nec- argued to his The defendant in defense. his discovery for in motion camera that circum- the in stances which the accusation was made were falsity relevant to the truth or The claim. theory troubled, defense maladjusted is that the claimant is a past

child whose trauma has caused against her to make a false accusation her uncle. good-faith The defendant in asserted a belief his complainant motion the suffered sexual abuse by biological allegation her father this before produced abuse, the nonresolution of which a false support sexually accusation,43 and factual for some aggressive namely, writing behavior, a letter boyfriend inviting her mother’s live-in him to have Stanaway prior possible While defendant is denied access to note, counseling context, inconsistent in statements made we as LaLone, People supra, we did in v n 1 statements made only exploration are counselor regarding not the avenue that was available for complainant’s credibility. possible The wide world of prior nonprivileged inconsistent statements made in communications open to remains him. fully cognizant statute, rape We are that under shield MCL 750.520j(l); 28.788(101(1), past MSA evidence of sexual conduct with generally legally Arenda, People others is 330 irrelevant. v 416 Mich (1982). request Any alleged NW2d for the victim’s purpose proving past records for the sexual conduct would not be a request for information material to the defense. suggests The defendant never incident from which the by biological accusation arises was committed the child’s father or theory that the act was consensual. The in defense this is that case happen. theory the act did not is that this is a false accusation product biological that is the father. of unresolved trauma inflicted recognized prior may This Court has that while sexual conduct prove impeach, be may generally declared irrelevant consent or to it properly purposes bias, for admitted other such as to show charge, prior People motive for false fact false accusations. Hackett, 338, 348; 421 Mich 365 NW2d 120 ' Opinion of the Court The in camera review car.44 sex with her his proper may judge been have ordered trial the record case. Because under the facts this grounds regarding altogether clear not ordering inspection,45 we remand the in camera proceedings consistent for further the trial court holding.46 with this rehearing, prevail on the defendant

Should requested privilege should be waiver of question complainant because rely- privilege.47 areWe not is an absolute Caruso analysis ing implied the to overcome on waiver an question. privileges in Howe Detroit absolute implied supra, correctly Press, waiver Free finds separate opinion agree suggestion by that with the the We cannot production the note of the note or further evidence itself if contained existence unnecessary counseling it in files would because be probative. true can be While it is Cumulative evidence is cumulative. that there was the the mother’s present testimony, by was when one witness that he boyfriend, presented eight-year-old the note her mother’s child to preliminary testimony. boyfriend At the that refuted examination, really remember the testified he couldn’t what he that it as innocent kid stuff. note said. He characterized granted inspection possible judge on It is that in camera the the preliminary that would the support established the examination of defendants as facts showing required preliminary enunci the inspection opinion. possible It the was ated in this improperly is also general. impeachment in to ordered look for material adopt supposedly Interestingly, separate opinion the would permissive, "plausible showing materiality” more test for criminal defendants, having by recognize its met but would not test as been Yet, presented. our on the of the facts under defendant Caruso stricter test likely would being properly basis probability requiring the are records reasonable defense, necessary the we material information contain uphold ordering as the in camera review on these facts of an judge’s discretion. within psychiatrist-patient privilege, MCL See n 12 for text of 14.800(750). by Although, presented 330.1750; defendant MSA not motion, privileges, meaning we hold that nonabsolute Caruso’s would waiver, require express privileges specify would not that do produce privilege an the docu waiver holder before order inspection question Where ments the that material information him or state due for in could be entered. in camera probability demonstrating reasonable is successful in defendant against necessary to confront the evidence defense, present theory necessary his his federal rights evidentiary privilege. process outweigh the Court plaintiff when in a defamation suit invokes attempt 791.229; MCL MSA 28.2299 in an to shield might evidence that establish truth of the publication. privilege in this case cannot be prosecutor’s Legisla- said to be the ture has to waive. The expressly provided case psychologists psychiatrists, privilege must expressly privilege waived holder. The prosecution impliedly fact of cannot be said to privilege. waive the Where it cannot be said that privilege placed the versy, holder mental state contro-

implied analysis inappropriate. waiver ruling Our is that where the is absolute complainant statutory if the privilege will not waive her inspection

and allow the in camera after granted, suppres- the defendant’s motion has been complainant’s testimony appro- sion of the is the priate sanction.48

Only inspection if the in camera reveals infor- reasonably necessary mation essential and provided defense should it be to the defendant.49 Stanaway prosecutorial Defendant asserts during closing arguments misconduct occurred the jury. The defendant further asserts that his object. trial counsel was ineffective in his failure statutory privilege absolute, express Where the is not waiver n required. not analysis applied Harmless error has been for review of the trial improper Morgan, court’s denial of in camera access. See State v 28n (an supra independent by judge review of material examined trial the proper and withheld from the defendant revealed that the was denial simply presented because the evidence restated that which was to the by jury means); Middlebrooks, (the supra other State n 28 failure conducting inspection the trial psychiat court not an in of camera ric inspection by records was harmless error because the court appeals proba revealed that the records did contain information credibility). tive of witness Opinion of the Court following objects the defendant Specifically, prosecutor: the made statements to? Now, this incident told who has victim] [the counselor; one, Well, juvenile she told number told her two, girlfriend; she told her she number Mental Health sister; Community told the she works in counselor; prosecutor that told the she hearing; office, preliminary who handled our she told told hearing; she Judge preliminary Kathy O’Day, me; then she told counselor; jury. counselor, Running told. and then the other here, people nine she fingers that’s out go to- think she would you do lying, If were she expose her- length, and that she would great this self to people, nine different process to tell type this incidents? times about these nine different forget No, it, it’s not worth are just say that. She would she wouldn’t do this, through with going not true. I am not it’s But, unfortunately, you the hassle. victim, she happens this when seeing what happened to her. tells what come forward and does She process. through type this goes same, really it has never story is the Her she has the same. And changed, always been it’s mind, and many times in her through it so been it, from the people many so about she has told counselors tem, sys- through the criminal way all the he yet, it on hasn’t been shaken she she testified. on the stand when didn’t shake her the effect position is The defendant’s jury were to advise words prosecutor’s to various statements complainant’s re- had charged offenses regarding counselors on occasions the numerous on mained consistent Although reported. incidents were which the counseling, the fact about testified complainant made actually statements not reveal she did 446 Mich 643 Opinion op the Court Defendant during counseling. believes the infer- ence created for the that jury prosecutor was given had been access the communications for vouched their consistency. support

Further for defendant’s is found theory questions two to the court the jury during deliberations: seated, Court: You Okay. can be Members Jury. Court session. The record should jury question,

reflect that sent out and I talked have about it with counsel. First, actually, questions.

And there are two was "Why testimony proving there no plaintiff did talk to I attorneys counselors?” The are agreed that testimony there was from com- [the plainant] that had she talked to It counselors. was some number of charged months after the events place, took in established counselors. but attorneys both alluded fact to that closing arguments, their and it seems well to be she did in talk fact to various question is, And second "Is that admissible Well, testimony?” the fact that she talked to coun- admissible, selors sation can’t but the content of the conver- with the counselors is not admissible. we So get into [Emphasis that. added.] We note at the prosecutor outset either was arguing not impermissibly facts in evidence or was vouching for the credibility witness. He on admitted remand that he had no specific knowl- edge of what complainant told counselor.

A prosecutor argue not may effect of testi- mony was not entered into evidence at trial. People McCain, v App 210, 215; Mich (1988). NW2d 528 It is improper bolstering prosecutor to vouch for credibility of facts and Couch, evidence the case. People See Mich App 211 NW2d 250 If defense Opinion op the Court precluded statutory privilege from counsel examining counseling communications, it is error jury prosecutor the to the the to announce for of those contents communications. improper prosecutorial

Appellate re- review objection generally precluded absent marks is de- otherwise trial court counsel because the prived People opportunity cure error. of an (1985); Buckey, 1, 17; 424 378 432 Mich NW2d v App People 526, 534-535; Gonzalez, 444 v 178 Mich App (1989); Gonyea, People Mich 228 v 126 NW2d (1983). exception 177, 189; 337 325 An NW2d have could not if a curative instruction exists eliminated to consider prejudicial failure the the effect or where miscarriage result in a

issue would People justice. Duncan, 1, 16; 260 402 v Mich App (1977); People Walker, Mich v NW2d (1979). 189, 198; 285 NW2d timely objection by there defense Had been a argument, prosecutor his council when the made prosecutor trial court have cautioned the could jury prosecutor no had and instructed the knowledge that counseling the content undergone. Any complainant leading mis- testified she had contrary have been inference to the could dispelled. his trial

The defendant further asserts inappropriate object counsel’s failure to remarks constitutes ineffective assistance

of coun- claim, In order on such a sel. defendant to succeed perfor- first must show counsel’s objective of reason- was below an standard mance professional prevailing under norms. The ableness strong presumption must defendant overcome trial counsel’s constituted sound assistance strategy. Second, show that the defendant must probability that, but there is reasonable proceeding error, would result of the counsel’s Mich Opinion op the Court Washington, have been different. Strickland (1984); 668; US 2052; 104 S Ct 80 L Ed 2d 674 Pickens, 446 Mich 521 NW2d 797 During complainant, cross-examination of the pursued theory defense counsel in which he complainant asserted that told a lie the first time she related the occurrence of sex between herself and the defendant. His

theory was that time, once she told the lie the first she was com- pelled keep repeating story. If defense coun- objected jury pros- sel had in front of the presentation scenario, ecutor’s might same he theory have undermined his case. objection may While the lack of an have been questionable strategy, advantage absent hindsight, say we cannot that defense counsel performed reasonably below the standards of a competent attorney.50 unnecessary It is therefore for this Court to determine whether the lack of objection prejudiced the defendant.

IV Stanaway Defendant further asserts that hearsay trial court erred when it admitted the testimony part of Officer Robert Peters. As prosecution’s nephew, chief, case defendant’s Stanaway pros- testify. Donald was called to pursued theory argument closing Defense counsel this in his to jury: story again, [Defense She has told the over Counsel]: and over' prosecutor] says people. telling to [the at least nine After it and telling telling people, get it it to all these when would she opportunity say up, sorry people, I made it I’m to all the occur, really way? got didn’t it occurred this She locked the on the story, nobody up first time she told the checked they had, they implausible, If details. would have seen it was it happened. couldn’t have the Court him if he had made a statement asked ecutor incriminating regarding state- an Peters Officer ment the witness, to a which defendant had made having made: denied ever the witness talking to Stanaway, you do recall [People]: Mr. had that Brian about statements Peters Officer you? made No, made him that Brian I didn’t tell [Witness]: me. directly to any statements implicating any statement never made Q. You with this incident? Brian I don’t talk to to Brian. A. I haven’t talked said, getting along. Like I we weren’t

Brian. saying you never you And are Q. Okay. that he that Brian admitted told was Peters Officer girl? having young sex with that. A. I never said got if he you that never told Q. And Brian trouble? get into a lot of

caught, he would Brian said, Brian and I I didn’t talk to A. Like to me. didn’t talk Brian; right?

Q. you And are related my uncle. A. Brian is out Now, you were you indicated earlier

Q. happened? when this all of town right. A. That’s south; right?

Q. You were down Right. A. clear, Mr. I’m sure Q. just I want to make you never —that saying that

Stanaway. You are implicat- you any made statements Brian never ing young woman? with sex with a himself that, doing him no. A. I remember don’t he didn’t? remember or Q. You don’t memory. I have a bad A. I remember. don’t Q. Pardon? memory.

A. I have a real bad Opinion op the Court Q. Okay.

A. I do. The prosecutor then called Officer Peters to the stand. Officer Peters was the investigating officer in the case. He testified that he had interviewed the complainant and her parents and that he had interviewed the defendant and some of his family members. He testified that the complainant’s testi- mony was basically the same as when she reported the incidents to him. He testified that the defen- dant denied the allegations. Over hearsay objec- tions, prosecutor then asked Officer Peters about what Donald Stanaway had to say:

[People]: you Did ask him about this incident? I asked him if he complain- knew [Witness]: [the He stated he knew who she ant]. know her. He was but he didn’t just knew who she was. IAnd asked him if mentioned nephew [sic, his Brian had ever uncle] anything to him about complain- [the any type of sexual activity ant] between them. Q. What say? did he

A. He told me that Brian never mentioned him —Brian never stated that he had sex with a person by the name of complainant]. But on a [the couple of different occasions while Brian in- was toxicated, he did state that he had "screwed a young girl,” and if caught, he was he would be in a lot of trouble. Now, Q. this is a statement allegedly made from Stanaway, Brian to Don Jr.?

A. Yes. The trial court responded to defense counsel’s hearsay objection to this line of questioning with a cautionary instruction to the jury, sponte: sua Well, The Court: Jury, Members evidence this,

such as it’s prior called a inconsistent state- Stanaway Opinion of the Court ment, used, properly only and it’s usable one if I purpose. And let me see can draw the distinc- you. tion for occasion, prior What a witness said on a like officer, Mr. can’t be

whatever said can’t be used to determine —what he said before to or not the defendant used guilty determine whether the officer guilty.

or not So whatever he told purpose. can’t for that be used Whatever he told the officer before can be used witness, going if you decide are to believe the Stanaway, you Mr. can’t use it but as substantive proof may on a of what the witness have said purpose, for that limited former occasion. So overruled, Mr. objection you may proceed, Wiese. again jury’s to this drawn attention was during

impeachment the final instruc- evidence given by the court: tions Now, evidence there has been some [The Court]: Jr. Stanaway, case that the witness Donald this that differs Peters made a statement to Officer during trial. You testimony what his was from during asked may recall that trial he was whether young "I screwed a

the defendant girl told him have of trouble if going I’m in a lot be witness, Donald Stan- out.” And the anybody finds on, Jr., Later making that statement. away, Officer Roberts was denied said, called, yes, the and he Jr., witness, make that Stanaway, did Donald statement. Now, you how you very careful about have evidence, of a called evidence

consider prior this it’s wasn’t The statement inconsistent statement. during you So must consider made this trial. you decide whether when the statement itself proven; in other have been elements of the crime has words, the defendant whether or not decide proven guilty. been

But, hand, to use you are allowed on the other 446 Mich 643 Opinion op the Court help regarding you the evidence that statement truthful, you decide whether think the witness is witness, Stanaway, being the Donald truthful. carefully. yourself consider the So statement Ask statement, if the witness made the true, it was whether it and whether differs from the witness’ testimony you court. Then remember here may only help you you it use decide whether concerning Stanaway, believe Donald Jr. the testi- gave mony that he here in court. you Stanaway, And if should that Donald decide Peters,

Jr. did make that statement to Officer the you best that can conclude from that is that the testimony Stanaway, of Donald Jr. re- should be jected, ignored. should be thrown out and But that not testimony does make the of Officer Peters by you deciding useful whether or not the defendant made such a statement or or whether guilty defendant of the crimes with charged. which he is only Stanaway’s relevance Donald testi-

mony had to this case was whether he made the regarding alleged statement his uncle’s admission. knowledge The witness had no direct of the alleged incidents and was out of town at the time they prior would have occurred. While inconsistent may statements be used in some circumstances to impeach credibility, improper MRE this was impeachment.51 statement, The substance of the prosecutor’s impeachment We note that of his own witness improper would have been then in effect. MRE 607 ity at the time of trial under the court rules permitted prosecutor a to attack the credibil only prosecutor obliged of a witness if the was call witness testimony contrary anticipated actually or if the was to that and was injurious calling party’s prosecutor may may case. While the anticipated Stanaway deny making not have statement, that Donald would prosecutor’s his denial did not hurt case in the sense required by piece the rule. All the denial did was fail to establish prosecutor jury evidence the wanted the to hear. amended, 1, 1991, MRE 607 has since been effective March provides: conform to Federal Rule of Evidence 607 and now People Court purportedly impeach credibility of the used went, witness, of the case. to the central issue general Whether the witness could be believed only respect relevant with to whether was specific This evidence served statement was made. improper purpose proving truth of matter asserted. MRE 801. prosecutor presented

While the could have de- alleged neph- by way admission fendant’s statement, ew’s he could not have delivered it way testimony of the officer’s because the state- impermissible hearsay. ment See would App Carner, 560, 571; Mich NW2d prosecutor may Likewise, an not use springboard introducing elicited denial as guise rebutting substantive evidence under the People Bennett, 445; 224 the denial. v 393 Mich (1975). prosecutor NW2d 840 Here the used the introducing highly elicited denial as a means of prejudicial that otherwise would have "admission” hearsay.52 testimony The been inadmissible Offi- Stanaway cer Peters was that Donald Brian said that young said that he had sex with a girl. clearly This would have been inadmissible Stanaway’s without It relia- Donald denial. is less any remaining ble the face of the denial. Absent testimony from the witness for which his credibil- ity impeachment case, the was relevant to this should have been disallowed. _ credibility may by any party, of a witness be attacked

including party calling him. trial, applied Because the new rule would he in the event of a new issue, impeachment dispositive the fact alone not of this but the analyzed. impeachment manner of must be (1986), Standifer, 543, 558; People In v 425 Mich 390 NW2d 632 recanting distinguished impeachment witness this Court prosecution’s testimony unexpected and harmful whose was deliberately places prosecutor case from the situation in which a witness on the stand in order to elicit a denial. Opinion op the Court hardly The defendant asserts that the error was agree. prosecution argued harmless. We While the impeachment proper, was he did not refute the preju- defendant’s assertion that the error was too dicial to be deemed harmless.53 Generally, argu- preserved ments not raised and for review are People See, Grant, waived. 535; v 445 Mich (1994); Napier Jacobs, NW2d 123 222, 429 Mich 227-228; 414 NW2d prejudice In our assessment of unfair Robinson, 661, 665-666; Mich 340 NW2d 631 (1983), judge we held that a trial abused his discre- prior tion when he allowed the defendant’s nal record to be admitted into evidence: crimi- devastating evidence had a effect on the [T]his right defendant’s defendant to a fair "is agree trial. We with the it simply anyone incredible that prior would hear all of those acts of criminal conduct and then remove them from their mind upon based an instruction the court they when guilt are then to consider the or innocence of the 53Although argued by parties, not briefed or we would note admitting hearsay that where admissible under the issue implicated Const, testimony there is trial error in Evidence, Michigan may Rules of there be an regarding evidentiary ruling whether we must determine if the Clause, constitutional error under the Confrontation US 1, 20, properly Am VI and Const art Green, in order to § assess 149; harmless error. In California v 399 US 90 S Ct 26 L (1970), Supreme Ed 2d 489 Court held that it is not a Sixth hearsay improperly Amendment violation where was admitted but the declarant testified and was therefore available for cross-examina tion. Where the declarant can be cross-examined about the prior statement, inconsistent there is no Confrontation Clause violation because the literal state harmless error to confront the witness has been satisfied. A may develop a standard of harmless error at variance with the analysis by set forth for constitutional error Supreme Chapman California, 824; Court in v 386 US 87 S Ct (1967), applied rulings L Ed 2d 705 rules of regarding to be to incorrect its amounting Green, p evidence not ato constitutional violation. 170. day We continue to reserve for another the enunciation of the precise applied preserved, harmless error standard to be nonconsti- (After People Remand), tutional error. See v Anderson 446 Mich 407, 39; n 521 NW2d 538 the Court past impact prejudicial of all of those

accused. effectively from removed anti-social acts cannot be the by jury’s a curative instruction.” mind improper Similarly, state- of this the admission confession in the the effect of a ment that had jury that, under the not an error minds of the was by case, cured of this could be circumstances cautionary essentially came This trial instruction. credibility the defen- to a contest between down complainant complainant. The testi- and the dant crime; the defendant the elements of the fied about There is little sexual involvement. denied weight compares probative evidence particularly carries, delivered when confession police police from the officer. The inference a officer’s testimony the defendant admit- was that nagging Any of. acts he was accused ted the jury may whether these have had about doubts place complain- sexual incidents took between likely erased ant and the defendant were nephew. purportedly uttered to his words he opinion case, Likewise, in this we are of the prejudicial. hearsay these error was Under allowing po- circumstances, we conclude that pur- present officer to defendant’s statement lice nephew requires portedly reversal of made to his trial. defendant’s conviction and a new generalized Stanaway’s summary, In defendant credibility of his of a need to attack assertion necessary accuser is not sufficient to establish showing * probability the re- of a reasonable to his defense information material cords contain privileges. applicable statutory overcome the prosecutor’s agreement Despite refer- that the our Mich Opinion by Riley, J. during closing arguments ence to the substance of improper, the confidential disclosures was it does require objec- reversal because was there no cautionary tion, and a instruction have could misleading However, cured the inference. it was requiring an abuse of discretion reversal despite objections, court, trial defense allow improper impeachment prosecution of a witness hearsay testimony highly prejudi- with that was harmless, cial. Because the error was not we there- Appeals fore reverse the decision Court and remand for new trial. particularized

Defendant Caruso’s assertion of support facts would a determination that an counseling camera review of the victim’s records is required. generalized assertion of a need for impeachment material would not. We vacate the Appeals decision of the Court of and remand to the trial court for a determination of an whether counseling in camera review the victim’s re- People cords v Caruso must be ordered because good-faith the defendant has demonstrated a be- grounded lief, fact, in articulable there is a probability reasonable the records contain material information that material and favora- necessary ble his defense.

People Stanaway reversed and remanded. People v Caruso vacated and remanded to the trial court. C.J.,

Cavanagh, Levin, Griffin, and JJ., Mallett, J. Brickley, concurred with (concurring). Although join J. I Riley, Justice Brickley’s part iv, discussion and result in I write separately express my dissatisfaction with the nonconstitutional harmless-error doctrine in Mich- Riley, guidance

igan. Despite rules1 our court from both fully yet examine statute,2 this Court has for nonconstitutional the relevant considerations certainly forth failed to set has harmless error and harmless- concise nonconstitutional a clear and generally cho- Instead, has this Court error test.3 1 evidence, an the exclusion of in the admission or An error order, anything ruling or defect in or an error error in a done granting modifying, refusal or ground by parties not for or or omitted the court verdict, vacating, trial, setting for aside a or a new order, disturbing judgment unless a or otherwise or appears inconsistent to the court to this action take 2.613(A).Emphasis justice. added.] with substantial [MCR Moreover, provides evidentiary a similar harmless- court rule our error rule: (a) predicated ruling. may not Error Effect of erroneous upon ruling or excludes evidence unless which admits affected, party

substantial of evidence, (1) admitting Objection. ruling is one In case the record, stating appears timely objection or motion to strike of specific ground specific ground objection, not if the was context, apparent from the or (2) excluding ruling proof. evi- In is one Offer of case dence, was made known to the substance of the evidence apparent within which was from the context court offer or questions were asked. (d) taking Nothing precludes notice Plain error. in this rule although they affecting rights plain were substantial errors brought trial court. 103. the attention of the [MRE to Emphasis added.] 2 judgment or reversed or a or verdict shall be set aside No any granted by any this state in criminal new trial be case, court of improper jury, ground or the of misdirection of the on the evidence, any rejection error as to matter or for admission or of after an examination court, opinion pleading procedure, unless in the cause, affirmatively it shall of the entire complained appear resulted in a miscar that the error of has 769.26; Emphasis riage justice. MSA 28.1096. added.] [MCL 3 adopt Although appear test in a harmless-error this Court did (1972), Robinson, 562; 709 it is People 194 NW2d v 386 Mich applies How nonconstitutional error. test unclear whether ever, does, question the Court’s remains whether even if it Indeed, if Robinson did I note that of that test was dicta. discussion 698 Mich Opinion by Riley, rely sen to on the harmless-error and court statute guidance provided rules for the limited therein in making Travis, this determination. plain 668, 686; Mich NW2d From a reading vague concept rules, however, of these injustice provide certainly of ingful does not mean- appellate

help reviewing courts in non- constitutional error. guidance

Indeed, the lack of from these sources panels many Appeals has led of the Court of varying including considerations, consider an as sumption that the federal constitutional harmless- applies error rule to nonconstitutional error.4 See Chapman California, 18, 24; 386 US 87 S Ct (1967) (the prosecution prove, 17 L Ed 2d must beyond determine, and the court must a reason possibility able doubt that there is no "reasonable complained might the evidence have con conviction”). assump tributed the However, to this recognize important tion fails to there are inquiry,5 state considerations to relevant this in- purport applicable error, to a create new test to nonconstitutional the the brief, given discussion of the relevant authorities was rather degree regarding question Accordingly, of confusion this issue. I its continued relevance to nonconstitutional harmless error. varying applied been There have and tests considerations when analyzing See, Robinson, e.g., supra; People harmless error. v Rober son, (1974) App 413; (distinguishing 55 Mich 222 NW2d 761 between error); Winans, People constitutional and nonconstitutional v (not (1991) App 294; indicating any Mich tests and 466 NW2d 731 difference in simply applying two-part test); People the Robinson v Fredericks, 118; (1983) ("Error App 114, Mich 335 NW2d 919 is harmless if, error, reasonably possible not in the absence of the it is juror acquit”); People Norwood, that some would to have voted (1976) App (applying beyond Mich 245 NW2d 170 the a reasonable error). However, evidentiary majority doubt to an standard a of this applied beyond Court has never a reasonable doubt standard to a Indeed, reviewing nonconstitutional error. error, when nonconstitutional simply miscarriage this Court has reviewed error under the justice Travis, standard set forth in the harmless-error statute. supra at 686. having fully argued, Without this briefed I issue reserve full explanation policies appropriate of these until the case. Riley, J.

eluding policies implicit the statute and in yet Indeed, to examined. have rules that court Chapman, Supreme in Court the United States recognized supra, explicitly a interest state’s respect: this is, rule state harmless-error application of a course, only it involves where question a state law. But the procedure or state state

errors of error denial of was a petitioners suffered which these from the federal rights guaranteed [by for crime .... Whether conviction constitution] should stand federal bit much of to failed accord when a State has rights every constitutionally guaranteed particu- question as what federal as provisions themselves lar federal constitutional mean, they they whether guarantee, and what faithfulness to consti- have denied. With been States, cannot leave union we tutional the authoritative States formulation laws, rules, designed protect peo- and remedies federally ple guaranteed infractions States from rights. say- have no hesitation We ing punished right petitioners not to be of these exercising their Fifth and Fourteenth

for expressly to be created Amendment silent — a federal by the Federal Constitution itself—is which, congres- right sional fashioning appropriate the absence

action, protect by responsibility it our [Chapman, supra rule. necessary 21.] adopt attempt explain fully I

While do test in this harmless-error nonconstitutional opinion, separately to indicate need I write important briefing argument on issue full this (After Re- See v Anderson of state law. mand), 407, n 521 NW2d 446 Mich frequent Considering use of this doc- currently many considered trine and the factors Opinion by Boyle, J. explanation by courts,6 our a full and decisive this op- However, Court would be in order. until this portunity pared parties properly pre- arises and the are argue issue, this I likewise reserve full agree Nevertheless, consideration of this issue. I error, this the admission of Officer Peters’ hearsay testimony, miscarriage resulted in a justice and thus cannot be deemed harmless. (concurring). Although agree I with Boyle, Caruso, the result separately in both I and write disagree majority’s I because with the rationale. In these cases we deal with the ex- tremely problem formulating difficult a lawful approach balancing and usable due a defendant’s process right against to a fair trial resistance discovery privilege. on based claims of my judgment, In the test for in is camera review plausible showing materiality. a of need and The test for disclosure and use whether there ais probability necessary reasonable that material and information would affect the factfinder’s determi- (1) guilt nation of or innocence. The issues are (2) privilege asserted, nature of the the test for (3) determining review, camera for test when requires materiality discovery constitutional or use (4) protected remedy information, for (1) majority rigid nondisclosure. The creates too request barrier defendant’s for in camera (2) "privileges” functionally review, equivalent, all treats as (3) confuses the standard in camera (4) disclosure, review with the test for assumes remedy appropriate to resistance to dis- covery protected of all information an absolute striking testimony. the witness’ majority’s rationale is on based two dubious grounds, unnecessarily one that limits defen- n 4. See by Opinion Boyle, J. review, and a second in to camera

dant’s privileges. viability There are all that limits the qualified privileges (1) types or conditional two — (2) pro- privileges. privileges Statutes absolute tecting are construed communications confidential extrajudicial protect from the communications privileges that ex- are those Absolute disclosure. protect pressly well as disclosure, in court as all privileges, qualified or Conditional out of court. expressly disclosures, do bar court which do not exception judicial control under not create an majority’s Michigan The Rules of Evidence.1 assumption implicit all that but erroneous leads to its bar in-court disclosure issue statutes creation high in camera a threshold for too opinion, my review,2 which, available should be materiality. showing plausible At need and on majority time, too low a creates the same privileges invading few that those threshold for theoretical absolute. The must be construed to be position produces inconsistency of this internal yield privileges schizophrenic while all this on the result: review, in camera terms to in camera same majori- hardly be The review will ever available. ty’s approach feat of thus achieves the remarkable overvaluing privileges underappreciating both single in effort. distinguish majority’s

Moreover, the failure to law, "Privilege governed except by the common as modified court rule.” MBE 501. statute or requires majority’s for review that the evi test in camera material, meaning merely sought or than favorable dence relevant state’s more recognition Implicit in this of our which defense. standard 28.788(10X1), statute, rape 750.520j(l); MSA shield MCL logically policy evidence is is a legally that certain relevant determination request appears particularized that a irrelevant. To extent is, purpose, generally evi for a irrelevant seek information prior rape with others sexual of a victim’s sexual conduct dence reputation impeachment, inspection should be as in camera character it is collateral and unless can show that not denied the defendant deprive fair would him of a trial. otherwise so material denial Boyle, privileges between those do bar disclosure do, in court and those that leads erroneous req- conclusion that where defendant makes the showing materiality review, uisite camera privilege may of an holder absolute continue protected information, to refuse to submit resulting testimony being in the holder’s struck. privileges appropriately When can be narrowed to showing clashes, avoid such and sufficient over- privilege confidentiality, remedy rides a the is an order to the holder of the informa- failing consequence may tion, tempt.3 Only which the be con- privilege absolute,

when the is and purpose destroyed by invasion, its will be will dependent by privilege disclosure be on waiver the holder. step analysis process

The first when a due discovery privilege and is asserted is invoked, is to examine the basis the defen- request. plau- dant’s Where the defendant makes showing materiality favorability sible and to his Passing case, further consideration is in order. the materiality test, initial the a determination whether privilege necessary is absolute or conditional is may to assess whether further deliberation be called for before in camera review is warranted. establishing privilege fairly Where the statute the permits a construction that in camera disclosure required screening can be device, as a in camera appropriate. privi- examination is lege Even where the absolute, invoked is if it cannot be said destroy sought in camera review would the ends consequence failing comply may contempt. The thus be I do suggest may appropriately the trial court use other means to compliance encourage order, requesting its with as such waiver or portions striking testimony. accompanying all or n 29 See and My point only text. privilege properly is if the is construed as qualified conditional, policy privilege protected by the behind the is in camera yield appropriate review and holder must on the showing. Boyle,

through privileged communication, such re- proper. may However, where view still privilege narrowed, re- and camera cannot be destroy purpose, such contin- would itself its view ued may scrutiny inappropriate not be privilege yields, fail- holder unless conducted accept ing prosecutor the burden must which privilege. upholding Achieving review, however, not in camera does inquiry. A on disclosure to end the decision stage, At the test for this defendant still awaits. protected material disclosure is whether necessary constitutionally material, as both developed fully more This standard does below. privilege. vary with the nature of psychologist-patient involved privilege protecting People v is an absolute Caruso Although private Caruso did not communications. showing plausible initially make an sufficient major- materiality, on the remand ordered allegedly ity,4 trun- the court should consider how stemming prior counseling, from sexual cated abuse, plausibly claim of material to the fabrica- showing made, the tion. If such a must determine whether itself trial court

in review would camera privilege. destroy I in the result concur regarding Stanaway in v defendant’s absolutely privi- desire for in camera review of the leged The sexual counselor-victim records. assault juvenile diversion records social worker-client possess sought by do not defendant privileges at character as the other same absolute agree cases; however, in I issue these because generalized failed assertions have defendant’s 4 review, in the trial court Should remand result in an camera separate of to be retained in event should make a sealed record appeal FR P in See Crim to facilitate review of the camera decision. 16(d). 704 Boyle, plausible showing materiality, I make also majority’s denying concur in the result in camera review these records.

i A Contemporary law of this case Court has con- "privileges” broadly uphold right strued defendant of a prevent a criminal case to in-court e.g., People See, disclosure of relevant evidence. v (1994); Howe, 445 Mich Howe v Detroit Free (1992);People Press, 203; 440 Mich 487 NW2d 374 (1989); Hamacher, 157; v Mich NW2d 43 People Vermeulen, 32; Mich 438 NW2d 36 cases, however, In these the failure to engage analysis privi- in a discrete that construes leges narrowly possible recognition as as impediment truth-seeking objective their produces manipulation of the standard for in jeopardizes camera review that of a defendant a criminal case to a fair trial. requires majority today that, in order court to conduct an in camera review privileged records, a defendant must "establish a probability reasonable are sary records likely to contain material information neces- My

to his . . . defense .” Ante 649. point departure majority’s first from the ration- materiality requirement ale is that this initial higher erects a initial barrier to in camera review than that articulated the United States Su- preme Court. Pennsylvania

In Ritchie, 39, 58, 480 US n 15; (1987), S Ct 94 L Ed 2d 40 the Court rejected government’s to in resistance camera "par- review because Ritchie had not established a required ticularized” for his basis claim. The Court Boyle, showing plausible only the evidence of how a favorable material and would be both issue under a statute review in camera defense to secure citing privilege. creating Id., United a conditional Valenzuela-Bernal, 858, 867; 102 S 458 US States (1982); Exline v also 3440; L 2d 1193 see Ct 73 Ed 1993) (a (CA of Gunter, denial 985 F2d pro- due violation of review constituted a camera the found that cess, state court even where the "particularized need” failed to show a defendant adopt sought).5 the Ritchie I for the records would materiality of further review for the standard of showing requiring plausible privileges, of a all subject favorability materiality the order present considera- the to further records in tion. At this initial cases

stage review, I see no reason distinguish and conditional between absolute privileges. provides supra,

Valenzuela-Bernal, in- useful materiality plausible In standard. struction on the sought requi- case, the to determine Court showing in order to demonstrate violation site process by compulsory defendant’s deportation possible defense witnesses before affording opportunity to inter- defense counsel an sugges- deportees. rejected view tion The Court only testimony that the of the witnesses need benefit” to be shown "conceivable only a standard was limited defense because such imagination the trial of defense counsel or judge. Id. at 866. The Court held defen- imposed stage at the in review the Court It was camera point, higher materiality At that the Court standard Ritchie. only suggested ordered that reversal of Ritchie’s conviction should be (defined probability” probability "a suffi “if as there a reasonable outcome”) that, in the had evidence cient to undermine confidence Ritchie, disclosed, supra at would have been different. been result 667; Bagley, 473 US 57. from United States v This standard taken (1985), duty prosecution’s involving L 105 Ct 87 Ed 2d 481 S exculpatory to disclose evidence. by Opinion Boyle, J. showing plausible dant "must at least make some deportees’] testimony [the of how would have been both material and favorable to his defense.” Id. at Expanding requirement, 867. on this the Court might loosely to turned "cases what be called guaranteed constitutionally the area of to access noting . evidence . . .” Id.6 While that a defen right generally dant’s access evidence was by prejudicial measured effect denial of such specificity access, the Court admitted that materiality required relaxed, should be not but wholly dispensed with, where a defendant has had opportunity no to determine what favorable infor might possess. witness, evidence, mation the In that or the case, the defendant must show the events might relate, to which the evidence and the rele charged. vance of those events the crime This approach suggests seeking that defendants discov ery of information must make an initial showing plausible materiality favorability by demonstrating what events the information might relate and the relevance of those events theory ways to the defendant’s of defense "in not merely testimony cumulative to the of available majority’s high witnesses.” Id. at 873.7 The initial on burden fact, the defendant fails to account for the acknowledged by Supreme the United States Court, that neither the defendant nor the court yet opportunity has had an to review the records question stage. handicap at this initial This plausible materiality adopted standard in Ritchie is thus clearly type case, limited at issue in that but broadly applicable more to a defendant’s to evidence where he has no means which to determine the favorable character of the sought great specificity. evidence with Valenzuela-Bernal, 871, 8, supra suggests While the Court in n materiality may that even a lower standard of be in order when a knowledge defendant has no of the contents of the evidence question, adoption plausible materiality standard in Ritchie against present setting. counsels such action in the way v Stan Boyle, than initial review threshold for

dictates a lower disclosure. proof required the ultimate trig- showing is needed to evidentiary lesser [A] required ultimately than is ger in camera review Zolin, privilege. States to overcome the 491 US [United 2619; Ed 105 L 2d 109 S Ct (1989).] the court in evalu assist may

The detail asserted might be rele privileged material ating how the defense,8 it need not meet a stan the but vant observed in another necessity. of As probable dard context, here: equally apposite but accurately judge cannot evaluate trial [A] knowing

litigant’s showing something necessity without of information of the of content a sought. court can determine algebra by no judicial which There litigant a needs badly how "X.”[9]

B materiality favorability plausible Under has to articu- standard, failed Stanaway defendant for of the social discovery a basis late sufficient records. Stan- juvenile diversion worker-client request by a discovery his away only justify can inconsistent with hope unearth some statements testimony. aspi- This prior generalized the victim’s obligation exculpatory does Although material to disclose presence specific request, that depend we note on the of not the request degree specificity Ritchie’s of of [the defendant] may bearing remand on trial court’s assessment on have a 58, supra [Ritchie, n materiality at of nondisclosure. 15, citing Bagley, supra at 682-683.] 879, courts, Hardin, L J in the federal Yale Executive 893-894 Boyle, J. provides justification ration no reasonable for fur- supra Ritchie, ther in camera review. As noted in may 58, n course, a defendant "of not require through the trial court to search the [re- quested establishing files] without first a basis for his claim that it contains material evidence.” Be- cause articulated no different basis for request discovery psychologist- his for of the patient protected by records than he did those qualified privileges, apparent discovery it is this evidence is also unavailable. agree tried,

Because has Caruso not been I with majority showing plausible necessity might yet However, be made. the defendant’s listing psychologist claim in Caruso that of a expert permit might as an privileged witness access to other good-faith on

records basis may expla- belief that the records reveal another symptoms nation for the does set forth a plausible basis for in camera There review. is no showing relevancy merely is not cumula- respect testimony expert tive with to the of the opinion psychologist/expert witness. The may only respect witness be offered with People Beckley, behavior traits of the victim. v 434 (1990). expert 691; Mich 456 NW2d 391 The wit- affording ness’ available, records will be thus the exploration defendant the full basis for expert’s opinion. plausibly Nor can a sufficient justification privileged for of disclosure the records grounded complainant on the claims the by proper was father, abused her has not received warped treatment and has a sense of or wrong. These claims are directed at a collateral act. Their relevance to fabrication this incident supported only by conclusory is statements. The defendant asserts before this Court that the rele- requested vance of the information is to rebut the 709 v by Boyle, youthful have victim would the inference knowledge alleged the acts describe sufficient to actually they These occurred. unless the defendant in cam to warrant also insufficient are assertions relevancy, plausible to find In order era review. similarity be some must articulate defendant possible and the the father abuse tween present charges case sexual contact relevancy.10 necessary demonstrate otherwise e.g., P2d 1071 Oliver, 22; 158 Ariz 760 See, (1988), v State App Rathburn, 26 Mass Commonwealth 11 (1988). 699; 532 NE2d ii Supreme dis- Court has States United the discov- intent to constitutionalize claimed ery Bursey, process. 545; 429 US Weatherford "[privi- Moreover, Ct 51 L Ed 2d S they vary leges equally important; with are all protect policies privacy they interests and the they promote.” Saltzburg, profes- Privileges Lawyers psychiatrists, 597, Va L R sionals: (4th (1980), quoted McCormick, Evidence 622 ed), Lacking guidance p from § 77, n 5. clear majority Supreme Court, the United States irrespective collapsed privileges, has all state importance, qualified un- as well as their relative 10My showing from the with Caruso’s to date stems dissatisfaction logical alleged past abuse and the absence of a possibility nexus between conclusion, proposi logical to its of fabrication. Taken containing support information tion trauma-producing a claim that records would incident, be disclosed whenever there sexual must allegation is an that the trauma is unresolved. discovery request support his on basis Caruso also tries pretrial hearing relating presented to the than the that evidence was victim’s alleged sexually explicit other note to someone However, testimony on will be available at trial defendant. this issue provide inquiry regarding the victim’s sexual awareness. a basis for justification discovery records also flawed This it seeks information that cumulative. because Boyle, qualified, governmental purely pri- and as well as possible vate, violation under same method of review. privileges

All the in the issue instant cases protected statutorily by language are that evinces respect privileged for the communications. How- only privileges ever, afforded communications (at with sexual assault counselors12 issue in Stana- (at way), Caruso), psychologists13 spe- and in issue cifically express an intent bar the use of records proceedings.14 of such communications from court expansive privileges Because construction of inter- primary truth-finding function, dicts the court’s privileges interpreted being must be as consistent purpose possible. my Thus, with that whenever. departure point majority second from the is that disagree I privileges that all the statutes at issue here create expressly dictate that the informa- MCL 600.2157a(2); MSA 27A.2157(1)(2) provides: Except provided by law, protection as section child 1975, being

Act No. the Public Acts of section 722.631 of Michigan Compiled Laws, communication, a confidential or any report, working paper, report or statement contained in working paper, given or tion or in made connection with a consulta- between victim and a or sexual assault domestic violence counselor, shall not be as admissible evidence in civil or proceeding prior criminal without written consent [Emphasis victim. added.] 330.1750(2); 14.800(750)(2), MCL pertinent MSA which states the scope psychologist psychiatrist privilege, provides: Privileged civil, communications shall not in be disclosed criminal, legislative, proceedings, or administrative or cases proceedings preliminary proceedings, to such cases or unless patient except privilege, has waived the circum- [Emphasis stances set forth in this section. added.] 14Further distinction between the sexual assault counselor-victim psychologist-patient privileges possible, on the basis statutes, language of the but such distinction draws too fine a line. Both criminal bar statutes admission of the material civil or proceedings absent a waiver. 711 ay St an aw by Opinion Boyle, proceedings. judicial from use in barred be tion privilege, MCL the social worker-client Neither 18.425(1610), the 339.1610; nor for MSA juvenile pursuant kept diversion records 25.243(58)- program, 25.243(59), 722.828-722.829; MSA MCL legisla- expression an such contain privi- qualified create intent. These statutes tive protect leges communications,15 and confidential discovery the bar to not erect an absolute do Press, Free Howe v Detroit information. (1992) (opin- 374 233-234; 487 440 Mich ion of NW2d J.). agree majority I the While with Boyle, weigh legislative the court must the trial creating qualified privileges purpose in the evidentiary particular value the of its context pre- confidentiality honoring accused, serving while thus evidence, method of the same relevant Legislature employed analysis the cannot be where expressly to in-court erected an absolute bar has disclosure. statutory privileges extended communica-

The psycholo- counselors and tions with sexual assault regard,16 gists highest for societal both evince relationships communications in which the concerning pro communications The statute social worker-client compelled that there not be disclosure communications vides both with clients and that Confidentiality "confidential.” relevant communication is information, extrajudicial disclosure of concerns the Press, judicial proceedings. v Detroit Free not its disclosure in Howe (1992) Boyle, J.), 203, 229; citing (opinion of 440 Mich 23 NW2d Federal Practice & 5437, 892, Graham, Procedure, p Wright & § n 15. regarding juvenile diversion records con- The relevant statute persons templates having Even may "to records revealed court order 25.243(58)(1). 722.828(1); legitimate MCL MSA interest.” though legitimate may making interest be limited such 722.829(1); minor, regarding MSA of a MCL decisions diversion 25.243(59)(1), by a court and allowance for some use of the records express preclusion use the records in absence of an from privilege provided by judicial proceedings causes to find that the me Ritchie, Pennsylvania supra at 57-58. statute is absolute. this articulating scope of assault the sexual While statutes psychologist-patient privileges for com- allow counselor-victim Boyle, J. importance arise and the critical the confiden- tiality of such communications have the success- goal ful relationships.17 achievement the ultimate of those question is whether these in- privileges18 may tended absolute be vindicated or they qualified when and how must be to accommo- pro- date a defendant’s constitutional to due cess.19 situations, pelled express evidentiary waiver in limited bar in proceedings, voluntary waiver, provides criminal or civil absent prohibition definitive indication of an intent that the in these situa-

tions be absolute. 17Analysis creating privilege of the bill the sexual assault counselor notes that gravely of sexual assault or [v]ictims domestic assault are often counseling cope in ences. The tions between a experi- need of with the of trauma their confidentiality of assurance of all communica- counselor and client is vital to effective therapy. Those of victims abuse or assault who receive their counseling sionals such as have that 4609, clergy profes- from members of the or from licensed psychiatrists, psychologists, or social workers Legislative Analysis, .... assurance HB [House 16, November 1983.] 18 specter The of disclosure of records of these communi cations, review, judge even to a trial for in camera threatens the basic upon confidentiality relationships tenet of these which founded. .are Slovenko, This Psychiatry intrusion should not be underestimated. privilege, 175, Wayne and a look second at the medical also creates 6 LR 185 (1960). process greater possibility exposure The of of privileged communications, dependent upon the trial the decision of the judge. potential damage relationship engen While this to the by privilege considered, however, dered must be it must also be recognized by judge significantly in review is chambers less relationship invasive of that Cf. than ultimate disclosure to a defendant. Zolin, supra (''[Disclosure allegedly privileged at 568 of materials purposes determining to the court district for of the merits of a claim legal terminating privi of does not have effect of lege”). my analysis, majority, 19 Ilimit as does the the defendant’s due process right 649, right to a fair trial. Ante n at 1. The of confronta right tion has been found to be cross-examination, to a limited trial to unfettered constitutionally compelled pretrial not "a of rule discovery.” Pennsylvania Ritchie, supra v at 52. But id. at see 61-62 (Blackmun, concurring part concurring judgment) in in the ("[T]here might if, here, well be a confrontation violation as a defen pretrial possible dant is denied access to information that would make v by Boyle, Supreme States the United I do not doubt privileges might unconstitu- find absolute Court Michigan applied. Lucas, 500 US See tional as (1991). 1743; 114 L Ed 2d 145; S Ct every "[E]xceptions evi- for man’s to the demand expansively lightly con- nor created dence are derogation they for in of the search strued, are scope given However, of the cloak truth.”20 protection Legislature, privacy created privacy our crime victims afforded to 24,21 1, § and the constitution, art Const state fact constitutionally sailing un- that we are ques- response waters, a measured charted disclosure in camera review and tion when required appropriate. guidance Supreme from the the lack of

Given materiality respect stan- to the initial Court with and use the ultimate issue disclosure dard and of privileged information,22 is in some discussion regarding analysis to be used order the mode of proceedings in Caruso. For sake the further sis Ritchie, supra been found to be effective cross-examination Ct compulsory 1039 ^[20] 21 added.) Const United 1963, See States v process L Ed 2d 631 at also art 56. sufficiently protected by to the current 1, Kentucky Nixon, § provides, of a crucial 418 US Stincer, problem 683, in relevant prosecution witness.” application of the a due remains 94 US part: S Ct process consideration. 730, 738, unsettled, 3090; 41 n 9; L Ed Empha- but has 2d S (1) law, following victims, by as defined shall have Crime rights, provided by law: as respect for their to treated with fairness and The be process. privacy throughout justice dignity and the criminal jurisprudence has to take an all of our sister states tended The 670-677, provide to nothing position, therefore also fails ante at and much assistance. constructive Mich by Boyle, regarding illustration, privileges I include a discussion disposed already issue, of, at but in Stanaway. authority

There is no from the United States Supreme statutory Court that holds absolute privileges protecting private relationships un- are constitutional their on face. The never Court has squarely validity statutorily dealt with the aof expressly mandated, societal bars privileged judicial introduction of material into proceedings. Pennsylvania supra, Ritchie, In expressly opinion Court refused articulate an regarding the result of a direct clash between pretrial discovery defendant’s claim of a records government agency specific statutory and a bar to request the desired access. The defendant’s for exculpatory opposed material was in Ritchie permitted statute that disclosure confidential appropriate information to a in court circum- narrowly stances. The Court construed the statute "[g]iven Pennsylvania Legis- to hold that contemplated lature [Children some use of being sought Youth Services] records [the records discovery] judicial proceedings, for in we cannot prevents conclude that the statute all in disclosure prosecutions.” (Emphasis criminal 480 US 57-58.23 original.) in the majority acknowledges

The this limitation on implicitly any privi- Ritchie, but concludes24 that statutory severely exclusion Ritchie limits its usefulness in determining proper scope privilege. of an absolute The case instructive, however, express against application in its caution of its holding privileges. to absolute majority acceding temptation 24 I do not fault simplify duty stage the trial court’s camera mere one of However, simplification verification. Ante at n 40. where such expense important compelling at the can considerations that given only through sufficient consideration trial court information, review the cost exacted the name of efficiency high. is too administrative ay aw v Stan Boyle, compel- sufficiently yield potentially lege to a must holding basing ling discovery claim, on its high regard constitu- for a defendant’s Court’s survey jurisprudence rights of of the tional rights Although the 677-678. Ante at other states. priority persons are so fundamental of accused safely justice system can that we the American predict Supreme Court will the United States permit these core limitations of not protections, substantial anticipate that, as a

we should privileges corollary, alike. will treat all the Court Su- Ritchie, United States to other In addition opinions preme to an evaluation relevant Court guidance. provide privileges clear fail to absolute Ct States, 53; 353 US 77 S In Roviaro v United (1957), the Court determined 1 L 2d 639 Ed privilege25 to had informer’s that give way the common-law that the defen- it determined where wás need for access a vital dant had demonstrated identity. Court noted the informer’s underlying privilege scope its limited of the was protec- purpose, furtherance and case the this public law enforce- interest in effective of the tion ment. Id. at 59-60. inter- of that

The advancement against compared paled the defendant’s est when prepare Thus, under his defense. yielded case, circumstances right. paramount the defendant’s Nixon, 683; 94 S Ct 418 US In United States (1974), found the Court 3090; 41 L Ed 2d generalized president’s exec- of absolute claim attempt privilege, to bar in an made utive between of conversations camera review of records yield president advisors, had to close and his privilege to with privilege is "the Government’s The informer’s identity persons information who furnish hold from disclosure charged of that law.” enforcement with violations of law to officers at 59. Roviaro by Opinion Boyle, J. special prosecutor’s specific demonstrated, need for evidence a criminal trial. While the acknowledged Court pinnings the constitutional under privilege,

of executive it found that president’s scope privi claim of exceeded the lege. Id. at 706-707.26The Court did not hold that a privilege against could never be maintained process right production fundamental due to the of trial, but, rather, evidence at a criminal found generalized privilege being broad, fault in the quoted approval prop asserted. The Court with " public right every osition that . . 'the . has a except persons protected evidence,’ man’s for those by privilege statutory constitutional, a common-law, or quoting Branzburg 709,

. . . .” Id. at Hayes, 665, 674; 408 US 92 S Ct 33 L 2dEd (1972). Emphasizing quantity of, the modest legitimate privileges, for, and restrictive criteria attorney-client Court nevertheless cited the priest-penitent privileges examples as of valid prohibitions against Nixon, forced disclosure. su pra Acknowledging important at 709-710.27 privilege president, nature of the asserted sought Court the should special prosecutor instructed that the information presumptively privileged be and that only

could such defeat assertion by demonstrating the material was " justice [pending 'essential to the of criminal] ” quoting 713, case.’ Id. at Burr, United States v (No. (CCD 14,694) F Va, Cas 1807). opinion suggests scope may privilege that the of executive protection military diplomatic limited secrets. Id. 710- 711. important It to note that Nixon concerned the claim a privilege, defendant’s against purposes rather than a claimant’s assertion of process right. important a defendant’s due Nixon our acknowledging validity privileges, asserted within proper scope, attempt their and the Court’s continued to balance the protection provided by privilege against legitimately demonstrated protected need for the information. way v Stan Boyle, opportu-

Finally, on a defendant’s restrictions of a statu- nity because a witness cross-examine questioned Alaska, tory privilege Davis were L Ed 2d 347 1105; 39 308; 94 S Ct 415 US barring ad- a state statute found that The Court juvenile in criminal record a witness’ mission of proceedings impermissibly the defendant denied the facts under confrontation his prosecution provided the had The witness case. inculpating testimony in the the defendant with sought the witness’ to use The defendant crime. proba- juvenile on that he was and the fact record the defen- time of his identification tion at the may have been the witness dant to show police pressure time of identifi- at the undue under question of truthfulness the call into and to cation during 311- Id. at cross-examination. his answers question the one of as framed 314. The Court scope permitted "adequacy” cross- of the of the balancing again examination, on embarked protecting the ano- the state’s interest test of nymity juvenile of in the interest offenders of goals juvenile furthering of the the rehabilitative against right system defen- of the corrections Id. at 318-319. to effective cross-examination. dant specific Focusing it, Court case before on temporary embarrassment "[w]hatever found that by family might witness] dr his [the juvenile result prosecu- record —if of his disclosure using its case—is him to make on tion insisted probe petitioner’s outweighed by into testimony possible of a in the bias the influence 319. Id. at witness.” crucial identification IV precedent background discussed From the drawing guidance in evaluation to aid above, Boyle, discovery requests protected by for information privileges ality pass successfully the initial materi- purposes noted, difficult.

test As discovery it illustration requests will be assumed that present in both the cases have withstood materiality challenge. Implicit the first in such guidance assumption is an United States Supreme uphold statutory Court would absolute privileges protecting private communications as being on constitutional their face and an admis- they may applied. sion that be unconstitutional as Supreme question open.28 The Court has left this privilege If conditional, there is no need for further consideration before in camera review. plausible defendant showing such a case has made a materiality favorability, and the review, considerations at in camera discussed be- Stanaway, challenge low, In await. had the to the juvenile social worker-client and diversion records privileges plausibility met standard, the trial properly court would have ordered the records submitted for in camera review. privi-

Where there is a clear indication that a lege was intended to block the introduction of the protected judicial proceedings, information into however, I would hold that is an discovery absolute bar proceeding material a defendant in a criminal particular if, the under facts the case, of defeat of privilege preclude the would the achievement of goal sought through privileged the the communica- Discovery privileged tion. the of information in only possible through this case is waiver of the express opinion We no on whether the result in this case cys protected would have been different if the had statute the anyone, including files from disclosure to law and enforcement judicial personnel. 57, n [Ritchie 14.] ay aw v Stan by Boyle, privi- the privilege of If maintenance its holder. quality, imperative no lege and an of such is forthcoming, prosecutor must bear the waiver the burden being privilege, barred either of the calling privilege as a witness holder the from charges against dismissing the defendant.29 the Analysis of the absolute the effect of violation of through sought privilege the commu ends on the any in camera initiated before be nication should overriding hurdle an It thus serves as review. further preliminary inquiry. When the in camera materiality showing requisite of the evi of the privilege sought made, has the and has been dence representing prosecutor, the asserted, the been privilege holder, the defendant and interests of the regard arguments respective present their should ing goals on the would have disclosure the effect seeking way to limit privilege.30 in no While the arguments regarding the main the the breadth inquiry privilege, relevant of the absolute tenance particular might ends of the consideration include through expected the to be achieved that are privileged the initi communication, the reason communication, alternative and the ation means for accomplishing the ends sought.31 satisfactory third, may cases in remedy in some A less severe concerning testimony privilege does not relate the witness’ which instance, case. In such of the defendant’s substantive element witness’ portion barred, only completely testimony not be need Weisberg, Defen struck. information related to the process compulsory Measuring confrontation v Witness: dant privileges, L R statutory 30 Stan rights against communications Weisberg include would 30 Weisberg, supra at 986-987. While n privileged communi party privilege to whom holder and the approach meeting, preferable is to at directed in this cation was privilege holder’s prosecutor represent initially allow least argue importance Forcing privilege holder to interests. privileged upon unintentionally might visit well communication injury from disclosure party very would result same privileged material. absolute, discovery privi- statutorily Even where 720 Mich by Opinion Boyle, J. validity privileges against

The' of the introduc- protect evidence, tion in order of relevant "weighty legitimate competing interests,” has recognized Supreme by been the United States supra Nixon, Court. at 709. What has not been expressed particular clearly privileges is the that sufficiently protect these interests to withstand challenge. Legislatures, through statutes and con- position directives, stitutional are in better a judgments necessary make the value societal privilege presumptively determine if a be should difficulty However, resolution, absolute.32 and ultimate privilege of clash the dictates of an absolute truth-seeking goal trial,

and the at Weis- berg, Measuring Defendant v Witness: confronta- process rights compulsory against tion and statu- tory privileges, communications Stan L R leged may always preclude goal information not achievement of the sought through developed case, given relationship the communication. In a patient may enough strong between a and counselor be past communications, withstand limited of disclosure or the relation- ship may would be yet developed point confidentiality not have to a of endangered by patient engaged disclosure. aWhere counseling, alternate forms of of disclosure information from one may preclude goal patient’s counselor achievement of the through hand, treatment patient’s another. On the other where of a resolution psychological problem pursued only being emotional or through by single patient treatment counselor with whom the has trust, relationship engendered built their clude serve nature of communication, may pre- disclosure of such communications progress patient’s examples further in the treatment. These illustrations, only patient-counselor setting, as in a of the myriad possible may present case, particular scenarios in a way relationships and are in no exhaustive situations or for, may against, absolutely privileged allow counsel disclosure of information. theory least, In well-equipped legisla courts are not so as validity tures either to involved cally cause judgments determine the value creating particular privileges "empiri or to assess general overriding . . . privilege may harm that [White, Evidentiary privileges holders.” evidence, defendant’s constitutional to introduce 80 J 377, 425, Criminology Crim L & quoting Weisberg, supra n 29 at 971. Additional citation omitted.] Boyle, (1978), against than a creation more counsel soundly very clearly few, reasoned articulated and (opinion privileges. supra Howe, of absolute Boyle, J.). caveat, of I to that With this leave branch determining privi- government leges the burden of what By acknowl- should be considered absolute. edging Legislature’s duty regard, I do in this the preclude possible of the character not absolute originating privileges Privi- those at common law. leged communications, 1450, 1456- Harv LR (1985) spousal privileges (attorney-client and originated law, were not absolute common but at application). in Legislature’s regarding the

These observations responsibility duty of their do not absolve courts privileges. interpretation application In of for supra, Nixon, the Court considered United States v privilege injury for the defeat of the asserted presidential the would have on communications encourage goal privilege hon- of to frank and the president his ad- est the discussions between president’s the execu- visers. The Court found that privilege origins in II the tive had its Article of United States Constitution. Id. 705-706. While preserving acknowledging the in "interest confidentiality weighty indeed and entitled great respect,” stated, "we cannot con- the Court temper the will moved clude that advisers be infrequent by occa- remarks the candor of their sions such conversations possibility of because of the disclosure in will called for the context (citation prosecution.” at 712 of a criminal Id. omitted). Similarly, supra, Alaska, in Davis v goal possible injury of Court considered juvenile by privilege records afforded statute of records from those that would result disclosure through witness, but of cross-examination "temporary injury merely a as characterized such Boyle, family, embarrassment” to on his the witness or not par with the defendant’s of confrontation. 319. Id. at privilege clearly Where an absolute intended weigh statute, I would allow court anticipated injury goal in that case to the of the consideration, communications under analysis

similar to the Court’s Nixon and Davis. grips This forces the tribunal to come to with importance privilege, just ab- partic- stract, but in the context facts proceedings regarding Thus, ular case. the showing in further psychiatrist-patient privilege Caruso, if a plausible materiality discovery expressly exempted material disclosure is the stroyed by authority that is from in court analysis made, further is in If order. ends the absolute would be de- review, in camera court no has precluded to invade it and is from fur- inquiry privilege yields. ther unless the holder analysis apply discovery Similar would to protected by records the sexual assault counselor privilege Stanaway, in had the defendant been pass materiality able to the initial test. I above,

As have a noted determination whether statutorily privilege violation a in absolute particular preclude case would achievement of the sought through ends the communication á dictates specific analysis. analysis factual Such was not present cases, done the trial courts in the legiti- this Court has insufficient information to mately make such determination on the basis connection, the record it. before In this it bears repeating appellate courts can these review questions only adequate on the of an basis record. juncture predict I am Thus at unable this probable injury from disclosure of the records protected by privilege the sexual assault counselor Stanaway psychologist privilege and the Opinion by Boyle, discussion, For the sake of further how- Caruso. privileged ever, I assume that the ends of the precluded by possi- communications would not be for in ble disclosure and move on to considerations camera review.

Assuming that defendant Caruso makes a show- ing plausible materiality remand of for discov- on protected ery psychologist- of the records patient privilege, my under test the trial court regard- preliminary should make a ing determination grave gravity injury. injury of the If the prosecutor yield, and the holder will not will consequences.33 bear the regarding

The final issue disclosure of made a information successful the defendant who has showing for in camera re- need view is the trial court’s determination of the infor- process mation that should That en- be disclosed. again compasses weighing the defendant’s against privileges the information that are now acknowledged susceptible breach, to be but the balancing At final takes different focus. this stage policy review, for the base respected,34 issue should still be and the informa- upon only tion disclosed to the defendant a suffi- showing cient constitutional of need.

A question to the of a work- When focus shifts guidance may provided Further useful to the trial court in be Veilleux, considering materiality by anno: Caruso’s claim Admissibil ity juvenile prosecuting of evidence in sex offense case witness showing prior experience purposes alternative- had source of child’s sexual for acts, ability 83 ALR4th 685. to describe sex respected by privilege may material on excision of The Nixon, supra grounds relevancy admissibility, at 715. Boyle, evidentiary rulings able framework for on disclo- privileged again information, sure of we turn to guidance.35 the limited sources available for Supreme United States Court thus far ex- has pressly right characterized the in defendant process suggesting against terms, due that as privilege, "probably claim of material would changed trial,” have the outcome of his must be supra Ritchie, disclosed. right at 58. it Because is the implicated, to a fair trial that is trial courts priori must make an a determination that without protected information, use of the confidence in the reliability of the outcome of the trial would be Bagley, undermined. United States v 667; 473 US 3375; 105 S Ct 87 L Ed 2d 481 requisite materiality privi Illustration of the leged provided by information is Roviaro v United supra. privilege States, The informer’s at issue premised that case was on the furtherance of allowing By effective law enforcement. Id. at 59. government to assert that an informer’s iden tity taining privileged, government’s was task in ob inculpating

information the defendant was question legiti- eased.36While the Court did not 35The refusal to order disclosure has been reviewed under an abuse standard, Moore, 379, (CA 6, of discretion United States v 954 F2d 1992); Jenkins, 1338, (CA 1993). United States v 4 F3d 36The need to conduct effective cross-examination is one of three principles suggested appropriate that one analy commentator has for discovery requests White, sis of supra. information. n 32 principle, In addition to the cross-examination Professor White would privilege examine designed issue to determine if it significant part government performing to assist one of its functions, enforcement, essential such as law see Roviaro v United (informants States, supra privilege); capable or was of even-handed application, Texas, Washington 1920; see 388 US 87 S Ct 18 L (1967) (a testimony copartici Ed 2d 1019 pant state statute that barred of a evidence, exculpatory in a crime when offered defendants as prosecution, but allowed as evidence for the denied the defendant his compulsory process). principles may These be useful to in tipped determine when a favor of the has the fair balance at trial government appropriate assign and make it Boyle, government’s case, it

macy interest that of the yield privilege when the had to the found that protected by "rele- was the information helpful accused, of the to the defense vant and of a cause . . . to a fair determination or essential the Court articulated . . . Id. at 60-61. While helpful” confusing or "essential” "relevant materiality Roviaro, at a closer look standard sought the information the facts shows that —the importance identity the of vital informer’s —was Valenzuela-Bernal, United States v defense. See only party supra was the at 870-871. The informer drug participating trans- the defendant the with accused, had been actions for which defendant possibly only contradict witness who could and the government. presented by testimony privilege must A determination whether significance depends yield on particular circumstances information in case, probative Thus, disclo is, force. while that its identity in was of Roviaro sure of the informant’s only importance witness because he was vital to the transaction identity charged, informant actively par denied where the informant does generates ticipate in the transaction merely charge, cumu information would be his Mendoza-Salgado, 964 F2d lative. United States 1992). (CA only if 10, material Evidence is probability if it dis there is a reasonable proceeding defense, the result of the closed to the Parker, F2d different. United States v will be 1987) (CA supra quoting Bagley, 8, 682. disproving materiality

prosecution privileged and need for the the burden requested. only principle at issue Because the information cross-examination, cases, present is considered effective in the in the ment of the ranted. evaluation, develop- prong necessity further of the disclosure principles applicability is unwar- at this time of these Opinion by Boyle, J. generalized Because there is no constitutional discovery, the test for constitutional rele- higher requirement vance must be than a that the merely helpful evidence would be The existence of the to the defense.

privilege, qualified or abso- lute, encompassed indicates that the information by special protection. it may is entitled to A court therefore decline to evidence, disclose such where potential its benefit to the defendant is available requirement from other sources. This dictates that necessary the information must to, and not merely supplementary particular of, a mode of impeachment theory or to defense, defendant’s is, that tive source. it must be unavailable from alterna- majority

Thus, correctly as the notes, deprived a defendant examination if the is not of effective cross- prior withheld, material like merely statements, inconsistent is cumulative of impeachment. the traditional lines of The defen- precluded inquiries dant privilege, by is not from such only precluded discovery but from of one source of such inconsistencies. supra, Alaska,

Davis v while examined as a affecting testimony Confrontation Clause violation regarding requisite trial, is instructive stan necessity. privilege dard of rule at issue in designed primarily, that case was or at least inci dentally, protect to benefit the state rather than to private addition, communication. In the informa protected subject tion was to disclosure under Finally, limited circumstances. the bar constructed juvenile privilege deprived records the de only opportunity fense of to show the witness’ testifying against bias and ulterior motive for defendant. 316-318; Id. at see also Olden v Ken tucky, 488 227; US S Ct 102 L Ed 2d 513 revealing The Court in Davis affirmed that testifying a witness’ motive for is included within Boyle, protected As Mc- of cross-examination. discussing the case: to the defendant. otherwise available appears of constitutional It that the test thus purposes relevancy the evi- is that for disclosure that it would in the sense dence must be material necessary, a difference in the outcome37 make merely it is not cumulative in the sense that nonprivileged serve the akin evidence that would other roughly purpose, that a formulation same majority’s in review. test for camera support the conclusion Several other sources majority’s review is an for in camera that the test appropriate use of for disclosure and standard privilege. protected by First, on close material inspection, every States Su- the United case from materiality suggestion stan- Compare that commentator’s one sufficiently private privileges evidence is is whether dard for probative regarding the truth probably a reasonable doubt create probably impeach create a testimony if offered to of a witness’ reasonable doubt guilt the merits regarding if offered on a defendant’s Weisberg, supra 959-964. n 29 of the defense. Opinion by Boyle, preme Court on its facts indicates a necessity Ritchie, protected Roviaro, information. See Nixon, Davis, supra. Second, the work product privilege formally recognized in the federal civil procedure requires rules the party seeking disclosure must show that without undue hardship he cannot obtain "the equivalent substantial materials 26(b)(3). other means.” FR Civ P Although a defendant’s to due process in a criminal trial obviously weighs more heavily the balancing process case, than a civil centrality the attorney-client privilege is such the adoption of a necessity test as a middle road between open discovery and an absolute privi- lege is some evidence of the limiting principle the Supreme might Court endorse resolving the tension between competing rights when priv- other ileges Third, are challenged. the rejected standards for invocation of and informers exceptions privilege originally proposed in the Federal Rules of Evidence in pertinent part provide: If judge an in camera [after finds review] there is a reasonable probability that give informer can testimony, [necessary to a fair determination of guilt the issue of or inno- cence in a criminal elects not to disclose government and the case] identity, his judge on

motion of the defendant in a criminal case shall charges dismiss the to which the testimony would relate .... Evidence, Weinstein Berger, & [2 Pro- posed Supreme Court Standard 510(c)(2) Identity — Informer, pp 510-1 to 510-2.] Although not ultimately adopted, the proposed standard encompasses the advisory committee’s recommendation that disclosure should be avail- able on a showing of reasonable probability that privileged information is necessary to a fair deter- guilt mination of or innocence. away v Stan Boyle, enacting

Finally, direct- standards other states provide privilege ing overcome can be when a (1) relevant information is where admission an available tial for the (2) no case, there are in the issue essential the substan- to obtain means alternative (3) equivalent information, the need against outweighs the interest information as it bears the material disclosure, the value of or outweighs guilt innocence on the issue privilege e.g., Ky against See, R Evid disclosure.38 (counselor-client privilege), R Evid NJ quoted (newsperson’s privilege), & in 2 Weinstein (1994 Supp). pp Berger, 501, 501-120 to 501-124 ¶ my only located that has research state specifically for disclosure standard addresses privilege, protected by counselor-client material including provides counselor, assault a sexual may dis- communications otherwise closed:

"(2) finds: judge if the "(A) of the communication That the substance case; in the an essential issue relevant "(B) alternate no available there are That equivalent of the the substantial means to obtain and; communication "(C) out- information for the That the need privilege. The by the weighs protected interest to make 506(d)(2), in camera may evidence court receive [Ky R Evid this rule.” findings under Berger, p 501-124 quoted in 2 Weinstein & If (1994 Supp).]_ question beg might appear to the core While this final standard acknowledge may today, attempted it also to answer we have importance transcends the possibility limited whose of some (such strategic military se guilt as or innocence determination crets), in a interests of the defendant’s the accommodation allow for encompass discovery, or the conventional realm manner outside prejudicial the evidence discretionary effect of whether issue explanations, to some probative at least outweighs These its valúe. of absolute may intermediate review degree, be subsumed privileges I described. have Mich Opinion by Boyle, J. uniformly principle These sources endorse a materiality necessity judges apply for trial making the disclosure decision that consistent majority’s with the test for camera review. On a finding that there is no available alternate means equivalent” pro- "to obtain the substantial judge information, tected the must order disclosure of evidence relevant to a substantial issue in the probability case when there is a reasonable that protected the will information affect the factfind- guilt er’s determination of or innocence.

B Applying principles these to the issue of disclo- present cases, sure in the shown no basis for defendant has

allowing him access privileged information. The defendant made no generalized request more than a review the complainant’s sexual assault records counselor’s potentially impeachment find useful information. showing discovery This falls far short of a that necessary records is either or ma- complainant’s credibility terial to test the on cross- simply examination. The defendant has failed to that demonstrate effective cross-examination is unavailable because of the As bar. noted majority, "statements made to a counselor only explora- are not . avenue . . available for regarding complainant’s credibility.” tion at Ante n 42. showing In case, defendant Caruso’s made to point this is likewise insufficient. we have As absolutely protected noted, the need for the record partially upon was plainant based a belief the com- sexually suggestive

had. written notes to Conflicting testimony her mother’s fiancé. several witnesses has from

already presented been at a way v Stan Boyle, concerning hearing Moreover, pretrial it this note. suggested has defendant has not been making discovery available informal been aiforded possession. prosecutor’s material all Thus, only cumu- calls for for disclosure this basis However, also asserts defendant material. lative knowledge eight-year-old of sex- victim’s complain- necessary activity examine the ual ques- theory regarding the incident in ant its some connec- and that there is tion fabricated was previous counseling, prior tion a failure of between theory by father, of fabri- and sexual abuse her the to make additional If Caruso is able cation. showing previously relevancy described, I have of If claims. the court reevaluate these trial should judge at the intermediate the trial stage determines privilege that the can be accommo- of review may require dated, disclosure39 in camera review materiality necessity to for on of the and the basis requested to an eifec- the records in order conduct in tive It must be remembered cross-examination. only regard the usual this that defendant has not explore to of available means the cross-examination knowledge, additionally ex- can witness’ but sexually explicit plore alleged at time the the above. nature of notes described regarding separately the standard I have written use, review, and of and for in camera disclosure protected I dis- because information agree majority’s in initial with the standard majority’s fail- of the camera ure to and because review distinguish meaningfully that stan- between eye contemplate the does not The disclosure decision advocate, process questions in the which but where arise helpful, it is within discretion assistance of counsel would 21, assistance, Nixon, supra at n court to seek their trial ordered, subject appropriate no that unless disclosure directive including anyone, is to be revealed camera information defendant. Id. 716. Mich Separate Opinion Levin, and dard the standard for disclosure and use. More importantly, separately I have I written because identify strongly position so with of a trial judge ruling administer court who is directed to guidance application. without in its approach suggested protects I have abso- lutely privileged private communications. It limits availability respect of in camera review privileges, applies absolute a standard that permits balancing against interests societal process due defendant’s interests disclo- It sure. statutory is also consistent with the limitations previously

relevance we have found con- Arenda, stitutional. 1; 416 Mich (1982);People Hackett, NW2d 421 Mich (1984). Lacking 365 NW2d 120 clear direction from Supreme Court, the United suggestions, I States offer these necessarily which are a limited vision jurisprudence, of the direction mindful of responsibility judiciary the frontline trial legislative purpose harmonize with the fair ascer- tainment of truth that basic assurance of process. guide end, due In the there is no surer presented the resolution of the issues here than experience judges, they the tempt of trial court as at- up- the strike delicate balance between holding protected by the interest and assuring integrity guaran- the of the constitutional tee of a fair trial.

Riley, J., J. Boyle, concurred with (separate opinion). signed I have Jus- Levin, opinion, permit Brickley’s lawyer tice would but participate for the accused to in in an camera by examination for the reasons the stated Su- preme Judicial Court of in Massachusetts Com-

1994] v by Separate Levin, J. 867, 881- 409 Mass Stockhammer, v monwealth (1991):* 884; 570 NE2d that, has held Supreme Court The United States privi- access to defendant desires where a criminal communications leged the confidential records of witness, interests of complaining of defendant fully trial are and the State in fair of those records by an in camera review protected Ritchie, 480 Pennsylvania v judge. the trial See by 39, Ct 94 L Ed 2d 59-61 S US This 40] [107 ques- holding necessarily answer the does not us, however, because, "on past, in the tion before facts, results have reached different similar under reached States under the Federal we those that were Constitution from the State Supreme Court of United by Constitution.” Common- 363, Upton, v Mass NE2d wealth 548] [476 (1985), Thus, in cited. Commonwealth and cases (1988), we Clancy, 402 NE2d Mass 395] [524 argument predicated rejected defendant’s — solely he the chief we reserved the principles constitutional on Federal —that to examine medical records was entitled .the time, prosecution At the same witness. question whether the result would the same under Massachusetts Declaration be Rights. See at 670. See also Commonwealth id. Jones, 340-344 NE2d Mass [535 (1989) argument (rejecting that Federal Constitu- of re- requires tion more than camera review records, declining to quested expressly dss question). unraised State law address requiring only an in cam- The Federal standard records judge the trial era review requested, tions that tively assump- defendant rests on temporarily and effec- judges trial can examining role of advocate when assume the records; of the State the interests such confidentiality re- complainant and cords cannot protected other adequately scru- assumption close way. withstands Neither tiny._

* (1992). State, 54; Similarly, A2d 1247 326 Md see Zaal v Mich Separate by Levin, assumption, to the first As the United States " Supreme extremely Court has 'it said [is] experienced difficult for even the most able and judge trial pressures conducting under pick to trial out all of the that would [information] useful in impeaching be . . . it witness.’ Nor is realistic to judgment assume that the trial court’s utility impeachment as to the of material for . . . would possibilities. exhaust In our adver- system, sary enough judges it is judge. may determination of what be useful to the de- properly can effectively fense an advocate.” and only be made (Citation omitted.) Dennis v United States, 855, US 874-875 S Ct 16 L Ed [86 expressed 2d We have a similar con- 973] danger lurking practice cern: "The in the of ... privileged camera review [of documents] judge the trial is a confusion between roles judge of trial and judge defense counsel. The is not necessarily in position the best to know what necessary to the defense.” Commonwealth Clancy, supra 670. See Commonwealth v Lieb- man, (1983) 388 Mass NE2d [446 ("[W]hen judge if undertakes to decide [evidence] benefits the he 'assuming defendant’s case vicar- ”). iously and uncomfortably the role of counsel’

Regarding the assumption, second we are not convinced that complaining the interests of the State and the preserving witness in the confidential- ity psychotherapists of communications and can only protected by social workers an in procedure. judges camera review discretion to Trial have broad proceedings control before them. why they There is no insure that discovery steps reason cannot take (cid:127) confidentiality attending breaches of only are limited absolutely those unavoidably necessary preparation pre- sentation of example, the defendant’s defense. For judges could allow counsel access to only capacity records court. in their as officers of the

Admission or reference to such infor- mation at trial could be conditioned on a determi- (made hearing) nation after an in camera ay aw v Stan

1994] by Levin, Separate Opinion use is not available to counsel seeks information v Two Cf. Commonwealth other source. any from 261, Juveniles, NE2d 397 Mass [491 Jones, supra at 345 (1986); Commonwealth (enforced J., orders dissenting). Protective (Lynch, sanctions) requiring counsel and by the threat of in the trial not participants necessary other See could be entered. information disclose such Amral, 511, 526-527 407 Mass Commonwealth (1990) (Liacos, [concurring]). C.J. NE2d 1189 [554 in counsel result Although procedures these would Commonwealth, rather and the for the defendant records, if viewing privileged just judge, than careful described in the order of those precautions taken, confidentiality such breaches above are need intrusive or harmful than more not be by the attending in review of records those camera judge alone. assumptions rejecting In addition standard, note that 20B

support we § Federal 112, 233, are not and 135 of G.L. c. of G.L. c. § privilege, certain unlike statements of absolute privileges such as G.L. statutory other testimonial 233, G.L. c. (priest/penitent), c. 20A § counselor/victim). (sexual 20J assault See Com- § Jones, supra 343. Both sections monwealth v at such, exceptions scope. As limiting their contain the a "less privileges at here derive from issue . . . firmly legislative concern inviol- based being protected.” ability of communication Juveniles, supra 266. v Two at Commonwealth privileges are against qualified these Balanced important rights of the defen- State constitutional that, appropriate dant. we have said Because circumstances, statutory privileges even absolute based) (nonconstitutionally yield must to a defen- com- dant’s constitutional use defense, id., are not in his see we munications allowing counsel access persuaded do in this case would treatment records issue policies firmly based great to the less violence In circum- represented 20B 135. these §§ stances, give way to the defen- policies those must Mich Separate Levin, J. dant’s complainant’s need to examine the treat- ment records.

Accordingly, that, we conclude under art 12 of the Massachusetts Rights, Declaration of counsel for the defendant is entitled to review records of the complainant’s treatment at the New York Hospital Greenwich, Connecticut, and with the bias, social worker to search for evidence preju- dice, or remand, motive lie. judge On shall determine the circumstances under which counsel for the defendant and the Commonwealth shall review the records. judge then shall conduct an in hearing camera concerning the admissibility any information in the records that counsel may wish to discretion, use at trial. In his judge shall also enter orders that appro- are deemed priate to ensure that the information contained in the records will not be disclosed beyond the defen- dant’s prepare present need to his defense. notes Cormick instance, probable it In the first challenge ability to claims defendant’s will "right present a defense” impairing his as criticality to dependent upon the extent be to some privi protected by of the matter that defense lege. Davis, privileged matter in effect In irreplaceable means significant and represented a By prosecution witness. impeaching the chief contrast, is of privileged matter desired where the simply cumu probative force or significantly lesser lative, held the defendant has been its denial guarantees. the constitutional not to violate Cormick, [Mc (3d ed), 74.2, p Evidence § 179.] necessity Thus, of disclosure a case for the infor- out if the information is not made sought merely evidence cumulative of mation

Case Details

Case Name: People v. Stanaway

Court Name: Michigan Supreme Court

Date Published: Aug 29, 1994

Citation: 521 N.W.2d 557

Docket Number: Docket Nos. 92269, 96823, (Calendar Nos. 12-13)

Court Abbreviation: Mich.