The defendant-appellant Tuvale Pese-ti appeals from the amended judgment of the family court of the first circuit, the Honorable Virginia Lea Crandall presiding, convicting him of and sentencing him for one count of sexual assault in the third degree, pursuant to Hawaii Revised Statutes (HRS) § 707-732(1)(b) (1993).
1
On appeal, Peseti contends that the family court erred in: (1) prohibiting defense counsel from cross-examining the complainant regarding her recantation of her allegations of sexual abuse by Peseti, on the basis that her recantation fell within either the statutory privilege set forth in Hawaii Rules of Evidence (HRE) Rule 505.5(b) (1993) or HRE Rule 504.1(b) (1993),
2
thereby violating Peseti’s constitutional right to confront adverse witnesses as guaranteed by article I, section 14 of the Hawai'i Constitution and the sixth amendment to the United States Constitution;
3
(2) ordering that the complainant’s Child Protective Services (CPS) file be sealed, on the basis that the information contained therein constituted privileged communications under either HRE Rule 505.5(b) or HRE Rule 504.1(b),
see supra
note 2, thereby violating Peseti’s due process rights under the fifth and fourteenth amendments to the United States Cоnstitution and article I, section 5 of the Hawai'i Constitution;
4
and (3) denying defense counsel’s oral motion for a mistrial, where the complainant’s testimony that Peseti had attempted to sexually abuse her a second time and that she had previously been subjected to sexual abuse by Peseti’s son substantially prejudiced Peseti’s right to a fair trial. We agree that the family court’s refusal to per
mit
I. BACKGROUND
A. Procedural Background
On March 3, 1999, Peseti was charged by indictment with one count of sexual assault in the third degree, in violation of HRS § 707-732(l)(b), see supra note 1, for knowingly subjecting his thirteen-yeаr-old hanai 6 daughter [hereinafter, “the complainant”] to sexual contact. During pretrial discovery, defense counsel served CPS with a subpoena duces tecum, requesting access to the complainant’s records and files relating to the charged offense. On September 20, 1999, the family court conducted a hearing on the return of the subpoena, at which time Bernard Hvidding, the CPS social worker assigned to the complainant’s case, delivered the requested records and files, which comprised more than three hundred redacted and unredaeted pages, to the family court. During the hearing, defense counsel requested discovery of all material contained therein that was relevant to the complainant’s credibility, alibi, Peseti’s state of mind, and mistake. The family court thereafter received the CPS records into custody for an in camera review. Upon review of the complainant’s file, the family court released redacted portions to defense counsel and sealed the remainder for appellate review.
On January 19, 2000, prior to the commencemеnt of jury selection, defense counsel objected to the limited extent of the CPS records that had been released by the family court:
[Defense counsel]: Your Honor, could I just place a brief objection as to the CPS records that were turned over, just for the record?.
The Court: Yes.
[Defense counsel]: I believe that the files that were turned over by Mr. Bernard Hvidding were ... two inches thick, if not more. In this case[,] ... I have 11 pages of police reports that consist solely of [Honolulu Police Department (HPD) ] Detective [Robert] Towne’s closing report and nothing else.
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Basically, I had no background information in the police report as to how the complaint was made, to who[m] it was made, or what was said in the initial complaint. ...
As far as the counselor, I just recently found out through the CPS worker, who the school counselor was and apparently she’s relocated to the mainland, so I was unable to talk to her.
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Asfar as what was turned over, it’s very brief, even the pages that were turned over was [sic] redacted. But my concern there is ... that on the second set of forms that wеre turned over, there are two paragraphs that were toned over. And, basically, they state that [the complainant] was interviewed by Detective Towne and social worker Debbie Hervey, and then everything after that is redacted....
And, clearly, Your Honor, the interview was concerning this particular case and this incident. And any prior statements, especially by the complainant, I believe they should have had access to because this was written by the social worker who was present at the school when the initial allegations were made.
So my problem is that we weren’t able to know what witnesses were originally there. It’s my understanding ... that [the complainant] did recant. And [the DPA] has expressed concerns about that in the pretrial [conference] about whether or not there would be [a] recantation [at trial].
But when I spoke to Mr. Hvidding last week, he told me that she did tell a counselor that it did, in fact, not happen. And was then questioned further by him and other people and then said, okay, it did happen. But clearly that’s exculpatory and it’s also admissible. And I presume that would have been in the files. Basically, that’s my objection, Your Honor.
The Court: The statements that were given, ... have you received either the video tape or transcript of those statements?
[Defense counsel]: I have the video tape.
[DPA]: The video tapes have been transcribed as well.
[Defense counsel]: And they were transcribed. But again, Your Honor, this is the social worker’s version of what occurred and she was there.
Also[,] I am sure other statements were made by [the complainant] during this time period, including whether she redacted [sic]. And, again, we were not given access to that.
The Court: Your objection is noted for the record. Any other matters?
[DPA]:....
With respect to Mr. Hvidding, I haven’t had a chance to talk with him, he was out sick yesterday. And while I did have concerns about [the complainant] recanting, because that’s the information that I had, she was fine with me yesterday in our interview. I don’t know if she’s recanted to Mr. Hvidding or if he’s just hearing that from the therapist. And if that’s the ease, then I would object to him testifying about it because it would be hearsay. But I think that we can take that up later on as we get closer to those particular witnesses, Your Honor.
B. Factual Background
Peseti’s jury trial commеnced on January 20, 2000. For present purposes, we briefly summarize the relevant facts adduced at trial. On or about December 31, 1997, the complainant accompanied her hanai mother and Peseti to assist in the family’s daily newspaper-delivery route. While en route to pick up another vehicle in Palolo, the complainant and Peseti were laying down in the back part of the family pick-up truck covered with a blanket. The complainant testified that Peseti placed his right hand between her thighs and moved his hand inside her shorts toward her vagina. Peseti attempted to place his hand inside the complainant’s vagina but was unable to lift up her underwear because the elastic was too tight. Within seconds, Peseti removed his hand from the complainant’s shorts. Peseti cautioned the complainant three times not to disclose what had happened in the truck. 7
The complainant nevertheless confided in • one of her sisters [hereinafter, “the confi
dante
During cross-examination, defense counsel questioned the complainant as to whether she had fabricated her allegations of sexual abuse by Peseti in order to “get out of the [Peseti] home.” The complainant denied that she had stated to another of her sisters that the New Year’s day incident had never occurred. 9 The complainant, however, acknowledged that the confidante sister inquired as to why she had lied about their father’s alleged sexual abuse. The complainant explained that she was angry that the confidante sister no longer believed her allegations but reiterated that the confidante sister claimed to believe her when they decided to speak to their school counselor.
Defense counsel then questioned the complainant as to whether she had previously recanted her allegations of sexual abuse by Peseti. Specifically, defense counsel inquired as follows:
[Defense counsel]: And isn’t it true that ... you also told your therapist at one point that this really didn’t happen?
[DPA]: Objection, Your Honor.
The Court: Counsel, can you approach the bench, please.
(The following proceedings were held at the bench:)
[DPA]: I believe that violates confidential information, patient privacy, Your Honor.
[Defense counsel]: Your Honor, it goes to credibility and it goes to [the] defendant’s right to a fair trial. Basically, if she did say that, that’s something that the jury needs to know.
The Court: Isn’t that a privileged communication for which there is no demonstration of a waiver at this point?
[Defense counsel]: Basically, what I’m asking her is whether at some point she recanted.
[DPA]: But that doesn’t address the issue with respect to that breaking a privileged communication.
[Defense counsel]: Evеn if it’s technically a privilege [sic] communication, Your Honor, I believe that there are constitutional rights involved here, due process rights [to a] fair trial, that would override any Hawaii Rules of Evidence rule.
The Court: Objection is sustained. Privileged.
II. STANDARDS OF REVIEW
A. Questions Of Constitutional Law
“We answer questions of constitutional law ‘by exercising our own independent judgment based on the facts of the ease,’ ” and, thus, questions of constitutional law are reviewed on appeal “under the ‘right/wrong’ standard.” State v. Jenkins,93 Hawai'i 87 , 100,997 P.2d 13 , 26 (citations omitted).
State v. Aplaca,
[A] [violation of the constitutional right to confront adverse witnesses is subject to the harmless [-]beyond[-]a[-]reasonable[-]doubt standard. (Citation omitted.) “In applying the harmless[-]beyond[-]a[-] reasonablе[-]doubt standard[,] the court is required to examine the record and determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction.”
State v. Balisbisana,
B. Limitations On Cross-Examination
The law is settled that
the scope of cross-examination at trial [is] ... within the discretion of the trial court.... The trial court’s exercise of its discretion to limit the scope of cross-examination will not be ruled as reversible error when it limits irrelevant and repetitious questions by counsel [and the limitation does] not result in any manifest prejudice to the defendant.
State v. Okumura,78 Hawai'i 383 , 399,894 P.2d 80 , 96 (1995) (quoting State v. Young,8 Haw.App. 145 , 151,795 P.2d 285 , 290 (quoting State v. Faulkner,1 Haw.App. 651 , 654-55,624 P.2d 940 , 943-44 (1981)), cert. denied,71 Haw. 669 ,833 P.2d 901 (1990)) (some brackets and ellipses added and some in original).
State v. Cordeiro,
C. Scope Of Discovery
We review a trial court’s ruling limiting the scope of discovery under the abuse of discretion standard. State v. Fukusaku,85 Hawai'i 462 , 477-78,946 P.2d 32 , 47-48 (1997). A trial court’s denial of a discovery request based on relevance, however, will be reviewed under the right/ wrong standard. See State v. Estrada,69 Haw. 204 , 216-17,738 P.2d 812 , 821-22 (1987).
State v. White,
D. The Admissibility Of Evidence
The admissibility of evidence requires different standards of review depending on the partiсular rule of evidence at issue. State v. Pulse,83 Hawai'i 229 , 246,925 P.2d 797 , 814 (1996). When application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate review is the right/ wrong standard. However, the traditional abuse of discretion standard should be applied in the case of those rules of evidencethat require a “judgment call” on the part of the trial court. Id, at 246-47, 925 P.2d at 814-15 (citations omitted).
Cordeiro,
III. DISCUSSION
A. The Family Court Committed An Abuse Of Discretion By Refusing To Permit Defense Counsel To Cross-Examine The Complainant Regarding Her Recantation Of Her Allegations Of Seocual Abuse By Peseti, Thereby Violating Peseti’s Right To Confront Adverse Witnesses As Guaranteed By Article I, Section 14- Of The HawaVi Constitution.
Peseti argues that the family court erred in concluding that the complainant’s recantation of her allegations of sexual abuse constituted a privileged communication under the HRE and, therefore, that her testimony relating thereto was inadmissible at trial. Pes-eti contends that the record fails to establish that the complainant’s recantation falls within any statutory privilege set forth in the HRE, inasmuch as there was no evidence adduced from which the family court could have concluded that the recantation was a confidential communication, much less have made a finding as to whom the communication was made. He further asserts, assuming arguendo that the complainant’s recantation constituted a privileged communication, that the complainant’s invocation of a statutory privilege must yield at trial to Peseti’s constitutional right to confront adverse witnesses as guaranteed by the United States and Hawaii Constitutions, see supra note 3. Peseti maintains that the policy interests underlying the victim-counselor privilege cannot trump the constitutional right to cross-examine adverse witnesses under circumstances, as in the present case, in which the outcome of the proceeding essentially turns on the complainant’s credibility 11 and the “communication” at issue is a recantation of the accusation on which the very status of “victim” is premised. Peseti argues that, inasmuch as the question whether the complainant had in fact recanted her allegations of sexual abuse was critical to the jury’s assessment of her credibility, there was a reasonable possibility that the family court’s refusal to permit cross-examination relating thereto contributed to the guilty verdict and, therefore, was not harmless beyond a reasonable doubt.
By contrast, the prosecution contends that the family court’s decision to limit defense counsel’s cross-examination of the complainant did not violate Peseti’s right to confront adverse witnesses, inasmuch as defense counsel adduced sufficient evidence at trial— namely, the testimony of the confidante sister, the additional sister, HPD Detective Towne, and the hánai mother—amply to put forth its theory of the ease. The prosecution asserts that the jury heard substantial testimony from the aforementioned witnesses that the complainant was unhappy with her home life due to excessive “lickings” and “too many chores,” that she and the confidante sister had decided to speak with their school counselor in order to be placed by CPS in a foster home (as had previously occurred with another one оf the complainant’s sisters), and that Peseti did not in fact commit the charged offense. More specifically, notwithstanding the family court’s decision to sustain the deputy prosecuting attorney’s (DPA’s) objection to defense counsel’s cross-examination relating to the complainant’s recantation, the prosecution argues that the jury was nevertheless apprised of the possibility that the complainant had recanted her allegations at some point in time, which, in effect, further strengthened the defense’s contention that the complainant was not a credible witness. Put simply, the prosecution asserts that, even assuming the family court committed an abuse of discretion in limiting defense counsel’s cross-examination of the complainant, there was no reasonable possibility that the result reached at trial would have been different and, therefore, that any error would have been harmless beyond a reasonable doubt. We disagree.
The sixth amendment to the United States Constitution and article I, section 14 of the Hawaii Constitution guarantee
[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.... A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the ease at hand.... We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the cоnstitutionally protected right of cross-examination.
Davis v. Alaska,
By contrast, statutory privileges, such as the victim-counselor privilege at issue in the -present matter,
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operate to preclude the admission at trial of certain classes of confidential communications.
See
1
McCormick on Evidence
§ 72, at 269 (John W. Strong ed., 4th ed.1992). “It has long been recognized that privileges, by them very nature, restrict access to information[,] which would otherwise be disclosed.”
Goldsmith v. State,
While this court has, in other contexts, addressed the interrelationship between the HRE and the constitutional right of confrontation,
see State v. Apilando,
In
Davis,
the United States Supreme Court addressed the question whether a protective order, which prohibited the defense in a criminal case from questioning a witness concerning his juvenile record, violated the defendant’s right to confront adverse witnesses under the sixth amendment to the United States Constitution.
Davis,
[w]e cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the witness’] testimony[,] which provided “a crucial link in the proof ... of petitioner’s act.” (Citation omitted.) The accuracy and truthfulness of [the witness’] testimony were key elements in the State’s case against petitioner. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of [the witness’] vulnerable status as a probationer, ... as well as of [the witness’] possible concern that he might be a suspect in the investigation.
Id. at 317-18. Although the Davis Court did not challenge the validity of the State’s interests in protecting the anonymity of juvenile offenders, it nevertheless recognized that
[s]erious damage to the strength of the State’s case would have been a real possibility had petitioner been allowed to pursue this line of inquiry ... [and][w]hatever temporary embarrassment might result to [the witness] or his family by disclosure of his juvenile record ... is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.
Id.
(some brackets added and some in original);
see also Salazar v. State,
Although it stands to reason that the right of confrontation via cross-examination, as guaranteed by article I, section 14 of the Hawai'i Constitution, will not trump a statutory privilege in every case in which а conflict arises between the two, we believe that fundamental fairness entitles a defendant to adduce evidence of a statutorily privileged confidential communication at trial when the defendant demonstrates that: “(1) there is a legitimate need to disclose the protected information; (2) the information is relevant and material to the issue before the court; and (3) the party seeking to pierce the privilege shows by a preponderance of the evidence that no less intrusive source for that information exists.”
L.J.P.,
It is true that some defense witnesses testified that they disbelieved the complainant’s version of the events. It is also true that one of the complainant’s sisters—the only witness to do so—-testified that the complainant had, at some time in the past, admitted that the incident “didn’t happen.” Moreover, the circuit court permitted Peseti to cross-examine the complainant regarding her alleged recantation to her sister, which she denied, thereby adducing evidence from which the jury could have evaluated the relative credibility of the complainant vis-a-vis her sister. The circuit court, however, deprived Peseti of the opportunity directly to question the complainant regarding whether she had recаnted her allegations of sexual abuse to her
victim counselor
and whether she had fabricated her allegations in order to be removed from the Peseti home. We be
lieve
As previously noted, the denial of a defendant’s right to confront adverse witnesses is subject, to the harmless-beyond-a-reasonable-doubt standard of review.
See Balisbisana,
The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.
Id.
at 117,
Applying the Balisbisana formulation to the present matter, it is intuitively obvious that, had defense counsel been permitted to cross-examine the complainant regarding communications—including her recantation— with the victim counselor, the jury might have believed the defense’s theory of the case—ie., that the complainant had fabricated her allegations and offered false testimony in order to “get out of the home.” Specifically, it is undisputed that the complainant was the only witness to testify that Peseti had abused her on January 1, 1998 and, therefore, was a critical prosecution witness. Inasmuch as there was neither third-party eyewitness testimony adduced at trial nor any physical evidence corroborating the complainant’s version of the events, the prosecution’s case rested solely on the complainant’s credibility. Tautologically, had the jury believed the defense’s theory of the case, the jury would likely have acquitted Peseti of the charged offense. Consequently, there is a reasonable possibility that the error complained of contributed to Peseti’s conviction, and, thus, we hold that the family court’s abuse of discretion was not harmless beyond a reasonable doubt.
B. The Family Court’s Decision To Seal The Complainant’s CPS Records Did Not Violate Peseti’s Constitutional Right To Due Process Under The Fifth And Fourteenth Amendments To The United States Constitution and Article I, Section 5 Of The Ha-wai'i Constitution.
Peseti argues that the family court’s order to seal the complainant’s CPS records
The prosecution maintains that the family court correctly found that the victim-counsel- or privilege applied to the complainant’s CPS records, inasmuch as Peseti failed to satisfy his burden of demonstrating that the complainant had waived the privilege. In addition, the prosecution contends that the family court's in camera review of the redacted and unredacted materials contained in the CPS file afforded Peseti his right to due process under Ritchie. We agree with the prosecution.
In
Ritchie,
the United States Supreme Court considered whether the due process clause of the fourteenth amendment to thе United States Constitution entitled the defendant, who was charged with sexually assaulting his thirteen-year-old daughter, to obtain
pretrial
discovery of the investigative files of the complainant’s case generated by Children and Youth Services (CYS), a state-created “protective service agency charged with investigating cases of suspected mistreatment and neglect.”
Ritchie,
On appeal, the Pennsylvania Superior Court held that the failure to disclose the contents of the CYS file violated the defendant’s right to confront adverse witnesses but held that the right of confrontation did not entitle the defendant to unfettered access to the file.
Id.
at 45,
The United States Supreme Court affirmed the Pennsylvania Supreme Court’s decision in part and reversed it in part.
Id.
at 61,
This Court has never squarely held that the Compulsory Process Clause [of the sixth amendment] guarantees the right to discover the identity of witnesses, or to require the government to produce exculpatory evidence. Instead, the Court tradi tionallyhas evaluated claims such as those raised by [the defendant] under the broader protections of the Due Process Clause of the Fourteenth Amendment. See ... Brady v. Maryland, 373 U.S. 83 , [83 S.Ct. 1194 ,10 L.Ed.2d 215 ] (1963). Because the applicability of the Sixth Amendment to this type of case is unsettled, and because our Fourteenth Amendment precedents addressing the fundamental fairness of trials establish a clear framework for review, we adopt a due process analysis fоr purposes of this case. Although we conclude that compulsory process provides no greater protections in this area than those afforded by due process, we need not decide today whether and how the guarantees of the Compulsory Process Clause differ from those of the Fourteenth Amendment. It is enough to conclude that on these facts, [the defendant’s] claims more properly are considered by reference to due process.
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It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. Although courts have used different terminologies to define “materiality,” a majority of this Court has agreed [that] evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.
At this stage, of course, it is impossible to say whethеr any information in the CYS records may be relevant to [the defendant’s] claim of innocence, because neither the prosecution nor defense counsel has seen the information, and the trial judge acknowledged that he had not reviewed the full file. The [prosecution], however, argues that no materiality inquiry is required, because a statute renders the contents of the file privileged. Requiring disclosure here, it is argued, would override the [state’s] compelling interest in confidentiality on the mere speculation that the file “might” have been useful to the defense.
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A defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the [prosecution’s] files. Although the eye of an advocate may be helpful to a defendant in ferreting out information, this Court has never held—even in the absence of a statute restricting disclosure-rthat a defendant alone may make the determination as to the materiality of information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland,373 U.S. 83 , [83 S.Ct. 1194 ,10 L.Ed.2d 215 ] (1963), it is the [prosecution] that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State’s files to argue relevance. See Weatherford v. Bursey,429 U.S. 545 , 559, [97 S.Ct. 837 ,51 L.Ed.2d 30 ] (1977) (“There is no general constitutional right to discovery in a criminal case, and Brady did not create one[.]”).
We find that [the defendant’s] interest (as well as that of the state) in ensuring a fair trial can be protected jully by requiring that the CYS files be submitted only to the trial couH for in camera review. Although this rule denies [the defendant] the benefits of an “advocate’s eye,” we note that the trial court’s discretion is not unbounded. If a defendant is aware of specific information contained in the file (e.g., the medical report), he is free to request it directly from the court, and argue in favor of its materiality. Moreover the duty to disclose is ongoing; information that may be deemed immaterial upon original examination may becomе important as the proceedings progress, and the court would be obligated to release information material to the fairness of the trial.
To allow full disclosure to defense counsel in this type of ease would sacrifice unnecessarily the [state’s] compelling interest in protecting its child-abuse infor mation.If the CYS records were made available to defendants, even through counsel, it could have a seriously adverse effect on [the state’s] efforts to uncover and treat abuse. Child abusé is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. A child’s feelings of vulnerability and guilt and his or her unwillingness to come forward are particularly acute when the abuser is a parent. It therefore is essential that the child have a state—designated person to whom he may turn, and to do so with the assurance of confidentiality. Relatives and neighbors who suspect abuse also will be more willing to come forward if they know that them identities will be protected. Recognizing this, the [state]—like all other States—has made a commendable effort to assure victims and witnesses that they may speak to the CYS counselors without fear of general disclosure. The [state’s] purpose would be frustrated if this confidential material had to be disclosed upon demand to a defendant charged with criminal child abuse, simply because a trial court may not recognize exculpatory evidence. Neither precedent nor common sense requires such a result.
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We agree that [the defendant] is entitled to know whether the CYS file contains information that may have changed the outcome of his trial had it been disclosed. Thus we agree that a remand is necessary. We disagree with the decision of the Pennsylvania Supreme Court to the extent that it allows defense counsel access to the CYS file. An in camera review by the trial court mil serve [the defendant’s] interest without destroying the [state’s] need to protect the confidentiality of those involved in child-abuse investigations. ...
Ritchie,
In sum, there are cogent reasons for disallowing
general
pretrial discovery of privileged information, but allowing access to such information upon a proper showing by the defendant that the information “may ... change[ ] the outcome of [the] trial,”
see Ritchie,
IV. CONCLUSION
In light of the foregoing analysis, we vacate the family court’s amended judgment of conviction and sentence and remand this case for a new trial.
Notes
. HRS § 707-732 provides in relevant part:
Sexual assault in the third degree. (1) A person commits the offense of sexual assault in the third degree if:
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(b) The person knowingly subjects to sexual contact another person who is less than fourtеen years old or causes such a person to have sexual contact with the personf.]
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B. Sexual assault in the third degree is a class C felony.
. HRE Rule 504.1 provides in relevant part:
Psychologist-client privilege.
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(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of counseling or psychotherapy with respect to behavioral problems, including substance addiction or abuse, among oneself, the client’s psychologist, and persons who are participating in the counseling or psychotherapy under the direction of the psychologist, including members of the client’s family.
HRE Rule 505.5 provides in relevant part:
Victim-counselor privilege.
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(b) General rule of privilege. A victim has a privilege to refuse to disclose and- to prevent any other person from disclosing confidential communications made to a victim counselor for the purpose of counseling or treatment of the victim for the emotional or psychological effects of sexual assault, domestic violence, or child abuse or neglect, and to refuse to provide evidence that would identify the name, lоcation, or telephone number of a safe house, abuse shelter, or other facility that provided temporary emergency shelter to the victim.
. Article I, section 14 of the Hawai'i Constitution (1978) provides in relevant part that "[i)n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against the accused!.]"
The sixth amendment to the United States Constitution provides in relevant part that "[i]n all criminal prosecutions, tire accused shall enjoy the right ... to be confronted with the witnesses against him[.]”
. The fifth amendment to the United States Constitution provides in relevant part that "[n]o person shall be ... deprived of life, liberty, or property, without due process of law[.]”
The fourteenth amendment to the United States Constitution provides in relevant part that "[n]o state shall ... deprive any person of life, liberty, or property, without due process of law[.]”
Article I, section 5 of tire Hawai'i Constitution provides in relevant part that "[n]o person shall be deprived of life, liberty or property without due process of law[.]”
. We do not reach Pesеti's final point of error, inasmuch as the record reflects that the family court did not abuse its discretion in denying Peseti’s motion for a mistrial. Peseti argues that the family court’s refusal to give a cautionary instruction to the jury regarding the complainant’s testimony that Peseti had attempted to sexually abuse her a second time and that she had been subjected to sexual abuse by Peseti’s son substantially prejudiced Peseti’s right to fair trial. Assuming
arguendo
that the family court erred in permitting the complainant to testify regarding the foregoing, the error was harmless, because the family court struck the complainant’s testimony regarding the second incident of alleged abuse. Moreover, the complainant immediately clarified during further direct examination that her statement, "Not again,” referred to the repeated sexual abuse by her brother and that her allegations against Peseti stemmed from an isolated incident on New Year’s Day 1998.
See State v. Lagat,
97 Hawai’i 492, 495,
. "Hanai means 'foster, adopted.’ M.K. Pukui & S.H. Elbert,
Hawaiian Dictionary 56
(Rev. Ed. 1986). The child is not necessarily legally adopted.”
State v. Suka,
79 Hawai’i 293, 302 n. 7,
. On June 5, 1998, Peseti told the complainant "to change [her] story" during a supervised visitation with CPS. Thereaftér, in November 1999, Peseti arrived at the complainant’s school to drive her home; Peseti had never previously picked the complainant up from school. During their travel homebound, Peseti told the complainant not to disclose to anyone what had happened on New Year’s day of 1998.
. The complainant testified that she and the confidante sister commenced their discussion about leaving the Peseti residence after their younger sister had been removed by CPS for arriving at school with soiled clothes, lice in her hair, and a bruised eye; she believed that, by disclosing her allegations of sexual abuse to the school counselor, CPS would likely remove them from the Peseti home as well. The complainant further explained that her desire to leave the Peseti residence commenced after the subject incident.
The confidante sister also testified that the sole purpose of her conversation with the school counselor was to be removed from the Peseti residence, because she had received too many "lickings" from her oldest sister and her mother. The confidante sister, however, characterized Peseti as "a good father.... He’s quiet. He never does hit [the children].” She denied that she wanted to leave the household because of Peseti and testified that she refused to call the police in response to the complainant’s allegations of sexual abuse "because [she] didn't believe her.... Because [her] dad wouldn't do that.” The confidante sister testified that she lied to HPD Detective Towne when she stated that Peseti also touched her inappropriately, "because that’s what [she] thought they wanted [her] to say.” She acknowledged that her relationship with the complainant has deteriorated since they had been placed in a foster home and explained that the complainant resented lier for disbelieving her allegations of sexual abuse. She further testified that she felt "sad” about "getting [her] father into trouble.”
. This sister testified that the complainant expressly told her that Peseti "didn't do it.”
. On March 21, 2000, the family court sentenced Peseti to a five-year term of probation, subject to incarceration for one year as a condition of probation. On April 7, 2000, Peseti filed a motion for reconsideration of sentence. On April 17, 2000, the family court conducted a hearing on the matter and granted Peseti’s motion for reconsideration in part. More specifically, in its amended judgment, the family court ■suspended eleven months of Peseti’s one-year prison term, on condition that Peseti secure a place of residence that was acceptable to his probation officer, presumably with no minor children residing therein.
. Peseti voluntarily waived his right to testify on his own behalf at trial.
. “[T]he Sixth Amendment's right of an accused to confront the witnesses against him is ... a fundamental right and is made obligatory on the States by the Fourteenth Amendment."
Pointer v. Texas,
. For purposes of the present matter, we assume that the statutory privilege at issue is the victim-counselor privilege set forth in HRE Rule 505.5(b). Although it is unclear from the record before us precisely which statutory privilege the DPA relied upon in objecting to defense counsel’s cross-examination of die complainant, both the prosecution and Peseti concede that the victim-counselor privilege is most appropriate as applied to the facts of the present case.
. The alternative assumption—i.e., that the complainant's recantation did not constitute a privileged communication for purposes of the HRE—would not alter tire outcome of this case.' Assuming arguendo that neither the victim-counselor nor the psychologist-client privilege applied to the present matter, the family court would have abused its discretion in refusing to permit defense counsel to cross-examine the complainant regarding her recantation of her allegations of Peseti’s sexual abuse, inasmuch as the subject matter was relevant to establishing the complainant’s motive for fabricating her allegations and to undermine her credibility. See HRE Rule 402 (1993) (“All relevant evidence is admissible....").