¹ Unlike the Fifth Amendment's privilege against self-incrimination, nearly all privileges arise by statute or under common law. Compare Commonwealth v. Lloyd, 567 A.2d 1357, 1359 (Pa. 1989) (common law privilege for psychiatrist-patient relationship) with Commonwealth v. Two Juveniles, 491 N.E.2d 234, 237 (Mass. 1986) (statutory privilege for rape counselor-patient relationship). Courts have also noted that an individual has a constitutional right to privacy in his/her medical records. See Reynolds v. State, 633 A.2d 455, 463 (Md. App. 1993).

² See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 60-61 (1987) (recognizing that statutory privilege for child abuse records seeks to foster child's trust and encourage third parties to report abuse); Commonwealth v. Wilson, 602 A.2d 1290, 1297-98 (Pa. 1992), cert. denied sub nom., Aultman v. Pennsylvania, 504 U.S. 977 (1992) (noting that statutory privileges indicate legislature's recognition of society's need for confidentiality).

³ See Davis v. Alaska, 415 U.S. 308, 319 (1974) (recognizing that criminal defendant's constitutional right to present relevant and significant evidence may override state exclusionary rule); Ritchie, 480 U.S. at 56 (noting the danger in abrogating statutory privileges unnecessarily).

⁴ The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property without due process of law ....” U.S. CONST. amend. XIV, § 1.

⁵ The Confrontation and Compulsory Process Clauses of the Sixth Amendment provide that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor “ U.S. CONST. amend. VI. The Confrontation Clause protects both the right to physically face testifying witnesses and the right to conduct cross-examination. See Davis, 415 U.S. at 319-20; Chambers v. Mississippi, 410 U.S. 284, 295 (1973).

⁶ See Ritchie, 480 U.S. at 60-61 (weighing both interests); Commonwealth v. Two Juveniles, 491 N.E.2d 234, 239 (Mass. 1986) (noting need for case by case review). The state protects the victim's interests when it seeks to preserve statutory privileges.

⁷ Ritchie, 480 U.S. at 39.

⁸ Id. at 58-61.

⁹ Id. at 58-59. See infra note 26 for the Supreme Court's definition of material and exculpatory information.

¹⁰ Ritchie, 480 U.S. at 60-61.

¹¹ Id.

¹² Id. at 58-61.

¹³ See, e.g., Jordan v. State, 607 So. 2d 333, 335 (Ala. Crim. App. 1992); Gunter v. State, 857 A.2d 156, 160 (Ark. 1993); People v. District Court, 743 P.2d 432, 436 (Colo. 1987) (en banc); State v. D'Ambrosia, 561 A.2d 422, 426-27 (Conn. 1989); People v. Foggy, 521 N.E.2d 86, 92 (111. 1988); Goldsmith v. State, 651 A.2d 866, 876 (Md. 1995); Commonwealth v. Bishop, 617 N.E.2d 990, 997-98 (Mass. 1993); People v. Stanaway, 521 N.W.2d 557, 562 (Mich. 1994); State v. Cressy, 628 A.2d 696, 703 (N.H. 1993); State v. Percy, 548 A.2d 408, 415 (Vt. 1988); State v. Kalakosky, 852 P.2d 1064, 1077 (Wash. 1993).

¹⁴ See infra part IV.

¹⁵ Compare Two Juveniles, 491 N.E.2d 234, 237-38 (Mass. 1986) (rejecting claims that an “absolute” privilege prevents in camera inspections) and Advisory Opinion to the House of Representatives, 469 A.2d 1161, 1166 (R.I. 1983) (same) with Commonwealth v. Wilson, 602 A.2d 1290, 1296-97 (Pa. 1992) (finding that an absolute privilege bars in camera review) and People v. District Court, 719 P.2d 722, 727 (Colo. 1986) (en banc) (same).

¹⁶ See, e.g.. Bishop, 617 N.E.2d at 995-96 (showing of need and in camera review appropriate procedure for privileged records); Commonwealth v. Figueroa, 595 N.E.2d 779, 785 (Mass. 1992) (no showing of need for direct access to records in a rape case); Commonwealth v. Stockhammer, 570 N.E.2d 992, 1001-02 (Mass. 1991) (rejecting in camera review in favor of direct access to defense); Two Juveniles, 491 N.E.2d at 238-39 (endorsing in camera review).

¹⁷ 617 N.E.2d 990 (Mass. 1993).

¹⁸ Id. at 997-98.

¹⁹ Id. at 994-95.

²⁰ Id. at 995.

²¹ Id. at 997-98.

²² Id. at 996-98.

²³ See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (holding that there is no constitutional right to pretrial discovery, and emphasizing that Brady v. Maryland, 373 U.S. 83 (1963) does not create one). Maryland recently clarified that its state discovery rules did not provide a constitutional right to pretrial discovery. Goldsmith v. State, 651 A.2d 866, 871-73 (Md. 1995). Goldsmith noted that procedural rules providing for the pretrial production of documents do not “guarantee a criminal defendant the absolute right to subpoena and examine the private records of every private individual or entity that may conceivably possess exculpatory records.” Id. at 871. Likewise, the District of Columbia held that defense attorneys were improperly using subpoena duces tecum when they had privileged records sent directly to their offices. Brown v. United States, 567 A.2d 426, 427-28 (D.C. App. 1989). The court held that defense attorneys must have prior court approval to subpoena privileged records and that the records must be delivered to the court for safe-keeping. Id. at 428.

²⁴ 373 U.S. 83(1963).

²⁵ Id. at 87-88.

²⁶ Id. The Supreme Court has defined exculpatory evidence as that which would raise a reasonable doubt about the defendant's guilt. See United States v. Agurs, 427 U.S. 97, 104 (1976). The Court has held that “[e]vidence 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.” United States v. Bagley, 473 U.S. 667, 682 (1985). The Court defined a “reasonable probability” as a “probability sufficient to undermine confidence in the outcome.” Id.

²⁷ See Ritchie, 480 U.S. at 63-65 (discussing Supreme Court case law on the scope of the Confrontation and Compulsory Process Clauses). See also, supra note 5.

²⁸ See, e.g., Commonwealth v. Lloyd, 567 A.2d 1357 (Pa. 1989) (addressing common law psychiatrist-patient privilege); Commonwealth v. Kennedy, 604 A.2d 1036, 1043-44 (Pa. Super. Ct. 1992) (discussing legislature's enactment of statutory psychiatrist-patient privilege).

²⁹ See People v. Stanaway, 521 N.W.2d 557, 567 (Mich. 1994); Commonwealth v. Wilson, 602 A.2d 1290, 1297-98 (Pa. 1992).

³⁰ See, e.g., People v. Foggy, 521 N.E.2d 86, 91 (111. 1988) (victims fearing negative social stigma of rape need promise of confidentiality); Commonwealth v. Collett, 439 N.E.2d 1223, 1226 (Mass. 1982) (routine disclosure of confidences creates chilling effect on therapy); State v. J.G., 619 A.2d 232, 236 (N.J. Super. Ct. App. Div. 1993) (victim's psychological scars ameliorated by confidential counseling); State v. Kalakosky, 852 P.2d 1064, 1076 (Wash. 1993) (confidentiality key to successful counseling).

³¹ See Ritchie, 480 U.S. at 60-61 (suggesting that friends and relatives more likely to report child abuse if state agencies can assure confidentiality); State ex rel. Dugan v. Titkin, 837 P.2d 959, 964 (Or. 1987) (noting that state child abuse records often are “multi-client” and contain names of those reporting abuse).

³² Ritchie, 480 U.S. at 60 n. 17.

³³ See, e.g., MASS . GEN. L. ch. 233, § 20K (1986) (domestic violence counselors); MASS . GEN. L. ch. 112, § 135B (1986) (social workers). See also, Commonwealth v. Two Juveniles, 491 N.E.2d 234, 237 (Mass. 1986) (privileges with qualified, general exceptions indicate a less firmly based legislative concern than statutory privileges absolutely banning access). See infra note 162.

³⁴ See, e.g., MASS . GEN. L. ch. 233, § 20J (1986) (sexual assault counselor); MASS . GEN. L. ch. 233, § 20A (1986) (priest-penitent); MICH . COMP . LAWS ANN. § 333.18237 (West 1994) (psychologist-patient). See infra note 162.

³⁵ See Commonwealth v. Wilson, 602 A.2d 1290, 1297-98 (Pa. 1992).

³⁶ See Ritchie, 480 U.S. at 60; Commonwealth v. Bishop, 617 N.E.2d 990, 994 (Mass. 1993).

³⁷ See Rock v. Arkansas, 483 U.S. 44, 56 (1987) (holding that a per se bar on post-hypnotic memories unconstitutionally limited a defendant's right to testify on her own behalf).

³⁸ See Commonwealth v. Stockhammer, 570 N.E.2d 992, 1001-02 (Mass. 1991) (holding that in camera inspection by judge impairs defense's ability to mount a defense); Commonwealth v. Ritchie, 502 A.2d 148, 151, 153 (Pa. 1985) (rejecting in camera inspections as an infringement on defendant's trial rights).

³⁹ Compare In re Pittsburgh Action Against Rape, 428 A.2d 126, 127-28 (Pa. 1981) (providing for in camera review of rape crisis center records under common law) with People v. District Court, 719 P.2d 722, 724 (Colo. 1986) (rejecting in camera review for post-rape counseling records protected by an unqualified statutory privilege).

⁴⁰ See, e.g., State v.Whitaker, 520 A.2d 1018, 1025(Conn. 1987) (adhering torn camera procedure to protect privilege) (citing In re Robert H., 509 A.2d 475 (Conn. 1986)); Commonwealth v. Collett, 439 N.E.2d 1223, 1226-27 (Mass. 1982) {in camera review should occur outside the presence of counsel); State v. Mendenhall, 721 P.2d 1255, 1257 (Mont. 1985) (Sixth Amendment not violated as a result of in camera review); Advisory Opinion to the House of Representatives, 469 A.2d 1161, 1166 (R.I. 1983) (in camera review ensures that no sensitive and irrelevant evidence is presented to the trier of fact).

⁴¹ See People v. District Court, 719 P.2d at 722 (providing an absolute privilege for psychotherapy records of sexual assault victim).

⁴² See Ritchie, 502 A.2d at 153 (rejecting preliminary in camera approach and providing for direct access).

⁴³ See Commonwealth v. Jones, 535 N.E.2d 221, 222-23 (Mass. 1989); Commonwealth v. Clancy, 524 N.E.2d 395, 397 (Mass. 1988); Commonwealth v. Rathburn, 532 N.E.2d 691, 694 (Mass. App. 1988); Commonwealth v. Two Juveniles, 491 N.E.2d 234, 236-37 (Mass. 1986); Collett, 439 N.E.2d at 1225- 27.

⁴⁴ 491 N.E.2d 234 (Mass. 1986).

⁴⁵ Id. at 238. In Two Juveniles, the Commonwealth charged two teenagers with aggravated rape of an eighteen year old woman. Id. at 236. The woman had sought medical assistance and rape counseling at the emergency room of the Beth Israel Hospital. Id. The two teenage defendants had moved to inspect the victim's treatment records to search for any potentially exculpatory evidence contained therein. Id. When the defense sought access to records protected by an absolute privilege, the trial judge reported a question of law to the appeals session. Id. The SJC transferred the case on its own initiative. Id. at 234.

⁴⁶ The statute establishing an absolute privilege for sexual assault records had gone into effect only two years prior to the Two Juveniles appeal. At the time of the appeal, the SJC had yet to rule on the exact parameters of the privilege. See MASS . GEN. L. ch. 233, § 20J (1986) (approved July 12, 1984, effective 90 days thereafter). See infra note 304 for the text of the statute.

⁴⁷ Two Juveniles, 491 N.E.2d at 236 n.3.

⁴⁸ Id. at 236 n.3, 238 (citing Davis v. Alaska, 415 U.S. 308, 319 (1974)).

⁴⁹ Id. at 236 n.3, 239.

⁵⁰ Id. at 238.

⁵¹ Id. at 239. The court cited case law concerning a reporter's privilege, which requires a showing of ⁵¹ legitimate need, “ evidence that the information is unavailable from another source, and a reasonable probability that the information will result in exoneration before a court will conduct an in camera inspection. Id. (citing New York Times Co. v. New Jersey, 439 U.S. 997 (1978) (legitimate need); State v. Siel, 444 A.2d 499 (N.H. 1982) (information must be unavailable from another source); In re Farber, 394 A.2d 330 (N.J. 1978) (legitimate need)).

⁵² Two Juveniles, 491 N.E.2d at 239-40, 240 n.7 (noting that the court should search for evidence of a misidentification, inconsistent statements, the witness's inability to identify the defendant, and evidence of bias or motive).

⁵³ Id. at 236 & n.3.

⁵⁴ In Commonwealth v. Jones, 535 N.E.2d 221, 222 (Mass. 1989), the trial court noted the apparent inconsistency between the SJC's rulings in Commonwealth v. Collett, 439 N.E.2d 1223 (Mass. 1982) and Commonwealth v. Liebman, 446 N.E.2d 714 (Mass. 1983). According to Jones, the court in Collett concluded that a judge properly exercises his authority when he conducts an in camera inspection, while the Liebman court held that a judge should not review grand jury transcripts in camera to determine whether they benefited the defense's case. Jones, 535 N.E.2d at 222. Upon noting this apparent conflict, the trial judge in Jones granted both the prosecution and the defense direct access to the alleged victim's privileged records. Id. When the Commonwealth objected, the trial judge rescinded the order and sent the following question to the Appeals Court: Where the defendant has made a request for information (claiming it would be helpful to him) to be supplied from records otherwise confidential, should this be done by means of an in camera inspection by a justice of the Superior Court or should the inspection be left to the attorneys for the defendant and the Commonwealth? Id. The court called for an in camera inspection of the privileged records, distinguishing Collett and Liebman by noting that Liebman did not address a statutory privilege. Id. at 224.

⁵⁵ Two Juveniles, 491 N.E.2d at 237-38.

⁵⁶ See People v. District Court, 743 P.2d 432 (Colo. 1987) (en banc) (allowing in camera review of Department of Social Services records upon a particularized showing of need); People v. District Court, 719 P.2d 722 (Colo. 1986) (en banc) (upholding absolute privilege for psychotherapy records of sexual assault victim).

⁵⁷ People v. District Court, 743 P.2d at 435.

⁵⁸ Id. at 436.

⁵⁹ Id.

⁶⁰ People v. District Court, 719 P.2d at 726. The court emphasized that the defendant must make a particularized factual showing that the privileged records sought are necessary for the effective exercise of his right of confrontation before an in camera inspection would occur. Id. at 727.

⁶¹ Id. at 727 n.3. The court held that “[i]n all cases, a victim's post-assault psychotherapy records are privileged and, absent waiver, a defendant may not compel their discovery.” Id.

⁶² In re Pittsburgh Action Against Rape, 428 A.2d 126, 132 (Pa. 1981). In 1981, no state statute designated communications between sexual assault counselors and victims as privileged, and the court refused to recognize an absolute privilege under the common law. Id. at 127. The Pennsylvania legislature has subsequently enacted a statute providing for an unqualified, absolute privilege for sexual assault counselor records. See PA. STAT. ANN. tit. 42, § 5945.1 (1994).

⁶³ In re Pittsburgh Action Against Rape, 428 A.2d at 127 (refusing to find an absolute privilege for rape crisis center records).

⁶⁴ Id. at 127-28. The court emphasized that “[i]t is not for the trial court to review these statements with an eye toward the utility or permissibility of their ultimate use at trial.” Id. at 132.

⁶⁵ 502 A.2d 148 (Pa. 1985). The defendant was convicted of rape, involuntary sexual intercourse, incest, and the corruption of minors. Id. at 149.

⁶⁶ Id. CWS is a state agency that addresses the abuse and neglect of children. Id. The victim in the case was the defendant's 12-year-old daughter. Id.

⁶⁷ Id.at 153. The defendant appealed the trial court's denial of access to the Superior Court. Id.at 149. The Superior Court held that the Confrontation Clause mandated disclosure of the records to the defense, and it called for judicial in camera review. Id. at 150 (citing In re Pittsburgh Action Against Rape, 428 A.2d at 132). After an in camera inspection, the trial court was to provide the defense with only those parts of the record which contained the victim's verbatim statements regarding abuse. Id. The defense counsel would then be permitted to review the entire file to argue issues of relevance. Id. On appeal, both the defense and the Commonwealth challenged the appropriateness of the remedy. Id.

⁶⁸ Id. at 151-53.

⁶⁹ Id. at 151. Pennsylvania's Child Protective Services Law provides: “reports made pursuant to this act... shall be confidential and shall only be made available to” eleven enumerated categories of persons or institutions, none of which directly applied to the defendant. Id. at 151 n. 12, 155 (citing PA. STAT. ANN. tit. 11, § 2215(a) (Supp. 1995) (repealed and recodfied as PA. STAT . ANN . tit. 23, § 6339 in 1990)). The law states that “[i]t is the purpose of this act to encourage more complete reporting of suspected child abuse... and [to provide] rehabilitative services for children and parents involved “ Id. at 154 (citing PA. STAT . ANN. tit. 11, § 2202 (Supp. 1995) (repealed and recodfied as PA. STAT. ANN. tit. 23, § 6302 in 1990)).

⁷⁰ Id. at 153.

⁷¹ Id. The court noted that the defense may consider evidence relevant to the case when a neutral judge may not. Id.

⁷² Id.

⁷³ See infra part H.B.

⁷⁴ 480 U.S. 39 (1987) (5-4 decision).

⁷⁵ Id. at 42-43.

⁷⁶ W. at 58-61.

⁷⁷ Id. at 51-56. Four Justices—Powell, Rehnquist, White, and O'Connor—held that the issue of pretrial discovery was properly addressed under the Fourteenth Amendment. Id. at 51-53. Although Justice Blackmun concurred in the opinion as to the constitutionality of in camera inspections, he asserted that the Sixth Amendment's confrontation rights governed the analysis of pretrial discovery. Id. at 61-65.

⁷⁸ Id. at 51.

⁷⁹ Id.

⁸⁰ Id. at 52. The Court rejected the Alaska Supreme Court's analysis in Davis v. Alaska, 415 U.S. 308, 319 (1974). Davis rejected a restriction on defense counsel's ability to cross-examine a witness about his juvenile record. 415 U.S. at 316. The Court held that the restriction violated the Confrontation Clause, despite the state's legitimate interest in keeping the contents of juvenile files confidential. Id. at 318-20. The Court emphasized that Davis does not hold, however, that a statutory privilege must yield if the defendant asserts a pretrial need for privileged information to impeach a witness. Ritchie, 480 U.S. at 52. “If we were to accept [such a] broad interpretation of Davis, the effect would be to transform the Confrontation Clause into a constitutionally compelled right of pretrial discovery. Nothing in the case law supports such a view.” Id.

⁸¹ Id. at 52-53. “In short, the Confrontation Clause only guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish.” Id. at 53 (citing Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)).

⁸² Id. at 55-56.

⁸³ Id. at 55.

⁸⁴ Id. at 56.

⁸⁵ Id. at 57.

⁸⁶ Id. (citing Brady v. Maryland, 373 U.S. 83 (1963)).

⁸⁷ Id. at 59.

⁸⁸ Id. at 60.

⁸⁹ Id. at 61.

⁹⁰ State ex rel. Romley v. Superior Court, 836 P.2d 445, 449-51 (Ariz. 1992); State v. Kelly, 545 A.2d 1048, 1054-56 (Conn. 1988); People v. Foggy, 521 N.E.2d 86, 89-91 (111. 1988); State v. Perry, 552 A.2d 545, 547 (Me. 1989); State v. Gagne, 612 A.2d 899, 901 (N.H. 1992); State v. Cusick, 530 A.2d 806, 811-12 (N.J. Super. Ct. App. Div. 1987); State v. Percy, 548 A.2d 408, 413-15 (Vt. 1988); Gale v. State, 792 P.2d 570, 581 (Wyo. 1990).

⁹¹ See Commonwealth v. Figueroa, 595 N.E.2d 779, 785 (Mass. 1992); Commonwealth v. Stockhammer, 570 N.E.2d 992, 1001-02 (Mass. 1991); Commonwealth v. Lloyd, 567 A.2d 1357, 1359 (Pa. 1989); but see State v. Ramos, 858 P.2d 94, 97 (N.M. 1993) (holding that state constitution did not support providing the defense with direct access).

⁹² See Lloyd, 567 A.2d at 1359; Stockhammer, 570 N.E.2d at 1001-02.

⁹³ 576 A.2d at 1357.

⁹⁴ Id. at 1359.

⁹⁵ The controlling constitutional provision provides in pertinent part: “In all criminal prosecutions the accused has the right to . . . meet witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, ... [he cannot] be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land.” PA . CONST , art. I, § 9.

⁹⁶ Lloyd, 567 A.2d at 1358. The defendant served as a supervisor of a government funded program, “Play Street.” Id. at 1357. The defendant assaulted and committed various sexual acts upon a six-year-old in the program. Id. The victim received post-rape psychotherapy from a psychiatrist. No existing statutory privilege specifically protected psychiatrist's records. Id. at 1359. The defense sought access to these records to prove that the child was delusional and/or hallucinatory. Id. at 1357. The trial judge conducted an in camera inspection of the psychiatrist's therapy records and refused to disclose them to the defense, holding that the defendant's allegations found no support in the records. Id. at 1358.

⁹⁷ Id. at 1359.

⁹⁸ Id. The extent of the court's constitutional analysis turned upon a discussion of Commonwealth v. Smith, 208 A.2d 219 (1965). Id. Smith relied upon the federal constitution to conclude that the defense had the right to inspect confidential FBI records, but also cited the Pennsylvania Constitution. Id. (citing Smith, 208 A.2d at 223 n.1a).

⁹⁹ Id. In a lengthy dissent, Justice Larsen criticized the court's refusal to protect a psychiatrist's records. Id. at 1365. He relied upon existing statutory privileges and the federal right to privacy as sources of protection for the victim's records. Id. at 1364-68 (citing psychologist-patient, psychotherapist-patient, physician-patient, and sexual assault counselor-patient privileges).

¹⁰⁰ Id. at 1359. Subsequent to this opinion, the Pennsylvania Legislature recognized an absolute psychiatrist-patient privilege. PA . STAT . ANN. tit. 42 § 5944 (1990) (amended Dec. 22, 1989).

¹⁰¹ See Commonwealth v. Kennedy, 604 A.2d 1036, 1044-45 (Pa. Super. 1992) (en banc); Commonwealth v. Wilson, 602 A.2d 1290, 1297-98 (Pa. 1992).

¹⁰² See Commonwealth v. Eck, 605 A.2d 1248, 1253 (Pa. Super. 1992); Kennedy, 604 A.2d at 1044-45; Wilson, 602 A.2d at 1297-98.

¹⁰³ See Wilson, 602 A.2d at 1297-98.

¹⁰⁴ Id.

¹⁰⁵ See, e.g.. Commonwealth v. Reed, 644 A.2d 1223, 1226 (Pa. Super. 1994) (providing for in camera review of state agency's qualified child abuse records).

¹⁰⁶ See, e.g., Kennedy, 604 A.2d at 1044-46; Wilson, 602 A.2d at 1296-98.

¹⁰⁷ 570 N.E.2d 992 (Mass. 1991).

¹⁰⁸ Id. at 1000-02. The defendant, in April 1987, allegedly raped the victim in her college dorm room. Id. at 994-95. The victim immediately told one friend about the assault but no one else. Id. at 995. In January 1989, the victim attempted suicide by an overdose. Id. at 996. While she was in the hospital, her father learned of the rape from an anonymous phone call. Id. He confronted her and she subsequently reported the rape to the police. Id. She later saw a social worker as follow-up therapy and sought counseling in New York from a psychotherapist. Id.

¹⁰⁹ Specifically at issue were the victim's post-rape communications with a psychotherapist and a social worker. Id. at 1001 & n.6. See MASS. GEN. L. ch. 233, § 20B (1986) (psychotherapist/patient); MASS. GEN. L. ch. 112 § 135 (1986) (social worker/client).

¹¹⁰ Stockhammer, 570 N.E.2d at 1002. It is interesting to note that trial courts have ruled that Stockhammer's direct-access approach only applies in sexual assault cases. See Commonwealth v. McMahon, MASS . LAW . WKLY. , Sept. 27, 1993, at 81-82 (No. 93-JC-338). In McMahon, a Massachusetts Superior Court judge denied a defendant's request to review his girlfriend's psychiatric records when he faced charges for assault and battery. Id. The court noted that:

Id.

¹¹¹ Stockhammer, 570 N.E.2d at 1002-03.

¹¹² Id.

¹¹³ Id. at 1001-02.

¹¹⁴ Id. at 1002. In Stockhammer, the defendant cited his rights under the Massachusetts Declaration of Rights to confrontation, compulsory process, and a fair trial as the basis of his appeal. Id. Article Twelve states in pertinent part that a defendant “shall have a right to produce all proofs, that may be favorable to him; [and] to meet the witnesses against him face to face “ MASS . CONST. Pt. 1, art. XII.

¹¹⁵ Stockhammer, 570 N.E.2d at 1001-02. In Commonwealth v. Clancy, 524 N.E.2d 395, 399 (Mass. 1988), the SJC held that Ritchie controlled its analysis because the “defendant relie[d] exclusively on the United States Constitution, “ and noted that “we are not suggesting that the result would be the same under State law.” Since the defendant in Stockhammer did raise the issue under a State law analysis, the SJC focused upon the scope of the Article Twelve. Stockhammer, 570 N.E.2d at 1001. In comparing the Sixth Amendment's federal protections to Article Twelve's state protections, both Stockhammer fails to discuss Ritchie's rejection of a Sixth Amendment analysis in favor of a due process analysis under the Fourteenth Amendment. Id.

¹¹⁶ See Stockhammer, 570 N.E.2d at 1001. The SJC emphasized that: The Federal standard of requiring only an in camera review by the trial judge of privileged records requested by the defendant rests on the assumption that trial judges can temporarily and effectively assume the role of advocate when examining such records; and that the interests of the State and the complainant in the confidentiality of the records cannot adequately be protected any other way. Neither assumption withstands close scrutiny. Id.

¹¹⁷ Id. See also Commonwealth v. Jones, 535 N.E.2d 221, 224-25 (Mass. 1989) (Lynch, J., dissenting) (finding that judge was “assuming vicariously and uncomfortably the role of counsel”); Clancy, 524 N.E.2d at 398. Clancy held that “[t]he danger lurking in the practice of such an exclusive in camera review of the file by the trial judge is a confusion between the roles of trial judge and defense counsel. The judge is not necessarily in the best position to know what is necessary to the defense.” Id.

¹¹⁸ Stockhammer, 570 N.E.2d at 1002.

¹¹⁹ Id.

¹²⁰ Id. Stockhammer held that direct inspections of a victim's privileged records by the Commonwealth's prosecutor, defense counsel, and a judge “need not be any more intrusive or harmful than those attending in camera review of records by the judge alone.” Id.

¹²¹ 595 N.E.2d 779 (Mass. 1992).

¹²² A jury convicted the defendant of rape and indecent assault and battery on a mentally retarded person. Id. at 781. The defendant operated a private van that transported mentally retarded students to and from home, school, and work. Id. He assaulted a female passenger when she rode in the van on several occasions. Id.

¹²³ See MASS . GEN. L. ch. 112, § 135B (defining social worker privilege). Prior to trial the defense had moved to require the Department of Social Services (DSS) to provide the defendant with all reports and records concerning the victim, her family, and any reports of child abuse. Figueroa, 595 N.E.2d at 784. The trial judge denied the motion “without prejudice, “ allowing the defense to renew its motion at trial on a proper showing of need. Id. The defense also moved for the production of Department of Mental Retardation (DMR) records. Id. The trial judge reviewed DMR records from 1985-1988 in camera, ultimately ruling that they were privileged and not discoverable. Id.

¹²⁴ Figueroa, 595 N.E.2d at 784.

¹²⁵ Id.

¹²⁶ Id. at 785.

¹²⁷ Id.

¹²⁸ Id. The court stated that "Stockhammer represents a departure from the earlier [in camera] rule set forth in Commonwealth v. Two Juveniles [491 N.E.2d 234 (Mass. 1986)].” Id.

¹²⁹ See Commonwealth v. Jones, 615 N.E.2d 207, 208 (Mass. App. Ct. 1993). In 1993, the Massachusetts Appeals Court commented that neither Stockhammer nor Figueroa should stand for the proposition that, “in any trial for rape or sexual assault, the defendant [may] have access to all medical and counseling records of the complainant from the time of birth.” Id. It went on to criticize lower courts which failed to require the defense to make some showing of need and relevance when seeking access to privileged records. See id.

¹³⁰ See Stockhammer, 570 N.E.2d at 1001.

¹³¹ See, e.g., Two Juveniles, 491 N.E.2d at 236-37.

¹³² See, e.g., Commonwealth v. Sugrue, 607 N.E.2d 1045, 1047-48 (Mass. App. Ct. 1993) (holding that, under Stockhammer, defense counsel may pierce absolute marital discourse privilege); Commonwealth v. Fitzgerald, 590 N.E.2d 1151, 1156 (Mass. App. Ct. 1992) (direct access to pre-rape mental health records); Commonwealth v. Gauthier, 586 N.E.2d 34, 37-38 (Mass. App. Ct. 1992) (direct access to borderline mentally retarded boy's mental health records); Commonwealth v. Arthur, 575 N.E.2d 1147, 1150 (Mass. App. Ct. 1991) (direct access to DSS records of child-rape investigation); Commonwealth v. Hyrcenko, 578 N.E.2d. 809, 814-15 (Mass. App. Ct. 1991) (direct review of three years of pre-rape Department of Mental Health records, as well as pre-rape records pertaining to the victim's participation in a detoxification program); Commonwealth v. Simcock, 575 N.E.2d 1137, 1146 (Mass. App. Ct. 1991)(the defense allowed to examine over 1, 400 pages of pre-rape medical and psychiatric records from a car accident three years prior, as well as post-rape psychiatric therapy notes).

¹³³ Sexual assault counselors at the Beth Israel Hospital's Rape Crisis Intervention Center (RCIP) reported that Stockhammer negatively effected the counseling process. See Appellate Brief of the Attorney General, The District Attorneys and the Department of Mental Health as Amici Curiae at n.6, Commonwealth v. Rape Crisis Program of Worcester, Inc., 617 N.E.2d 637 (Mass. 1993) (No. SJC-06195) [hereinafter Attorney General, Amicus Brief, Rape Crisis Program of Worcester, Inc.] (quoting the Director of RCIP's speech at the Educational Conference of Superior Court Justices, Braintree, Massachusetts, May 8, 1992). RCIP counselors noted that, when told of Stockhammer 's implications upon confidentiality, 30% of the victims raised concerns about counseling and avoided full disclosure of their emotional and personal history, and 10% refused counseling outright. Id. Moreover, RCIP counselors observed a 20% drop in clients reporting to the police. Id. See infra note 301.

¹³⁴ See id. “Successful recovery requires that counseling be provided in a setting where confidential communications can occur without fear of disclosure.” Mary Ann Largen, Confidentiality In the Sexual Assault Victim/Counselor Relationship, in RAPE AND SEXUAL ASSAULT III, 212, 212-214 (Ann Wolbert Burgess ed., 1991).

¹³⁵ See supra note 133. In direct response to Stockhammer and Figueroa, over 40 Massachusetts legislators co-sponsored a bill designed to expand confidentiality protections, to require protective orders, and to require notification of victims when records are released. Bill Guards Rape Victim's Privacy, MASS . LAW . WKLY. , Feb. 22, 1993, at 2. In March 1994, after Bishop, the Judiciary Committee of the Massachusetts legislature approved a new bill designed to protect victims of rape or domestic violence from having their privileged records released to defendants. See Karen Levine, Judiciary Committee OKs Two Bills, MASS . LAW . WKLY. , Mar. 14, 1994, at21. The bill requires a strict showing of relevance before the defense can have access; it provides all licensed professionals who counsel rape victims an absolute privilege; and requires strict protective orders for access. Id.

¹³⁶ See Kevin Cullen, Victim Advocates Rap State, BOSTON GLOBE , Feb. 12, 1993, at 24.

¹³⁷ See Commonwealth v. Rape Crisis Servs. of Greater Lowell, Inc., 617 N.E.2d 635, 636 (Mass. 1993); Commonwealth v. Rape Crisis Program of Worcester, Inc., 617 N.E.2d 637, 638 (Mass. 1993) (rescript opinion). See Roy S. Gutterman, Rape Crisis Center Found In Contempt for Shielding Records, BOSTON GLOBE , July 21, 1992, at 20 (quoting Wendy Murphy, counsel for defendant Lowell clinic, who described the Lowell case as possibly the first test of Stockhammer). The SJC heard the appeals of these two anti-Stockhammer “test” cases on August 16, 1993, the same day it decided Commonwealth v. Bishop. See discussion of Bishop infra part III. The SJC dismissed the Lowell case, holding that the defendant's guilty plea rendered the issue of access moot. Rape Crisis Servs. of Greater Lowell, Inc., 617 N.E.2d at 636-37. The SJC remanded the Worcester case to determine whether the victim received counseling at the rape clinic, whether records were produced, and what statutory privileged applied; the court cited Bishop, requiring application of the new five-stage test. Rape Crisis Program of Worcester, Inc., 617 N.E.2d at 1001-02.

¹³⁸ Stockhammer, 570 N.E.2d at 1001-02.

¹³⁹ 617 N.E.2d 990, 996 (Mass. 1993).

¹⁴⁰ Id. at 997-98.

¹⁴¹ Id.

¹⁴² Id.

¹⁴³ Id. at 995-97.

¹⁴⁴ In compliance with the Massachusetts rape shield statute, the court used the aliases “Brian” and “Steven” to protect the identities of the victims and their family. MASS . GEN. L. ch. 265, § 24C (1986).

¹⁴⁵ Bishop, 617 N.E.2d at 992-93. The victims belonged to a Boy Scout troop comprised of mentally retarded, physically disabled and emotionally disturbed children. The record does not indicate whether either boy suffered from any of these infirmities. Id. at 991. The alleged acts of sexual abuse included, but were not limited to, rape, fellatio, exposure to pornography, and fondling. Id. at 992-93. The abuse of Brian first occurred in October 1987, when the victim was 14, and continued until January 1989, two months after his sixteenth birthday. Id. Similar abuse of 14-year-old Stephen occurred from August 1988 to October 1988. Id. See also Appellate Brief for Commonwealth at 6, Commonwealth v. Bishop, 617 N.E.2d 990 (Mass. 1993) (No. SJC-06078) [hereinafter Commonwealth's Brief].

¹⁴⁶ Bishop, 617 N.E.2d at 993. In May 1990, a grand jury returned four indictments, charging Bishop with having unlawful or unnatural sexual intercourse and abuse of two children under the age sixteen. The grand jury had previously returned six indictments on November 29, 1989, all alleging rape of the two boys. Commonwealth's Brief, supra note 145, atn.2. The prosecution dismissed the first set of indictments by nolle prosequi on May 15, 1990 and the defendant was reindicted in order to cure the possible problem of duplication of the charges. Id. On July 20, 1990, the jury found the defendant guilty on three indictments, two of which charged rape of the older brother and one which charged rape of the younger brother. The jury returned a not guilty verdict on one indictment, alleging rape of the younger brother. Id. at 3-4. Bishop was sentenced to nine years in prison. Id. at 4.

¹⁴⁷ Bishop, 617 N.E.2d at 993.

¹⁴⁸ Id.

¹⁴⁹ Id. The SJC held that, although the motion judge did not expressly rule on the issue, Dr. Orbona's records are privileged under MASS . GEN. L. ch. 233, § 20B (1992) (qualified psychotherapist/patient privilege). Id. at 993 n.2.

¹⁵⁰ Id.

¹⁵¹ Id. at 993-94.

¹⁵² Id. at 994.

¹⁵³ Id.

¹⁵⁴ Id. The SJC noted that the prosecution failed to proffer a basis for its argument that a statutory privilege protected the medical records from disclosure. Id. at n.4. Apparently, the qualified hospital records privilege applied. See MASS . GEN. L. ch. 233, § 79 (1986).

¹⁵⁵ Bishop, 617 N.E.2d at 994.

¹⁵⁶ Id. at 993. The SJC offered no explanation for its decision to directly transfer the case. It might be inferred that the confusion and controversy surrounding the SJC's 1991 Stockhammer decision prompted the transfer. See discussion of Stockahmmer supra part II.C.2.

¹⁵⁷ Bishop, 617 N.E.2d at 993-95.

¹⁵⁸ Id. at 995.

¹⁵⁹ Id. at 996-98.

¹⁶⁰ Id. at 997-98.

¹⁶¹ Id.

¹⁶² Id. at 997. The statutory language establishing qualified privileges anticipates that courts can pierce the privilege in certain circumstances. See, e.g., MASS. GEN. L. ch. 112, § 134 (1986) (forbidding disclosure of social worker records, but citing six exceptions). One exception provides for disclosure in child custody proceedings when the judge determines that disclosure is in a child's best interests. Id. § 134(d). In contract, statutes establishing an absolute privilege expressly state that courts may not pierce the privilege; only a waiver by the holder of the privilege would result in access by the courts and its agents. See, e.g., MASS . GEN. L. ch. 233, § 20J (prohibiting discovery of sexual assault counselor records in all civil and criminal trials absent victim's consent).

¹⁶³ Most jurisdictions, including Massachusetts, do not provide for depositions in criminal cases. See Goldsmith v. State, 651 A.2d 866 n.4 (Md. 1995); but see. State v. Percy, 548 A.2d 408, 415 (Vt. 1988) (requiring defendant to narrow his justification by means of depositions and subpoenas before court will grant access). Bishop does not address how defense counsel may learn of the existence of privileged therapy notes so it may then issue a subpoena duces tecum, the event which gives rise to Bishop's five-stage test. See Defendant's Petition for Relief, Commonwealth v. Nelson, No. 94-SJ-0201 (Mass. 1994). The defense in Nelson sought to compel the prosecution to disclose whether the complaining witness/ victim had ever been “treated or counseled for psychiatric, psychological, or substance abuse problems.” Id. at 1. If the complainant had received such treatment, the defense sought access to the names and addresses of all treating professionals/institutions and the dates of treatment. Id. When the prosecution refused to disclose these details, the defense asserted that basic information about doctors' names and dates of treatment was not privileged information, and was necessary to uncover privileged documents. Id. at 2-4. The trial judge denied the motion, noting that “there is no showing that the complaining witness's capacity to recollect or relate is impaired.” Id. at 2.

¹⁶⁴ Bishop does not distinguish between privileged records held by a state actor and those held by private third parties; both types of privileged records are potentially subject to an in camera inspection. See Kirby v. State, 581 So. 2d 1136, 1142 (Ala. 1990) (in camera inspection for those records which prosecutor aware of, not just possessed); State v. Kelly, 454 A.2d 1048, 1056 (Conn. 1988) (Ritchie applies even if state not in possession of records); State v. Cressy, 629 A.2d 696, 703 (N.H. 1993) (no difference between records in control of state and those held by a private party—"a distinction without a difference”); Zaal v. State, 602 A.2d 1247, 1259 (Md. 1992) (no distinction between records in prosecutor's possession and files in the possession of a state agency). Other states emphasize that, if the prosecutor does not possess private records and has no intention of using them at trial, in camera inspections are unwarranted. See State ex rel. Romley v. Superior Court, 836 P.2d 445, 452 (Ariz. App. 1992) (if prosecution has not seen records the Arizona Victim's Bill of Rights allows victim to refuse defense's discovery request); Nelson v. United States, 649 A.2d 301, 307-08 (D.C. App. 1994) (government not obligated to obtain records from private sources which it does not intend to use at trial); People v. Stanaway, 521 N.W.2d 557, 569 (Mich. 1994) (in camera review inappropriate where records not part of prosecutor's or government agency's file); State v. Little, 861 P.2d 154, 158-59 (Mont. 1994) (no access to private counseling records if the prosecutor does not use them).

¹⁶⁵ Connecticut, Michigan, and Nebraska require the privilege holder to waive the privilege and allow in camera review once the defense asserts a valid need for access; failure to waive the privilege precludes the victim/witness from testifying at trial. See State v. D'Ambrosia, 561 A.2d 422, 426 (Conn. 1989); State v. Whitaker, 520 A.2d 1018, 1025 (Conn. 1987); Stanaway, 521 N.W.2d at 577; State v. Trammell, 435 N.W.2d 197, 201 (Neb. 1989).

¹⁶⁶ Bishop, 617 N.E.2d at 997.

¹⁶⁷ Id. at 998.

¹⁶⁸ Id.

¹⁶⁹ In Reynolds v. State, the Maryland Supreme Court noted the distinction between granting the defense access to records and allowing the defense to introduce them at trial: “Although the trial judge cannot restrict the defendant's right to discover evidence that might influence the verdict, the defendant does not have the right to introduce each and every detail discovered in the [] records of a State's witness.” 633 A.2d at 465 (emphasis added) (citing Smart v. State, 472 A.2d 501 (1984)). Stanaway emphasized that trial judges should exclude particular details that only serve to humiliate or create a danger of unfair prejudice. 521 N.W.2d at 577.

¹⁷⁰ Id.

¹⁷¹ In Commonwealth v. Baxter, the court of appeals held that the rape-shield statute did not require the exclusion of psychiatric records referring to a prior rape. 627 N.E.2d 487, 491 (Mass. App. Ct. 1994); see also MASS . GEN. L. ch. 233, § 21B (1986) (rape-shield statute). The court noted that “[t]he rape shield statute is principally designed to prevent defense counsel from eliciting evidence of the victim's promiscuity as part of a general credibility attack.” Baxter, 627 N.E.2d at 491 (citing Commonwealth v. Fitzgerald, 590 N.E.2d 1151 (Mass. 1992)). The appeals court held that the defense's use of psychiatric records to establish that the teenager's prior rape resulted in hallucinations and flashbacks, did not violate the spirit of the rape-shield statute. Id.

¹⁷² Bishop, 617 N.E.2d at 998.

¹⁷³ Id. at 997-99.

¹⁷⁴ Id.

¹⁷⁵ Id. at 999.

¹⁷⁶ Id.

¹⁷⁷ Id. at 997-98.

¹⁷⁸ See, e.g., Commonwealth v. Baez-Rivera, No. 94-CR-0976 (Mass. Super. Ct. Oct. 17, 1994). If the court elected to disclose sections of privileged DSS records to the defense and prosecution, it stated that it would impose restrictions as recommended under Bishop. The SJC added an appendix to Bishop which provided a model protection order. 617N.E.2d at 1001-02. The model order provides that defense counsel:

1. (1)

   (1) may only have access to privileged records in their capacity as officers of the court, and they must obtain the court's permission to disclose or disseminate records to anyone, including the defendant;

2. (2)

   (2) must view the records at the courthouse during business hours, and apply for court permission to photocopy records;

3. (3)

   (3) must apply for court permission to enter any portion of the records into evidence at trial; and

4. (4)

   (4) must return all photocopies and originals to the court at the conclusion of trial.

Id.

¹⁷⁹ See Bishop, 617 N.E.2d at 997-98.

¹⁸⁰ See infra part IV.A.

¹⁸¹ See infra part IV.B.

¹⁸² See infra part IV.D.

¹⁸³ Commonwealth v. Two Juveniles, 491 N.E.2d 234, 238 (Mass. 1986).

¹⁸⁴ Pennsylvania v. Ritchie, 480 U.S. 39 (1987).

¹⁸⁵ Id. at 59-61.

¹⁸⁶ Stockhammer, 570 N.E.2d at 1001-02 (citing Commonwealth v. Clancy, 524 N.E.2d 395, 398- 99 (Mass. 1988)). See supra notes 5 & 114 for texts of Article Six and Article Twelve. If state courts provide adequate and independent grounds for granting enhanced state rights, state courts may interpret state constitutional provisions as providing greater protections than the Federal Constitution, even when both are identically phrased. See Felice B. Rosan, Comment, State Constitutional Law - Pennsylvania Extends Defendants' Rights to Confrontation and Compulsory Process Beyond the Sixth Amendment - Commonwealth v. Lloyd, 63 TEMPLE L. REV. 465, 465-66 (1990).

¹⁸⁷ See Commonwealth v. Bishop, 617 N.E.2d 990, 994 (Mass. 1993);Stockhammer, 570 N.E.2d at 1001-02; Two Juveniles, 491 N.E.2d at 236 n.3.

¹⁸⁸ Stockhammer, 570 N.E.2d at 1001-02.

¹⁸⁹ Attorney General, Amicus Brief, Rape Crisis Program of Worcester, Inc., supra note 133 at 22-24. The defendant's right to confront witnesses is not absolute, and subject to limitations. See Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (holding that the right to cross-examination is not absolute).

¹⁹⁰ See Attorney General, Amicus Brief, Rape Crisis Program of Worcester, Inc., supra note 133 at 22-24 & n.14 (citing Commonwealth v. Bergstrom, 524 N.E.2d 366 (Mass. 1988)). Bergstrom provided defendants with broader confrontation rights under Article Twelve by granting a defendant the right to sit in the same room when a child/victim videotapes his testimony. Bergstrom, 524 N.E.2d at 373-74, 376. At the same time, Bergstrom's ruling that children may testify outside the hearing of the jury indicates that some circumstances warrant limiting a defendant's confrontation rights. Id.

¹⁹¹ Bishop, 617 N.E.2d at 996.

¹⁹² Id. (noting that Stockhammer rejected Two Juveniles model of judicial in camera review).

¹⁹³ Id. at 997.

¹⁹⁴ Id.

¹⁹⁵ Id. at 996.

¹⁹⁶ Id. at 997-98. Stage-Two instructs the trial judge to “review the records in camera, out of the presence of all other persons, to determine whether the communications, or any portion thereof, are relevant.” Id.

¹⁹⁷ See Stockhammer, 570 N.E.2d at 1001 (holding that counsel for the defense is entitled to review the records in their entirety).

¹⁹⁸ Bishop clearly states that “to allow full disclosure on a showing that the records are likely to be relevant to an issue in controversy would, however, cut against the purposes underlying the subject statutory privilege without so much as a confirmed need to do so.” Bishop, 617 N.E.2d at 997. This proposition cannot be reconciled with Stockhammer's assertion that “under art. 12 of the Massachusetts Declaration of Rights, counsel for the defense is entitled to review the records of the complainant's treatment....” Stockhammer, 570 N.E.2d at 1002.

¹⁹⁹ Bishop, 617 N.E.2d at 994-95.

²⁰⁰ Id. at 996, 997.

²⁰¹ Id. at 994-95.

²⁰² Id.

²⁰³ Id.

²⁰⁴ See Attorney General, Amicus Brief, Rape Crisis Program of Worcester, Inc., supra note 133 at n. 11.

²⁰⁵ Bishop, 617 N.E.2d at 997. See also State v. Kalakosky, 852 P.2d 1064, 1077 (Wash. 1993) (requiring defense to file a motion and affidavit in support of request for in camera review).

²⁰⁶ Bishop, 617 N.E.2d at 997.

²⁰⁷ Id.

²⁰⁸ Id. at 995. The defendant “must advance, in good faith, at least some factual basis which indicates how the privileged records are likely to be relevant to an issue in the case and ‘that the quest for its contents is not merely a desperate grasping at a straw.’” Id. at 996-97 (citing People v. Gissendanner, 399 N.E.2d 924 (N.Y. 1979)).

²⁰⁹ Bishop, 617 N.E.2d at 996 & n.6. “There is of course a danger in requiring a defendant to make too substantial a showing to justify piercing a privilege.” Id. at 996 n.6. Requiring a defendant to cite specific details in a record would prevent material, and even exculpatory, evidence from coming to light. Id.

²¹⁰ Id. at 995-96. See Commonwealth v. Jones, 615 N.E.2d 207, 207-08 (Mass. App. 1993). The Massachusetts Court of Appeals ruled that the trial court correctly refused to turn over an alleged victim's medical records when the defense generally asked for all records of any psychiatric counseling. Id. The court noted that the defense's description of the medical records failed to indicate whether the records had any bearing on the complainant's ability to accurately perceive, remember, or testify. Id.

²¹¹ See, e.g.. Commonwealth v. Eccleston, MASS. LAW. WKLY. , Feb. 8, 1993, at 21 (No. 9204-CR-1139). In adherence of Stockhammer, the court granted the defense access to “any medical and hospital records of the victim” for purposes of a probable cause hearing. The court stated that the prosecution must challenge the discovery order as too broad if it deems records too old, immaterial, or protected by the absolute Rape Crisis Counselor privilege under MASS . GEN. L. ch. 233, § 20J. Id.

²¹² Bishop, 617 N.E.2d at 997.

²¹³ See infra part IV.D.

²¹⁴ See People v. Foggy, 521 N.E.2d 86, 92 (111. 1988) (courts must consider alternative sources for acquiring information); Commonwealth v. Two Juveniles, 491 N.E.2d 234, 238-39 (Mass. 1986) (claim that records only source of information does not, in and of itself, provide a threshold showing of need).

²¹⁵ See, e.g., State ex rel. Romley v. Superior Court, 836 P.2d 445, 448 (Ariz. App. 1992) (allowing defendant access to husband's psychotherapy records to establish that husband/victim had multiple personalities). See supra note 210.

²¹⁶ See Commonwealth v. Simcock, 575 N.E.2d 1137, 1146 (Mass. App. Ct. 1991) (admitting pre-rape records from a detoxification program).

²¹⁷ See Bella English, Beware of the Law, Rape Victims, BOSTON GLOBE , Feb. 8, 1993, at 13; see also Commonwealth v. Hyrcenko, 578 N.E.2d 809, 814-15 (Mass. App. Ct. 1991) (defense had access to victim's pre-rape detoxification program and treatment records for depression).

²¹⁸ Bishop, 617 N.E.2d at 996-98.

²¹⁹ See, e.g., Jordan v. State, 607 So. 2d 333, 335 (Ala. Crim. App. 1992) (defendant stated no grounds as to why records needed); Gunter v. State, 857 A.2d 156, 160 (Ark. 1993) (no showing that victim's medical and psychological records relevant to issue of rape); People v. District Court, 743 P.2d 432, 436 (Colo. 1987) (en banc) (defense must establish that records “may be necessary for a determination of an issue”); People v. District Court, 719 P.2d 722, 727 (Colo. 1986) (en banc) (requiring a “particularized factual showing” that records necessary); State v. D'Ambrosia, 561 A.2d 422, 426-27 (Conn. 1989) (no showing that nondisclosure impaired right to impeach); People v. Foggy, 521 N.E.2d 86, 91-92 (111. 1988) (general request insufficient); Goldsmith v. State, 651 A.2d 866, 877 (Md. 1995) (defense must establish reasonable likelihood that records contain exculpatory information for proper defense); Zaal v. State, 602 A.2d 1247, 1261 (Md. 1992) (defendant bears burden of establishing need for pretrial disclosure); Reynolds v. State, 633 A.2d 455, 464-65 (Md. App. 1993) (must show substantial possibility that disclosure would affect verdict); People v. Stanaway, 521 N.W.2d 557, 562 (Mich. 1994) (rejecting defendant's general proffer); State v. Cressy, 628 A.2d 696, 703 (N.H. 1993) (requiring reasonable probability that records relevant and material to defense); State v. Kalakosky, 852 P.2d 1064, 1077 (Wash. 1993) (simple assertion that records may contain evidence that may exculpate the accused is an insufficient threshold showing); State v. Knutson, 854 P.2d 617, 621 (Wash. 1993) (en banc) (insufficient to assert mere possibility that evidence might affect outcome); State v. Percy, 548 A.2d 408, 415 (Vt. 1988) (request for “relevant” records too vague, applies to every victim who seeks counseling).

²²⁰ See Pennsylvania v. Ritchie, 480 U.S. 39, 39 n.15 (1987). Ritchie noted that the appropriate degree of persuasion is identical to the burden defendants bear when seeking a new trial on the basis of new evidence. Id. at 58. According to Ritchie, the defendant must establish a substantial likelihood that the privileged communications contain information which would affect a determination of guilt or innocence. Id.

²²¹ See United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (requiring a plausible showing of need); United States v. Agurs, 427 U.S. 97, 109-10 (1976) (holding that “materiality” requires more than showing that records might be helpful); United States v. Nixon, 418 U.S. 683 (1974) (requiring an articulated need for information protected by executive privilege).

²²² See United States v. Bagley, 473 U.S. 667, 682-83 (1985).

²²³ See, e.g., Commonwealth v. Figueroa, Nos. 93-CR-2669, 93-CR-2770 (Mass. Super. Ct. June 3, 1994). When referring to absolutely privileged sexual assault counselor records, the trial judge in Figueroa stated that: “While such a [Stage-Two] proffer may well not be necessary where, as here, the records that are sought are prepared specifically as a result of the offense, the defense nonetheless elected to submit one.”

²²⁴ Rape crisis counselors, fearing the effects of systematic disclosures of their records to the court have begun to take as few written notes as possible. See, e.g., People v. Stanaway, 521 N.W.2d 557, 566 (Mich. 1994) (rejecting defendant's general proffer). The Michigan legislature reported that “[c]risis intervention centers often make it a practice to keep minimal records in order to protect privacy as much as possible, but this practice makes resumption of counseling after a lapse of time or by another counselor much more difficult.” Id.

²²⁵ See Commonwealth v. Two Juveniles, 491 N.E.2d 234, 239 (Mass. 1986) (rejecting defense's claimed right to an automatic in camera inspection).

²²⁶ Id. (requiring defense to show a “legitimate need” for records). See supra note 219.

²²⁷ See Bishop, 617 N.E.2d at 994. As the SJC has previously noted: “The purpose of enacting a.. . privilege is to prevent the chilling effect which routine disclosures may have in preventing those in need of help from seeking that help.” Commonwealth v. Collett, 439 N.E.2d 1223, 1226 (Mass. 1989).

²²⁸ Two Juveniles, 491 N.E.2d at 239.

²²⁹ Bishop, 617 N.E.2d at 997 (requiring fact-based proffers and written theories on how records relate to an issue in the case). On remand, Bishop required defense counsel to “submit in writing the theory or theories under which [the boys' post-rape medical] records are likely to be relevant to an issue in the case.” Id. at 999. Simply because the records arose as a result of the incident, and contained references to it, did not automatically render them “relevant”; the SJC still required the defense to file a motion stating how the records related to an issue in the case. Id. at 998-99.

²³⁰ Id. at 995.

²³¹ Id. at 995 n.5 (emphasis added) (citing nine cases from nine other states which also require a threshold showing to justify access).

²³² Bishop, 617 N.E.2d at 997-98 (quoting People v. Gissendanner, 399 N.E.2d 924 (N.Y. 1979)).

²³³ See, e.g., Jordan v. State, 607 So. 2d 333, 335 (Ala. Crim. App. 1992) (no stated grounds as to why records needed); State v. D'Ambrosia, 561 A.2d 422, 426-27 (Conn. 1989) (defense failed to prove how nondisclosure impaired right to impeach); People v. Foggy, 521 N.E.2d 86, 92 (111. 1988) (general request insufficient); People v. Stanaway, 521 N.W.2d 557, 562 (Mich. 1994) (rejecting defendant's gen eral proffer); State v. Kalakosky, 852 P.2d 1064, 1077 (Wash. 1993) (rejecting claim that records may contain evidence that may exculpate the accused as insufficient); State v. Percy, 548 A.2d 408, 415 (Vt. 1988) (rejecting vague request for all “relevant” records).

²³⁴ See Kalakosky, 852 P.2d at 1077; State v. Knutsen, 854 P.2d 617, 621 (Wash. 1993).

²³⁵ See People v. District Court, 719 P.2d 722, 727 (Colo. 1986). The Illinois Supreme Court has noted that to abrogate a privilege based on a vague assertion that inconsistent statements might exist would require its abrogation in every case. Foggy, 521 N.E.2d at 92.

²³⁶ See Percy, 548 A.2d at 415 (request for “relevant” records too vague, applies to every victim who seeks counseling).

²³⁷ A Massachusetts trial court applying Bishop refused to grant the defense access to the teenage victim's mental records when the defense merely claimed that her credibility would be at issue during trial. Commonwealth v. Smith, MASS . LAW . WKLY. , Nov. 1, 1993, at 4(No. 93-CR-10448). The defense sought access to a 16-year-old victim's mental health records. The court held that the defense's stated reasons— that the case may hinge on the victim's credibility, that the victim had made it clear prior to the rape she didn't want the defendant to live in the home any longer, and the fact that she received post-rape treatment at Children's Hospital—amounted to little more than a desire to probe privileged records in the hope of unearthing information to impeach the witness. Id.

²³⁸ Commonwealth v. Two Juveniles, 491 N.E.2d 234, 239 (Mass. 1986) (citations omitted).

²³⁹ See Goldsmith v. State, 651 A.2d 866, 876 (Md. 1995); People v. Stanaway, 521 N.W.2d 557, 576 (Mich. 1994).

²⁴⁰ See Goldsmith, 651 A.2d at 876.

²⁴¹ Stanaway, 521 N.W.2d at 576.

²⁴² See Foggy, 521 N.E.2d at 92 (to abrogate a privilege based on a vague assertion that inconsistent statements might exist would require its abrogation in every case); Goldsmith, 651 A.2d at 876-77 (piercing records on the mere assertion that records may contain impeachment material would virtually destroy the psychotherapist-patient privilege); Two Juveniles, 491 N.E.2d at 239 (“such a broad right of discovery would substantially destroy the privilege”); Stanaway, 521 N.W.2d at 576 (the need to impeach “might exist in every case involving an accusation of criminal sexual misconduct”); Percy, 548 A.2d at 415 (vague request applies to every victim who seeks counseling); Kalakosky, 852 P.2d at 1077 (holding that records would always be subject to abuse).

²⁴³ See Foggy, 521 N.E.2d at 92 (concept that in every case the trial judge could become privy to confidential records in the absence of demonstrated need would seriously undermine the benefits of privilege and counseling); Bishop, 617 N.E.2d at 994 (if people are aware privilege is violated easily, then less likely to seek therapy); State v. J.G., 619 A.2d 232, 234 (N.J. Super. Ct. App. Div. 1993) (viewing “even such a limited disclosure as a substantial dilution of the statutory privilege”).

²⁴⁴ See Commonwealth v. Collett, 439 N.E.2d 1223, 1232 (Mass. 1982) (“Though the disclosure to the judge divulges the ... privileged information, it is a practical necessity.”); see also Zaal v. State, 602 A.2d 1247, 1261 (Md. 1992) (defense bears burden of establishing need for pretrial disclosure).

²⁴⁵ See Bishop, 617 N.E.2d at 997-98.

²⁴⁶ See, e.g., Commonwealth v. Pare, No. SJ-94-0453 (Mass. Sep. 23, 1994) (O'Connor, J); Commonwealth v. Schultz, No. SJ-94-008 (Mass. Jan. 13, 1994) (Greaney, J.); Commonwealth v. Williams, No. SJ-94-0016 (Mass. Jan. 27, 1994) (Greaney, J.).

²⁴⁷ In Commonwealth v. Williams, the Superior Court of Bristol County held that the defense may file an ex parte motion to prevent the prosecution from discovering the contents of its Stage-Two motion. Commonwealth v. Williams, 1 MASS. L. RPTR . NO. 19, 389 (Jan. 31, 1994). The trial court held that because only the defense files written motions under Stage-Two, and those motions refer to preliminary defense theories, such motions constitute privileged work-product. See id. On an interlocutory appeal to a single justice of the SJC, Justice Greaney affirmed. Commonwealth v. Williams, No. SJ-94-0016 (Mass. Jan. 27, 1994). In Commonwealth v. Schultz, the trial judge impounded the defense's Stage-Two Bishop motion and supporting affidavit, refusing to disclose them to the prosecution. Commonwealth v. Schultz, No. SJ-94-008 (Mass. Jan. 13, 1994). Upon reviewing the defense's Stage-Two motion and affidavit, however, the court held that the defense had failed to show “a likelihood that the [alleged victim's privileged] records contain relevant evidence to justify initial judicial review.” Id., slip op. at 1-2 (brackets in original). On an interlocutory appeal to a single justice of the SJC, Justice Greaney affirmed the submission of the motion ex parte, and held that the court's ruling on the motion should await consideration in the ordinary course, if the defendant is found guilty and appeals. Id. at 1-2.

²⁴⁸ In Commonwealth v. Pare, the trial judge refused to allow the defense to submit its Stage-Two motion ex parte. Commonwealth v. Pare, No. SJ-94-0453 (Mass. Sep. 23, 1994). On an interlocutory appeal to a single justice of the SJC, Justice O'Connor rejected the defense's claim that only an ex parte submission would protect confidential client communications and theories of defense which a defendant may keep secret from the prosecution. Id., slip op. at 1. O'Connor noted that “[i]t is unacceptable for one attorney to have access to the judge and to submit material to the judge without the other attorney having access to the same material.” Id.

²⁴⁹ See Justice Greaney's analysis supra note 247, and Justice O'Connor's analysis supra note 248.

²⁵⁰ See Reynolds v. State, 633 A.2d 455, 464 (Md. App. 1993). When the defense has subpoenaed privileged records, the trial judge conducts a hearing which the patient and the health care provider have a right to attend. See also People v. District Court, 743 P.2d 432, 436 (Colo. 1987) (allowing party opposing defense's request for access to rebut defense's proffer of need).

²⁵¹ See Commonwealth v. Williams, No. SJ-94-0016 (Mass. 1994) (holding that the judge acted within his discretion in allowing the submission of the motion ex parte).

²⁵² Id. at 997-98. See, e.g., State ex rel. Dugan v. Titkin, 837 P.2d 959, 964 (Or. 1992) (finding error when judge delegated responsibility of conducting an in camera review to prosecutor).

²⁵³ Bishop, 617 N.E.2d at 994. The court, referring to the Federal Rules of Evidence, defined “relevancy” as follows: “Relevant evidence refers to any evidence which has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Id. See FED. R. EVID. 401. See, e.g., State v. Black, 621 N.E.2d 484, 488 (Ohio App. 1993) (evidence of prior unsubstantiated allegations of abuse “clearly relevant”).

²⁵⁴ Bishop, 617 N.E.2d at 998. Maryland has defined the court's role as follows: Thus the court's review is not to determine whether, and, if so, what, is ‘directly admissible’; rather, it is to exclude from the parties' review material that could not, in anyone's imagination, properly be used in defense or lead to the discovery of usable evidence. Only when the records are not even arguably relevant and usable should the court deny the defendant total access to the records .... Reynolds, 633 A.2d at 463 (adopting a modified form of the Bishop test). In contrast, Wyoming's approach is more narrow: “The trial court conduct[s] [its] review [by] focusing on privileged materials at issue, on the defendant's ability to gather such evidence from other sources, and on how the privileged evidence may relate to the defendant's theory of the case.” Gale v. State, 792 P.2d 570, 581 (Wyo. 1990).

²⁵⁵ Bishop, 617 N.E.2d at 998.

²⁵⁶ Id. at 994.

²⁵⁷ See Commonwealth v. Two Juveniles, 491 N.E.2d 234, 240 n.7 (Mass. 1986).

²⁵⁸ Id.

²⁵⁹ See Stockhammer, 570 N.E.2d at 1000-01.

²⁶⁰ Id.

²⁶¹ Bishop, 617 N.E.2d at 997 (see Stage-One). See supra note 253 for the text of Rule 401 of the Federal Rules of Evidence.

²⁶² Bishop, 617 N.E.2d at 997.

²⁶³ Id. See also Ritchie, 490 U.S. at 59-60.

²⁶⁴ Bishop, 617 N.E.2d at 996-97.

²⁶⁵ See supra note 132 and cases discussed therein.

²⁶⁶ See, e.g., Commonwealth v. Simcock, 575 N.E.2d 1137, 1140(Mass. App. Ct. 1991). In Simcock, the first motion judge viewed the records in camera and refused to release therapy notes concerning the victim's head injuries arising from a car accident three years prior to the rape. A second motion judge also reviewed the records in camera, allowing the release of 1, 400 pages of therapy notes but denying access to a psychotherapist's notes. On appeal, the court noted that because the therapy notes were “potentially relevant, “ the defense was entitled to review them in their entirety and move for a new trial based upon what they discovered. Id.

²⁶⁷ For example, a Dukes County Superior Court judge applied Bishop, and noted that “[w]here rape defendants seek access to their alleged victim's hospital and psychiatric records, the defendants are entitled to access only to those records relevant to their defense.” Commonwealth v. Tripp, MASS . LAW . WKLY. , NOV. 15, 1993, at 4(No. 9332-CR-2331). The court examined the dates of the records, the natureof the privileges claimed, and the crimes alleged before granting access to several sets of mental health records, and denying access to irrelevant communications dealing with income data and marital counseling. Id.

²⁶⁸ Bishop, 617 N.E.2d at 998.

²⁶⁹ Bishop, 617 N.E.2d at 994-95. Specific sources of post-rape therapy privileges commonly at issue in rape trials include: MASS . GEN. L. ch. 233, § 20J (1986) (sexual assault counselor); MASS . GEN. L. ch. 233, § 20K (1986) (domestic violence counselor); MASS . GEN. L. ch. 112, § 135B (1986) (social worker); MASS . GEN. L. ch. 233, § 20B (1986) (psychotherapist).

²⁷⁰ Id. at 994. See People v. District Court, 719 P.2d 722, 726 (Colo. 1986) (psychologist-patient privilege aids in the effective diagnosis and treatment without fear of embarrassment).

²⁷¹ See Attorney General, Amicus Brief, Rape Crisis Program of Worcester, Inc., supra note 133 at n.7.

²⁷² See, e.g., Absolute privileges: MASS . GEN. L. ch. 233, § 20J (1986) (sexual assault counselor); MASS . GEN. L. ch. 233, § 20A (1986) (priest-penitent). See, e.g.. Qualified privileges: MASS . GEN. L. ch. 233, § 20K (1986) (domestic violence counselor); MASS . GEN. L. ch. 112, § 135A&B (1986) (social worker); MASS . GEN. L. ch. 233, § 20B (1986) (psychotherapist).

²⁷³ Id. See also supra notes 43, 132 and cases cited therein.

²⁷⁴ Bishop, 617 N.E.2d at 996.

²⁷⁵ See supra note 272 and statutes cited therein.

²⁷⁶ Bishop, 617 N.E.2d at 997-98.

²⁷⁷ Id.

²⁷⁸ Id. at 998.

²⁷⁹ Id. See also Ritchie, 480 U.S. at 58-62. The Supreme Court emphasized that a qualified privilege protected the Children Youth Services (CYS) records, distinguishing absolute statutory privileges. Id. at 57. The Court reasoned that:

Id.

²⁸⁰ See, e.g., Goldsmith v. State, 651 A.2d 866, 875 (Md. 1995) (holding that burden of proof may be higher when defense seeks to pierce absolute privileges as opposed to qualified privileges); State v. J.G., 619 A.2d 232, 234 (N.J. Super. Ct. App. Div. 1993) (absolutely immune records cannot be examined in camera, absent some compelling reason).

²⁸¹ The Young Women's Christian Association Abuse and Rape Crisis Hotline (YMCA-ARCH) of Springfield refused to deliver its rape counseling records to the court for an in camera inspection. Defense's Motion to Quash Subpoena and Reconsider Court Order, Young Women's Christian Assoc, Abuse and Rape Crisis Hotline v. Commonwealth, No. 94-CR-2669 (Mass. Super. Ct. June 1, 1994). YWCA-ARCH asserted that the defense must show a “legitimate need” for access to the records protected by the absolute sexual assault counselor's privilege. Defense's Memorandum in Support of Motion to Quash at 2-3, Young Women's Christian Assoc, Abuse and Rape Crisis Hotline v. Commonwealth, No. 94-CR-2669 (Mass. Super. Ct. June 1, 1994). YWCA-ARCH asserted that the defense must make more than a preliminary showing of the records' “relevancy” to the case, noting that such a minimal standard renders the absolute privilege meaningless. Id. at 11-12. The trial judge ultimately held YWCA-ARCH in contempt, fining it $500 per day. Order of Judge Sweeney, Findings on Contempt, No. 94-CR-2669 (Mass. Super. Ct. June 14, 1994).

The Massachusetts Court of Appeals affirmed, rejecting YMCA-ARCH's argument that a relevancy claim at Stage-Two only applied to qualified, and not absolutely privileged records. Young Women's Christian Assoc, Abuse and Rape Crisis Hotline v. Commonwealth, No. 94-J-442 (Mass. App. Ct., June 16, 1994) (Perretta, J.). The court held that "Bishop speaks in terms of privileges in general and makes no distinction between absolute and qualified privileges.” Id. The court emphasized, however, that “[b]efore defendants can have access to privileged material, more than a showing of relevancy is required. It must be shown that disclosure of the relevant communications are required to provide the defendant with a fair trial.” Id. A single SJC justice affirmed the court of appeals reading of Bishop, holding that YMCA-ARCH must turn its records over to the trial judge for an in camera inspection or face contempt. Young Women's Christian Assoc, Abuse and Rape Crisis Hotline v. Commonwealth, No. 94-SJ-303 (Mass., June 22, 1994)(Greaney, J.).

²⁸² See Largen, supra note 134, at 211.

²⁸³ Id.

²⁸⁴ Id. at 212.

²⁸⁵ Id. at 213. See also supra note 13s.

²⁸⁶ Green, William M. M.D., RAPE : THE EVIDENTIAL EXAMINATION AND MANAGEMENT OF THE ADULT FEMALE VICTIM, 75-79 (1988)Google Scholar.

²⁸⁷ Id. at 76.

²⁸⁸ Id. at 77.

²⁸⁹ Id.

²⁹⁰ The victim, however, may exercise his/her right to waive a statutory privilege and grant access to the defense. See Reynolds v. State, 633 A.2d 455, 462 (Md. 1993) (adopting a modified form of the Bishop test). Maryland has noted, however, that “[t]he execution of a limited waiver, giving the prosecutor pre-trial access the patient's treatment records, [does] not automatically entitle Appellant to inspect those records.” Id.

²⁹¹ State v. Runge, 566 A.2d 88, 91 (Md. 1989); see also Cure v. State, 600 So. 2d 415, 418 (Ala. Crim. App. 1992).

²⁹² MASS . GEN. L. ch. 233, § 20K (1986).

²⁹³ MASS . GEN. L. ch. 112, § 135A & B (1986).

²⁹⁴ MASS . GEN. L. ch. 233, § 20B (1986).

²⁹⁵ See Pennsylvania v. Ritchie, 480 U.S. 39, 57-58 (1987).

²⁹⁶ Id.

²⁹⁷ McCafferty, Bridget M., Note, The Existing Confidentiality Privileges as Applied to Rape Victims, 5 J. L. HEALTH 103, 116-18(1990-91).Google Scholar

²⁹⁸ Id.

²⁹⁹ MASS . GEN. L. ch. 233, § 20J. The statute bans discovery in any criminal or civil proceeding without the prior written consent of the victim. Id. See infra note 304 for the full text of the statute.

³⁰⁰ See MASS . GEN. L. ch. 233, § 20J. The statute lists no exceptions, except waiver, to justify piercing the privilege.

³⁰¹ See McCafferty, supra note 297, at 136-37. The Michigan Supreme Court cited a legislative report indicating that the sexual assault counselor privilege seeks to foster a therapeutic environment: Sexual assault “[c]ounselors feel obliged to warn their clients beforehand that communications between them may be used as evidence in court, and they report that this knowledge often has an important chilling effect on the client's willingness to be forthcoming.” People v. Stanaway, 521 N.W.2d 557, 566 (Mich. 1994); See supra note 133 and speech by the Director of the Beth Israel Hospital in Boston.

³⁰² See Commonwealth v. Two Juveniles, 491 N.E.2d 234, 238 (Mass. 1986).

³⁰³ Bishop, 617 N.E.2d at 997.

³⁰⁴ The statute reads as follows:

As used in this section the following words, unless the context clearly requires otherwise, shall have the following meaning:

MASS . GEN. L. ch. 233, § 20J (1986) (approved July 12, 1984, effective 90 days thereafter) (emphasis added).

³⁰⁵ Two Juveniles, 491 N.E.2d at 239.

³⁰⁶ Id. at 237.

³⁰⁷ Id. at 238. As the defense had not raised the issue on appeal, the court declined to rule on the constitutionality of an absolute testimonial privilege created by statute. Id. at 237.

³⁰⁸ The court did not discuss what the defense's initial showing of “legitimate need” might entail. The court defined a record's “relevancy” by instructing judges to examine records for “evidence of the witness's bias or motive to lie and additionally for factual statements relating to various questions, such as misidentification or inability to identify or describe the assailant.” Id. at n.7.

³⁰⁹ See United States v. Nixon, 418 U.S. 683 (1974) (rejecting broad claim of executive privilege based upon articulated need for information); In re Robert H., 509 A.2d 475 (Conn. 1986) (rejecting absolute privilege); Advisory Opinion to the House of Representatives, 469 A.2d 1161, 1165-66 (R.I. 1983) (advising legislature not to draft an absolute statutory privilege).

³¹⁰ Pennsylvania has ruled that an “absolute” privilege for sexual assault counselors precludes any disclosure many circumstances, and does not violate a defendant's constitutional rights. Commonwealth v. Wilson, 602 A.2d 1290, 1295-97 (Pa. 1992). Likewise, Colorado has repeatedly held that the right to cross-examine must bow to the strong public policy interest in encouraging victims to seek meaningful psychotherapy. See People v. District Court, 719 P.2d 722, 727 & n.3 (Colo. 1986) (en banc); People v. Pressley, 804 P.2d 226, 229 (Colo. App. 1990). Cf. State v. J.G., 619 A.2d 232, 234 (N.J. Super. Ct. App. Div. 1993) (absolutely immune records cannot be examined in camera, absent some compelling reason).

³¹¹ Bishop, 617 N.E.2d at 997.

³¹² Id.

³¹³ See, e.g., Goldsmith v. State, 651 A.2d 866, 875 (Md. 1995) (requiring greater showing of need when defense seeks to pierce absolute privileges); J.G., 619 A.2d at 234 (requiring a “compelling reason” to disclose absolutely immune records).