BELL, Judge, dissenting.

Distinguishing between pretrial discovery of privileged records and at trial disclosure of such records, ostensibly recognizing the latter as protected by the defendant's constitutional right to present a defense, see Majority Op. at 130, the majority holds that "no common law, court rule, statutory or constitutional requirement [provides] that a defendant be permitted pre-trial discovery of privileged records held by a third party." Majority Op. at 127. This holding impermissibly resolves an issue not decided by the courts below or presented by our grant of certiorari, Clark v. State, 306 Md. 483, 510 A.2d 243 (1986), cert. denied, 479 U.S. 1084, 107 S.Ct. 1286, 94 L.Ed.2d 144 (1987); see Clark v. Elza, 286 Md. 208, 406 A.2d 922 (1979); Squire v. State, 280 Md. 132, 368 A.2d 1019 (1977); Williams v. New York Life Ins. Co., 122 Md. 141, 89 A. 97 (1913); Stansbury v. Keady, 29 Md. 361 (1868); see also Maryland Rule 8-131(b). The majority also misreads, if not disregards, this Court's holding in Zaal v. State, 326 Md. 54, 602 A.2d 1247 (1992), and premises its holding on a distinction without a difference. Consequently, I dissent.

I.

According to the majority,

The issue this Court must resolve in the instant case is whether Maryland Rule 4-264 or the federal and/or state constitution entitles a defendant charged with child abuse and related sexual offenses to obtain pre-trial discovery review of the victim's psychotherapy records maintained by the victim's private psychotherapist.

Majority Op. at 115. This formulation of the issue apparently is based on the facts that the motions court's ruling was on the petitioner's "motion for the issuance of a subpoena for production of tangible evidence prior to trial" and that, subsequent to that ruling, the petitioner "requested and was issued a subpoena pursuant to Maryland Rule 4-265 for Dr. Gombatz to appear and produce his records at trial." Id. at 119. Resolving the issue as formulated, the majority concludes:

It is quite clear that the motions judge precluded the pretrial discovery review of Dr. Gombatz's records. The defense was not precluded from calling Dr. Gombatz when the case actually went to trial. . . . The motions judge did not need to determine whether, the defendant might be able to elicit exculpatory evidence from the psychotherapist at trial. Thus, the court did not hold that Laura's privilege outweighed the defendant's constitutional trial rights.

Id.

The majority has set up a highly vulnerable straw person, which it has proceeded easily to knock down. While, among its reasons for asking that the petitioner's subpoena for the psychotherapist's records be quashed, the State argued that the records are not subject to the Maryland Rules of Discovery, it did not make the argument, on the basis of which the majority affirms the trial court. In the trial court, neither party drew the distinction between a Rule 2-264 subpoena and a Rule 2-265 subpoena. Indeed, the only support the majority offers for the distinction and its conclusion that the trial court's ruling was based on that distinction is the colloquy in which the petitioner's counsel acknowledged reaching an agreement with the State in response to the State's motion to quash his "trial subpoena duces tecum." The petitioner's counsel did not, in that colloquy, concede the distinction the majority draws, he merely indicated that Dr. Gombatz would be called "[i]f it becomes appropriate during the course of the trial that I could call him."

Nor was the distinction the basis for the motions court's ruling. This is understandable because that was not the focus of the argument in the Circuit Court for Anne Arundel County. Certainly the majority does not direct our attention to anything in the record which would indicate that it was because the motion was a pretrial discovery motion, rather than an at trial subpoena duces tecum, that prompted the court's ruling. The record, in fact, belies the majority's conclusion in that regard. Having subpoenaed "[a]ll documents including but not limited to reports, summaries, psychological testing, interview notes, diagnosis, and correspondence, that reflect and relate in anyway to [Dr. Gombatz's] treatment of [the complainant]," the petitioner argued that access to these records, either directly through his counsel or by in camera review by the court was necessary effectively to confront the complaining witness and defend himself against her accusations. It was in this context that the petitioner proffered:

Your Honor, I think that what's required under Zaal, and my understanding of it, is a nominal showing of relevance. And I think here where the issue is going to be the credibility of the plaintiff, I would say to you that in the affidavit that Detective Madison attached to her arrest warrant of my client, she indicated that the complainant had been in counseling. And we later, at the preliminary hearing, found that it was with Dr. Gombatz for a period of over four years.

Where the facts are that you have an adult bringing charges that go back over ten years, where there's obviously, there's a question about the complainant's emotional state, and I think that's tied into the credibility. I mean, I simply don't know what her emotional state is. I think this in a way goes back to the fact that there have been no — you know, the complainant's mother hasn't been interviewed. We don't know — other than what Detective Madison said today, something about the mother being emotionally unstable. I mean, that's news to me. But I mean, I think it's a fact that needs to be looked into.

But in terms of confrontation rights, it seems to me that the Defendant, in all the facts of this case, being charged with conduct that happened over a decade ago, where you know that the Defendant has been in counsel — not the Defendant, the complainant has been in counseling for over four years. I think that the — I think where credibility is the make or break issue, I think some relief under Zaal whether that means that the court review these records in camera or preferable to the Defendant, would be that I, under some sort of monitored format, be allowed to look at these records.

Significantly, the petitioner's counsel referred to the Zaal case as well as the petitioner's confrontation rights.

The motions court responded in a consistent fashion when ruling on the motion. Rather than focus on the distinction between a pretrial discovery right and at trial disclosure, the court distinguished between a witness' ability to perceive and a witness' veracity, reasoning that review of the privileged records hinged upon the former, rather than the latter:

The Court: Due process will set aside the privilege — will require the privilege of patient-doctor to be set aside if it's a question of perception, if it's a question of credibility in the sense of a person being able to perceive things. But on your issue such as what you started to say was, "Oh, well suppose she had never told the doctor about this before," that has nothing to do with perception. That might have to do with — * * * [i]t might have to do with her credibility or honesty, yes. But you're not going to get — due process will not allow — will not require the privilege to be set aside for that purpose * * * If it's a capacity issue, you get it. If it's not capacity, you don't. Capacity to perceive.

The Court of Special Appeals affirmed the judgment of the circuit court. Rather than affirm on the pretrial/at trial dichotomy upon which the majority relies, it did so on the alternative bases that the trial court was without power "to override the victim's refusal to waive the patient/psychologist privilege" and that "the trial court's decision not to do so [in this case] was a proper exercise of discretion." Slip Op. at 9. It was to gain review of those two issues that the petitioner sought, and we granted, certiorari. Zaal is particularly relevant to the issues this case actually presents: Whether the psychologist/patient privilege is absolute — remains inviolate even in the face of a defendant's legitimate and reasonable need to discover arguably useful information protected by the privilege — and whether the procedure we enunciated in that case strikes a proper balance between a victim's privacy interests in confidential records and the due process discovery rights of a defendant. Zaal involved the propriety of a defendant charged with child sexual abuse obtaining the pretrial discovery, for relevant impeachment information, of the school records of the child he was accused of abusing, when regulations promulgated to implement the timely Education Rights and Privacy Act of 1974 made "manifest that `confidentiality and privacy of the student's education records are important considerations.'" Id., 326 Md. at 76, 602 A.2d at 1258.

To be sure, the primary focus in Zaal was on when the defendant himself, through counsel, should have direct access to the records. See Id. at 82, 602 Md. at 1261. This was so because the trial court resolved the threshold issue, the issue herein presented, in favor of the defendant. So it was that we discussed the special problem that cases turning on credibility pose — discerning what evidence is impeachment evidence — , id., and, with an eye toward providing judges with "remedies which will take account of the rights of the accused and, at the same time, protect the interest of the victims," id. at 86, 602 A.2d at 1263, formulated options other than in camera inspection by the judge alone, to be used in the review of confidential, sensitive matters. Id. at 84-87, 602 A.2d at 1262-1263.

The majority recognizes that Zaal involved pretrial discovery. To rationalize the result it reaches in this case, as opposed to that reached in Zaal, the majority suggests that Zaal, like Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), "`rejected defendant's confrontation clause argument, reasoning that it is a trial right, not one applicable to discovery.'" Majority Op. at 125, quoting Zaal, 326 Md. at 67 n. 6, 602 A.2d at 1253 n. 6, citing Ritchie, 480 U.S. at 52, 107 S.Ct. at 999, 94 L.Ed.2d at 54. It then asserts that the Zaal court adopted the Supreme Court's due process analysis, thus recognizing that "there may be a denial of due process when the government's records containing potentially exculpatory information were withheld from an accused." Id. at 125. The majority also relies upon Avery v. State, 15 Md. App. 520, 292 A.2d 728 (1972), appeal dismissed, 410 U.S. 977, 93 S.Ct. 1499, 36 L.Ed.2d 173 (1973).

To be sure, in the Zaal decision, we reviewed the Ritchie decision in some detail. A major part of that review was in connection with our consideration of the issue of the extent to which an advocate should be afforded the opportunity to inspect confidential information for possible use in cross-examination. See Part IV of Zaal, 326 Md. at 81-87, 602 A.2d at 1260-1263. It was in this context that we acknowledged the similarities, factually, between Zaal and Ritchie; indeed, we expressed the view that "[p]rocedurally, this case and Ritchie are quite similar." Id. at 81, 602 A.2d at 1260. At the same time, however, we reviewed, again in some detail, Carr v. State, 284 Md. 455, 397 A.2d 606 (1979), in which we used the Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), analysis to resolve the issue "whether under the facts and circumstances of his criminal trial [a defendant] had a right to obtain and use the written statements of a State's witness for purposes of cross-examination or impeachment," id., 284 Md. at 456, 397 A.2d at 606, and Leonard v. State, 46 Md. App. 631, 637-39, 421 A.2d 85, 88-89 (1980), in which the Court of Special Appeals reiterated and explicated the principles enunciated in Carr. It is of some interest that we also factually compared Zaal to those cases. It is, therefore, inaccurate to even suggest that the Zaal court, like the Ritchie court, rejected the defendant's confrontation clause argument as being one applicable only to discovery. See Majority Op. at 123. Likewise, it is inaccurate to even intimate that the Zaal court adopted the Ritchie court's due process analysis, thus placing the denial of due process squarely on the fact that "the government's records containing potentially exculpatory information were withheld from an accused." Majority Op. at 125.

II.

Factually, of course, a state agency's records were involved in Zaal. That did not, however, play a decisive role in our analysis. Indeed, it is quite clear that the Zaal opinion, unlike Avery, did not view the facts of that case as presenting a Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) or Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) situation. In addition to Part V of the Zaal opinion, see also footnote 2, ( 326 Md. at 62, 602 A.2d at 1251) in which the Court opined:

The petitioner makes no contention, with good reason, that the records are discoverable pursuant to Maryland 4-263. That rule places the obligation on the State to disclose, but it presupposes that the information is in the prosecution's possession or under its control.

In any event, the distinction that the majority draws between a state agency's files and a third party's file is really one without a difference. Several courts have rejected its viability. State v. Cressey, 137 N.H. 402, 628 A.2d 696 (1993); State v. Gagne, 136 N.H. 101, 612 A.2d 899 (1992); Commonwealth v. Miller, 399 Pa. Super. 180, 582 A.2d 4 (1990).

In Cressey, the Supreme Court of New Hampshire admonished the trial court for making a distinction between records that were under the control of a state agency and those under the control of a psychologist employed by a private mental health facility. Citing Gagne, the court characterized it as "a distinction without a difference." 628 A.2d at 703, noting that "balancing the rights of a criminal defendant against the interest and benefits of confidentiality lies equally in both cases." Id. at 703. The court also stated: "[a] record is no less privileged simply because it belongs to a state agency. Likewise, the defendant's rights are no less worthy of protection simply because he seeks information maintained by a non-public entity." Id. at 704.

The argument was made in Miller that it made a difference whether the information the defendant sought to discover pursuant to his State constitutional confrontation and compulsory process rights was in the hands of a state agency or a private entity. Rejecting that argument, the same one made by the majority, the court said, "[w]hen the nature of the evidence is such that denying a defendant the opportunity to review it in effect denies him his constitutional right to confrontation and compulsory process, he is entitled to review that evidence, regardless of whether it is in the hand of the commonwealth or a private institution." Id., 582 A.2d at 708. See also In re Doe, 964 F.2d 1325, 1329 (2d Cir. 1992) ( in camera review of private psychiatrist records permitted at discovery stage); State ex rel. Romley v. Superior Court, 172 Ariz. 232, 240, 836 P.2d 445, 453 (same); State v. L.J.P., 270 N.J. Super. 429, 637 A.2d 532, 536 (1994) (same).

III.

Maryland's psychotherapist/patient privilege is codified at Maryland Code (1957, 1989 Repl.Vol, 1993 Cum.Supp.) § 9-109 (b) of the Courts and Judicial Proceedings Article. It provides:

(b) Privilege generally. — Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or his authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient's mental or emotional disorder.

Unknown at common law, the privilege was enacted in 1963 to, as the terms of the statute make clear, protect a patient from the disclosure of confidential communications he or she might make to his or her therapist. Lynn McLain, Maryland Evidence, § 504.1 at n. 2 530 (1987 Supp. 1994), citing Rappeport, Psychiatrist-Patient Privilege, 23 Md.L.Rev. 39, 43 (1963). See B.W. Best, Annotation, "Privilege, In Judicial or Quasi-Judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient," 44 A.L.R.3rd 24 (1993). The policy underlying the privilege is the encouragement of effective "diagnosis" and "treatment" through ensuring confidentiality of communications. Rappeport, 23 Md.L.Rev. at 49. Although none is applicable under the facts sub judice, section 9-109(d) provides six instances when the privilege does not exist.

Section 9-109 does not expressly provide, one way or the other, whether the psychologist/patient privilege is absolute. Maryland law, however, makes it clear that statements, by a patient made to his or her psychologist, about child abuse are not privileged, as health care providers, "acting in a professional capacity," are required to report such abuse to the proper authorities. Md. Code (1984, 1991 Repl.Vol.) § 5-704(a) of the Family Law Article. See also Reynolds v. State, 98 Md. App. 348, 369, 633 A.2d 455, 465 (1993) ("statements about child abuse are not privileged and must be reported by health care providers, `[n]otwithstanding any other provision of law, including any law on privileged communications'"). Furthermore, because claims of privilege quite frequently result in the exclusion of relevant exculpatory evidence, a matter which frustrates the fact finding process, privilege statutes are narrowly construed. 5 McLain, § 504.1 at 532 n. 13; Reynolds, 98 Md. App. at 368, 633 A.2d at 464; State v. L.J.P., 270 N.J. Super. 429, 637 A.2d 532, 537 (1994), citing State v. Schreiber, 122 N.J. 579, 585 A.2d 945 (1991).

This Court has not heretofore had occasion to consider whether § 9-109(b), or any other statutory privilege, for that matter, absolutely precludes discovery of records protected by privilege. Although we enunciated a procedure for striking the proper balance between a victim's privacy interest in confidential records and due process discovery rights of the defendant, as we have seen, that was not the issue in Zaal. Nor was it the issue in Department of Social Services v. Stein, 328 Md. 1, 612 A.2d 880 (1992), a civil case in which we applied the Zaal procedure.

The Court of Special Appeals, on two prior occasions, has addressed whether the psychologist/patient privilege precludes discovery, by a defendant, of information under its protection. See Avery v. State, 15 Md. App. 520, 292 A.2d 728 (1972), appeal dism. cert. denied, 410 U.S. 977, 93 S.Ct. 1499, 36 L.Ed.2d 173 (1973); Reynolds v. State, 98 Md. App. 348, 633 A.2d 455 (1983). See also Oliver v. State, 53 Md. App. 490, 454 A.2d 856 (1983) (no constitutional right to cross-examine a witness about psychiatric reports when that witness refuses to waive the section 9-109(b) privilege).

In Avery, the intermediate appellate court upheld a trial court ruling denying a defendant's motion to compel the State to produce an assault and battery victim's psychiatric records for inspection or, in the alternative, to dismiss the indictment with prejudice. It is not clear from the court's opinion whether, other than a proffer that the records existed, the defendant proffered why he believed he was entitled to inspect the records. Responding to the argument that Maryland Code (1957, 1971 Repl.Vol.) Art. 35, § 13A(b), the precursor of section 9-109(b), was unconstitutional because it denied the defendant due process and fundamental fairness, the court stated:

The privilege of non-disclosure afforded by the statute is facially constitutional and appellant cites no authority, constitutional or otherwise, which would nullify the protection extended by the statute. Where, as here, the witness claimed the privilege, no suppression of evidence by the State is involved within the contemplation of such cases as Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) or Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967).

Id. 15 Md. App. at 537, 292 A.2d at 741. Since the court held that inspection was not appropriate, the defendant's request that the records be reviewed by the trial court in camera was also denied. Id. at 538, 292 A.2d at 741.

Although the Court of Special Appeals acknowledged that the section 9-109(b) privilege affords a patient's psychotherapy records greater protection than did the regulations construed in Zaal and the statute in Ritchie, (1987), it nevertheless recognized the defendant's "due process right to discover and put before the factfinder evidence that might influence the determination of guilt . . . [including] evidence . . . that a State's witness is now, or was at a relevant period of time, suffering from a mental disability that reasonably calls into question his or her ability to observe, recall, or communicate." Reynolds, 98 Md. App. at 364, 633 A.2d at 462, citing Ritchie, 480 U.S. at 56, 107 S.Ct. at 1000-1001, 94 L.Ed.2d at 56, and Reese v. State, 54 Md. App. 281, 289-292, 458 A.2d 492 (1983). Rather than the procedure enunciated in Zaal for resolving conflicts between a defendant's due process discovery rights and the privacy interests of a victim or the State in potentially relevant records, however, the intermediate appellate court adopted the procedure this Court announced in Hamilton, Superintendent v. Verdow, 287 Md. 544, 566-67, 414 A.2d 914, 926-27 (1980), for the resolution of claims of executive privilege. Under that procedure, once materials have been determined to be presumptively privileged, the burden shifts to the party seeking them to show either that they are not privileged or that there is some necessity for their production notwithstanding the privilege. Verdow, 287 Md. at 566, 414 A.2d at 926. Only when the requisite showing has been made to overcome the presumption will the court conduct an in camera inspection of the materials. Id. at 566, 414 A.2d at 926.

IV. A.

There are cases that hold that the psychologist-patient privilege is absolute and, thus, communications and other materials subject to its protection are not discoverable. See People v. District Court of Denver, 719 P.2d 722 (Colo. 1986); People v. Foggy, 149 Ill. App.3d 599, 102 Ill.Dec. 925, 500 N.E.2d 1026 (1986), leave to appeal granted, 121 Ill.2d 337, 118 Ill.Dec. 18, 521 N.E.2d 86 (1988); Com. v. Wilson, 529 Pa. 268, 602 A.2d 1290 (1992) cert. denied, sub. nom, Aultman v. Pennsylvania, ___ U.S. ___, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992); Com. v. Smith, 414 Pa. Super. 208, 606 A.2d 939, appeal denied, 533 Pa. 624, 620 A.2d 490 (1992); Com. v. Kyle, 367 Pa. Super. 484, 533 A.2d 120 appeal denied, 518 Pa. 617,

541 A.2d 744 (1987). See also Commonwealth v. Kennedy, 413 Pa. Super. 95, 604 A.2d 1036 appeal denied, 531 Pa. 638, 611 A.2d 711 (1992) (privilege covers the records memorializing the communications between the client and the psychologist).

Kyle is representative of the reasoning in these cases. There, the court stated its dilemma: it was "presented with a situation where the interests of the accused in learning of favorable witnesses as well as obtaining arguably useful information directly conflicts with society's interest in maintaining confidentiality between a psychologist and a client." 533 A.2d at 125 (footnote omitted). Noting that Ritchie both involved a statutory conditional privilege, which did not preclude all use of the protected information, and made clear that a defendant's rights are not without limitation, the court concluded that "a compelling public interest would justify the total nondisclosure of information [protected by the psychologist-patient privilege]." Id. The court then concluded that the public interest is served by the psychologist-patient privilege:

Patient confidence is essential for effective treatment. Because the information revealed by the patient is extremely personal, the threat of disclosure to outsiders may cause the patient to hesitate or even refrain from seeking treatment. The privilege thus serves the public interest in promoting a society in which the general well-being of the citizenry is protected. We find that this public interest is especially compelling where, as here, the victim of a crime has sought post-assault treatment knowing that her testimony would be a necessary part of the prosecution's case. Indeed, the fact that the legislature determined confidential information was inadmissible as evidence under the statutory privilege demonstrates a recognition of this public policy consideration.

Id. at 126-127 (footnotes and citations omitted).

Whether the privilege outweighed the accused's interest in discovering information useful to the defense was the next issue the court addressed. As to it, the court stated:

Having reviewed the language of the statutory privilege enacted by our legislature and having given consideration to the public policies underlying the absolute privilege as well as the relevant cases in this and other jurisdictions, we find that the interests protected by the privilege are substantial. We are, of course, cognizant of the heavy weight afforded to appellant's interest in disclosure of the victim's file. Nonetheless, in weighing the public interests protected by shielding the file with those advanced by disclosure, we conclude that the balance tips in favor of non-disclosure. Nor do we believe that our decision today will unduly infringe on the rights of the accused. First, we note that as a matter of constitutional law, our courts have upheld testimonial privileges which bar a criminal defendant from obtaining or using confidential communications. . . . Here, the privilege only limits access to statements made during the course of treatment by the psychologist. It does not foreclose all lines of defense questioning. Likewise, the privilege does not unfairly place the defense in a disadvantageous position; like the defense, the prosecution does not have access to the confidential file and, thus, cannot use the information to make its case.

Id. at 129-30 (citations omitted). Additionally, the court declared that the interest protected precludes even in camera review by the court:

We decline to compromise what we have determined is an absolute privilege from disclosure. As we noted above, the purpose of the psychologist-client privilege is to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure. We deem this purpose and the underlying considerations to be of paramount concern. Subjecting the confidential file to in camera review by the trial court (as well as the appellate courts and staff members) would jeopardize the treatment process and undermine the public interests supporting the privilege. Simply stated, an absolute privilege of this type and in these circumstances requires absolute confidentiality.

Id. at 131 (footnote omitted).

B.

Other courts, indeed, the majority that have considered the question, including, as we have seen, the Court of Special Appeals, see Reynolds, supra., hold that the psychologist-patient privilege is not absolute. E.g. State ex rel. Romley v. Superior Court, 172 Ariz. 232, 239, 836 P.2d 445, 452 (App.Div. 1 1992); State v. Hufford, 205 Conn. 386, 533 A.2d 866, 875-77 (1987); Bobo v. State, 256 Ga. 357, 349 S.E.2d 690, 691-92 (1986); People v. Bean, 137 Ill.2d 65, 147 Ill.Dec. 891, 560 N.E.2d 258, 270-75 (1990); Commonwealth v. Bishop, 416 Mass. 169, 617 N.E.2d 990, 994-95 (1993); People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557, 577 (1994); People v. Adamski, 198 Mich. App. 133, 497 N.W.2d 546, 548-50 (1993); State v. Hummel, 483 N.W.2d 68, 71-72 (Minn. 1992); State v. Ramos, 115 N.M. 718, 858 P.2d 94, 97-99 (1993); State v. Donnelly, 244 Mont. 371, 798 P.2d 89, 91-92 (1990); State v. Trammell, 231 Neb. 137, 435 N.W.2d 197, 200-01 (1989); State v. Cressey, 137 N.H. 402, 628 A.2d 696, 703-04 (1993); State v. L.J.P., 270 N.J. Super. 429, 637 A.2d 532, 536 (1994); State v. Shiffra, 175 Wis.2d 600, 499 N.W.2d 719, 721-23 (1993); Gale v. State, 792 P.2d 570, 581 (Wyo. 1990); Advisory Opinion to the House of Representatives, 469 A.2d 1161, 1163 (R.I. 1983). See also In re Doe, 964 F.2d 1325, 1327-29 (2nd Cir. 1992); United States v. Lindstrom, 698 F.2d 1154, 1167 (11th Cir. 1983). See State v. Allman, 177 W. Va. 365, 352 S.E.2d 116, 120 (1986) (by statute, privileged information is discoverable "pursuant to an order of any court based upon a finding that said information is sufficiently relevant to a proceeding before the court to outweigh the importance of maintaining the confidentiality established by [the statute]."). With but few exceptions, the defendant's constitutional rights of confrontation, compulsory process, and/or due process are vindicated through use of an in camera proceeding in which the court alone reviews the privileged material for relevant usable evidence. E.g. In re Doe, 964 F.2d at 1329, Romley, 836 P.2d at 453 ("[A]ny restrictions on defendant's access to information essential to preparation for effective, reasonable cross-examination or impeachment of the victim in this case imposed pursuant to the victim's Bill of Rights must be proportionate to the interest of protecting the victim as balanced against the defendant's due process right to a fundamentally fair trial."); Hufford, 533 A.2d at 876, Lindstrom, 698 F.2d at 1166-68; State v. Trammell, 435 N.W.2d at 201.

Bishop is typical of the rationale employed by these courts. In that case, the court recognized the competing interests as being, on the one hand, the need to minimize the danger that the exclusion of relevant evidence for a purpose other than enhancing the truth-seeking function will result in an innocent defendant being convicted and, on the other, the need to avoid "the chilling effect which routine disclosures [of privileged information] may have in preventing those in need from seeking that help." 617 N.E.2d at 994, quoting Commonwealth v. Collett, 387 Mass. 424, 439 N.E.2d 1223, 1226 (1982). Underlying the interests in disclosure, the court noted, are the propositions that "when relevant evidence is excluded . . . for some purpose other than enhancing the truth-seeking function, the danger of convicting an innocent defendant increases," and that "at a minimum . . . criminal defendants have the right to . . . put before a jury evidence that might influence the determination of guilt." Id., quoting Ritchie, 480 U.S. at 56, 107 S.Ct. at 1000, 94 L.Ed.2d at 56. In addition to the purpose for privileges — prevention of the chilling effect of disclosures — the court pointed out that disclosure "serves as a disincentive to the maintenance of [the privileged] relationships." Id. Balancing these interests, the court recognized "that in certain circumstances a defendant must have access to privileged records so as not to undermine confidence in the outcome of trial." Id. at 994-995.

Similarly, the court in Adamski held "that confidential or privileged information must be disclosed where a defendant's right to effective cross-examination would otherwise be denied." 497 N.W.2d at 548-50. The court pointed out that "[i]t appears well settled as a matter of constitutional law that common-law or statutory privileges, even if purportedly absolute, may give way when in conflict with the constitutional right of cross-examination," and that "[p]rivileges such as the one before us in this matter are intended to encourage society's interest in open discussion between persons in need and those from whom they seek help [but], [a]t the same time, however, privileges impede ability to present a defense by limiting the evidence available." Id. at 548-50.

The Bishop court, in defining its task, opined:

The issue then devolves to the need to articulate a standard that judges can apply to identify those circumstances in which disclosure of the victim's records privileged by statute is required to provide the defendant a fair trial. It may be said that the controverted privilege shall be pierced in those cases in which there is a reasonable risk that nondisclosure may result in an erroneous conviction. Our charge, then, is to describe a standard that defines the line between a less inclusive standard (disclosure is not ordered when it should be ordered) and an overly inclusive standard (disclosure is ordered when it should not be ordered), resolving any doubt in favor of disclosure.

617 N.E.2d at 995. The standard the court articulated required the defendant to meet a "threshold burden" of showing "at a minimum, a likelihood that the records contain relevant evidence to justify initial judicial review." Id.

C.

The cases holding that the privilege is not absolute, which I find persuasive, are consistent with the rationale we employed in Zaal and the Court of Special Appeals employed in Reynolds. Consequently, I would hold that the psychotherapist-patient privilege embodied in section 9-109(b) is not absolute. Accordingly, I would reverse the judgment of the intermediate appellate court.

V.

The State alternatively argued, and the majority today holds, that the trial court properly refused to disclose the subject records because the petitioner's proffer was inadequate. Although cognizant that Zaal enunciated a balancing test to resolve the competing interests of defendants in disclosure and of the victims and the State in non-disclosure of confidential information and enumerated relevant factors in that regard, they favor adoption of a more stringent test. Indeed, the test the majority announces is "a reasonable likelihood that the privileged records contain exculpatory information necessary for a proper defense." Majority Op. at 133.

Clearly, records protected by the psychologist-patient privilege enjoy a heightened level of protection, but as previously noted, the privilege is not absolute. Therefore, having determined that a defendant's interest in a fair trial may outweigh the privacy interest of a victim or the State in the information made confidential by the applicable privilege, this Court in Zaal fashioned a procedure by which those interests could be balanced. Notwithstanding that it did not specifically address the discoverability of privileged records and it endorses review options other than in camera review by the court alone, I believe that the test it enunciated adequately addresses and balances the interests implicated in the case sub judice.

Applying the Zaal test, I conclude that both the trial court and the Court of Special Appeals erred. The trial judge perceived the dispositive issue to be whether the petitioner's proffer made plausible that the psychotherapy records contained information bearing on the victim's capacity to perceive. It rejected any notion that the records could, or should, be reviewed for evidence useful in cross-examining the victim concerning her motivation, bias, and veracity. Zaal and the cases holding that the due process rights of a defendant can override a statutory privilege recognize that the purpose of review is not so limited. The Court of Special Appeals erred in holding, as a matter of law, that the "need to inspect" threshold was not met in this case. The court should have considered and analyzed the petitioner's proffer in light of the Zaal standard. Zaal, 326 Md. at 88, 602 A.2d at 1264. Therefore, the petitioner is entitled to a new trial.

At the threshold, a defendant is required to establish a "need to inspect." Id. at 81, 602 A.2d at 1260. In that regard, we noted in Zaal that where the defense relies heavily on credibility or matters similarly treated, whether the information would be useful in rebutting the plaintiff's case or impeaching the complaining witness "depends upon the circumstances, including context, and, to a large extent, the perception of the person interpreting it." Id. at 82, 602 A.2d at 1261. To like effect, see Bishop, 617 N.E.2d at 996 n. 6 and Shiffra, 499 N.W.2d at 722. To meet the "need to inspect" threshold, the defendant must proffer some relationship between the charges, the information sought, and the likelihood that review of the records will reveal relevant information. Id. at 81-82, 602 A.2d at 1260-1261. Therefore, taking into account the issues before the court and the seriousness of the charges facing the defendant, the proffer must not be frivolous, must place before the court the petitioner's legitimate concerns, and must give plausibility to the defendant's stated need to review the records for relevant information. Id. at 83, 602 A.2d at 1262.

We made clear in Stein what was only implicit in Zaal, that the proffer of relevance could not be very specific since the defendant will not have seen the records and could not possibly know what was in them. 328 Md. at 30, 612 A.2d at 894. We did not, however, sanction or encourage fishing expeditions by counsel. We had required in Zaal, and continued to require in Stein, that counsel must proffer "a reasonable possibility that review of the records would result in discovery of usable evidence. . . ." Stein, 328 Md. at 30, 612 A.2d at 894. Although the defendant need not show that the records actually contain material information, the proffer cannot be "merely a desperate grasping at a straw." Bishop, 617 N.E.2d at 997.

The State argues that the petitioner's proffer is weaker than that in both Zaal and Stein, because it enumerates only two facts: the incident at issue occurred ten years earlier and the victim was in counseling. The majority agrees that the proffer is insufficient. Therefore, adopting the State's argument, the majority holds, as a matter of law, that the petitioner's proffer does not cross the "need to inspect" threshold. Majority Op. at 132-135. I do not agree.

In this case, the petitioner's proffer of relevance asserted that credibility was going to be a critical issue at trial. In support of that assertion he contended that the victim was in counseling; i.e., 10 years, had elapsed between the last alleged act of sexual abuse and the bringing of charges; that he had no contact with the victim for a considerable period of time and, hence, was without knowledge as to what her emotional state was; that the psychologist's records might show that the victim was delusional; that the victim may never have told her therapist about the alleged abuse, or may have done so only recently. He also noted that the victim told the police that it took years of counseling for her to summon the courage to bring the charges.

As we pointed out in Zaal, in addition to the specific proffer, the court must take into account the circumstances of the case, including the nature of the charges brought against the defendant, and the issue before the court. The query is, "[H]as the petitioner placed before the court `legitimate concerns and [given] plausibility to his stated need to review the records for relevant information[?]'" Zaal, 326 Md. at 83, 602 A.2d at 1262. Among the significant circumstances of this case is the amount of time that elapsed between the time of the alleged commission of the last criminal act and the filing of the complaint. This should be considered. Additionally relevant is the timing of the decision to undergo psychotherapy and its focus. Of particular interest here is that the psychotherapy occurred years after the incident giving rise to the criminal charges and the trauma at which the psychotherapy ostensibly is aimed. This factor is particularly important in this case in light of repressed memory syndrome, also known by opponents as false memory syndrome, a phenomenon which recently has gained nationwide attention. Undoubtedly, a stronger threshold showing may be required to be proffered when the psychotherapy records sought are those of a victim who entered post-assault treatment, knowing that his or her testimony would be a necessary part of the prosecution's case, see Kyle, 533 A.2d at 126, as opposed to one whose treatment is obtained, and continued, long after the event directly giving rise to the need for therapy has terminated.

Although not directly so proffering in this case, the petitioner must have sought the records to effectively cross-examine the victim concerning the charges. Since the petitioner has not seen the records and cannot know what is in them, his proffer cannot be very specific. See Stein, 328 Md. at 30, 612 A.2d at 894; Bishop, 617 N.E.2d at 996, n. 6. As in Zaal, however, the petitioner's proffer, confirmed by the evidence adduced at trial, made clear that the critical issue in the case was clearly one involving credibility. The victim's version of the incident and that of the petitioner are diametrically and irreconcilably different. The lapse of time between the alleged incidents and their reporting, the fact that it was through counseling that she obtained the courage to bring the charges, and the fact that the counseling was obtained long after the acts alleged were committed, all raise the possibility that review of the counseling records will reveal relevant, useable information. Indeed, the latter two facts logically could suggest review in the interest of possibly discovering the source of the victim's memory of the events.

Determining that the "need to inspect" threshold has been crossed does not end the court's task; it still must decide how the review will be conducted — which of the options identified in Zaal it will order. In Zaal, this Court recognized that "[j]uxtaposed against petitioner's proffer is the victim's legitimate [privacy] interest" and that granting the defendant unrestricted access to the victim's confidential records could have adverse effects. Id., 326 Md. at 83-84, 602 A.2d at 1262. It was in the interest of balancing these competing interests that we observed:

How significant that concern is, however, depends directly on the options available to the court; to the extent that the court has only two options — in camera review by the court alone or ordering unqualified access of the records to the accused — vindication of the victim's privacy rights may require a more restrictive attitude with respect to the accused's access to the victim's records. If there are other options, an intermediate position, perhaps, the accused's access may be expanded.

Id. at 84, 602 A.2d at 1262. Noting that "[w]here sensitive matters are involved, it is the responsibility of trial judges to fashion remedies which will take account of the rights of the accused and, at the same time, protect the interest of victims," Id. at 86, 602 A.2d at 1263, we adopted the expanded in camera review proceeding enunciated in Commonwealth v. Stockhammer, 409 Mass. 867, 570 N.E.2d 992, 1002 (1991) to avoid a trial judge being required to perform that function which is so foreign to its usual office. Id. at 86, 602 A.2d at 1263. At the same time, we sought to ensure that the defendant would have the benefit of the advocate's eye while protecting the victim's privacy. This was to be accomplished "both by virtue of the court order restricting dissemination of the information contained in the records and by proceedings to determine admissibility of information defense counsel deems relevant and usable . . ." Id. at 87, 602 A.2d at 1263.

I realize that the records in this case are more sensitive than those at issue in Zaal and Stein and that the trial court has yet to determine the strength of the "need to inspect" showing in relation thereto. When access to sensitive or confidential records is sought by a defendant, the trial court has three options, "to review the records alone, to conduct the review in the presence of counsel, or to permit review by counsel alone, as officers of the court, subject to such restrictions as the court requires to protect the records' confidentiality." Id. at 87, 602 A.2d at 1264. Which option it chooses is a matter within the court's discretion, although we offered factors to inform the exercise of that discretion. Id. The burden of proof does not change, merely the method of reviewing the material. It must also be pointed out that, when the court reviews the records alone, except as to information which, without regard to the perspective of the person conducting the review, has absolutely no possible relevance to the case, "the trial court's in camera review should not be conducted with preclusive intent." Id. at 88, 602 A.2d at 1264 (footnote omitted). To the extent that there is a question of the source of the victim's memory, i.e., how it was "triggered", evidence bearing on that issue would appear to be "readily identifiable," and, hence, would support court review alone.

Should it elect to review the records alone, as, indeed, it may decide to do, the court's purpose is not to act as advocate, but only to exclude from the parties' review material that could not logically be used by the defense in preparing its case. Finally, "[t]he trial judge should mark and seal the records excluded so that the judge's determination in that regard may be reviewed on appeal." Id. at 88 n. 15, 602 A.2d at 1264 n. 15.

VI.

As earlier indicated, the majority requires a showing of "a reasonable likelihood that the privileged records contain certain exculpatory information necessary for a proper defense," as a prerequisite to disclosure of privileged information. Majority Op. at 133. Not only does this standard place on a defendant a burden of proof much higher than that required in Zaal, but, notwithstanding its protestations to the contrary, it makes the psychotherapist-patient privilege effectively absolute; establishing a reasonable likelihood of discovery of exculpatory information, requiring as it does a rather specific identification of what the sought after evidence is, is virtually impossible. See note 4 supra. A constitutional right incapable of being exercised is tantamount to no right at all; it is hollow, indeed.

I repeat, I dissent.

ELDRIDGE, J., joins in the views expressed herein.