BRICKLEY, J.

This case presents the question whether, and under what circumstances, records of a psychologist, a sexual assault counselor, a social worker, or a juvenile diversion officer regarding a witness should be discoverable by the accused in a criminal trial. To the extent the records are privileged under MCL 330.1750; MSA 14.800(750), MCL 600.2157a(2); MSA 27A.2157(1)(2), MCL 339.1610; MSA 18.425(1610), and MCL 722.826- 722.829; MSA 25.243(56)-25.243(59), respectively, resolution requires a determination whether defendant's federal and state constitutional rights of due process require a pretrial review of the requested records before trial.

This Court is faced with the difficult task of reconciling the state's compelling interest in protecting the confidentiality of counseling and juvenile diversion records with the defendant's federal and state constitutional rights to obtain evidence necessary to his defense in a criminal trial. We hold that where a defendant can establish a reasonable probability that the privileged records are likely to contain material information necessary to his defense, an in camera review of those records must be conducted to ascertain whether they contain evidence that is reasonably necessary, and therefore essential, to the defense. Only when the trial court finds such evidence, should it be provided to the defendant.

The procedure we adopt today attempts to balance the Legislature's interest in protecting the confidentiality of the therapeutic setting with the possibility that there may be exculpatory evidence in such records necessary to prevent the conviction of an innocent person.

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

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

I

A. PEOPLE v STANAWAY

Defendant Brian Stanaway was charged with three counts of third-degree criminal sexual conduct involving sexual intercourse with the complainant on three separate occasions during the summer of 1988 when she was fourteen years old. The complainant testified during direct examination that she discussed these incidents with a counselor over a year after they happened. The counselor reported the allegations to the police pursuant to the mandatory disclosure requirements of MCL 722.623; MSA 25.248(3).

Before trial, Stanaway's defense counsel filed a motion that sought direct access to the records of a social worker in the juvenile diversion program and a sexual assault counselor regarding the complainant. The defendant argued that the records might contain inconsistent statements or might lead to exculpatory evidence, but admitted he had no basis for a good-faith belief that it was probable such information would be found. This request was repeated on the morning of trial. Both motions were denied by the trial court.

The complaining witness testified at trial that she knew the defendant and babysat for him and his wife for some time. She stated that the first incident occurred on a summer night in 1988. She had sneaked out of her home during the night to talk to the defendant's nephew, Terry Stanaway. The nephew was staying in a tent outside the defendant's house. She said the defendant asked her to have sex with him and she responded that she did not want to. She related that the defendant pulled down her pants and underwear and that sexual intercourse occurred outside, in the yard, near the tent.

A second incident occurred two weeks later. The witness stated she was visiting her aunt who lived on the same block as the defendant. She was in the backyard when another nephew of the defendant, Ricky Stanaway, called to her. Ricky indicated that the defendant was in the house and wanted to talk to her. Once in the house, Ricky told her the defendant was in the bathroom and that she should just knock and he would let her in. She knocked and entered and the defendant closed the door behind her. She said the defendant was naked and indicated to her that he wanted to have sex. She said she repeated that she did not want to. Again the defendant pulled down her pants and underwear and sexual intercourse occurred on the bathroom floor.

The witness testified that the third incident happened later that summer. She could not remember the circumstances of how it came to be that she was at the defendant's house but she said sexual intercourse took place on a single bed in a back bedroom. She remembered the defendant getting a towel to clean off the bed afterwards.

The defendant testified on his own behalf. He denied having any sexual contact with the complainant. He said there was no tent in the yard at the time in question. He said she was never in his house except to babysit and he and his wife would have been gone together.

The jury convicted the defendant on all three counts. In the Court of Appeals, defendant challenged the denial of discovery, the admittance of testimony by a police officer regarding a statement made by a nephew of the defendant, statements made by the prosecutor during closing arguments and the ineffectiveness of his trial counsel. The Court of Appeals affirmed the defendant's conviction in an unpublished opinion per curiam, issued August 14, 1991 (Docket No. 130448).

On the basis of statements made by the prosecutor that suggested access to the records in question, this Court entered an order directing the trial judge to conduct an in camera review of the requested documents. That order was later modified in response to motions to intervene filed by the social worker, the rape crisis counselor, and the mental health clinic. Although the motions to intervene eventually were denied, the prosecutor instead was ordered to file a written response explaining the basis for the statements made during closing arguments regarding what the complaining witness told counselors. Specifically, the prosecutor was directed to identify which counseling records were made available to him or were in his possession before trial. Upon receipt of the prosecutor's response, indicating he did not have pretrial access to any of the counseling records, this Court directed the trial judge to make a finding of fact on the issue. After hearing testimony from the prosecutor who tried the case, the trial judge determined that the source of any references made by the prosecutor during closing arguments was the complainant's trial testimony. The judge further determined that none of the counseling records had been provided to the prosecutor. We granted leave to appeal. 444 Mich. 876 (1993).

B. PEOPLE v CARUSO

Defendant Stanley Caruso is charged with second-degree criminal sexual conduct. The charges are based on allegations by his niece that the defendant rubbed her private with his hand during a visit when she was eight years old. The allegation surfaced when the child wrote a note to her mother's live-in boyfriend about the alleged incident.

Before trial, defense counsel moved to obtain the complainant's counseling records, asserting that there was good reason to believe the complainant had been the victim of sexual abuse by her biological father. It was further suggested that this may not have been the first note written to the live-in boyfriend of a sexual nature. It was believed by the defense that the child had written at least one prior note in which she suggested she wanted to have sex with him in the car. The circuit court granted defendant's motion and entered an order for production of the records for an in camera review.

The Court of Appeals granted the prosecutor's interlocutory emergency motion for immediate consideration, but affirmed the trial court's order requiring production for an in camera review. Unpublished opinion per curiam, issued May 25, 1993 (Docket No. 157437). This Court granted leave to appeal with People v Stanaway. 444 Mich. 876 (1993).

II

The first issue to decide is whether the various statutory privileges are intended to shield disclosure of this evidence and, if so, whether they violate the defendants' rights under US Const, Ams VI, XIV, and Const 1963, art 1, §§ 17, 20.

A. THE STATUTORY PRIVILEGES

In opposition to defendant Stanaway's discovery motion, the prosecutor asserted that the records at issue were privileged under Michigan's statutory sexual assault counselor-victim privilege, MCL 600.2157a(2); MSA 27A.2157(1)(2); social worker-client privilege, MCL 339.1610; MSA 18.425(1610); and the statutory provisions regarding records kept pursuant to the juvenile diversion program, MCL 722.828- 722.829; MSA 25.243(58)-25.243(59). The prosecutor asserted that because the juvenile diversion officer held a master's degree in social work and had provided counseling services to the complainant as part of diversion, the social worker-client privilege barred disclosure.

In opposition to defendant Caruso's discovery request, the prosecutor asserted that the records requested were absolutely privileged under Michigan's statutory psychologist-patient privilege, MCL 330.1750; MSA 14.800(750).

Unlike other evidentiary rules that exclude evidence because it is potentially unreliable, privilege statutes shield potentially reliable evidence in an attempt to foster relationships. Westen, The compulsory process clause, 73 Mich L R 71, 160-161 (1974). While the assurance of confidentiality may encourage relationships of trust, privileges inhibit rather than facilitate the search for truth. 1 McCormick, Evidence (4th ed), § 72, pp 268-270. Privileges therefore are not easily found or endorsed by the courts. "The existence and scope of a statutory privilege ultimately turns on the language and meaning of the statute itself." Howe v Detroit Free Press, 440 Mich. 203, 211; 487 N.W.2d 374 (1992). Even so, the goal of statutory construction is to ascertain and facilitate the intent of the Legislature. People v Love, 425 Mich. 691, 705; 391 N.W.2d 738 (1986).

The Legislature expressly provided that confidential communications made to a sexual or domestic assault counselor "shall not be admissible as evidence in any civil or criminal proceeding without the prior written consent of the victim." MCL 600.2157a(2); MSA 27A.2157(1)(2). The House Legislative Analysis, HB 4609, November 16, 1983, indicates a desire to afford victims who consult with counselors at a sexual assault crisis intervention center the same assurance of confidentiality that those who consult with psychologists, psychiatrists, or social workers are afforded. The analysis discusses the role confidentiality plays in effective therapy:

[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. Crisis 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.]

The only exception recognized in MCL 600.2157a; MSA 27A.2157(1) is the mandatory disclosure provisions of the Child Protection Act, MCL 722.623(1); MSA 25.248(3)(1).

The statute addressing the social worker-client privilege, MCL 339.1610(1); MSA 18.425(1610)(1) provides in part one that the social worker "shall not be required to disclose a communication" and in part two that communications are confidential. The exceptions to the privilege are disclosures for internal supervision of the social worker, disclosures made under the duty to warn third parties, as set forth in MCL 330.1946; MSA 14.800(946), and where the client has waived the privilege.

The psychologist-patient privilege, MCL 330.1750; MSA 14.800(750), establishes an evidentiary privilege in court proceedings unless the patient has waived the privilege. The few exceptions provided by the statute include when the communication is relevant to a condition the patient has introduced as an element of a claim and when a malpractice action is brought against the treating psychologist. The privilege extends not just to the communications made in the course of treatment, but to the fact of treatment as well.

Defendant Stanaway included a request for the juvenile diversion records of the complainant in his discovery motion. The prosecutor asserted that those records were privileged by both the social worker-client privilege and under the Juvenile Diversion Act, MCL 722.828- 722.829; MSA 25.243(58)-25.243(59). The juvenile diversion officer in this case was a licensed social worker. Her contract with the juvenile division of the probate court stipulated that she would provide counseling services to juveniles in the diversion program.

The Juvenile Diversion Act mandates the creation of a limited record containing some specific, basic information to document the fact of diversion. An examination of the House Legislative Analysis, HB 4597, December 10, 1987, reveals that the purpose of this recordkeeping requirement was to provide a trail in the event future decisions needed to be made regarding whether or not to place a juvenile in the diversion program.

Records created pursuant to these requirements are accessible by court order if it is determined that the person requesting them has a legitimate interest. However, MCL 722.829; MSA 25.243(59) arguably defines "legitimate interest" in the records as being only for the purpose of considering whether to divert a minor.

We hold that the records required under the act are subject to the privilege established by the act. Any additional records created by the juvenile diversion officer in her capacity as a social worker are protected by the statutory social worker-client privilege. Defendants' need for the records does not fit any of the exceptions afforded under the statutes.

All the privileges cited indicate a legislative intent to create an evidentiary privilege that precludes a defendant's access to confidential communications. Under the clear and unambiguous language used in the statutes, the Legislature intends to preclude defendants from having any access to communications made in these counseling settings. These communications are not intended to be available for use as evidence, either for impeachment or as exculpatory evidence, in a civil or criminal trial.

We agree with the prosecutors' views that these privileges shield the counseling and juvenile diversion records of the complainants.

B. DUE PROCESS CHALLENGE

We now must consider whether the constitutional rights of the defendants to due process supersede the statutory privileges.

At the heart of this controversy is the defendants' premise that if relevant evidence is shielded by privilege for some purpose other than enhancing the truth-seeking function of a trial, then the danger of convicting an innocent defendant increases. While the duty to provide evidence may involve a sacrifice of privacy, the public has a right to everyone's evidence. 8 Wigmore, Evidence (McNaughton rev), § 2192, pp 70-74. "All that society can fairly be expected to concede is that it will not exact this knowledge when necessity does not demand it, or when the benefit gained by exacting it would in general be less valuable than the disadvantage caused. . . ." Id., p 72. In United States v Nixon, 418 U.S. 683, 710; 94 S Ct 3090; 41 L Ed 2d 1039 (1974), the Supreme Court explained that "exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." However, the United States Supreme Court also held in Mancusi v Stubbs, 408 U.S. 204; 92 S Ct 2308; 33 L Ed 2d 293 (1972), that evidentiary limitations may be placed on confrontation rights to accommodate other legitimate interests in a criminal trial where prior recorded testimony was admitted because a witness was unavailable and the statements bore a sufficient indicia of reliability.

The nation's highest court has struck down a Mississippi hearsay rule because, when combined with that state's voucher rule, the defendant was prevented from presenting witnesses in his defense. Chambers v Mississippi, 410 U.S. 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). "[T]he . . . rule may not be applied mechanistically to defeat the ends of justice," but must meet the fundamental standards of due process. Evidentiary rules must be evaluated when applied for a determination whether the interests served justify the potential limitation imposed on a defendant's constitutional rights. Rock v Arkansas, 483 U.S. 44, 56; 107 S Ct 2704; 97 L Ed 2d 37 (1987) (in which an evidentiary rule regarding the inadmissibility of post-hypnotic memories was determined to unconstitutionally limit the accused's due process right to testify on her own behalf). However, the United States Supreme Court has vacated and remanded a Michigan Court of Appeals opinion, People v Lucas, 160 Mich. App. 692; 408 N.W.2d 431 (1987), holding that a ten-day notice rule regarding a criminal defendant's intention to introduce evidence did not violate per se the Sixth Amendment of the federal constitution. Michigan v Lucas, 500 U.S. 145; 111 S Ct 1743; 114 L Ed 2d 205 (1991).

A protective order prohibiting cross-examination regarding a witness' juvenile offenses granted pursuant to a similar state statute providing for juvenile records to be kept confidential was struck down in Davis v Alaska, 415 U.S. 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974), as violative of the defendant's right of confrontation under the Sixth and Fourteenth Amendments:

The State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. . . . [T]he State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State's interest in the secrecy of juvenile criminal records. [ Id., p 320.]

The issue in this case is discovery access to information that would be useful at trial for impeachment purposes or useful as exculpatory evidence. "There is no general constitutional right to discovery in a criminal case. . . ." Weatherford v Bursey, 429 U.S. 545, 559; 97 S Ct 837; 51 L Ed 2d 30 (1977). The leading United States Supreme Court case on the issue of pretrial access to privileged counseling records is Pennsylvania v Ritchie, 480 U.S. 39, 56; 107 S Ct 989; 94 L Ed 2d 40 (1987). The defendant in Ritchie was charged with criminal sexual assault of his daughter. He requested access to the confidential files of the state service agency charged with investigating child abuse. Id., p 43. A majority of the United States Supreme Court held that the in camera procedure ordered by the trial court satisfied the defendant's federal constitutional rights. Id., p 61. The Court disagreed regarding whether the Confrontation Clause compelled pretrial discovery or whether the result was compelled by a due process analysis. A plurality held that the right to confrontation is a trial right. Id., p 54. To the extent that limitations on discovery may infringe on the defendant's right to compulsory process, under the facts of the case before the Court, that right affords no greater protection than afforded by due process. Id., p 56.

"Our cases establish, at a minimum, that criminal defendants have the right to . . . put before a jury evidence that might influence the determination of guilt." Ritchie, supra, p 56. The Court held that the defendant's due process interests in seeking favorable evidence would be satisfied by in camera review. The Court acknowledged that where an in camera review is conducted, the defendant does not receive the benefit of the advocate's eye, but the Court observed that full disclosure would "sacrifice unnecessarily the Commonwealth's compelling interest[] in protecting its child-abuse information." Id., p 60.

Part of the Court's rationale for upholding in camera inspection was the fact that the records were those of a government agency. Id., pp 57-60. Defendants have a due process right to obtain evidence in the possession of the prosecutor if it is favorable to the accused and material to guilt or punishment. Brady v Maryland, 373 U.S. 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963); People v Carter, 415 Mich. 558, 593; 330 N.W.2d 314 (1982). Material has been interpreted to mean exculpatory evidence that would raise a reasonable doubt about the defendant's guilt. United States v Agurs, 427 U.S. 97, 104; 96 S Ct 2392; 49 L Ed 2d 342 (1976). The prosecution must turn over such evidence regardless of whether the defendant makes a request. Id. The defendant in Ritchie had been convicted in the trial court without agency records having been furnished. Ritchie, supra, p 57. The in camera inspection was to determine whether the investigatory records contained exculpatory material that should have been provided to him. Id., p 58. The test for whether the material should have been provided to him is "whether it contains information that probably would have changed the outcome of his trial." If there was no such material or if the nondisclosure was harmless beyond a reasonable doubt, then, the Court held, the conviction could be reinstated. In a footnote, the Court indicates that "Ritchie, of course, may not require the trial court to search through the CYS [Children and Youth Services] file without first establishing a basis for his claim that it contains material evidence." Id., p 58, n 15.

Our remand of Stanaway has established that the prosecutor has not at any time had access to the records requested by the defendant. Nor were these "investigative" records of a governmental agency. The disclosure requirements of Brady, supra, are directly applicable where the prosecutor possesses the record. People v Reed, 393 Mich. 342, 353; 224 N.W.2d 867 (1975); People v Dellabonda, 265 Mich. 486, 500-501; 251 N.W. 594 (1933). An in camera review would be appropriate to determine whether the prosecutor withheld any evidence he was duty-bound to disclose. That is not the situation in the cases we are considering today.

The Ritchie Court also noted that the privilege regarding the investigatory files was "qualified" in that the Pennsylvania statute contemplated some use of the files in judiciary proceedings. The Court explicitly stated: "[w]e express no opinion on whether the result in this case would have been different if the statute had protected the CYS files from disclosure to anyone, including law-enforcement and judicial personnel." Id., p 57, n 14.

Other than the very limited use in deciding whether a juvenile is a likely candidate for diversion, the privilege statutes this Court is asked to apply today do not contemplate use in judicial proceedings. As such, our statutes do not create the qualified privilege the United States Supreme Court addressed in Ritchie. We do not believe it generally is necessary to delve into the subtle distinctions between the various privileges asserted in this case. While the aforementioned privileges arguably consist of gradations, we believe none are the equivalent of the qualified privilege interpreted by the Supreme Court. The Supreme Court definition of qualified privileges in Ritchie contemplates some use of the file in judicial proceedings. Id., p 58.

Absolute privileges — privileges providing that information is not to be disclosed to anyone — have been abrogated despite the existence of the government's privilege to withhold disclosure of the identity of an informant where disclosure was compelled to satisfy the defendant's Sixth Amendment confrontation rights. Roviaro v United States, 353 U.S. 53; 77 S Ct 623; 1 L Ed 2d 639 (1957); People v Poindexter, 90 Mich. App. 599; 282 N.W.2d 411 (1979). "[N]o fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Roviaro, supra, p 62.

Common-law and statutory privileges may have to be narrowed or yielded if those privileges interfere with certain constitutional rights of defendants. See, e.g., Davis, Ritchie, Roviaro, Lucas, and Nixon, supra (even the executive privilege afforded the president must yield to due process demands in the administration of criminal justice); People v Adamski, 198 Mich. App. 133; 497 N.W.2d 546 (1993); Howe v Detroit Free Press, supra (the statutory privilege precluding access to probation reports must yield where it conflicts with certain constitutional rights); People v Bellanca, 386 Mich. 708; 194 N.W.2d 863 (1972) (despite the need for secrecy, the defendant has a right to a grand jury transcript in order to be prepared for cross-examination of the witnesses); Davis v Lhim, 124 Mich. App. 291; 335 N.W.2d 481 (1983) (endorsing the reasoning of Tarasoff v Regents of Univ of California, 17 Cal.3d 425; 131 Cal.Rptr. 14; 551 P.2d 334, in finding that psychiatrists have a duty to warn third parties of the danger a patient may pose where threats have been made); People v Mobley, 390 Mich. 57; 210 N.W.2d 327 (1973) (a codefendant who takes the stand against a defendant cannot claim the privilege against self-incrimination and avoid having his testimony and credibility tested by cross-examination); People v Hunter, 374 Mich. 129; 132 N.W.2d 95 (1965) (if the prosecution submits medical proof in a rape case, the submission operates as an admission that there will not be an assertion of any privilege when rebuttal medical testimony is offered); In re Baby X, 97 Mich. App. 111; 293 N.W.2d 736 (1980) (a parent's right to confidentiality in drug treatment records must yield if a court determines that the records are necessary and material to the state's proof of neglect in a child neglect proceeding); People v Walton, 71 Mich. App. 478; 247 N.W.2d 378 (1976) (confidential statements made to the police by witnesses should be inspected in camera to determine whether fundamental fairness requires that the defendant have access to the information in order to prepare his defense).

Where other jurisdictions have specifically addressed the validity of counseling privileges, most have attempted to balance the defendant's constitutional right to a fair trial with the complainant's interest in confidential therapy. Many require the defendant to make a preliminary showing that the privileged information is likely to contain evidence useful to his defense. Once such a showing is demonstrated, the privilege must yield to the defendant's constitutional rights. An in camera

inspection of the privileged records is conducted. For example, the New Hampshire Supreme Court has ruled that due process requires access to privileged medical and psychological records by way of an in camera inspection if the defendant establishes a reasonable probability that the records contain information that is material and relevant to his defense. State v Gagne, 136 N.H. 101; 612 A.2d 899 (1992).

Illinois and Pennsylvania both have refused to disclose records where the statutory privilege was determined to be absolute. People v Foggy, 121 Ill.2d 337; 521 N.E.2d 86 (1988); Commonwealth v Wilson, 529 Pa. 268, 278; 602 A.2d 1290 (1992); Commonwealth v Kennedy, 413 Pa. Super. 95; 604 A.2d 1036 (1992). In Foggy, the court gave two reasons for denying the defendant's request. The first was support for the strong public policy against disclosure underlying the privilege. The second was the fact that the defendant had failed to show that the files contained relevant information that might exculpate or be useful to impeach. Under the facts of Foggy, the request was merely for inconsistent statements because, in the words of the defendant, the trial would amount to a credibility contest. The court stated that if it were to be held that the defendant had established a sufficient showing that the records likely contained relevant information on the basis that this case amounted to a credibility contest, then the privilege would be abrogated in virtually every case. Id., p 350.

The Pennsylvania appellate courts have also held that in camera review violates the absolute privilege established by the state legislature. Wilson and Kennedy, supra. The Pennsylvania Supreme Court interpreted Ritchie as inapplicable when the privilege is absolute. Wilson, pp 280-281. The Pennsylvania Court of Appeals held Ritchie applies only to cases in which the records are in the possession of the prosecution. Kennedy, p 114. "'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., pp 115-116, quoting Commonwealth v Kyle, 367 Pa. Super. 484, 505; 533 A.2d 120 (1987).

The concurring opinion in Kennedy expressed concern that it was unconstitutional to hold a statutory privilege superior to a defendant's rights of due process. It is the "state's compelling interest in the confidentiality of the counseling relationship [that] must yield to the greater interest in promoting and protecting the defendant's constitutional rights." Id., p 119. Constitutional protections for the accused should not be sacrificed by way of a rule of nondisclosure per se as a sympathetic response to the physical and emotional trauma suffered by victims. "'The Constitution of this Commonwealth is the absolute — a legislative enactment of a statutory privilege is not.'" Id., quoting Commonwealth v Wilson, supra, p 286.

Not only is judicial in camera review of privileged material possible in certain situations, the Massachusetts Supreme Court has attempted to include the so-called "eye of the advocate" in its review of privileged documents. Commonwealth v Stockhammer, 409 Mass. 867, 882-883; 570 N.E.2d 992 (1991). The procedure involves a multistep inquiry. In order to receive an in camera inspection, a defendant must advance a good-faith belief, having some factual basis, that the privileged records are likely to be relevant to an issue in the case. The judge will then conduct an in camera review of the records. Commonwealth v Bishop, 417 Mass. 169; 617 N.W.2d 990 (1993). If upon inspection, the trial judge finds the records in fact to be relevant, he will then allow defense counsel access to those records to determine whether disclosure of the relevant communications is necessary for a fair trial. Id., pp 179-180. "[F]ull disclosure, predicated solely on a defendant's uninformed request may yield nothing for the defense, and the privilege would have been pierced unnecessarily." Id., p 177.

In State v Shiffra, 175 Wis.2d 600; 499 N.W.2d 719 (1993), the prosecutor provided a defendant accused of sexual assault with information that indicated the complainant had a history of psychiatric problems that might affect her credibility. On the basis of this information, the defendant moved for an in camera inspection of the complainant's past mental health records. Applying Wisconsin Court of Appeals precedent, the trial court ruled that the defendant had provided a sufficient basis for an in camera inspection to determine if the records contained evidence that would be material to the defendant. The complainant refused to waive her statutory privilege. The Wisconsin Court of Appeals affirmed the order issued by the trial court barring the witness from testifying at trial, stating that no other sanction was appropriate because the witness had no obligation to waive her privilege to the records. Id., pp 611-612.

The numerous writings that contributed to the plurality Ritchie holding and the factors discussed, but not resolved therein, make it difficult to divine a precise formula for balancing against a defendant's due process rights the state's pronounced interest in its evidentiary counseling privileges that enhance the healing process in the wake of abuse. However, our review of the jurisprudence of other states, along with our own precedent in dealing with discovery and evidentiary principles, coupled with a prudent need to resolve doubts in favor of constitutionality, prompts us to hold that in an appropriate case there should be available the option of an in camera inspection by the trial judge of the privileged record on a showing that the defendant has a good-faith belief, grounded on some demonstrable fact, that there is a reasonable probability that the records are likely to contain material information necessary to the defense.

We reject the novel approach fashioned by the separate opinion that would place before the trial court the additional inquiry regarding how important the absolute privilege in question is to the particular privilege holder. This suggested inquiry into the variable weight of the privilege depending on the sensitivity of the privilege holder would be both unprecedented and unworkable. It is not even remotely suggested by the Supreme Court in Ritchie.

The creation of the various privileges discussed in this opinion establishes the Legislature's assumption that any forced disclosure of the information protected will cause injury to the privilege holder. The weight of the privilege or the need for the privilege is relevant to and is incorporated into the balancing test this Court articulates today. The test we adopt today anticipates that the privilege holder would be better off if the privilege remains intact.

We believe we are upholding the general purposes of the statutory privileges to prevent the routine disclosures that would undermine therapeutic relationships. We must recognize, however, that in certain circumstances an in camera review of the records is necessary so as not to undermine confidence in the outcome of a trial. In camera inspection of privileged information by the court is a "useful intermediate step between full disclosure and total nondisclosure." United States v Gambino, 741 F. Supp. 412, 414 (SD NY, 1990); People v Hackett, 421 Mich. 338; 365 N.W.2d 120 (1984).

Where the defendant has made the required showing, in camera inspection of privileged documents by the judge strikes the delicate balance between the defendant's federal and state constitutional rights to discover exculpatory evidence shielded by privilege, and the Legislature's interest in protecting the confidentiality of the therapeutic setting. Only after the court has conducted the in camera inspection and is satisfied that the records reveal evidence necessary to the defense is the evidence to be supplied to defense counsel. We are confident that trial judges will be able to recognize such evidence. The presence of defense counsel at such an inspection is not essential to protect the defendant's constitutional rights and would undermine the privilege unnecessarily.

The state's interest in preserving the confidentiality of the social worker, diversion, and rape-counseling counseling records must yield to a criminal defendant's due process right to a fair trial when the defendant can show that those records are likely to contain information necessary to his defense.

C

We now turn to the application of the test enunciated to the specific facts and circumstances of the cases before us. It was not an abuse of discretion to find the counseling communications protected by the privileges in Stanaway or discoverable in Caruso.

Criminal defendants do not have general rights to discovery. MCR 6.001. Discovery in criminal cases, however, is left to the discretion of the trial court:

Discovery will be ordered in criminal cases, when, in the sound discretion of the trial judge, the thing to be inspected is admissible in evidence and a failure of justice may result from its suppression. The burden of showing the trial court facts indicating that such information is necessary to a preparation of its defense and in the interests of a fair trial, and not simply a part of a fishing expedition, rests upon the moving party. [ People v Maranian, 359 Mich. 361, 368; 102 N.W.2d 568 (1960).]

In general, when a discovery request is made disclosure should not occur when the record reflects that the party seeking disclosure is on "a fishing expedition to see what may turn up." Bowman Dairy Co v United States, 341 U.S. 214, 221; 71 S Ct 675; 95 L Ed 879 (1951).

In camera inspection is often utilized to determine whether evidence sought is discoverable. The Legislature has expressly provided for this procedure in the context of evaluating a defendant's proposed use of evidence generally inadmissible under the rape shield statute. MCL 750.520j(2); MSA 28.788(10)(2). The in camera hearing promotes the state's interest in protecting the privacy interests of the alleged victim, while safeguarding the defendant's right to a fair trial. People v Hackett, supra, p 350.

Defendant Stanaway asserts that the records sought were necessary to his attempt to unearth any prior inconsistent statements made by the complainant or any other relevant rebuttal evidence. This is no more than a generalized assertion that the counseling records may contain evidence useful for impeachment on cross-examination. This need might exist in every case involving an accusation of criminal sexual conduct. Defendant Stanaway has not stated any specific articulable fact that would indicate that the requested confidential communications were necessary to a preparation of his defense. He has not stated a good-faith basis for believing that such statements were ever made or what the content might be and how it would favorably affect his case. The defendant merely alleged that the records may contain prior inconsistent statements. The defendant overstates his case when he asserts that his right to discovery, confrontation, and effective cross-examination compels that he be granted an opportunity to discover any potentially exculpatory evidence. Without a more specific request, defendant is fishing. The request falls short of the specific justification necessary to overcome the privilege. The trial court did not abuse its discretion in refusing to order an in camera inspection.

Defendant Caruso may have demonstrated a realistic and substantial possibility that the material he requested might contain information necessary to his defense. The defendant argued in his motion for in camera discovery that the circumstances in which the accusation was made were relevant to the truth or falsity of the claim. The defense theory is that the claimant is a troubled, maladjusted child whose past trauma has caused her to make a false accusation against her uncle. The defendant asserted a good-faith belief in his motion that the complainant suffered sexual abuse by her biological father before this allegation of abuse, the nonresolution of which produced a false accusation, and factual support for some sexually aggressive behavior, namely, writing a letter to her mother's live-in boyfriend inviting him to have sex with her in his car. The in camera review ordered by the trial judge may have been proper under the facts of this case. Because the record is not altogether clear regarding the grounds for ordering the in camera inspection, we remand to the trial court for further proceedings consistent with this holding.

Should the defendant prevail on rehearing, a waiver of the privilege should be requested of the complainant because the privilege in question in Caruso is an absolute privilege. We are not relying on an implied waiver analysis to overcome the absolute privileges in question. Howe v Detroit Free Press, supra, correctly finds implied waiver when the plaintiff in a defamation suit invokes MCL 791.229; MSA 28.2299 in an attempt to shield evidence that might establish the truth of the publication. The privilege in this case cannot be said to be the prosecutor's to waive. The Legislature has expressly provided that in the case of psychologists and psychiatrists, the privilege must be expressly waived by the privilege holder. The fact of prosecution cannot be said to impliedly waive the privilege. Where it cannot be said that the privilege holder placed mental state in controversy, implied waiver analysis is inappropriate. Our ruling is that where the privilege is absolute if the complainant will not waive her statutory privilege and allow the in camera inspection after the defendant's motion has been granted, suppression of the complainant's testimony is the appropriate sanction.

Only if the in camera inspection reveals information essential and reasonably necessary to the defense should it be provided to the defendant.

III

Defendant Stanaway asserts that prosecutorial misconduct occurred during closing arguments to the jury. The defendant further asserts that his trial counsel was ineffective in his failure to object. Specifically, the defendant objects to the following statements made by the prosecutor:

Now, who has [the victim] told this incident to? Well, number one, she told the juvenile counselor; number two, she told her girlfriend; she told her sister; she told the Community Mental Health counselor; she told the prosecutor that works in our office, who handled the preliminary hearing; she told the Judge at the preliminary hearing; she told me; and then she told Kathy O'Day, the counselor, the other counselor; and then the jury. Running out of fingers here, that's nine people she told.

If she were lying, do you think she would go to this great length, and that she would expose herself to this type of process to tell nine different people, nine different times about these incidents? No, she wouldn't do that. She would just say forget it, it's not true. I am not going through with this, it's not worth the hassle. But, unfortunately, you are seeing what happens to this victim, when she does come forward and tells what happened to her. She goes through this type of process.

* * *

Her story is the same, it has never really changed, it's always been the same. And she has been through it so many times in her mind, and she has told so many people about it, from the counselors all the way through the criminal system, she hasn't been shaken on it yet, and he didn't shake her on the stand when she testified.

The defendant's position is that the effect of the prosecutor's words were to advise the jury that the complainant's privileged statements to various counselors regarding the charged offenses had remained consistent on the numerous occasions on which the incidents were reported. Although the complainant testified about the fact of counseling, she did not reveal any statements actually made during counseling. Defendant believes the inference created for the jury was that the prosecutor had been given access to the communications and vouched for their consistency.

Further support for defendant's theory is found in two questions to the court by the jury during deliberations:

The Court: Okay. You can be seated, Members of the Jury. Court is in session. The record should reflect that the jury sent out a question, and I have talked about it with counsel.

And actually, there are two questions. First, "Why was there no testimony proving the plaintiff did talk to counselors?" The attorneys and I are agreed that there was testimony from [the complainant] that she had talked to counselors. It was some number of months after the charged events took place, but both attorneys alluded to that fact in their closing arguments, and it seems to be well established that she did in fact talk to various counselors.

And the second question is, "Is that admissible testimony?" Well, the fact that she talked to counselors is admissible, but the content of the conversation with the counselors is not admissible. So we can't get into that. [Emphasis added.]

We note at the outset that the prosecutor either was impermissibly arguing facts not in evidence or was vouching for the credibility of the witness. He admitted on remand that he had no specific knowledge of what the complainant told any counselor.

A prosecutor may not argue the effect of testimony that was not entered into evidence at trial. People v McCain, 84 Mich. App. 210, 215; 269 N.W.2d 528 (1988). It is improper bolstering for a prosecutor to vouch for credibility of facts and evidence not in the case. See People v Couch, 49 Mich. App. 69; 211 N.W.2d 250 (1973). If defense counsel is precluded by statutory privilege from examining counseling communications, it is error for the prosecutor to announce to the jury the contents of those communications.

Appellate review of improper prosecutorial remarks is generally precluded absent objection by counsel because the trial court is otherwise deprived of an opportunity to cure the error. People v Buckey, 424 Mich. 1, 17; 378 N.W.2d 432 (1985); People v Gonzalez, 178 Mich. App. 526, 534-535; 444 N.W.2d 228 (1989); People v Gonyea, 126 Mich. App. 177, 189; 337 N.W.2d 325 (1983). An exception exists if a curative instruction could not have eliminated the prejudicial effect or where failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich. 1, 16; 260 N.W.2d 58 (1977); People v Walker, 93 Mich. App. 189, 198; 285 N.W.2d 812 (1979).

Had there been a timely objection by defense council when the prosecutor made his argument, the trial court could have cautioned the prosecutor and instructed the jury that the prosecutor had no knowledge of the content of any counseling the complainant testified she had undergone. Any misleading inference to the contrary could have been dispelled.

The defendant further asserts that his trial counsel's failure to object to the inappropriate remarks constitutes ineffective assistance of counsel. In order to succeed on such a claim, the defendant first must show that counsel's performance was below an objective standard of reasonableness under prevailing professional norms. The defendant must overcome a strong presumption that counsel's assistance constituted sound trial strategy. Second, the defendant must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Strickland v Washington, 466 U.S. 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich. 298; 521 N.W.2d 797 (1994).

During cross-examination of the complainant, defense counsel pursued a theory in which he asserted that the complainant told a lie the first time she related the occurrence of sex between herself and the defendant. His theory was that once she told the lie the first time, she was compelled to keep repeating the story. If defense counsel had objected in front of the jury to the prosecutor's presentation of the same scenario, he might have undermined his theory of the case. While the lack of an objection may have been questionable strategy, absent the advantage of hindsight, we cannot say that defense counsel performed below the standards of a reasonably competent attorney. It is therefore unnecessary for this Court to determine whether the lack of objection prejudiced the defendant.

IV

Defendant Stanaway further asserts that the trial court erred when it admitted the hearsay testimony of Officer Robert Peters. As part of the prosecution's case in chief, defendant's nephew, Donald Stanaway was called to testify. The prosecutor asked him if he had made a statement to Officer Peters regarding an incriminating statement the defendant had made to a witness, which the witness denied ever having made:

[ People]: Mr. Stanaway, do you recall talking to Officer Peters about statements that Brian had made to you?

[ Witness]: No, I didn't tell him that Brian made any statements directly to me.

* * *

Q. You never made any statement implicating Brian with this incident?

A. I haven't talked to Brian. I don't talk to Brian. Like I said, we weren't getting along.

Q. Okay. And you are saying that you never told Officer Peters that Brian admitted that he was having sex with a young girl?

Q. And Brian never told you that if he got caught, he would get into a lot of trouble?

A. Like I said, I didn't talk to Brian and Brian didn't talk to me.

A. Brian is my uncle.

Q. Now, you indicated earlier that you were out of town when this all happened?

Q. You were down south; right?

A. Right.

* * *

Q. I just want to make sure I'm clear, Mr. Stanaway. You are saying that you never — that Brian never made any statements to you implicating himself with sex with a young woman?

Q. You don't remember or he didn't?

A. I don't remember. I have a bad memory.

Q. Pardon?

A. I have a real bad memory. Q. Okay.

A. I do.

The prosecutor then called Officer Peters to the stand. Officer Peters was the investigating officer in the case. He testified that he had interviewed the complainant and her parents and that he had interviewed the defendant and some of his family members. He testified that the complainant's testimony was basically the same as when she reported the incidents to him. He testified that the defendant denied the allegations. Over hearsay objections, the prosecutor then asked Officer Peters about what Donald Stanaway had to say:

[ People]: Did you ask him about this incident?

[ Witness]: I asked him if he knew [the complainant]. He stated he knew who she was but he didn't know her. He just knew who she was. And I asked him if his nephew [sic, uncle] Brian had ever mentioned anything to him about [the complainant] or any type of sexual activity between them.

A. He told me that Brian never mentioned him — Brian never stated that he had any sex with a person by the name of [the complainant]. But on a couple of different occasions while Brian was intoxicated, he did state that he had "screwed a young girl," and if he was caught, he would be in a lot of trouble.

Q. Now, this is a statement allegedly made from Brian to Don Stanaway, Jr.?

The trial court responded to defense counsel's hearsay objection to this line of questioning with a cautionary instruction to the jury, sua sponte:

The Court: Well, Members of the Jury, evidence such as this, it's called a prior inconsistent statement, and it's used, usable properly for only one purpose. And let me see if I can draw the distinction for you.

What a witness said on a prior occasion, like whatever Mr. Stanaway said to the officer, can't be used to determine — what he said before can't be used to determine whether or not the defendant is guilty or not guilty. So whatever he told the officer can't be used for that purpose.

Whatever he told the officer before can be used to decide if you are going to believe the witness, Mr. Stanaway, but you can't use it as substantive proof of what the witness may have said on a former occasion. So for that limited purpose, the objection is overruled, and you may proceed, Mr. Wiese.

The jury's attention was again drawn to this impeachment evidence during the final instructions given by the court:

[ The Court]: Now, there has been some evidence in this case that the witness Donald Stanaway, Jr. made a statement to Officer Peters that differs from what his testimony was during trial. You may recall that during trial he was asked whether the defendant told him "I have screwed a young girl and I'm going to be in a lot of trouble if anybody finds out." And the witness, Donald Stanaway, Jr., denied making that statement. Later on, Officer Roberts was called, and he said, yes, the witness, Donald Stanaway, Jr., did make that statement.

Now, you have to be very careful about how you consider this evidence, it's called evidence of a prior inconsistent statement. The statement wasn't made during this trial. So you must not consider the statement itself when you decide whether the elements of the crime have been proven; in other words, decide whether or not the defendant has been proven guilty.

But, on the other hand, you are allowed to use the evidence regarding that statement to help you decide whether you think the witness is truthful, the witness, Donald Stanaway, is being truthful. So consider the statement carefully. Ask yourself if the witness made the statement, whether it was true, and whether it differs from the witness' testimony here in court. Then remember that you may only use it to help you decide whether you believe Donald Stanaway, Jr. concerning the testimony that he gave here in court.

And if you should decide that Donald Stanaway, Jr. did make that statement to Officer Peters, the best that you can conclude from that is that the testimony of Donald Stanaway, Jr. should be rejected, should be thrown out and ignored. But that does not make the testimony of Officer Peters useful by you in deciding whether or not the defendant made such a statement or whether or not the defendant is guilty of the crimes with which he is charged.

The only relevance Donald Stanaway's testimony had to this case was whether he made the statement regarding his uncle's alleged admission. The witness had no direct knowledge of any of the alleged incidents and was out of town at the time they would have occurred. While prior inconsistent statements may be used in some circumstances to impeach credibility, MRE 613, this was improper impeachment. The substance of the statement, purportedly used to impeach the credibility of the witness, went to the central issue of the case. Whether the witness could be believed in general was only relevant with respect to whether that specific statement was made. This evidence served the improper purpose of proving the truth of the matter asserted. MRE 801.

While the prosecutor could have presented defendant's alleged admission by way of the nephew's statement, he could not have delivered it by way of the officer's testimony because the statement would be impermissible hearsay. See People v Carner, 117 Mich. App. 560, 571; 324 N.W.2d 78 (1982). Likewise, a prosecutor may not use an elicited denial as a springboard for introducing substantive evidence under the guise of rebutting the denial. People v Bennett, 393 Mich. 445; 224 N.W.2d 840 (1975). Here the prosecutor used the elicited denial as a means of introducing a highly prejudicial "admission" that otherwise would have been inadmissible hearsay. The testimony of Officer Peters was that Donald Stanaway said that Brian Stanaway said that he had sex with a young girl. This would have been clearly inadmissible without Donald Stanaway's denial. It is less reliable in the face of the denial. Absent any remaining testimony from the witness for which his credibility was relevant to this case, the impeachment should have been disallowed.

The defendant asserts that the error was hardly harmless. We agree. While the prosecution argued the impeachment was proper, he did not refute the defendant's assertion that the error was too prejudicial to be deemed harmless. Generally, arguments not raised and preserved for review are waived. See, People v Grant, 445 Mich. 535; 520 N.W.2d 123 (1994); Napier v Jacobs, 429 Mich. 222, 227-228; 414 N.W.2d 862 (1987).

In our assessment of unfair prejudice in People v Robinson, 417 Mich. 661, 665-666; 340 N.W.2d 631 (1983), we held that a trial judge abused his discretion when he allowed the defendant's prior criminal record to be admitted into evidence:

[T]his evidence had a devastating effect on the defendant's right to a fair trial. We agree with the defendant that it "is simply incredible that anyone would hear all of those prior acts of criminal conduct and then remove them from their mind based upon an instruction by the court when they are then to consider the guilt or innocence of the accused. The prejudicial impact of all of those past anti-social acts cannot be effectively removed from the jury's mind by a curative instruction."

Similarly, the admission of this improper statement that had the effect of a confession in the minds of the jury was not an error that, under the circumstances of this case, could be cured by a cautionary instruction. This trial essentially came down to a credibility contest between the defendant and the complainant. The complainant testified about the elements of the crime; the defendant denied any sexual involvement. There is little evidence that compares to the probative weight a confession carries, particularly when delivered by a police officer. The inference from the police officer's testimony was that the defendant admitted the acts he was accused of. Any nagging doubts the jury may have had about whether these sexual incidents took place between the complainant and the defendant were likely erased by the words he purportedly uttered to his nephew.

Likewise, we are of the opinion that in this case, the hearsay error was prejudicial. Under these circumstances, we conclude that allowing the police officer to present defendant's statement purportedly made to his nephew requires reversal of the defendant's conviction and a new trial.

V

In summary, defendant Stanaway's generalized assertion of a need to attack the credibility of his accuser is not sufficient to establish the necessary showing of a reasonable probability that the records contain information material to his defense to overcome the applicable statutory privileges. Despite our agreement that the prosecutor's reference during closing arguments to the substance of the confidential disclosures was improper, it does not require reversal because there was no objection, and a cautionary instruction could have cured the misleading inference. However, it was an abuse of discretion requiring reversal for the trial court, despite defense objections, to allow the improper impeachment of a prosecution witness with hearsay testimony that was highly prejudicial. Because the error was not harmless, we therefore reverse the decision of the Court of Appeals and remand for a new trial.

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

People v Stanaway reversed and remanded.

People v Caruso vacated and remanded to the trial court.

CAVANAGH, C.J., and LEVIN, GRIFFIN, and MALLETT, JJ., concurred with BRICKLEY, J.