John Robert Douglas v. State of Alaska, John Robert Douglas v. State of Alaska ( 2023 )


Menu:
  •                                             NOTICE
    The text of this opinion can be corrected before the opinion is published in the
    Pacific Reporter. Readers are encouraged to bring typographical or other
    formal errors to the attention of the Clerk of the Appellate Courts:
    303 K Street, Anchorage, Alaska 99501
    Fax: (907) 264-0878
    E-mail: corrections @ akcourts.gov
    IN THE COURT OF APPEALS OF THE STATE OF ALASKA
    JOHN ROBERT DOUGLAS,
    Court of Appeals Nos. A-12755 & A-12756
    Appellant,             Trial Court Nos. 3AN-14-04783 CR
    & 2KB-05-00526 CR
    v.
    OPINION
    STATE OF ALASKA,
    Appellee.                    No. 2741 — March 17, 2023
    Appeal from the Superior Court, Third Judicial District,
    Anchorage, Michael L. Wolverton, Judge.
    Appearances: Justin Facey, Assistant Public Advocate, and
    James Stinson, Public Advocate, Anchorage, for the Appellant.
    Diane L. Wendlandt, Assistant Attorney General, Office of
    Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney
    General, Juneau, for the Appellee.
    Before: Allard, Chief Judge, and Wollenberg and Harbison,
    Judges.
    Judge ALLARD.
    In N.G. v. Superior Court, we addressed, but did not resolve, the question
    of whether there are circumstances under which a government witness’s assertion of the
    psychotherapist-patient privilege must yield to a criminal defendant’s constitutional right
    to a fair trial.1 In N.G., we noted that the majority of jurisdictions addressing this issue
    had concluded that “if the defendant makes a sufficient preliminary showing, the
    defendant is entitled to have the trial court conduct an in camera inspection of a
    government witness’s mental health records,” and had further concluded that “the
    witness’s psychotherapist-patient privilege can be overridden if the trial court concludes
    that portions of those records are sufficiently relevant to the defendant’s guilt or
    innocence, or are sufficiently relevant to the witness’s credibility.”2
    Although we noted this majority approach in N.G., we did not directly
    adopt the majority rule under Alaska law because we concluded that resolution of N.G.
    did not require us to decide this issue.3 The current case, however, requires us to resolve
    this issue and to further define the legal standard that a defendant must meet to obtain in
    camera review of privileged mental health records that are in the hands of a third party
    and not known to the prosecution.4
    The defendant in the current case, John Robert Douglas, was convicted,
    following a jury trial, of second-degree sexual assault for grabbing a woman’s breast in
    an elevator.5 At the time of the incident, the woman (R.D.) had a full legal guardian who
    1
    N.G. v. Superior Court, 
    291 P.3d 328
    , 335-38 (Alaska App. 2012).
    2
    
    Id. at 337
    .
    3
    
    Id. at 337-38
    .
    4
    But cf. Gunnerud v. State, 
    611 P.2d 69
    , 71-73 (Alaska 1980) (addressing standard for
    obtaining witness’s psychotherapy records that are in the possession of the prosecution);
    Spencer v. State, 
    642 P.2d 1371
    , 1374-76 (Alaska App. 1982) (same).
    5
    Former AS 11.41.420(a)(1) (2014).
    –2–                                         2741
    had been appointed ten years earlier after R.D. suffered a traumatic brain injury from a
    serious car accident.6
    Prior to trial, Douglas moved for discovery of neuropsychological records
    in R.D.’s guardianship file on the ground that these records likely contained information
    that could be favorable to the defense regarding R.D.’s ability to recall, comprehend, and
    accurately relate what occurred in the elevator. Douglas renewed this motion during
    trial, after it became clear that R.D. had memory issues and still suffered from some of
    the cognitive effects of the traumatic brain injury.
    The superior court denied both requests, ruling that it had no authority to
    order an in camera review under our decision in N.G. because the neuropsychological
    reports were privileged by statute and by Alaska’s psychotherapist-patient privilege.
    But, as just explained, N.G. did not resolve the question of whether
    Alaska’s psychotherapist-patient privilege can be overridden in criminal cases, and our
    decision provided very little guidance on what type of showing a defendant must make
    to obtain in camera review of otherwise privileged mental health records. Accordingly,
    we now resolve those questions by formally adopting a test similar to the one used by the
    majority of jurisdictions that have addressed this issue. Under this test, a defendant is
    entitled to in camera review of privileged mental health records if the defendant can
    show a reasonable likelihood that the records contain exculpatory evidence that is
    relevant to the defense and unavailable from less intrusive sources. If the in camera
    inspection subsequently reveals materially exculpatory evidence — i.e., evidence,
    6
    See AS 13.26.316(c) (providing that a guardian of an incapacitated person has the
    same powers and duties for the ward that a parent has for an unemancipated minor child, with
    few exceptions); AS 13.26.201 (describing the purpose of a guardian and basis for a
    guardianship); AS 13.26.266 (allowing for the court appointment of a guardian if the court
    determines that a person is incapacitated and services of a guardian are necessary).
    –3–                                         2741
    including impeachment evidence, that is favorable to the accused and material to guilt
    or innocence — then that evidence must be disclosed to the defendant.
    Because we conclude that Douglas met this standard, we remand this case
    to the superior court so that the court can conduct the requested in camera review and
    disclose any materially exculpatory evidence that may exist in the records. The parties
    may then litigate whether Douglas is entitled to a new trial or whether the failure to
    conduct the in camera review was harmless beyond a reasonable doubt under the facts
    of this case.
    Background facts and prior proceedings
    On May 30, 2014, R.D. went to pick up a check from her guardian at the
    Office of Public Advocacy. R.D. went into the building alone, although her mother
    waited for her outside the building.
    After picking up her check, R.D. noticed a man (later identified as Douglas)
    standing next to her at the elevators looking at his phone. He bumped into her while they
    were waiting for the elevator, but she thought that it was accidental. When the elevator
    arrived, they both boarded the elevator. Douglas stood right next to R.D., even though
    the elevator was otherwise empty. The elevator stopped on another floor and three
    people got on. The elevator stopped again and the three people got off, leaving R.D.
    alone with Douglas.
    According to R.D.’s testimony at trial, as the elevator doors closed, Douglas
    “grabbed [R.D.’s] boob and . . . private part.” Douglas grabbed R.D.’s right breast
    “[r]eally, really, really hard” with one hand and “dug[] . . . really hard” into the “middle”
    of R.D.’s “vagina area” with the other. R.D. testified that she began to scream and
    Douglas punched her “[v]ery hard” in her forehead, above her right eye.
    –4–                                        2741
    When the elevator doors opened to the lobby, a receptionist saw R.D. and
    Douglas engaged in a struggle. The receptionist testified that at first she thought they
    were “horsing around” with Douglas pushing and pulling at R.D. and her telling him to
    “knock it off” and “[s]top it.” But then she saw Douglas attempt to rip R.D.’s pants
    down and she heard R.D. screaming for Douglas to stop. The receptionist stood up from
    her desk and made eye contact with Douglas, who moved like he was going to leave.
    She then called building security.
    While the receptionist was still on the phone with building security,
    Douglas came back to the elevators where R.D. was standing. The receptionist heard “a
    blood-curdling scream” followed by R.D.’s cries that Douglas was hurting her. The
    receptionist ran into the lobby. Douglas then ran out of the building and was chased by
    two co-workers of the receptionist who had been alerted to what was going on.
    The receptionist called 911. While she was calling 911, the receptionist
    saw R.D. crying, walk outside, clutch her lower abdomen, and collapse.
    The two co-workers caught up with Douglas at a nearby parking garage,
    and Douglas was apprehended by security personnel.
    Anchorage Police Officer Heidi Schaeffer interviewed R.D. at the scene.
    R.D. was “very upset” but she declined medical attention. R.D. told the officer that
    Douglas had grabbed her breast and genital area during the assault. Officer Schaeffer
    noticed a red scratch on R.D.’s left forearm, but she did not take any photographs.
    Officer Schaeffer took R.D. to the police car where Douglas was
    handcuffed. When R.D. and Officer Schaeffer both looked into the window, Douglas
    began making “crude” facial expressions, wagging his tongue back and forth. R.D.
    identified Douglas as her assailant. When Officer Schaeffer escorted Douglas to jail, she
    noticed that his jeans were buttoned, but unzipped.
    –5–                                       2741
    A grand jury later indicted Douglas on one count of second-degree sexual
    assault for engaging in sexual contact (“hand to genitals and/or female breast”) with R.D.
    “without consent.”7
    Douglas’s pretrial motion for in camera review of R.D.’s
    guardianship file
    At the grand jury hearing, R.D. testified that she had a full legal guardian.
    She characterized the guardian as someone who helps her with money issues. She also
    testified that she was in a car accident ten years earlier that left her with “[m]ajor”
    medical issues and caused her to walk slowly.
    Following the grand jury proceedings, Douglas filed a motion requesting
    that the superior court provide discovery of the neuropsychological reports that were part
    of R.D.’s guardianship file. Douglas argued that these portions of the guardianship
    records were not privileged and instead were only “confidential” under Alaska law.8
    According to Douglas, there was good cause to conduct an in camera review of these
    parts of the guardianship file because the appointment of the guardian necessarily meant
    that R.D. had been found to be incapacitated by a court. Douglas further argued that the
    7
    See former AS 11.41.470(8)(A) (2015) (“‘without consent’ means that a person . . .
    with or without resisting, is coerced by the use of force against a person or property, or by
    the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted
    on anyone.”).
    8
    See AS 13.26.021(a) (formerly AS 13.26.013(a)) (allowing courts to release “[a]ll . . .
    information contained in the court records” relating to guardianship proceedings “upon court
    order for good cause shown”). But see AS 13.26.241(b) (formerly AS 13.26.109(b))
    (“Statements of a ward or respondent in the course of evaluations, examinations, and
    treatment [in guardianship proceedings] are privileged, confidential, and not admissible
    without the ward’s or respondent’s consent in any civil or criminal proceeding other than
    [guardianship] proceedings[.]”).
    –6–                                           2741
    “major” medical issues that R.D. alluded to at the grand jury hearing likely included
    traumatic brain injury, and traumatic brain injuries can “affect [a person’s] thinking
    skills, communication, and emotions.”
    The State opposed the motion, asserting that the neuropsychological and
    court visitor reports that Douglas wanted reviewed were privileged under Alaska law.9
    The State characterized Douglas’s motion as a “fishing expedition” based on mere
    “speculat[ion]” that R.D. had a traumatic brain injury, and the State argued that there was
    no evidence that R.D. suffered from any cognitive deficits or that she had any difficulty
    perceiving or remembering the incident.
    R.D. separately opposed the motion for in camera review, arguing that the
    requested portions of her guardianship file should be treated as absolutely privileged
    under Alaska law. She also argued, in the alternative, that any in camera review be
    limited to reports from the time of the events of this matter — May 30, 2014 — to the
    time of the motion.
    The superior court denied Douglas’s pretrial motion for in camera review
    of R.D.’s guardianship records. The superior court ruled first that the records were
    privileged under AS 13.26.241(b) (formerly AS 13.26.109(b)10) and Alaska Evidence
    Rule 504(b) (the psychotherapist-patient privilege), and that any in camera review would
    therefore be governed by this Court’s decision in N.G. v. Superior Court.11 The court
    9
    See AS 13.26.241(b) (formerly AS 13.26.109(b)); see also Alaska R. Evid. 504(b) (the
    psychotherapist-patient privilege).
    10
    Since the time of Douglas’s offense and the proceedings before the superior court in
    this case, the guardianship statutes have been renumbered. However, they were not
    substantively changed and, going forward, we will refer to the current statutory numbering
    scheme.
    11
    N.G. v. Superior Court, 
    291 P.3d 328
     (Alaska App. 2012).
    –7–                                        2741
    then found that Douglas failed to meet even the Booth standard discussed in N.G.
    because he offered only “a number of very speculative assumptions” that R.D. had a
    traumatic brain injury.12
    Douglas’s mid-trial renewed motion for in camera review of
    the neuropsychological reports
    At trial, more information about R.D.’s cognitive functioning emerged,
    including the fact that she had suffered a traumatic brain injury and that she had some
    memory issues as a result.
    R.D.’s mother was the State’s first witness. According to R.D.’s mother,
    R.D. suffered from brain damage as a result of injuries sustained in a 2004 car collision.
    For this reason, R.D. required a guardian.13 She was also unable to live independently,
    and required a personal care assistant and a conservator to manage her finances.
    R.D.’s mother testified that R.D. had “regained the majority of her
    memories,” but she stated that R.D. occasionally had lapses in memory and had trouble
    keeping appointments straight. According to R.D.’s mother, R.D.’s long-term and short­
    term memory “seem[ed] to be working okay.” And in response to defense counsel
    asking whether R.D. had a “hard time remembering things,” R.D.’s mother stated, “Not
    things like this incident.”
    12
    Booth v. State, 
    251 P.3d 369
    , 377 (Alaska App. 2011) (determining that “a defendant
    must present a factual predicate for their discovery request — either pointing to facts already
    within the record, or making an offer of proof that provides the evidentiary foundation for
    the request”).
    13
    The record indicates that, at the time of the underlying incident, R.D. had a full
    guardian. However, it appears that the guardianship may have been partially dissolved by
    the time of trial, and there was testimony suggesting that R.D. no longer had a full guardian,
    although she did have a conservator and a personal care assistant.
    –8–                                           2741
    R.D. also testified at the trial. R.D. testified that she had been in a car
    accident and “smashed [her] head really hard, and . . . had head trauma where . . . [her]
    brain fill[ed with] fluid, and all the fluid leaked out.” The prosecutor asked R.D. if she
    was referring to a traumatic brain injury, and R.D. replied that she was. Later, when the
    defense attorney attempted to cross-examine R.D. about her injuries, R.D. asked what
    her “personal business” had to do with the case.
    During her direct examination, R.D. testified that Douglas grabbed her
    breast “[r]eally, really, really hard.” R.D. also testified that Douglas grabbed her above
    her vagina, but that he did not touch her vagina.
    The next day, after the State had rested its case-in-chief, R.D. told the
    prosecutor’s paralegal that, after thinking it over the previous night, she remembered
    more of what had happened during her altercation with Douglas and she wanted to
    supplement her testimony. Specifically, R.D. wanted to clarify that she now remembered
    that Douglas had touched her vagina. The prosecutor accordingly moved to reopen the
    State’s case.
    The defense attorney objected to the State’s case being reopened. The
    defense attorney also argued that this kind of situation might have been avoided if the
    court had granted discovery of the neuropsychological records because the parties would
    have better known how to prepare for R.D.’s testimony.
    The court had R.D. testify outside the presence of the jury to determine
    what she wanted to say. Using a tissue box to demonstrate, R.D. testified that she was
    thinking about the incident last night and she now remembered that Douglas’s palm had
    been on her vagina at the time he was grabbing at her lower abdomen. The defense
    attorney expressed frustration at trying to cross-examine R.D., noting, “[W]e’re dealing
    with a complaining witness who has a serious traumatic brain injury.” The superior
    court acknowledged that this was the case.
    –9–                                       2741
    Douglas then renewed his request for an in camera review of the
    neuropsychological reports in the guardianship file, arguing that the testimony at trial
    had established that R.D. had a traumatic brain injury and that she might have cognitive
    difficulties and problems perceiving and remembering events.
    Significantly, the prosecutor did not oppose the in camera review. The
    prosecutor pointed out that he had not been the assigned prosecutor when the initial in
    camera review request was litigated and he was not familiar with the litigation. But he
    “assum[ed] if there had been matters in the confidential filing that touched on memory
    loss, that the [c]ourt would have examined that . . . [and] ordered it disclosed.” The
    prosecutor also stated that he “assum[ed] those [confidential] matters . . . remain in the
    sealed record of the court for appellate review,” and he stated that he would leave it to
    the court’s discretion whether to “reopen that issue and reexamine the in camera
    materials in light of this development.”
    The court took a short recess and then returned with its ruling. The court
    ruled that it would allow the State to reopen its case so that R.D. could testify to her new
    memory. But the court denied Douglas’s renewed motion for an in camera review of the
    neuropsychological records in the guardianship file, concluding that this Court’s decision
    in N.G. precluded any such review. The court noted that it had been the trial court in
    N.G. and that, while it disagreed with this Court’s decision in N.G., it was bound to
    follow it.
    R.D. then testified for a second time, stating that she now remembered that
    Douglas’s palm had been on her vagina at the time he grabbed at her “private area.” On
    cross-examination, R.D. acknowledged that she had not said this explicitly in her police
    report or grand jury testimony.
    Following the close of evidence, the defense attorney moved for a judgment
    of acquittal on the hand-to-vagina theory of sexual assault. The court denied the motion.
    – 10 –                                      2741
    During closing argument, the defense attorney argued that Douglas was
    trying to steal R.D.’s check, but that he did not sexually assault her. The defense
    attorney focused on the inconsistencies between R.D.’s testimony and her mother’s
    testimony. The defense attorney also emphasized R.D.’s memory problems.
    The jury ultimately determined beyond a reasonable doubt that Douglas had
    touched R.D.’s breast “without consent.”14 However, the jury did not reach a unanimous
    verdict with regard to the allegation that Douglas had touched R.D.’s vagina.
    This appeal followed.15
    The parties’ arguments on appeal regarding whether the information that
    would be subject to the in camera review is privileged or merely
    confidential
    In his opening brief, Douglas argues that he was seeking in camera review
    of information in the guardianship file that was merely confidential, not privileged.
    Douglas bases this argument on AS 13.26.021(a), the statute that sets forth the general
    disclosure rules for guardianship proceedings. This statute provides that, while some
    documents relating to the existence of a guardianship are available for public inspection,
    14
    See former AS 11.41.470(8)(A) (2015) (“‘without consent’ means that a person . . .
    with or without resisting, is coerced by the use of force against a person or property, or by
    the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted
    on anyone”).
    15
    We note that, following the jury’s guilty verdict, the superior court revoked Douglas’s
    probation in a separate case and imposed the remainder of his suspended sentence (Case No.
    2KB-05-00526CR). Although the probation case was consolidated with the second-degree
    sexual assault case on appeal, Douglas does not challenge the adjudication or disposition of
    his probation violation.
    – 11 –                                        2741
    the information contained in court records relating to a guardianship is otherwise
    confidential and may be released only to case participants or “for good cause shown.”16
    In response, the State argues that, while there are some parts of a
    guardianship file that are merely confidential, Douglas’s request was primarily to have
    the neuropsychological reports reviewed, and those reports are privileged under Alaska
    Evidence Rule 504(b), the psychotherapist-patient privilege. The State also argues that
    any statements by R.D. in those records would be protected under AS 13.26.241(b),
    which provides:
    Statements of a ward or respondent in the course of
    evaluations, examinations, and treatment [in guardianship
    proceedings] are privileged, confidential, and not admissible
    without the ward’s or respondent’s consent in any civil or
    criminal proceeding other than [guardianship] proceedings[.]
    In his reply brief, Douglas concedes that the State is correct and that the
    portions of the guardianship file that he sought to have reviewed are privileged.
    We agree with the parties that the neuropsychological reports in the
    guardianship file are privileged under Alaska Evidence Rule 504(b). We also agree that,
    under AS 13.26.241(b), any statements by R.D. in the guardianship file are privileged.
    Because the majority of the requested in camera review would primarily involve
    privileged material, we now turn to our decision in N.G. v. Superior Court, in which we
    16
    AS 13.26.021(a) (“A notice of the filing of a petition, a summary of all formal
    proceedings, and a dispositional order or modification or termination of a dispositional order
    relating to a proceeding under this chapter shall be available for public inspection. All other
    information contained in the court records relating to a proceeding under this chapter is
    confidential and available only upon court order for good cause shown . . . .”).
    – 12 –                                        2741
    discussed what standard should apply when a defendant seeks in camera review of
    privileged mental health documents that are held by a third party.17
    Our decision in N.G. v. Superior Court
    The defendant in N.G. was charged with sexual assault, attempted sexual
    assault, and physical assault based on allegations that he had attacked a woman named
    N.G.18 Prior to trial, the defendant moved for discovery of N.G.’s “medical, alcohol
    treatment[, and] psychiatric records,” asserting that he was entitled to these records
    because they could include information that was relevant to his defense.19 The only
    support that the defendant provided for this request was (1) case notes from the sexual
    assault examination report stating that N.G. had a history of alcohol abuse and “a history
    of bipolar disorder”; and (2) N.G.’s criminal history, which included convictions that
    may have been for alcohol-related crimes and may have included an alcohol blackout.20
    In response to the defendant’s request, the trial court issued an order
    requiring N.G. to produce the names and addresses of “every health care provider from
    whom she had ever sought medical treatment, psychiatric care or psychological
    counseling, or alcohol counseling or treatment.”21 The order also required N.G. to sign
    a blanket release authorizing all of these health care providers to turn their files over to
    the trial court so that the court could conduct an in camera review of the files and
    disclose any materials that were relevant to “[N.G.’s] ability to accurately perceive or
    17
    N.G. v. Superior Court, 
    291 P.3d 328
     (Alaska App. 2012).
    18
    
    Id. at 329
    .
    19
    
    Id. at 329-30
    .
    20
    
    Id. at 329
    .
    21
    
    Id.
    – 13 –                                       2741
    truthfully report [the] events” at issue in the case.22 The trial court justified its order
    based on its view that the records would likely contain information that was not
    privileged under the psychotherapist-patient privilege.23
    The Office of Victims’ Rights subsequently filed an original application
    with this Court on N.G.’s behalf, arguing that the trial court erred in its interpretation of
    the psychotherapist-patient privilege.24
    This Court agreed with the Office of Victims’ Rights that the trial court had
    taken too narrow a view of the psychotherapist-patient privilege.25 We held that the
    protections of Evidence Rule 504(b) extend not only to “confidential communications”
    between a patient and their psychotherapist but also to “the psychotherapist’s
    perceptions, theories, and conclusions pertaining to diagnosis and treatment when these
    perceptions, theories, and conclusions are based on information imparted to the
    psychotherapist through confidential communications.”26 We also noted that the
    definition of “psychotherapist” under the rule was intended to be very broad and to
    encompass not only psychiatrists and psychologists, but also all licensed professional
    counselors, all licensed marital and family therapists, and “[any] person authorized to
    22
    
    Id. at 330
     (alterations in original).
    23
    
    Id.
    24
    
    Id. at 328, 330
    ; see also Brief of Petitioner at 6, 29-32, N.G. v. Superior Court, 
    291 P.3d 328
     (Alaska App. 2012) (No. A-11049), 
    2011 WL 13383948
    , at *6, *30-32.
    25
    N.G., 
    291 P.3d at 331-34
    .
    26
    
    Id. at 332
    .
    – 14 –                                  2741
    practice medicine . . . while engaged in the diagnosis or treatment of a mental or
    emotional condition, including alcohol or drug addiction.”27
    We therefore concluded that the trial court erred when it assumed that the
    requested mental health and alcohol treatment records would contain significant amounts
    of non-privileged information.28 Instead, it was likely that virtually all of the requested
    records would qualify as privileged.29
    We then turned to the larger question of whether, and under what
    circumstances, a witness’s interests in the confidentiality of their privileged mental health
    information must yield to a defendant’s constitutional right to confrontation.30 We noted
    that the majority of other jurisdictions that have considered this issue have held that “if
    the defendant makes a sufficient preliminary showing, the defendant is entitled to have
    the trial court conduct an in camera inspection of a government witness’s mental health
    records.”31       These jurisdictions have likewise held that a “witness’s
    psychotherapist-patient privilege can be overridden if the trial court concludes that
    portions of those records are sufficiently relevant to the defendant’s guilt or innocence,
    or are sufficiently relevant to the witness’s credibility.”32
    We concluded, however, that we did not need to resolve this question in
    N.G. because, even assuming that we would follow the majority of jurisdictions in
    holding that the psychotherapist-patient privilege could be overridden under certain
    27
    
    Id. at 331
     (alteration and omission in original).
    28
    
    Id. at 334
    .
    29
    
    Id.
    30
    
    Id. at 335-40
    .
    31
    
    Id. at 337
    .
    32
    
    Id.
    – 15 –                                      2741
    circumstances, the defendant in N.G. had failed to make even the minimal preliminary
    showing that would be required.33 We described this minimal showing as the standard
    we adopted in Booth v. State.34
    In Booth, we addressed the question of what type of showing was required
    to grant a defendant’s request for in camera review of law enforcement personnel
    records, which are confidential under Alaska law.35 We held that a defendant would be
    entitled to this type of review if:
    the defendant identifies a type of information that would be
    relevant to the defendant’s guilt or innocence (in light of the
    facts of the case, the State’s theory of prosecution, and the
    defendant’s theory of defense), and if this type of information
    is the kind of information that would be recorded in a police
    officer’s personnel file.[36]
    We further held that if, during the in camera review, the court discovered that the
    personnel file did contain information relevant to the defendant’s guilt or innocence, then
    the court should turn that information over to the defense.37 We emphasized, however,
    that a defendant must support the motion for in camera review “with more than
    conclusory statements or unsupported assertions.”38
    33
    
    Id. at 338
    .
    34
    
    Id.
     (discussing Booth v. State, 
    251 P.3d 369
    , 374 (Alaska App. 2011)).
    35
    Booth, 
    251 P.3d at 373-78
    .
    36
    
    Id.
     at 374 (citing Dana v. State, 
    623 P.2d 348
     (Alaska App. 1981)); see also People
    v. Gissendanner, 
    399 N.E.2d 924
     (N.Y. 1979).
    37
    Booth, 
    251 P.3d at 374
    .
    38
    
    Id. at 376
    . Similarly, Alaska Criminal Rule 42(b)(2) requires that a motion must be
    supported by “a detailed statement of material facts which can be proved by the [moving]
    (continued...)
    – 16 –                                     2741
    In N.G., we held that the defendant had failed to meet the Booth test
    because the defendant’s offer of proof was too speculative.39 That is, the defendant did
    not provide a sufficient evidentiary basis for concluding that persons who have
    experienced an alcoholic blackout at some point in the past, or who have a history of
    bipolar disorder, are therefore “more likely to hallucinate or fundamentally misperceive
    events, or are more likely to be unable to discern truth from fiction in their later
    recounting of events.”40 We therefore reversed the trial court’s order granting in camera
    review of “every health care provider from whom [N.G.] had ever sought medical
    treatment, psychiatric care or psychological counseling, or alcohol counseling or
    treatment.”41
    Why we conclude that the superior court erred in ruling that N.G.
    precluded any in camera review of R.D.’s guardianship file
    In the current case, the superior court denied Douglas’s renewed motion for
    in camera review of the neuropsychological records in R.D.’s guardianship file because
    the court read N.G. as precluding any such review. We agree with Douglas that this was
    error. As just explained, we did not resolve in N.G. whether, and under what
    circumstances, in camera review of privileged mental health documents should occur
    under Alaska law because the defendant in N.G. did not even meet the Booth standard
    required for in camera review of merely confidential documents.
    38
    (...continued)
    party.”
    39
    N.G., 
    291 P.3d at 338-40
    .
    40
    
    Id.
    41
    
    Id. at 329, 340
    .
    – 17 –                                     2741
    Here, in contrast to N.G., Douglas did put forward an offer of proof that
    was more than sufficient to meet the Booth relevancy standard. Certainly by the time of
    the renewed motion at trial, it was clear that R.D.’s guardianship file would likely
    contain information that was relevant to R.D.’s ability to accurately perceive, recount,
    and/or recall the events in dispute and that this information could be directly relevant to
    the defense attorney’s ability to effectively cross-examine R.D. at trial.
    This case therefore requires us to resolve the legal questions we left open
    in N.G. — namely, whether there are circumstances under which a witness’s
    psychotherapist-patient privilege must yield to a defendant’s constitutional rights and,
    if so, what type of showing a defendant must make to obtain in camera review of such
    privileged information.
    Why we conclude that the psychotherapist-patient privilege must, under
    certain circumstances, yield to a defendant’s constitutional rights
    On appeal, the State urges us to hold that Alaska’s psychotherapist-patient
    privilege presents an absolute bar to disclosure in criminal cases.
    In support of this argument, the State cites to Jaffee v. Redmond.42 In
    Jaffee, the United States Supreme Court held that a civil plaintiff was not entitled to
    discovery of statements that a police officer made to a licensed social worker because
    those statements were protected by the federal psychotherapist-patient privilege.43 In
    reaching this holding, the Court emphasized that the psychotherapist-patient privilege
    was protective of both a patient’s privacy interests and the public good.44 The Court
    42
    Jaffee v. Redmond, 
    518 U.S. 1
     (1996).
    43
    
    Id. at 4-5, 18
    .
    44
    
    Id. at 11
    .
    – 18 –                                      2741
    explained that “[e]ffective psychotherapy . . . depends upon an atmosphere of confidence
    and trust” and therefore “the mere possibility of disclosure may impede development of
    the confidential relationship necessary for successful treatment.”45 The Court further
    explained that “[t]he psychotherapist privilege serves the public interest by facilitating
    the provision of appropriate treatment for individuals suffering the effects of a mental or
    emotional problem” and that “[t]he mental health of our citizenry, no less than its
    physical health, is a public good of transcendent importance.”46
    In dicta, the Jaffee Court seemingly rejected a balancing approach that
    would have weighed the various interests at stake and allowed disclosure under certain
    circumstances. Instead, the Court opined that “[a]n uncertain privilege, or one which
    purports to be certain but results in widely varying applications by the courts, is little
    better than no privilege at all.”47 The Court declined, however, to hold that the privilege
    was absolute, concluding that “it [was] neither necessary nor feasible to delineate its full
    contours in a way that would ‘govern all conceivable future questions in this area.’”48
    We consider Jaffee to be of only marginal relevance to the current case.
    Jaffee is a civil case, and, as such, it does not involve a criminal defendant’s
    constitutional rights.49 Indeed, many federal and state courts have declined to extend the
    45
    
    Id. at 10
    .
    46
    
    Id. at 11
    .
    47
    
    Id. at 18
     (quoting Upjohn Co. v. United States, 
    449 U.S. 383
    , 393 (1981)).
    48
    
    Id.
     (quoting Upjohn, 
    449 U.S. at 386
    ). The Court also recognized that there probably
    were circumstances where the privilege must yield: “we do not doubt that there are situations
    in which the privilege must give way, for example, if a serious threat of harm to the patient
    or to others can be averted only by means of a disclosure by the therapist.” 
    Id.
     at 18 n.19.
    49
    See U.S. Const. amend. V, VI, XIV; Alaska Const. art. I, § 11; cf. Davis v. Alaska, 415
    (continued...)
    – 19 –                                        2741
    Jaffee reasoning into the criminal context for that reason.50 Instead, these courts have
    applied a balancing approach to this issue and have held that there will be circumstances
    where the psychotherapist-patient privilege must yield to a defendant’s due process right
    to present a defense as well as a defendant’s constitutional rights to confrontation, cross-
    examination, and compulsory process.51
    49
    (...continued)
    U.S. 308 (1974) (holding that a state’s interest in the confidentiality of juvenile records must
    yield to a criminal defendant’s Sixth Amendment right to confront the witnesses against
    them).
    50
    See, e.g., Bassine v. Hill, 
    450 F. Supp. 2d 1182
    , 1185-86 (D. Or. 2006) (distinguishing
    Jaffee and concluding that criminal defendant’s constitutional rights outweighed privacy
    interest in psychotherapy records); United States v. Mazzola, 
    217 F.R.D. 84
    , 88-89 (D. Mass.
    2003) (declining to extend Jaffee to criminal case and holding that societal interests in
    guarding the confidentiality of communications between a therapist and client were
    outweighed by a criminal defendant’s constitutional right to effectively prepare and cross-
    examine a witness); United States v. Hansen, 
    955 F. Supp. 1225
    , 1226 (D. Mont. 1997)
    (holding that a criminal defendant’s demonstrated need for the records outweighed the
    witness’s privilege, and noting that this was “consistent with the Jaffee Court’s intent that
    the precise contours of the privilege be developed in specific cases”); State v. Fay, 
    167 A.3d 897
    , 909 (Conn. 2017) (holding that “the balance of equities in criminal cases involving the
    psychiatrist-patient privilege of a homicide victim is significantly different than in civil cases
    like Jaffee” and concluding that a criminal defendant is entitled to in camera review if they
    can establish a compelling need); Commonwealth v. Barroso, 
    122 S.W.3d 554
    , 558 (Ky.
    2003) (noting that, unlike in Jaffe, balancing of interests in criminal cases involves
    defendant’s constitutional rights); State v. Johnson, 
    102 A.3d 295
    , 303-06 (Md. 2014)
    (distinguishing Jaffee and holding that the victim’s right to assert a privilege may, under
    certain circumstances, have to yield to the criminal defendant’s constitutional rights at trial).
    51
    See, e.g., D.P. v. State, 
    850 So. 2d 370
    , 374 (Ala. Crim. App. 2002); State v. Slimskey,
    
    779 A.2d 723
    , 731-32 (Conn. 2001); Burns v. State, 
    968 A.2d 1012
    , 1024-25 (Del. 2009);
    Bobo v. State, 
    349 S.E.2d 690
    , 692 (Ga. 1986); State v. Peseti, 
    65 P.3d 119
    , 128 (Haw.
    2003); Barroso, 122 S.W.3d at 563; Commonwealth v. Dwyer, 
    859 N.E.2d 400
    , 415-16
    (Mass. 2006); People v. Stanaway, 
    521 N.W.2d 557
    , 575 (Mich. 1994); State v. Hummel, 483
    (continued...)
    – 20 –                                         2741
    Thus, for example, in Bobo v. State, the Georgia Supreme Court held that
    “when the privilege of a witness stands in the way of the defendant’s right to confront
    the witnesses against him, then, upon a proper showing by the defendant, the balance
    must be tipped in favor of his constitutional rights and the search for the truth.”52
    Likewise, in State v. Peseti, the Hawai’i Supreme Court held that “when a statutory
    privilege interferes with a defendant’s constitutional right to cross-examine, then, upon
    a sufficient showing by the defendant, the witness’ statutory privilege must, in the
    interest of the truth-seeking process, bow to the defendant’s constitutional rights.”53
    Similarly, in Commonwealth v. Barroso, the Kentucky Supreme Court held that “[i]f the
    psychotherapy records of a crucial prosecution witness contain evidence probative of the
    witness’s ability to recall, comprehend, and accurately relate the subject matter of the
    testimony, the defendant’s right to compulsory process must prevail over the witness’s
    psychotherapist-patient privilege.”54 And in People v. Stanaway, the Michigan Supreme
    51
    (...continued)
    N.W.2d 68, 71-72 (Minn. 1992); State v. King, 
    34 A.3d 655
    , 657-58 (N.H. 2011); State v.
    L.J.P., 
    637 A.2d 532
    , 536-37 (N.J. Super. App. Div. 1994); State v. Gonzales, 
    912 P.2d 297
    ,
    299-302 (N.M. App. 1996); People v. Acklin, 
    424 N.Y.S.2d 633
    , 636 (N.Y. Sup. 1980); State
    v. Middlebrooks, 
    840 S.W.2d 317
    , 332-33 (Tenn. 1992), superseded on other grounds by
    statute, Tenn. L. Pub. 1995 ch. 377, § 1; State v. Blake, 
    63 P.3d 56
    , 61-62 (Utah 2002); State
    v. Kalakosky, 
    852 P.2d 1064
    , 1077-78 (Wash. 1993); State v. Green, 
    646 N.W.2d 298
    , 304­
    10 (Wis. 2002). We note that there are also two jurisdictions (California and Maryland) that
    allow in camera review and disclosure of privileged mental health records at trial upon a
    sufficient defense showing, but otherwise reject pretrial discovery of such privileged
    materials. See People v. Hammon, 
    938 P.2d 986
    , 992-93 (Cal. 1997); Goldsmith v. State, 
    651 A.2d 866
    , 873 (Md. 1995).
    52
    Bobo v. State, 
    349 S.E.2d 690
    , 692 (Ga. 1986).
    53
    State v. Peseti, 
    65 P.3d 119
    , 128 (Haw. 2003).
    54
    Commonwealth v. Barroso, 
    122 S.W.3d 554
    , 563 (Ky. 2003).
    – 21 –                                        2741
    Court held, “The state’s interest in preserving the confidentiality of the social worker,
    diversion, and rape-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.”55
    Having reviewed the relevant case law from other jurisdictions, we
    conclude that the reasoning from the courts permitting in camera review of privileged
    mental health records under certain circumstances is more persuasive than the approach
    followed by the handful of jurisdictions that treat their evidentiary privileges as an
    absolute bar to any disclosure.56 Accordingly, we now formally join the majority of
    55
    People v. Stanaway, 
    521 N.W.2d 557
    , 575 (Mich. 1994).
    56
    On appeal, the State cites to cases from three jurisdictions (Pennsylvania, Colorado,
    and Illinois) that it asserts treat their evidentiary privilege as absolute. See Commonwealth
    v. Wilson, 
    602 A.2d 1290
     (Pa. 1992) (holding a statutory rape victim-counselor privilege to
    be absolute); People v. District Court, 
    719 P.2d 722
    , 727 & n.3 (Colo. 1986) (holding the
    psychotherapist-patient privilege absolute and rejecting the “balancing test” that other
    jurisdictions use); People v. Foggy, 
    500 N.E.2d 1026
    , 1031-32 (Ill. App. 1986), aff’d, 
    521 N.E.2d 86
     (Ill. 1988) (upholding a facial and as-applied constitutional challenge to a statutory
    rape victim-counselor privilege that the legislature intended to be absolute).
    As an initial matter, we question the inclusion of Illinois in this list. The State cites
    to an Illinois Supreme Court case, People v. Foggy, in support of its claim that the
    psychotherapist-patient privilege is absolute under Illinois law. But, in that case, the Illinois
    Supreme Court fell short of declaring its statutory rape victim-counselor privilege absolute
    and instead held only that the defendant’s particular showing was inadequate. See Foggy,
    
    521 N.E.2d at 91-92
     (affirming the denial of an in camera review but emphasizing that the
    defense request was “merely general”). Moreover, Foggy involved a specific Illinois statute
    that created an absolute statutory privilege for rape victim counselors; it did not involve the
    general psychotherapist-patient privilege that applies to other types of mental health records.
    See 
    id. at 87
    . Indeed, there are Illinois cases, some of which post-date Foggy, that suggest
    that a defendant in Illinois is entitled to an in camera review of mental health records if the
    defendant “sufficiently show[s] that the requested records are material and relevant to the
    witness’s credibility.” People v. Graham, 
    947 N.E.2d 294
    , 300 (Ill. App. 2011) (quoting
    (continued...)
    – 22 –                                        2741
    courts in holding that Alaska’s psychotherapist-privilege must, under certain
    circumstances, yield to a criminal defendant’s constitutional rights, and thus, upon a
    sufficient preliminary showing, a defendant is entitled to in camera review of otherwise
    privileged mental health records. We turn next to the question of what that preliminary
    showing should entail.
    The standard that applies to a defendant’s request for in camera review of
    privileged mental health records
    In N.G. v. Superior Court, we suggested that the standard that must be met
    to obtain in camera review of privileged mental health records should be higher than the
    standard used in Booth to obtain in camera review of a police officer’s confidential
    personnel file, given the enhanced privacy concerns associated with a person’s mental
    health records.57 We now formally adopt this suggestion, holding that the standard
    should be higher, particularly because the defense request will often be for the alleged
    victim’s mental health records. We note that under Article I, Section 24 of the Alaska
    Constitution, crime victims have the right “to be treated with dignity, respect, and
    fairness during all phases of the criminal . . . process.” The Alaska Victims’ Rights Act
    56
    (...continued)
    People v. K.S., 
    900 N.E.2d 1275
    , 1278 (Ill. App. 2008)); see also People v. Dace, 
    449 N.E.2d 1031
     (Ill. App. 1983).
    We also note that the Pennsylvania psychotherapist-patient privilege is statutory and
    does not include any exceptions. See 
    42 Pa. Cons. Stat. § 5944
     (stating that “[t]he
    confidential relations and communications between a psychologist or psychiatrist and his
    client shall be on the same basis as those provided or prescribed by law between an attorney
    and client”). In contrast, the Alaska psychotherapist-patient privilege is rule-based and
    includes a number of already established exceptions. See Alaska R. Evid. 504(d)
    (enumerating different exceptions to the psychotherapist-patient privilege including when
    “the condition of the patient is an element of the claim or defense of the patient”).
    57
    N.G. v. Superior Court, 
    291 P.3d 328
    , 338 (Alaska App. 2012).
    – 23 –                                       2741
    likewise contains several provisions that are specifically intended to “protect victims of
    . . . crime from risk of harassment, intimidation, and unwarranted invasion of privacy.”58
    It is therefore necessary to craft a standard that takes full account of the competing
    constitutional rights at stake.59
    In Booth, we held that a defendant was entitled to in camera review of a
    police officer’s confidential personnel records based primarily upon a showing of
    possible relevancy. Under Booth, “the defendant need only show that if the requested
    personnel files contain the sort of information described in the defendant’s motion, this
    information would be relevant to the defendant’s guilt or innocence (given the facts of
    the case, the State’s theory of prosecution, and the defendant’s theory of defense).”60 In
    addition, to prevent defendants from engaging in whole-scale fishing expeditions, the
    defendant “must present a factual predicate for their discovery request — either pointing
    to facts already within the record, or making an offer of proof that provides the
    evidentiary foundation for the request.”61
    In contrast, to obtain in camera review of otherwise privileged records,
    most jurisdictions require a defendant to show more than just the possibility that the
    records might contain relevant information. Instead, defendants must generally show
    something akin to a “reasonable probability,” “reasonable belief,” or a “reasonable
    likelihood” that the records will contain evidence that is “exculpatory” or “necessary to
    58
    AS 12.61.100.
    59
    See N.G., 
    291 P.3d at 340-41
     (Bolger, J., concurring) (noting Article I, Section 24 and
    concluding that “a healthy construction of [the psychotherapist-patient] privilege is necessary
    to avoid infringing on privacy interests protected by the constitution”).
    60
    Booth v. State, 
    251 P.3d 369
    , 375 (Alaska App. 2011).
    61
    
    Id. at 377
    .
    – 24 –                                        2741
    a determination of guilt or innocence” or “material information necessary to the
    defense.”
    Below is a representative sample of the various tests that defendants in
    different jurisdictions must meet in order to obtain in camera review of otherwise
    privileged mental health records.
    Connecticut: The defendant must make a preliminary
    showing that “there is a reasonable ground to believe that the
    failure to produce the records would likely impair his right to
    impeach the witness.”[62]
    Hawai’i: The defendant must demonstrate that “(1) there is
    a legitimate need to disclose the protected information;
    (2) the information is relevant and material to the issue before
    the court; and (3) the party seeking to pierce the privilege
    shows by a preponderance of the evidence that no less
    intrusive source for that information exists.”[63]
    Kentucky: The defendant must establish “a reasonable belief
    that the records contain exculpatory evidence.”[64]
    Maryland: The defendant must establish “a reasonable
    likelihood that the privileged records contain exculpatory
    information necessary for a proper defense.”[65]
    Michigan: The defendant must make a showing of a “good­
    faith belief, grounded on some demonstrable fact, that there
    62
    State v. Peeler, 
    857 A.2d 808
    , 841 (Conn. 2004) (quoting State v. Slimskey, 
    779 A.2d 723
    , 732 (Conn. 2001)).
    63
    State v. Peseti, 
    65 P.3d 119
    , 129 (Haw. 2003) (quoting State v. L.J.P., 
    637 A.2d 532
    ,
    537 (N.J. Super. App. Div. 1994)).
    64
    Commonwealth v. Barroso, 
    122 S.W.3d 554
    , 564 (Ky. 2003).
    65
    Goldsmith v. State, 
    651 A.2d 866
    , 877 (Md. App. 1995); see also State v. Johnson,
    
    102 A.3d 295
    , 299 (Md. 2014).
    – 25 –                                      2741
    is a reasonable probability that the records are likely to
    contain material information necessary to the defense.”[66]
    New Hampshire: The defendant must establish “a reasonable
    probability that the records contain information that is
    material and relevant to his defense.”[67]
    Utah: The defendant must show “with reasonable certainty
    that exculpatory evidence exists which would be favorable to
    [the] defense.”[68] (Note that “reasonable certainty” in this
    context is defined as resting between a “reasonable
    probability” and “more likely than not.”[69])
    Wisconsin: The defendant must “set forth, in good faith, a
    specific factual basis demonstrating a reasonable likelihood
    that the records contain relevant information necessary to a
    determination of guilt or innocence and is not merely
    cumulative to other evidence available to the defendant.”[70]
    66
    People v. Stanaway, 
    521 N.W.2d 557
    , 574 (Mich. 1994).
    67
    State v. King, 
    34 A.3d 655
    , 658 (N.H. 2011) (quoting State v. Gagne, 
    612 A.2d 899
    ,
    901 (N.H. 1992)); see also 
    Iowa Code § 622.10
    (4)(a)(2)(a) (requiring defendant to show “a
    reasonable probability that the information sought is likely to contain exculpatory
    information”).
    68
    State v. Blake, 
    63 P.3d 56
    , 61 (Utah 2002) (alteration in original) (quoting State v.
    Cardall, 
    982 P.2d 79
    , 85 (Utah 1999)). We note that Utah has a separate standard that
    applies to the in camera review once the records have been obtained. In conducting the in
    camera review, the trial court is required to use a “reasonable probability” standard to decide
    which of the privileged records are “material” to the defendant’s defense and should
    therefore be disclosed. Under this standard, evidence is deemed “material” and must be
    disclosed where “there is a reasonable probability that, if the evidence is disclosed to the
    defense, the result of the proceeding will be different.” Id. at 62.
    69
    Id. at 61.
    70
    State v. Green, 
    646 N.W.2d 298
    , 310 (Wis. 2002).
    – 26 –                                        2741
    Despite the slight differences in how these standards are described, they all
    appear to operate similarly in practice.
    For example, all of the standards require a defendant to do more than make
    a general request for in camera review based on the fact that the victim or witness has
    been in counseling or might have a mental illness.71 In State v. Blake, for example, the
    defendant argued that the victim’s mental health records were “important” because they
    might have information about “whether she has recanted or not” during the counseling.72
    The defendant also speculated that the records might contain information about
    “medication she’s taking that effect [sic] her credibility” or that the victim “may have a
    mental illness where part of the diagnosis is chronic lying.”73
    The Utah Supreme Court held that this showing was insufficient to justify
    in camera review, noting that the situation “differs markedly from cases where a criminal
    defendant can point to information from outside sources suggesting that a victim has
    71
    See, e.g., State v. Fay, 
    167 A.3d 897
    , 914 (Conn. 2017) (defendant’s claim that victim
    suffered from depression and attended psychiatric counseling insufficient to justify in camera
    review because “the mere existence of a mental condition, without any showing of relevance,
    will not suffice to justify intrusion into the victim’s privileged medical records”); State v.
    Johnson, 
    102 A.3d 295
    , 309 (Md. 2014) (noting that a “speculative assertion that the records
    might be relevant for impeachment” is insufficient to justify in camera review (quoting
    Goldsmith v. State, 
    651 A.2d 866
    , 877 (Md. App. 1995))); State v. Gonzales, 
    912 P.2d 297
    ,
    302 (N.M. App. 1996) (“A general assertion that inspection of the records is needed for a
    possible attack on the victim’s credibility is insufficient to meet [the] threshold showing.”);
    Blake, 63 P.3d at 61-62 (holding that the defendant’s “mere speculation” that the victim’s
    counseling records might have contained exculpatory evidence was “clearly not enough to
    warrant in camera review”).
    72
    Blake, 63 P.3d at 61-62.
    73
    Id.
    – 27 –                                        2741
    recanted or accused another of the crime alleged or has a history of mental illness
    relevant to the victim’s ability to accurately report on the assault.”74
    Later in its opinion, the supreme court provided additional guidance
    regarding what type of showing would justify an in camera review under the Utah
    “reasonable certainty” standard:
    At a minimum, specific facts must be alleged. These might
    include references to records of only certain counseling
    sessions, which are alleged to be relevant, independent
    allegations made by others that a victim has recanted, or
    extrinsic evidence of some disorder that might lead to
    uncertainty regarding a victim’s trustworthiness.[75]
    The Kentucky Supreme Court has likewise declared that “[a] person’s
    credibility is not in question merely because he or she is receiving treatment for a mental
    health problem.”76 Indeed, “[t]o subject every witness in a criminal prosecution to an in
    camera review of their psychotherapist’s records would be the invasion of privacy which
    the psychotherapist-patient privilege is intended to prevent.”77
    At the same time, the supreme court recognized that “[c]ertain forms of
    mental disorder have high probative value on the issue of credibility.”78 Thus, for
    example, if a defendant had a good-faith factual basis for believing that the victim may
    suffer from hallucinations or delusions, such a showing would be sufficient to obtain in
    74
    Id. at 62.
    75
    Id.
    76
    Commonwealth v. Barroso, 
    122 S.W.3d 554
    , 563 (Ky. 2003) (quoting People v. Pack,
    
    201 Cal. App. 3d 679
    , 
    248 Cal. Rptr. 240
    , 244 (Cal. App. 1988)).
    77
    
    Id.
     (quoting Pack, 248 Cal. Rptr. at 244).
    78
    Id. at 562 (quoting United States v. Lindstrom, 
    698 F.2d 1154
    , 1160 (11th Cir.1983)).
    – 28 –                                       2741
    camera review under Kentucky law.79 Other jurisdictions have followed similar
    reasoning.80
    On appeal, the State argues that this Court should adopt a higher standard
    for permitting in camera review than that recognized by the majority of jurisdictions.
    Specifically, the State contends that the standard should be the same as that which
    applies to a defendant’s request for a court-ordered psychiatric evaluation of the alleged
    victim.
    In Pickens v. State, we held that a court should order a psychiatric
    examination of a victim only if “the circumstances indicate a necessity for an
    examination.”81 We further explained,
    Such necessity would generally arise only if little or no
    corroboration supported the charge and if the defense raised
    the issue of the effect of the complaining witness’ mental or
    emotional condition upon her veracity.[82]
    79
    Id. at 562-63.
    80
    See, e.g., State v. Peeler, 
    857 A.2d 808
    , 842 (Conn. 2004) (in camera review justified
    where witness diagnosed with significant mental disorders, including cocaine induced
    psychiatric disorder with hallucinations; chronic paranoid schizophrenia; drug induced
    psychosis while using cocaine, and antisocial personality disorder); People v. Stanaway, 
    521 N.W.2d 557
    , 576-77 (Mich. 1994) (in camera review justified where defendant claimed
    victim was a “troubled, maladjusted child whose past trauma had caused her to make a false
    accusation” and defendant pointed to prior abuse by biological father and factual support
    showing sexually aggressive behavior by the victim); State v. Pandolfi, 
    765 A.2d 1037
    , 1043
    (N.H. 2000) (in camera review of counseling records justified to determine what medication,
    if any, the witness was taking after witness testified that she may have been confused about
    certain dates because of the medication she was taking in connection with her counseling).
    81
    Pickens v. State, 
    675 P.2d 665
    , 668 (Alaska App. 1984) (quoting Ballard v. Superior
    Court, 
    410 P.2d 838
    , 849 (Cal. 1966)).
    82
    
    Id.
     (quoting Ballard, 410 P.2d at 849).
    – 29 –                                        2741
    Moreover, to sufficiently raise the issue of the victim’s mental or emotional condition,
    it would be incumbent on the defendant to make “a specific showing” of “good cause to
    believe” that (1) the victim’s ability to perceive events accurately or to relate those events
    truthfully was substantially impaired; and (2) this impairment was of such a nature that
    a psychological evaluation would be likely to confirm its existence or to provide material
    information as to its scope.83
    The Pickens standard shares some commonalities with the standards used
    in other jurisdictions to obtain in camera review of a victim’s privileged mental health
    records. Like those standards, it requires a good faith factual basis — i.e., a “specific
    showing” and it relies on a similar concept of constitutional “necessity.”
    But the Pickens standard is nevertheless more stringent, because ordering
    a victim to undergo a court-ordered psychiatric examination is significantly more
    intrusive than an in camera review of already-existing mental health records. The
    Pickens standard is also inapposite because it does not address other types of exculpatory
    evidence — such as a recantation — that may exist in a victim’s mental health records.
    Accordingly, we reject the State’s suggestion that we should adopt the
    Pickens standard as the proper standard to evaluate a defense request for in camera
    review of a victim or witness’s privileged mental health records. Instead, we adopt a
    standard that is similar to the ones used by the majority of other jurisdictions. Under this
    standard, a defense request for in camera review of privileged mental health records
    should be granted if the defendant has shown a reasonable likelihood that the records will
    contain exculpatory evidence that is necessary to the defense and unavailable from a less
    intrusive source.
    83
    Id. at 669.
    – 30 –                                        2741
    Like the standards used in other jurisdictions, this standard is intended to
    protect both the privilege and a defendant’s constitutional rights. As one commentator
    has noted, “Requiring a defendant to allege a good faith factual basis in his request for
    privileged records poses a significant hurdle to a defendant who seeks records merely as
    an intimidation tactic, reduces the disclosure of records in ‘fishing expeditions,’ and
    protects both the victim’s privacy rights and the privilege.”84
    We also emphasize that this standard is the preliminary showing that a
    defendant must meet to obtain in camera review of privileged mental health records.
    Like most other jurisdictions, we hold that the trial court may only disclose those records
    containing information that qualifies as materially exculpatory under the facts of that
    case. As a general matter, evidence is deemed material when it “might have led the jury
    to entertain a reasonable doubt about the defendant’s guilt.”85
    As other jurisdictions have recognized, there are distinct advantages to
    requiring an initial in camera review, rather than requiring disclosure directly to the
    defendant or the defendant’s attorney.86 First, an in camera review is significantly less
    intrusive than such disclosure would be. Indeed, as the Connecticut Supreme Court has
    explained:
    84
    Jennifer L. Hebert, Note, Mental Health Records in Sexual Assault Cases: Striking
    a Balance to Ensure a Fair Trial for Victims and Defendants, 
    83 Tex. L. Rev. 1453
    , 1477
    (2005).
    85
    Williams v. State, 
    629 P.2d 54
    , 64 (Alaska 1981).
    86
    See, e.g., State v. Green, 
    646 N.W.2d 298
    , 310 (Wis. 2002); State v. Peseti, 
    65 P.3d 119
    , 132-34 (Haw. 2003); Stanaway, 521 N.W.2d at 575; see also March v. State, 
    859 P.2d 714
    , 717 (Alaska App. 1993) (noting that in camera review of confidential materials is “the
    proper procedure for safeguarding a criminal defendant’s due process rights to discovery of
    exculpatory information”).
    – 31 –                                      2741
    An in camera review is a relatively modest intrusion into a
    victim’s mental health history, and that narrow exception to
    the psychiatrist-patient privilege — an exception available
    only when the court finds it clearly necessary in order to
    safeguard the accused’s fair trial rights — is unlikely to prove
    any more of a deterrent to persons seeking mental health
    treatment than that already attributable to existing statutory
    exceptions.[87]
    Second, an in camera review has the benefit of creating a record for any future appellate
    review. This provides an additional safeguard in cases where the trial court grants the
    in camera review but ultimately does not disclose any of the privileged material.
    For these reasons, some jurisdictions have encouraged trial courts to err on
    the side of granting in camera review in close cases, while still emphasizing the need for
    stringency with regard to the decision of what to disclose following the in camera
    review. As the Wisconsin Supreme Court has advised trial courts,
    Our standard is not intended . . . to be unduly high for the
    defendant before an in camera review is ordered by the circuit
    court. The defendant, of course, will most often be unable to
    determine the specific information in the records. Therefore,
    in cases where it is a close call, the circuit court should
    generally provide an in camera review. We have confidence
    in the circuit courts to then make a proper determination as to
    whether disclosure of the information is necessary based on
    the competing interests involved in such cases.[88]
    We recognize the burden that in camera review places on trial courts, who
    generally lack complete information about the facts of the case and may therefore fail to
    87
    State v. Fay, 
    167 A.3d 897
    , 909-10 (Conn. 2017).
    88
    Green, 646 N.W.2d at 310 (citations omitted).
    – 32 –                                     2741
    recognize the significance (or insignificance) of particular information to the defense.89
    Because of these difficulties, there is at least one jurisdiction — Massachusetts — that
    eschews the use of in camera reviews altogether. Under Massachusetts law, a defendant
    must make a preliminary showing of necessity similar to the preliminary showing
    required by other jurisdictions to obtain production of statutorily privileged records.90
    However, unlike in other jurisdictions, once those records have been produced, they are
    given directly to the defense attorney who is allowed to review them for exculpatory
    evidence under a strict protective order that precludes the attorney from copying the
    records or disclosing their contents to anyone else, including the defendant, until
    expressly permitted to do so by the trial court.91 The Massachusetts Supreme Judicial
    Court adopted this unique protocol because it concluded that “[t]he absence of an
    advocate’s eye may have resulted in overproduction, as well as underproduction, of
    privileged records, and has repeatedly contributed to trial delays and appeals,
    jeopardizing the rights of defendants, complainants, and the public.”92
    Douglas does not request that we adopt a protocol similar to the one used
    in Massachusetts. Nor are we inclined to do so. Despite the burden that an in camera
    review can place on trial courts, we believe that it remains the best method for striking
    the appropriate balance between the competing interests at stake.
    We nevertheless remind defense attorneys of the need to provide the court
    with an overview of the facts of the case, the State’s theory of prosecution, the
    defendant’s theory of defense, and the reasons why the exculpatory evidence (if it exists)
    89
    See, e.g., Commonwealth v. Dwyer, 
    859 N.E.2d 400
    , 418 (Mass. 2006).
    90
    Id. at 418-19.
    91
    Id. at 419, 422.
    92
    Id. at 418.
    – 33 –                                     2741
    would be material to the determination of guilt or innocence.93 Such information is
    important not only to establish the preliminary showing required to obtain in camera
    review, but also to educate the trial court about the case for the later in camera review.
    We also advise trial courts that, in some circumstances, the full exculpatory
    value of certain records may not be clear until after the witness has testified at trial and
    more is known about the case and the witness. Trial courts should therefore be aware
    that the duty to disclose is an ongoing duty that continues through trial.94 Courts should
    also be receptive to any renewed requests for in camera review that may be based on
    new information learned at trial (as occurred in this case).
    Lastly, we note that there are some jurisdictions that leave the ultimate
    decision of whether the privilege should be breached to the privilege holder — i.e., to the
    witness whose privileged records are being sought.95 Thus, in these jurisdictions, if a
    93
    See Green, 646 N.W.2d at 310 (“In creating this standard, we intend to place the
    burden on the defendant to reasonably investigate information related to the victim before
    setting forth an offer of proof and to clearly articulate how the information sought
    corresponds to his or her theory of defense.”).
    94
    Cf. Pennsylvania v. Ritchie, 
    480 U.S. 39
    , 60 (1987) (“[T]he duty to disclose [material,
    privileged investigative records] is ongoing; information that may be deemed immaterial
    upon original examination may become important as proceedings progress, and the court
    would be obligated to release information material to the fairness of the trial.”). We note that
    the judge who presides over the trial will need to have conducted their own in camera review
    of the privileged materials if they were not the judge who handled the issue during the
    pretrial proceedings.
    95
    See, e.g., State v. Slimskey, 
    779 A.2d 723
    , 731-32 (Conn. 2001) (holding that the
    witness’s testimony will be stricken if the witness refuses to consent to an in camera
    inspection of their records after defendant has made a sufficient preliminary showing and that
    the witness’s testimony will also be stricken if the witness refuses to allow disclosure of
    records that are found to be “especially probative of the witness’ capacity to relate the truth
    or to observe, recollect and narrate relevant occurrences”); People v. Stanaway, 521 N.W.2d
    (continued...)
    – 34 –                                         2741
    defendant is successful at making the preliminary showing, the trial court must then
    obtain a limited waiver from the witness before obtaining the records and conducting the
    in camera review.96 An additional waiver is also required before any exculpatory
    evidence discovered during the in camera review can be disclosed to the parties.97 If the
    witness refuses to waive the privilege, the witness is precluded from testifying — or, if
    the witness has already testified, the testimony is stricken from the record.98
    Neither party has requested that we adopt this approach under Alaska law.
    The advantage of this approach is that it empowers the privilege holder (who is often the
    alleged victim) by giving them direct control over whether the privilege will be breached.
    However, other courts have criticized this approach as “unworkable” and “unwieldy” in
    practice.99 This approach also means that the fate of the criminal prosecution often will
    ultimately rest in the hands of the witness or the alleged victim, a proposition that is
    95
    (...continued)
    557, 577 (Mich. 1994) (“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.”); State v. Trammell, 
    435 N.W.2d 197
    , 201 (Neb. 1989) (determining that “where
    the witness refuses to waive the privilege, the result is that the testimony of the witness is
    inadmissible because the defendant is prevented from full and . . . effective cross-
    examination of the witness”); State v. Lynch, 
    859 N.W.2d 125
    , 126-27 (Wis. App. 2014)
    (explaining that when the victim refused to release her records for an in camera review, the
    appropriate remedy was “the exclusion of the victim’s testimony at trial”).
    96
    Slimskey, 779 A.2d at 732.
    97
    Id.
    98
    Id.
    99
    See Commonwealth v. Barroso, 
    122 S.W.3d 554
    , 565 (Ky. 2003).
    – 35 –                                        2741
    generally at odds with our legal traditions and current Alaska law.100 Given these
    criticisms, we are unwilling to adopt such an approach here, particularly in the absence
    of any controlling legislative intent or a direct request to do so. We nevertheless
    emphasize that notice must be given to the privilege holder before any privileged records
    are obtained so that the privilege holder’s position on their privilege can be determined
    and questions about the appropriate scope of the request and/or whether there are less
    intrusive sources for the requested information can be addressed.101
    In sum, to obtain in camera review of privileged mental health records held
    by a third party, a defendant must show a reasonable likelihood that the records will
    contain exculpatory evidence and that there is no less intrusive source for this
    evidence.102 If the defendant succeeds in this preliminary showing, the trial court shall
    order the production of the relevant records under seal and shall then conduct an in
    camera review of the records to determine whether the records actually contain
    exculpatory evidence — i.e., evidence, including impeachment evidence, that is both
    favorable to the accused and material to the determination of guilt or innocence. If the
    in camera review reveals information that qualifies as both favorable and material in the
    100
    See Cooper v. District Court, 
    133 P.3d 692
    , 700, 705 (Alaska App. 2006) (explaining
    that while crime victims in Alaska have various constitutional rights, including the right to
    attend all proceedings and provide input before certain decisions are made, they do not have
    the right to intervene in the litigation of a criminal case — that is, crime victims do not have
    a right to determine what charges should be brought, how those charges should be litigated
    or settled, or to control how appellate review should be sought).
    101
    See Spencer v. State, 
    642 P.2d 1371
    , 1376 n.3 (Alaska App. 1982) (“We caution trial
    judges to make sure that the individuals involved in third party discovery, in fact, resist
    discovery by invoking their privilege before denying discovery on this ground. We also
    believe that a prosecutor may not ethically influence his witnesses to claim a privilege.”).
    102
    This assumes that the privilege holder has not waived their privilege.
    – 36 –                                         2741
    context of that particular case, the court shall disclose that information to the parties with
    an appropriate protective order to prevent any further disclosures beyond those required
    to litigate the case. Any records that are not disclosed to the parties shall be kept under
    seal and remain in the record for any future appellate review. To facilitate this appellate
    review, we encourage the trial court to provide a written or oral explanation of its
    disclosure decision.103 Such an explanation may be made under seal.
    Applying these principles to the current case
    In the current case, Douglas sought in camera review of
    neuropsychological reports in R.D.’s guardianship file. Most, if not all, of these reports
    were likely privileged under AS 13.26.241(b) and Alaska Evidence Rule 504(b) (the
    psychotherapist-patient privilege).104
    The superior court denied Douglas’s initial pretrial motion for in camera
    review on the ground that Douglas was just “speculating” that R.D. had a traumatic brain
    injury. The superior court subsequently denied Douglas’s renewed mid-trial motion on
    the ground that N.G. precluded the court from ordering any in camera review of
    privileged records.
    103
    See Commonwealth v. Shaw, 
    600 S.W.3d 233
    , 239 n.3 (Ky. 2020) (“We emphasize
    that trial courts should keep a detailed record of each step of this process, as appellate courts
    will need to know exactly what the trial court looked at and what the defense was eventually
    allowed to see, if anything.”).
    104
    We note that, to the extent that there is information in the records that is not privileged
    and instead merely confidential, the superior court should disclose that information if there
    is “good cause” to do so. See AS 13.26.021(a). The court should also refrain from
    disclosing any privileged material that would be cumulative of any confidential material
    already disclosed.
    – 37 –                                         2741
    Douglas argues that the superior court erred when it refused to order in
    camera review of the relevant portions of R.D.’s guardianship file. We agree.
    As an initial matter, the superior court likely erred in denying Douglas’s
    pretrial motion. The existence of the guardianship was itself evidence that R.D. might
    have ongoing deficits in perceiving, remembering, and/or reporting information. To
    appoint a full guardian, a court must find, by clear and convincing evidence, that the
    person is “incapacitated” to such a degree that they are “totally without capacity to care
    for [their own needs].”105 An “incapacitated person” is defined as:
    a person whose ability to receive and evaluate information or
    to communicate decisions is impaired for reasons other than
    minority to the extent that the person lacks the ability to
    provide the essential requirements for the person’s physical
    health or safety without court-ordered assistance.[106]
    This is not to say that the existence of a guardianship necessarily means that
    a defendant should automatically be granted in camera review of a person’s guardianship
    file. We leave that question for another day.
    Here, it is enough to say that it was certainly error for the superior court to
    deny Douglas’s renewed mid-trial motion for in camera review once the trial testimony
    established that R.D. had an underlying condition — traumatic brain injury — that
    continued to affect her memory and may also have affected her ability to perceive and/or
    report information from the alleged assault. As we previously noted, the superior court
    105
    See AS 13.26.251(b)-(c) & (f).
    106
    AS 13.26.005(5).
    – 38 –                                       2741
    made this erroneous ruling even after the prosecutor at trial made clear that he had no
    objection to an in camera review of the relevant documents.107
    But this error does not necessarily entitle Douglas to a new trial. Instead,
    the error must be reviewed in light of the entire record to determine whether it was
    harmless beyond a reasonable doubt.108 Whether such an error is harmless beyond a
    reasonable doubt in a particular case depends upon a host of factors, including:
    the importance of the witness’ testimony in the prosecution’s
    case, whether the testimony was cumulative, the presence or
    absence of evidence corroborating or contradicting the
    testimony of the witness on material points, the extent of
    cross-examination otherwise permitted, and, of course, the
    overall strength of the prosecution’s case. . . . If the
    evidence may have had a tendency to influence the judgment
    of the jury, it cannot be considered harmless.[109]
    107
    As we have explained, the prosecutor who represented the State at trial was not the
    same prosecutor who represented the State during the earlier proceedings. The record shows
    that the trial prosecutor mistakenly assumed that an in camera review had already occurred.
    108
    See State v. Peeler, 
    857 A.2d 808
    , 846 (Conn. 2004) (concluding that the error was
    harmless where the State established, beyond a reasonable doubt, that disclosure and use of
    the witness’s mental health records would not “have had a tendency to influence the
    judgment of the jury” (quoting State v. Rolon, 
    777 A.2d 604
    , 617 (Conn. 2001))); State v.
    Ballos, 
    602 N.W.2d 117
    , 120-21 (Wis. App. 1999) (concluding that there was no reasonable
    possibility that the error contributed to the conviction where jury learned of witness’s mental
    health problems and evidence of guilt was overwhelming); State v. Middlebrooks, 
    840 S.W.2d 317
    , 333 (Tenn. 1992), superseded on other grounds by statute, Tenn. L. Pub. 1995
    ch. 377, § 1 (concluding that the error was harmless because in camera review of records
    established that the records “contained very little information probative of [the witness’s]
    credibility”).
    109
    Peeler, 857 A.2d at 844 (quoting Rolon, 777 A.2d at 617); see also Delaware v. Van
    Arsdall, 
    475 U.S. 673
    , 684 (1986); State v. Blackwell, 
    801 S.E.2d 713
    , 728 (S.C. 2017).
    – 39 –                                        2741
    Here, there are reasons to believe that the error might be harmless.
    Although Douglas’s motions for in camera review of the guardianship file were denied,
    the jury was still made aware that R.D. had suffered a traumatic brain injury and had a
    guardian at the time of the incident. The jury was also made aware, through both R.D.’s
    and her mother’s testimony, that the brain injury continued to affect R.D.’s memory, at
    least to some extent. In addition, although there was no eyewitness to the sexual assault
    in the elevator, there were multiple eyewitnesses to the immediate aftermath, during
    which Douglas continued to harass R.D. and act in a sexualized manner.
    Ultimately, however, whether a new trial is required will depend on the
    results of the in camera review and the information it produces. Accordingly, we
    remand this case to the superior court so that the court can obtain the relevant portions
    of the guardianship file for in camera review.
    Once the records are obtained, the superior court should subject them to an
    in camera review. The court should only disclose information from the records to the
    parties if the information qualifies as both favorable and material in the context of this
    particular case.110
    110
    We note that, to the extent possible, the court’s disclosure order should be tailored to
    the time periods that are directly relevant to this case — i.e., the time period around the
    original incident and the time period before trial. See State v. Storlazzi, 
    464 A.2d 829
    , 833
    (Conn. 1983) (holding that defendant should be granted access to records bearing on “the
    mental unsoundness of a witness (i.e., relating to a trait importing in itself a defective power
    of observation, recollection or communication), at or around the time of trial or of the
    occurrence about which he is to testify” (quoting State v. Piskorski, 
    419 A.2d 866
    , 895
    (Conn. 1979))). Additional records should only be disclosed if the records from the relevant
    time periods cannot be understood without them.
    – 40 –                                         2741
    As previously explained, evidence is generally deemed material if it “might
    have led the jury to entertain a reasonable doubt about the defendant’s guilt.”111
    “Material evidence” is also sometimes defined as any evidence where “there is a
    reasonable probability that, had the evidence been disclosed to the defense, the result of
    the proceeding would have been different.”112 (A “reasonable probability” is “a
    probability sufficient to undermine confidence in the outcome.”113) These definitions are
    sometimes criticized as “backward-looking” and difficult to apply except in the appellate
    context. But, on remand, the superior court in this case will be in the unique position of
    evaluating materiality in the context of a trial that is already complete and fully
    transcribed. The superior court is therefore better positioned than most trial courts to
    determine the materiality of any favorable evidence that the records may include.
    Thus, if the in camera review reveals evidence that qualifies as both
    favorable and material, the superior court shall disclose that evidence to the parties and
    allow the parties to brief the question of whether non-disclosure of this information was
    111
    Williams v. State, 
    629 P.2d 54
    , 64 (Alaska 1981).
    112
    Pennsylvania v. Ritchie, 
    480 U.S. 39
    , 57 (1987) (quoting United States v. Bagley, 
    473 U.S. 667
    , 682 (1985) (opinion of Blackmun, J.)); see also State v. Blake, 
    63 P.3d 56
    , 62
    (Utah 2002); Storlazzi, 464 A.2d at 834 (“The test of materiality is whether the omitted
    evidence, evaluated in the context of the entire record, creates a reasonable doubt that did not
    otherwise exist.”).
    113
    Ritchie, 
    480 U.S. at 57
     (quoting Bagley, 
    473 U.S. at 682
    ); see also Lambert v. State,
    
    435 P.3d 1011
    , 1020 (Alaska App. 2018) (explaining that “reasonable probability” is a legal
    term of art that does not mean “more likely than not”); Blake, 63 P.3d at 61 (same).
    – 41 –                                         2741
    harmless beyond a reasonable doubt.114 All non-disclosed records shall be kept under
    seal and made part of the record for appellate review.
    Following disclosure and adversarial briefing (if any), the superior court
    shall issue a final order on whether Douglas is entitled to a new trial. The case will then
    return to this Court to allow for appellate review of that decision, if requested.
    Conclusion
    This case is REMANDED for further proceedings in accordance with this
    opinion. We retain jurisdiction.
    114
    See State v. Peseti, 
    65 P.3d 119
    , 130 (Haw. 2003) (“[T]he denial of a defendant’s right
    to confront adverse witnesses is subject to the harmless-beyond-a-reasonable-doubt standard
    of review.”); State v. Peeler, 
    857 A.2d 808
    , 846 (Conn. 2004) (concluding that the State
    established, beyond a reasonable doubt, that the disclosure and use of the defendant’s mental
    health records would not “have had a tendency to influence the judgment of the jury”
    (quoting State v. Rolon, 
    777 A.2d 604
    , 617 (Conn. 2001))); see also Spencer v. State, 
    642 P.2d 1371
    , 1376 (Alaska App. 1982) (applying constitutional standard of harmless beyond
    a reasonable doubt to an error involving discovery of a witness’s psychiatric records held by
    the State).
    – 42 –                                        2741