DocketNumber： No. 146
Citation Numbers： 337 Md. 112, 651 A.2d 866
Judges： Bell, Chasanow
Filed Date： 1/12/1995
Status： Precedential
Modified Date： 9/8/2022
The issue this Court must resolve in the instant ease is whether Maryland Rule 4-264 or the federal and/or state constitution entitles a defendant charged with child abuse and related sexual offenses to obtain pre-trial discovery review of the victim’s psychotherapy records maintained by the victim’s private psychotherapist. Our answer is no.
I.
The petitioner, Eugene Franklin Goldsmith, was charged with committing sexual child abuse, second degree rape, second and third degree sexual offense, and unnatural and perverted sexual practices on his adopted stepdaughter, whom we shall call Laura.
Aware that the complaining witness was in therapy with a psychologist, the petitioner sought access to her psychotherapy records. Psychotherapy records are privileged under Maryland Code (1974, 1989 Repl.Vol.), Courts and Judicial Proceedings Article, § 9-109, which codifies the privilege for communications between a patient and psychiatrist or psychologist. That privilege, which we will refer to as the “psychotherapist-patient privilege” or simply “the privilege” is:
“(b) Privilege generally.—Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or his authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient’s mental or emotional disorder.”
§ 9-109. There are six exclusions to the' statutory privilege, none of which would be applicable to the instant case. See § 9—109(d)(1)—(6). Therefore, Laura has a psychotherapist-patient privilege which she is unwilling to waive and which is entitled to protection unless and until it must yield to Goldsmith’s constitutionally protected rights.
Goldsmith first filed a “MOTION FOR THE ISSUANCE OF A SUBPOENA FOR PRODUCTION OF TANGIBLE EVIDENCE PRIOR TO TRIAL” pursuant to Md.Rule 4-264. In that motion, he alleged (1) that the complainant has been in treatment with Dr. Gombatz, a psychologist, for over four years, and (2) that a police detective related that it took years of counseling for the complainant to summon the courage to bring these charges against her stepfather.
The reasons given for the request were:
“The issue involved in the Defendant’s demand for the complainant’s psychological treatment records is one of credibility. It is important to keep in mind that, unlike the scenario in Zaal [v. State, 326 Md. 54, 602 A.2d 1247 (1992),]*117 where the victim was a 12 year old child, the complainant in this case is a 25 year old adult who has been in counseling for over four years. The conduct alleged in the criminal information occurred between 1978 and 1981. The Defendant would proffer that the complainant moved from his residence in the summer of 1983. According to the testimony of Detective Madison at the preliminary hearing, the alleged abuse ceased two years prior when the complainant was 15 years old. The Defendant has not seen or had contact with the complainant since 1983. In this situation, the Defendant submits that the Court must give him some latitude in obtaining information that may enable him to confront his accuser in some meaningful way.”
The defendant requested that a “[s]ubpoena be issued pursuant to Md.Rule 4-264” to Michael Gombatz, Ph.D., commanding Dr. Gombatz to produce “[a]ll documents including but not limited to reports, summaries, psychological testing, interview notes, diagnosis, and correspondence, that reflect and relate in any way to your treatment and counseling of [the complainant].” The subpoena requested the documents and records be produced at the law offices of the defense counsel in Towson, Maryland. The State filed a response alleging the following:
“1. A doctor patient privilege exists which can only be waived by the patient. [The complainant] has not waived this privilege, [citing Beckette v. State, 31 Md. App. 85, 355 A.2d 515 (1976)].
2. These records are not subject to the Maryland Rules of Discovery.
3. To allow a victim’s psychiatric records to be given to the defense violates her privacy.
4. Her psychiatric records are not relevant to the criminal charges against the defendant.”
A hearing was held on the defendant’s motion, and there was no proffer of any likelihood that relevant information would be obtained by reviewing the records. The proffer made by the defense counsel was as follows:
*118 “Your Honor, I think that what’s required under Zaal, and my understanding of it, is a nominal showing of relevance. And I think here where the issue is going to be the credibility of the Plaintiff, I would say to you that in the affidavit that Detective Madison attached to her arrest warrant of my client, she indicated that the complainant had been in counseling. And we later, at the preliminary hearing, found that it was with Dr. Gombatz for a period of over four years.
Where the facts are that you have an adult bringing charges that go back over ten years where, obviously, there’s a question about the complainant’s emotional state, and I think that’s tied into the credibility. I mean, I simply don’t know what her emotional state is. I think this in a way goes back to the fact that there have been no—you know, the complainant’s mother hasn’t been interviewed. We don’t know—other than Detective Madison said today, something about the mother being emotionally unstable. I mean, that’s news to me. But I mean, I think it’s a fact that needs to be looked into.
But in terms of confrontation rights, it seems to me that the Defendant, in all the facts of this case, being charged with conduct that happened over a decade ago, where you know that the Defendant has been in counsel—not the Defendant, the complainant has been in counseling for over four years. I think that the—I think where credibility is the make or break issue, I think that some relief under Zaal whether that means that the court review these records in camera or preferable to the Defendant, would be that I, under some sort of monitored format, be allowed to look at these records.”
The substance of the defense counsel’s proffer was that the incidents at issue occurred over 10 years prior to trial, that the victim was in counseling, and the defense counsel complained “I simply don’t know what her emotional state is.” The defendant’s motion for issuance of a discovery subpoena to produce records at defense counsel’s law office was denied by written order dated September 1, 1992.
“[DEFENSE COUNSEL:] The state has filed two motions to quash my subpoena, my trial subpoena duces tecum. One was to a psychologist named Dr. Gombatz. I think that we’ve resolved ... through discussions with the state I think we have resolved Dr. Gombatz’s situation ...
COURT: Okay.
[DEFENSE COUNSEL:] ... which is that he’s under subpoena. We’ve put him on call. If it becomes appropriate during the course of the trial that I could call him. He’s under subpoena.”
Although Dr. Gombatz was placed on call at trial by agreement of the parties, he was never called to testify.
At trial, Laura testified that the petitioner sexually abused her for approximately 5!/¿ years, up until she was about 14 years old. She said that the sexual activity, which included fondling, fellatio, cunnilingus, and on one occasion, attempted sexual intercourse, occurred on a regular basis, “more than twice a week.” Laura testified that her mother moved out of the family home when she was 15. She did not tell her mother that Goldsmith had sexually abused her because she felt that her mother would neither have cared nor done anything about it.
When she was 17 and graduated high school, Laura moved from Goldsmith’s home. She testified that at that time she reported the sexual abuse to the Department of Social Ser
“[Laura] informed Mrs. Purdon that, her father had ‘thrown her out’ after she graduated from high school. She mentioned that her father had sexually abused her when she was 9 years old to 12 years old---- She had an appointment to discuss this with Protective Services, but did not appear. Numerous attempts were made to contact her, however, she did not return any messages.
This case was not investigated further as the allegations were vague and the ‘victim’ apparently did not wish to discuss the matter with Protective Services or the police. There is insufficient information to pursue this case and no finding is possible. The 181 is completed for statistical purposes only.”
Laura testified that before going to the Department of Social Services, she also told her boyfriend about being sexually abused.
A diary kept by Laura in 1979, 1980 and 1981, was introduced into evidence by the defendant. The entries contain no hint of any sexual activity or impropriety between the defendant and the complaining witness. An entry in 1981 does discuss sexual activity between the complaining witness and a boyfriend, and states that “I’m glad he was my first.” Responding to questions about this entry, Laura explained that she did not write about sexual activity with Goldsmith because she shared the books with her friends, allowing them to look at the diary and occasionally even write in it with her. Additionally, she explained that she “wanted to block all of those things from my memory and that’s why I talked about it like it was my first time. It was my first time with a boyfriend ... a real boyfriend, somebody who was legitimate to have a sexual relationship with.”
Goldsmith denied sexually abusing his stepdaughter. He testified that he first heard about the allegations approximately five years before trial, when a custody battle with his former wife over his son seemed imminent. He explained that
Although the jury acquitted him of second degree rape, Goldsmith was found guilty of sexual child abuse, second and third degree sexual offense, and unnatural and perverted sexual practices. He was sentenced to 12 years imprisonment, 6 of which were suspended and, upon his release, placed on 5 years probation, conditioned upon payment of restitution, performing community service and undergoing psychiatric counseling. Goldsmith appealed to the Court of Special Appeals which, in an unreported opinion, vacated the restitution order, but affirmed the remainder of the judgment. We granted certiorari.
II.
In the instant case, we are called upon to strike a balance between the competing interests of a witness’s privilege and a defendant’s federal and state constitutional rights to obtain and present evidence necessary to the defense. In weighing these compelling interests, we must keep in mind that an accused has limited pre-trial discovery rights, which may not outweigh a witness’s privilege, whereas the accused’s right to obtain and present exculpatory evidence at trial is entitled to far greater constitutional protection.
At common law, a criminal defendant had no right to pre-trial discovery. See State v. Haas, 188 Md. 63, 69, 51 A.2d 647, 650 (1947), overruled on other grounds, In re Petition for Writ of Prohibition, 312 Md. 280, 305, 539 A.2d 664, 676 (1988); see also Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 20.1, at 836 (2d ed. 1992) (“American courts, relying on the English precedent, adopted a common law rule holding that the judiciary lacked any inherent authority to order pre-trial discovery in criminal eases.”). Over time, we have expanded the common law and given the trial courts
PRE-TRIAL DISCOVERY UNDER MARYLAND RULE 4-264
Pre-trial production of “documents” or “other tangible things” under Md.Rule 4-264 is discretionary, requiring a motion and a court order. As such, it does not guarantee^ criminal defendant the absolute right to subpoena and examine the private records of every private individual or entity that may conceivably possess exculpatory records. The rule does not mandate that a defendant have unfettered access to all prior statements of a witness in the form of notes taken by third parties. A judge is given discretion whether to order a subpoena under the rule. Furthermore, Md.Rule 4-264 specifically excludes the discovery of privileged information that is at issue in the present case. The rule states:
“On motion of a party, the circuit court may order the issuance of a subpoena commanding a person to produce for inspection and copying at a specified time and place before trial designated documents, recordings, photographs, or other tangible things, not privileged, which may constitute or*123 contain evidence relevant to the action. Any response to the motion shall be filed within five days.” (Emphasis added).
Thus, nothing in Md.Rule 4-264 permits the discovery of Laura’s privileged psychotherapist records.
Our recent decision in Zaal v. State, 326 Md. 54, 602 A.2d 1247 (1992) also does not provide Goldsmith with a right to pre-trial discovery in the instant case. In Zaal, we were asked to determine a defendant’s pre-trial right to subpoena the school records of his accuser. In reversing a denial of this subpoena, we noted that the alleged victim’s school records were confidential but not privileged. Zaal, 326 Md. at 76, 602 A.2d at 1258. We found that “the Maryland regulations do not provide, nor even indicate, that a student’s education records are not discoverable pursuant to the Maryland Rules.” Id. In contrast, in the present case, psychotherapist records are privileged under § 9-109 and Md.Rule 4-264 specifically precludes such privileged records from pre-trial discovery. Our decision in Zaal did not pertain to or authorize pre-trial discovery of privileged records. Thus, we hold that Md.Rule 4-264 means what it says and precludes pre-trial discovery of a victim’s privileged psychotherapist-patient records. We now consider whether Goldsmith has any constitutional right to the pre-trial discovery he seeks.
CONSTITUTIONAL RIGHT TO PRE-TRIAL DISCOVERY
The Supreme Court has not recognized a constitutional right to pre-trial discovery. In Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), the Court said:
“There is no general constitutional right to discovery in a criminal case, and Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] did not create one; as the Court wrote recently, ‘the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded____’ Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 2212, 37 L.Ed.2d 82 (1973).”
In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the Supreme Court dealt with the issue of a criminal defendant’s pre-trial access to confidential state agency records. The defendant was charged with criminal sexual assault on his daughter. He sought access to the records of the Pennsylvania Children and Youth Services (CYS), which was the state agency charged with investigating child abuse. A statute made the records confidential, but provided CYS may disclose reports pursuant to a court order. The trial court did a partial in camera review of the records and refused to order disclosure. The Pennsylvania Supreme Court reversed and concluded that defense counsel was entitled to review the entire file for useful evidence. The Supreme Court reversed in part and affirmed in part the judgment of the Pennsylvania Supreme Court. Ritchie, 480 U.S. at 61, 107 S.Ct. at 1003, 94 L.Ed.2d at 60. A majority of the United States Supreme Court held that the defendant did not have a right to full access to the records and in camera examination by the trial judge could satisfy any federal constitutional rights the defendant may have to obtain exculpatory information from the agency’s records. Id. A significant difference between Pennsylvania v. Ritchie and the instant case is that the records in Ritchie were those of a government agency. The holding in Ritchie was based at least in part on due process and the prosecution’s obligation to turn over evidence in its possession which is favorable to the accused and material to guilt. Ritchie, 480 U.S. at 57-58, 107 S.Ct. at 1001-02, 94 L.Ed.2d at 57-58. The Court also stated: “We 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.” 480 U.S. at 57 n. 14, 107 S.Ct. at 1001 n. 14, 94 L.Ed.2d at 57 n. 14. Another difference in Ritchie was that the Pennsylvania statute making the CYS records confidential created only a qualified privilege similar to the qualified privilege created for the school records in Zaal. Addi
In Zaal, this Court discussed the Supreme Court holding in Ritchie. We recognized that the Supreme Court “rejected defendant’s confrontation clause argument, reasoning that it is a trial right, not one applicable to discovery.” Zaal, 326 Md. at 67 n. 6, 602 A.2d at 1253 n. 6 (citing Ritchie, 480 U.S. at 52, 107 S.Ct. at 999, 94 L.Ed.2d at 54). We adopted the Supreme Court’s due process analysis and recognized that in Zaal, as well as in Ritchie, there may be a denial of due process when the government’s records containing potentially exculpatory information were withheld from an accused. We stated in Zaal that the “issue in the case sub judice, as was also the case in Ritchie, is a file required to be kept by a State agency....” 326 Md. at 80, 602 A.2d at 1260.
In Avery v. State, 15 Md.App. 520, 292 A.2d 728 (1972), appeal dismissed, 410 U.S. 977, 93 S.Ct. 1499, 36 L.Ed.2d 173 (1973), the Court of Special Appeals upheld a trial court’s denial of defendant’s motion to compel production of psychiatric records of a victim where the victim claimed the records were privileged. The court held the psychiatrist was not a State agent and stated: “Where, as here, the witness claimed the privilege, no suppression of evidence by the State is involved within the contemplation of such cases as Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 [ (1963) ] or Giles v. Maryland, 386 U.S. 66[, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) ].” Avery, 15 Md.App. at 537, 292 A.2d at 741.
As in Avery, the psychotherapist-patient privileged records at issue in the instant case were not kept by a state agency or required to be kept by a state agency. Therefore
Finally, numerous decisions of this Court have held that in a criminal case neither the State nor the defendant have unlimited pre-trial discovery rights. Those decisions have also made it clear that a criminal defendant has no right to pretrial discovery by deposition or other forms of pre-trial discovery for information possessed by third parties.
In Evans v. State, 304 Md. 487, 499 A.2d 1261 (1985), a death penalty case, Judge Eldridge, writing for the Court, pointed out that it is “clear that the defendant had no right to insist upon a pretrial deposition or pretrial interrogation of [the witness] and that the trial judge did not err in quashing the subpoena that would have required [the witness] to attend the pretrial hearing.” 304 Md. at 509, 499 A.2d at 1272. Similarly, in Kardy, supra, this Court held that a criminal defendant has neither a state nor federal constitutional right to take the deposition of a potential witness. We also stated:
“The defendant and his counsel are at perfect liberty, as they always have been in this State, to interview and interrogate any prospective witness, subject, of course, to*127 the witness’ acquiescence in such interrogations. And the defendant and his counsel may take an affidavit from any prospective witness, if the witness he willing. But these matters are entirely different from forcing and requiring a witness to make a pre-trial deposition.” (Emphasis added).
237 Md. at 541, 207 A.2d at 92-93.
Neither due process, compulsory process nor the right to confront adverse witnesses establishes a pre-trial right of a defendant to discovery review of a potential witness’s privileged psychotherapy records. Thus, we find no common law, court rule, statutory or constitutional requirement that a defendant be permitted pre-trial discovery of privileged records held by a third party.
PRIMA FACIE SHOWING REQUIRED FOR PRE-TRIAL DISCOVERY OF NON-PRIVILEGED RECORDS
Even if the records in the instant case were not privileged, but were merely confidential, we would nonetheless hold that the motions judge did not abuse his discretion in declining to issue the pre-trial subpoena and declining an in camera review of those records.
In a very recent case, Harris v. State, 331 Md. 137, 626 A.2d 946 (1993), Judge Bell, writing for the Court, stated:
“To be sure, a party to ongoing litigation may subpoena, without advance notification having to be given to the other party, a third party’s records for use at the trial. When, however, the records sought are ‘confidential,’ before disclosure will be ordered, the moving party must show, usually at a hearing, some connection between the records sought,*128 the issue before the court, and the likelihood that information relevant to the trial would be discovered. Zaal v. State, 326 Md. 54, 83, 602 A.2d 1247, 1261 (1992).” (Emphasis added).
Harris, 331 Md. at 161, 626 A.2d at 958. In Zaal, we also recognized that “[t]o overcome a privacy interest in ... records, some relationship must be shown between the charges, the information sought, and the likelihood that relevant information will be obtained as a result of reviewing the records.” 326 Md. at 81-82, 602 A.2d at 1261. Thus, to obtain pre-trial discovery of confidential records, Zaal and Harris require the defendant to show a likelihood of obtaining relevant information.
Zaal and Harris both establish that with confidential records, it is the defendant who bears the burden of establishing the need for pre-trial disclosure. See Zaal, 326 Md. at 83, 602 A.2d at 1261; Harris, 331 Md. at 161, 626 A.2d at 958. In the instant case, Goldsmith did not establish a need for the records. Goldsmith asserted only that Laura’s credibility would be an issue at trial. He did not establish that discovery of the records would likely lead to relevant information. Rather, he sought “some latitude in obtaining information that may enable him to confront his accuser in some meaningful way.” There was no showing of any likelihood of obtaining information relevant to the defense in the records.
DISCLOSURE OF PRIVILEGED RECORDS AT TRIAL
Although we found no constitutional right to pre-trial discovery of the records at issue in the present case, we wish to distinguish between a defendant’s right of access to information during pre-trial discovery as opposed to the defendant’s constitutionally based right at trial to fairly present a defense. In holding that a defendant has no right to pre-trial discovery of privileged records held by a third party, we recognize that the defendant’s constitutional rights at trial may outweigh the victim’s right to assert a privilege. We note that the Supreme Court has found that there are circumstances where, at trial, the right to claim a privilege must yield to a defendant’s constitutional rights to confrontation and compulsory process. See Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1112, 39 L.Ed.2d 347, 355 (1974) (holding that “the right of confrontation is paramount to the State’s policy of protecting a juvenile offender”); see also Com. v. Two Juveniles, 397 Mass. 261, 491 N.E.2d 234, 238 (1986) (considering the need for disclosure of communications to sexual assault counselor and noting that “in certain circumstances the absolute privilege ..., must yield at trial to the
In the instant case, Goldsmith was denied a pre-trial discovery subpoena for records under Md.Rule 4-264, the issuance of which would have abrogated the psychotherapist-patient privilege in order to secure pre-trial discovery leads. Goldsmith was issued, not denied, a trial subpoena duces tecum pursuant to Md.Rule 4-265 for Dr. Gombatz and his records. We note that Md.Rule 4-265, like Md.Rule 4-264, precludes the use of a subpoena to obtain privileged records. However, as distinguished from oúr analysis of the defendant’s right to pre-trial discovery information, the defendant’s constitutional rights to a fair trial may outweigh the right of the victim to assert a privilege at the trial stage. Therefore, although we hold that the psychotherapist-patient privilege protects a doctor from having to furnish information for pre-trial discovery review, the privilege may not always protect a doctor from furnishing exculpatory evidence at. trial pursuant to a trial subpoena or subpoena duces tecum under Md.Rule 4-265.
There are reasons for not permitting pre-trial discovery of privileged information, but permitting, on proper showing, trial production of privileged exculpatory evidence. As one court recognized with regard to pre-trial discovery of privileged information:
*131 “[W]e note the prematurity of this issue. At this time, we do not know whether the victim will testify, nor to what she would testify at the time of trial. Any decision on the merits of the issue at this time would, of necessity, be speculative.”
People v. Dist. Court, City & Cty. of Denver, 719 P.2d 722, 726 n. 2 (Colo.1986). After the victim testifies on direct examination, the trial judge will be in a better position to evaluate what is exculpatory evidence and what is irrelevant. The balancing of the defendant’s need for exculpatory information against the need to protect the victim’s psychotherapist-patient privilege will be a much more informed decision at trial.
In addition, a subpoena for tangible evidence before trial under Md.Rule 4-264 is only for documents or other tangible evidence; it is not a subpoena for witnesses and it does not permit examination of witnesses. Thus, if we were to permit pre-trial in camera review in the instant case, assuming the victim had hourly psychotherapy once a week for four years and that Dr. Gombatz kept detailed notes of those sessions, the trial judge would have to review in camera the notes of approximately 200 hours of therapy sessions. In contrast, a trial subpoena duces tecum under Md.Rule 4-265 covers the witness as well as documents or tangible evidence. Therefore, when conducting an in camera review under Md.Rule 4-265, the trial judge may be able to enlist the psychotherapist’s assistance in locating relevant portions of the notes, as well as interpreting the notes. Thus, an in camera examination of the witness and the records summonsed at trial under Md. Rule 4-265 is far more efficient than an in camera review of the records alone subpoenaed pre-trial under Md.Rule 4-264. Furthermore, a trial subpoena is used to secure specific relevant information in a case that is actually going to trial. In considering whether to quash a trial subpoena or to conduct an in camera examination pursuant to a trial subpoena, the trial judge will know that the case is going to trial and that the privileged material will actually be needed for a trial defense. In addition, the trial judge will be in a better position to
It is conceivable that a trial subpoena under Md.Rule 4-265 for a witness and documents, which may be privileged, could be reviewed pre-trial on a motion to quash or a motion for a protective order. Even if we assume the motions judge was ruling on a motion to quash a trial subpoena for exculpatory evidence, there was no error in denying disclosure with or without in camera review because Goldsmith did not satisfy the strong burden of proof needed to establish the necessity for the privileged information sought. In Zaal, we required a showing of the “likelihood that relevant information will be obtained as a result of reviewing the records” in order to obtain pre-trial disclosure of merely confidential records. 326 Md. at 82, 602 A.2d at 1261. Because of the privileged nature of the records involved in the present case, the burden of proof required of the defendant to establish a need for disclosure may be higher than that required in Zaal. In Two Juveniles, supra, the Supreme Judicial Court of Massachusetts assessed the required showing for a defendant to override a statutory absolute privilege for juvenile records. The court recognized that “[i]n general, an assertion that inspection of information is needed only for a possible attack on credibility has been rejected because, if upheld, such a broad right of discovery would substantially destroy the privilege.” Two Juveniles, 491 N.E.2d at 239. In Com. v. Clancy, 402 Mass. 664, 524 N.E.2d 395 (1988), the Supreme Judicial Court of Massachusetts further clarified:
“the individual seeking to override the privilege of another bears the burden of establishing a legitimate need for the privileged information sought. [Two Juveniles, 397 Mass. 261,] 269, 491 N.E.2d 234. Cf. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 [ (1982) ] (defendant must make some plausible showing of how the testimony of witnesses claimed to be necessary under the compulsory process guarantee of the Sixth Amendment would have been both material and favorable to defense). We also warned that this burden would not be*133 met simply by a showing that the information was likely to be relevant, material, or unavailable from other sources. [Two Juveniles,] 397 Mass, at 269, 491 N.E.2d 234. See State v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976) (mere possibility that undisclosed information might aid defense does not establish materiality).”
524 N.E.2d at 398.
As we previously indicated, there was an insufficient showing by Goldsmith of the likelihood that the records contained exculpatory information. The mere assertion that the records in question may contain evidence useful for impeachment is insufficient to override an absolute statutory privilege, even at the trial stage. We agree with the Supreme Court of Michigan that in assessing a defendant’s right to privileged records, the required showing must be more than the fact that the records “may contain evidence useful for impeachment on cross-examination. This need might exist in every case involving an accusation of criminal sexual conduct.” People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557, 576 (1994) (footnotes omitted). We cannot permit a privilege to be abrogated even at the trial stage by the mere assertion that privileged records may contain information relevant to credibility. To do so would virtually destroy the psychotherapist-patient privilege of crime victims. It has long been recognized that privileges, by their very nature, restrict access to information which would otherwise be disclosed. See 1 McCormick on Evidence § 72, at 269 (John W. Strong ed., 4th ed. 1992). The rationale for this restriction has been our recognition of the social importance of protecting the privacy encompassed by specified relationships. Such privacy interests cannot be negated by the mere assertion of the possibility of impeachment evidence. A defendant’s constitutional rights to a fair trial simply do not stretch that far.
We therefore hold that in order to abrogate a privilege such as to require disclosure at trial of privileged records, a defendant must establish a reasonable likelihood that the privileged records contain exculpatory information necessary
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
. We use this pseudonym to protect the identity of the victim.
. If a defendant has no right absent a statute or court rule to obtain information in the possession of the prosecution, it follows that he certainly has no such right to discovery of information held by a third party.
. We further note that pre-trial discovery of Laura’s records is not provided for under the Jencks Act, 18 U.S.C. § 3500 (1982), which requires that after a witness testifies, prior statements in the state's possession must be disclosed to the defense. The Jencks Act constitutes a trial right rather than a discovery right. It requires that a witness testify before his or her statements are disclosed. See Collins v. State, 318 Md. 269, 568 A.2d 1, cert. denied, 497 U.S. 1031, 110 S.Ct. 3296, 111 L.Ed.2d 805 (1990); Carr v. State, 284 Md. 455, 397 A.2d 606 (1979). Further, only those statements in the hands of the state are discoverable. See Bruce v. State, 318 Md. 706, 725-26, 569 A.2d 1254, 1264 (1990). In the instant case, Goldsmith was denied a pre-trial subpoena for psychotherapist records. He was not denied a trial subpoena for Dr. Gombatz, the psychotherapist. Additionally, the psychotherapist records in the instant case were not in the hands of the state.
. We note that most jurisdictions have held that a criminal defendant is not entitled to take discovery depositions of potential witnesses. Denial of such depositions has been held not to violate a defendant's constitutional rights to due process, compulsory process for obtaining witnesses, equal protection, or confrontation. See Annotation, Romualdo P. Eclavea, Accused’s Right to Depose Prospective Witnesses Before Trial in State Court, 2 A.L.R.4th 704 (1980).
. In his dissent, Judge Bell asserts that Goldsmith's proffer of relevance was sufficient under Zaal v. State, 326 Md. 54, 602 A.2d 1247 (1992) and Department of Social Services v. Stein, 328 Md. 1, 612 A.2d 880 (1992), in part because he established that "the psychologist's records might show that the victim was delusional.” After the State contended that the victim was "entitled to her privacy,” defense counsel remarked "[s]uppose she’s delusional, Your Honor” to which the State replied: "Oh, suppose anything. This is all fishing in the dark,” and defense counsel responded: "Well, that's right.” Nowhere is there the remotest suggestion from anyone that the victim was in fact delusional. Merely stating “suppose ” the victim did this or said that is not a proffer sufficient to establish a need for the records.
. For a discussion of the difficulties of balancing testimonial privileges against the defendant’s constitutional rights at trial, see Robert Weisberg, Defendant v. Witness: Measuring Confrontation and Compulsory Process Rights Against Statutory Communications Privileges, 30 Stan. L.Rev. 935 (1978).
. There is another analogous area where this Court has held that there is no right to pre-trial discovery of records, but if a trial subpoena is issued, then upon a proper showing there may be a right to an in camera review of the records. For example, in Martinez v. State, 309 Md. 124, 140, 522 A.2d 950, 960 (1987) and Jones v. State, 297 Md. 7, 14-15, 464 A.2d 977, 982 (1983), we noted that a defendant may not be entitled to pre-trial disclosure of a witness’s grand jury testimony, but the defendant may be entitled to the witness’s grand jury testimony for cross-examination purposes after the witness testifies at trial or at a suppression hearing.
. We note that Connecticut, Nebraska, and Michigan courts have held that, once a defendant satisfies this burden of establishing the need for the privileged materials, the witness claiming the privilege must waive the privilege to permit in camera review of the privileged records. Failure to waive the privilege to permit in camera review results in the witness’s testimony being stricken. See People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557, 577 (1994); State v. Whitaker, 202 Conn. 259, 520 A.2d 1018, 1025 (1987); State v. Trammell, 231 Neb. 137, 435 N.W.2d 197, 201 (1989).
. In Com. v. Bishop, 416 Mass. 169, 617 N.E.2d 990 (1993), the Supreme Judicial Court of Massachusetts recommended a five-stage procedure for balancing a witness's right to claim a privilege against the defendant’s constitutional trial rights in rape or sexual abuse cases. 1) When a defendant moves to compel production of records and the witness claims a privilege, the judge must determine whether the records are in fact privileged and provide an explanation of his or her findings. Bishop, 617 N.E.2d at 997. 2) If the records are found to be privileged, defense counsel must submit in writing to the judge "the theory or theories under which the particular records sought are likely to be relevant to an issue in the case.” Id. The judge should deny the request if "the judge decides that the records are not likely to be relevant or that the defendant’s request is supported only by a desire to embark on ‘an unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable [the defendant] to impeach the witness.’ " Bishop, 617 N.E.2d at 997-98 (citation omitted). If the judge accepts the defendant’s proffer, the judge must review the records in camera, designating which portions of the records are relevant or irrelevant. Bishop, 617 N.E.2d at 998. (Cf. footnote 8). 3) The judge must then provide access to the defense and prosecution as officers of the court to relevant portions of the records "for the sole purpose of determining whether disclosure of the relevant communications to the trier of fact is required to provide the defendant a fair trial." Id. 4) The defendant has the burden to establish that disclosure of the relevant portions of the privileged information sought is necessary to provide the defendant with a fair trial. Only if the defendant meets this burden shall the judge allow such disclosure. In making this determination, the judge should identify all information not disclosed and "shall base his or her decision on written motions by the parties and an in camera hearing as the judge deems necessary.” Id. 5) Finally, “the judge shall determine the admissibility of the records that counsel may wish to introduce in a voir dire examination. In considering the admissibility of the records the judge shall be mindful of the requirements of the rape shield statute [Mass.Gen.L. ch. 233, § 21B (1992)].” Id. The court noted that the duty of the court to disclose material information is ongoing, and the court should disclose