State of Maryland v. Jonathan Johnson, No. 3, September Term 2014, Opinion by Greene,
J.

CRIMINAL LAW – PRIVILEGED COMMUNICATIONS

A threshold must be crossed before it is appropriate for a trial judge to review a victim’s
mental health records in camera. The defendant must proffer or present sufficient facts to
show a reasonable likelihood that the records sought contain exculpatory evidence to warrant
an in camera review.
Circuit Court for Baltimore City, Case No. 111031115-22
Argued: September 3, 2014




                                                             IN THE COURT OF APPEALS
                                                                  OF MARYLAND

                                                                        No. 3
                                                                 September Term, 2014


                                                                STATE OF MARYLAND

                                                                          v.

                                                                 JONATHAN JOHNSON




                                                          Barbera, C.J.
                                                          Harrell
                                                          Battaglia
                                                          Greene
                                                          Adkins
                                                          McDonald
                                                          Watts,

                                                                          JJ.


                                                                 Opinion by Greene, J.


                                                          Filed: October 22, 2014
       Respondent, Jonathan Johnson, was convicted of sexual abuse of a minor and second-

degree sexual offense. Leading up to trial, Respondent sought, by means of a trial subpoena,

access to the minor victim’s mental health records. The trial court denied Respondent’s

request for an in camera review of those records, reasoning that his request amounted to a

“fishing expedition,” and concluding that Respondent did not show a reasonable likelihood

that the records contained exculpatory evidence as required by Goldsmith v. State, 337 Md.

112, 651 A.2d 866 (1995). In Goldsmith, this Court rejected the argument that a criminal

defendant has the right to seek a victim’s privileged mental health records during pre-trial

discovery, but recognized that a criminal “defendant’s constitutional rights at trial may

outweigh the victim’s right to assert a privilege.” 337 Md. at 129, 651 A.2d at 874 (emphasis

added). Thus, we pick up where Goldsmith left off; in this case, we consider whether a

criminal defendant’s constitutional rights at trial may trump a victim’s privilege in his or her

mental health records, and, further, what standard the defendant’s proffer must meet before

being entitled to an in camera review of the privileged records. We shall hold that a criminal

defendant is entitled to an in camera review of a victim’s mental health records, even though

privileged, if the defendant can establish a reasonable likelihood that the privileged records

contain exculpatory evidence relevant to the defense.

                       FACTUAL AND PROCEDURAL HISTORY

       The facts surrounding Respondent’s history with the minor victim, J.C.,1 are set forth




       1
           For purposes of anonymity, we shall refer to the minor victim by his initials.
in Petitioner’s brief, pursuant to the parties’ agreed Statement of Facts,2 as follows:

       Between April 2007 and April 2008, Respondent lived in an apartment in
       Baltimore City with his girlfriend, who was also the mother of Respondent’s
       infant children, and with J.C. (Respondent’s girlfriend’s nine/ten year old son),
       and J.C.’s older sister (Respondent’s girlfriend’s oldest daughter). Because
       J.C.’s mother worked, Respondent oftentimes was the only adult home when
       J.C. returned from school, which was about an hour earlier than his oldest
       sister.

       On one occasion, Respondent entered J.C.’s room after J.C. returned home
       from school and was changing clothes. Respondent, who was riled up at the
       time, ordered J.C. to turn over in a mean tone. He then pushed J.C. around
       onto J.C.’s bed and, after pulling J.C.’s shorts down, Respondent put on a
       condom and forced his penis “in and out” of J.C.’s “butt.” J.C., who cried at
       the time, threatened to kill Respondent when Respondent finished. J.C. did not
       tell his mother or another adult because he did not trust a lot of people and did
       not feel comfortable talking to someone about the assault.

       J.C. began to live with his maternal grandfather in March 2009 and ceased all
       contact with Respondent at that time. While J.C. was living with his
       grandfather, one evening they dined at a Chinese restaurant. During dinner,
       J.C. and his grandfather spoke about the trouble that J.C. had been having at
       school. His grandfather encouraged him to talk about his problems with
       “somebody,” or with his “therapist,” or with other “people.” After learning
       from his grandfather that his grandfather had been molested as a child, J.C.
       reported Respondent’s sexual assault to his grandfather. Upon returning home
       from the restaurant, J.C.’s grandfather called the police.

       At trial, Respondent stated that he was never alone with J.C. and denied that
       he had ever sexually assaulted J.C. According to Respondent, J.C.’s
       grandfather and Respondent had a sexual encounter about twenty years earlier
       and then, more recently, introduced Respondent to J.C.’s mother. (Citations
       to the record omitted.)




       2
          Maryland Rule 8-501(g) provides that “[t]he parties may agree on a statement of
undisputed facts that may be included in a record extract or, if the parties agree, as all or part
of the statement of facts in the appellant’s brief. . . .”

                                                2
Based on J.C.’s allegations, Respondent was charged, in the Circuit Court for Baltimore City,

with sexual abuse of a minor and other related offenses. According to the record, J.C.

became a patient at National Pike Health Center, Inc. (“National Pike”), a full service

medical facility with a staff that includes both psychiatrists and licensed clinical social

workers. Prior to trial, Respondent filed a subpoena duces tecum to require National Pike

to produce records pertaining to J.C. National Pike filed a Motion for Protective Order,

effectively seeking to quash the subpoena.

       On November 9, 2011, the morning of trial, the trial judge held a hearing with regard

to National Pike’s Motion for Protective Order. National Pike explained that the records

sought by Respondent are privileged and confidential because they contain communications

by J.C. to mental health providers, and include notes from psychiatrists and a licensed clinical

social worker. The trial judge asked defense counsel to explain the reason for requesting the

records, to which defense counsel responded:

       DEFENSE COUNSEL: . . . I’d like to see the records, one, to know what is
       this young man’s mental health diagnosis. Is he, is he bipolar? Is he paranoid
       schizophrenic? Is he delusional? Does he have hallucinations, Your Honor?

       THE COURT: And the reason for that?

       DEFENSE COUNSEL: Your Honor, if he, if he’s delusional, and if [he] has
       hallucinations, I believe that’s, leads to exculpatory, that’s exculpatory for Mr.
       Jonathan Johnson’s case. . . .

       THE COURT: Well, I assume you’re, you’re saying you want to see these
       records generally because these records may disclose information that could
       affect his credibility or his ability to perceive; is that what you’re talking
       about?

                                               3
       DEFENSE COUNSEL: Yes, Your Honor.

       THE COURT: Okay. So just, just like the – maybe they do. I mean, maybe
       there’s something in there or not. But you don’t, you don’t know that for a
       fact, correct?

       DEFENSE COUNSEL: Correct, Your Honor.

       THE COURT: Any other reasons?

       DEFENSE COUNSEL: No, Your Honor. I’m just trying to get an idea of
       anything exculpatory about this young man, why he’s in treatment. If he’s in
       treat – if there’s allegations that he’s in treatment for disciplinary issues, if he’s
       in treatment for, if he’s seeing a counselor because he’s a habitual liar.

       THE COURT: Okay. Why isn’t this just a fishing expedition? I mean, you
       could say that – I assume, and I’m, and I, I – again, in these cases I’m
       sympathetic to the defense because in a sense you obviously don’t have the
       records, so you can’t tell me what exactly they contain. But I guess part of my
       concern is just merely a proffer that, in fact, it may affect his credibility or it
       may [ ] provide you some information you can use for cross-examination. Is
       there anything more specific beyond that?

       DEFENSE COUNSEL: Not without even having a slightest idea of what may
       be in the records, Your Honor, not without even knowing his diagnosis, no.
       So, it, it’s – if you wish to call it a fishing expedition, it may be because I have
       no idea what these records may contain.

       We have a State’s witness who has mental health issues, obviously has mental
       health issues that may lead to his credibility, may affect his credibility, may
       affect his ability to perceive, to understand. . . .

Relying on Goldsmith v. State, 337 Md. 112, 651 A.2d 866 (1995), and Fisher v. State, 128

Md. App. 79, 736 A.2d 1125 (1999), discussed infra, the trial court concluded that defense

counsel’s proffer to the court was insufficient to permit disclosure of the victim’s privileged

mental health records. Therefore, the trial judge granted National Pike’s motion, but ordered



                                                 4
that the records sought by defendant be sealed. On November 14, 2011, after a three day jury

trial, Respondent was convicted of sexual abuse of a minor and second-degree sexual

offense. On February 10, 2012, Respondent was sentenced to fifteen years incarceration.

       Respondent noted an appeal, arguing that the trial court committed reversible error

by granting National Pike’s motion. In an unreported opinion, one judge dissenting,3 the

Court of Special Appeals panel reversed, concluding that “[Respondent] sufficiently

established the likelihood that the records sought would provide exculpatory information.”

Noting the need to “strike a balance between the competing interests of a witness’s privilege

and a defendant’s constitutional rights to obtain and present information necessary to his

defense,” the court stated further, “[w]hile we cannot expect counsel to have precise

information as to the content of the records, he did suggest that it would be appropriate to

know of [J.C.’s] propensity for veracity.” In the court’s view, “[t]hose suggestions alone

were sufficient, at the very least, to call for an in camera review of the records to determine

their relevance, vis a vis [Respondent]’s constitutional rights, before ruling on [National

Pike’s motion].” On the State’s petition, we granted certiorari, 435 Md. 501, 79 A.3d 947

(2013), to answer the following question:

       Is a “suggestion” by the defendant that the victim’s mental health records may
       contain information that is either exculpatory or relating to the victim’s



       3
         The dissenting opinion advocated for an affirmance of Johnson’s convictions
because, based on our holding in Goldsmith, the mere speculation that the records contained
evidence relevant to impeachment is not sufficient to allow the defendant access to the
records via an in camera review.

                                               5
       “propensity for veracity” insufficient, under Goldsmith v. State, 337 Md. 112,
       651 A.2d 866 (1995), to “call for an in camera review” of those records?

For the following reasons, we reverse the judgment of the Court of Special Appeals.

                                       DISCUSSION

       Petitioner would have us create a bright line rule and hold that a victim’s mental

health records are subject to an absolute privilege; therefore, a defendant would not be

entitled to the disclosure of such records under any circumstances. At the very least,

Petitioner argues, in order to access privileged records the defendant should be required to

demonstrate a sufficient factual basis supporting his or her proffer that the records sought

likely contain exculpatory information. Specifically, Petitioner asserts that a defendant must

satisfy a high threshold test, and present credible evidence that would otherwise be

admissible under the Maryland Rules of Evidence.

       Respondent argues that a criminal defendant’s constitutional rights at trial must trump

a victim’s privilege in mental health records, and an in camera review of the records is an

appropriate method to both protect the victim’s privacy interest in his or her records and

ensure a criminal defendant’s constitutional rights and access to exculpatory evidence.

Respondent contends that the burden on the defendant to warrant an in camera review cannot

be as high as Petitioner suggests, however. Instead, Respondent urges this Court to follow

the standard set forth by the United States Supreme Court in Pennsylvania v. Ritchie, 480

U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987), that is, where the defendant cannot possibly

know exactly what the records contain, he or she need only “make some plausible showing”

                                              6
that the information in the records would be “both material and favorable to his [or her]

defense.” Ritchie, 480 U.S. at 58 n.15, 107 S. Ct. at 1002 n.15, 94 L. Ed. 2d at 58 n.15

(quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 3446, 73

L. Ed. 2d 1193, 1202 (1982)).

        In undertaking our review of Goldsmith and other relevant precedent, we shall first

discuss the threshold question of whether a criminal defendant’s trial rights may prevail over

a victim’s right to assert a privilege in his or her mental health records. Because we answer

that question in the affirmative, we shall next address when a criminal defendant will be

entitled to an in camera review 4 of the privileged records.

            I. May the defendant’s trial rights trump the victim’s privilege?

        A patient’s privilege to preclude the disclosure of his or her communications to a

licensed psychiatrist and communications to a licensed clinical social worker, respectively,

are governed by Md. Code (1973, 2013 Repl. Vol., 2014 Supp.), §§ 9-109 and 9-121 of the

Courts and Judicial Proceedings Article (hereinafter all references to the Maryland Code are

to the Courts and Judicial Proceedings Article, unless otherwise noted). Specifically, § 9-109

(“Communications between patient and psychiatrist or psychologist”) provides in relevant

part:



        4
         We shall explain, infra, that an in camera review is the appropriate method to obtain
access to a victim’s privileged mental health records. To allow a criminal defendant to
directly review all of the privileged records, even upon a sufficient showing of need, would
provide inadequate protection to the victim/patient’s privacy rights to prevent disclosure of
mental health records.

                                              7
       (b) Unless otherwise provided, in all judicial, legislative, or administrative
       proceedings, a patient or the patient’s authorized representative has a privilege
       to refuse to disclose, and to prevent a witness from disclosing:
       (1) Communications relating to diagnosis or treatment of the patient; or
       (2) Any information that by its nature would show the existence of a medical
       record of the diagnosis or treatment.

Similarly, § 9-121 (“Communications between licensed social worker and client”) provides

in relevant part:

       (b) Unless otherwise provided, in all judicial or administrative proceedings, a
       client has a privilege to refuse to disclose, and to prevent a witness from
       disclosing, communications made while the client was receiving counseling
       or any information that by its nature would show that such counseling
       occurred.

Nothing in the relevant statutes purports to make the privileges absolute. Indeed, the statutes

provide for certain exceptions, not relevant here, and, like other evidentiary privileges, the

privilege holder may waive the privilege. See §§ 9-109(d); 9-121(d) and (e).5

       In this case, Respondent sought the minor victim’s records held by a private

counseling center. There is no dispute that the records sought are privileged mental health

records6 and that the victim at no time waived the privilege. As phrased by Petitioner, this

case involves a “tug of war” between the right of the victim to assert his or her privilege to



       5
         For a detailed discussion of the psychotherapist-patient and social worker-client
privileges in Maryland, see generally Lynn McLain, Maryland Evidence State and Federal
§§ 504, 512 (3d ed. 2013).
       6
         Although the records at issue in this case apparently include communications to
psychiatrists as well as to clinical social workers, and therefore may be covered by both § 9-
109 and § 9-121, for purposes of this opinion, we shall simply refer to the privilege covering
these records collectively as the “psychotherapist-patient privilege.”

                                               8
prevent disclosure of confidential mental health records and the right of a criminal defendant

to present a fair defense at trial. See U.S. Const. amend. VI; Md. Decl. of Rts. Art. 21.

Specifically, a criminal defendant has a “right to put before a jury evidence that might

influence the determination of guilt,” or, in other words, a right to obtain and present

exculpatory evidence. Ritchie, 480 U.S. at 56, 107 S. Ct. at 1000, 94 L. Ed. 2d at 56. In

addition, the Sixth Amendment provides the criminal defendant with the right to confront

witnesses, which is achieved through cross-examination. See Davis v. Alaska, 415 U.S. 308,

315, 94 S. Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974). We addressed this conflict of rights,

albeit in dicta, in Goldsmith v. State, 337 Md. 112, 651 A.2d 866 (1995).

                                     Goldsmith v. State

       In Goldsmith, the defendant was charged with and convicted of sexual child abuse,

and other related offenses, of his stepdaughter. 337 Md. at 115, 651 A.2d at 868. During

pre-trial discovery, the defendant sought access to the minor victim’s psychotherapy records,

asserting “(1) that the complainant [had] been in treatment with [her] 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.” 337 Md.

at 116, 651 A.2d at 868. The trial judge denied Goldsmith’s motion on the basis of the

victim’s asserted privilege. 337 Md. at 119, 651 A.2d at 869. Notably, “the motions judge

precluded the pre-trial discovery review of [the therapist’s] records[, but] [t]he defense was

not precluded from calling [the therapist] when the case actually went to trial.” Id. (emphasis



                                               9
in original). The therapist, however, was never called to testify at trial. Id.

       On appeal, this Court affirmed the denial of pre-trial discovery of the victim’s

privileged mental health records under Md. Rule 4-264.7 Goldsmith, 337 Md. at 123, 651

A.2d at 871 (“Md. Rule 4-264 means what it says and precludes pre-trial discovery of a

victim’s privileged psychotherapist-patient records.”). Noting that “an accused has limited

pre-trial discovery rights,” we further held that there is no state or federal constitutional right

that “establishes a pre-trial right of a defendant to discovery review of a potential witness’s

privileged psychotherapy records.” Goldsmith, 337 Md. at 121, 127, 651 A.2d at 870, 873.

In other words, the rule announced in Goldsmith is that a criminal defendant is never entitled

to pre-trial discovery of a victim’s privileged mental health records (absent waiver by the

privilege holder). See id.; see also Thomas v. State, 372 Md. 342, 358-59, 812 A.2d 1050,

1060 (2002) (affirming the trial court’s holding that a witness’s psychotherapy records “are

privileged and therefore not discoverable” where the defendant sought to obtain those records

during pre-trial discovery); Fisher v. State, 128 Md. App. 79, 126, 736 A.2d 1125, 1150

(1999) (“With respect to a defendant’s entitlement to review [privileged psychotherapy

records] pretrial, the privilege is an absolute bar and there is no such entitlement under any

circumstance[.]”).


       7
         Maryland Rule 4-264 governs pre-trial subpoenas for tangible evidence in criminal
cases. As we stated in Goldsmith, “[p]re-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 a criminal defendant the absolute right to subpoena and examine the
private records of every private individual or entity that may conceivably possess exculpatory
records.” 337 Md. at 122, 651 A.2d at 871.

                                                10
       The Court’s discussion in Goldsmith did not end there, however. We distinguished

between three scenarios: (1) pre-trial discovery of privileged information; (2) disclosure of

merely confidential (rather than privileged) information; and (3) disclosure of privileged

information for use at trial. As we have seen, a victim’s privilege is an absolute bar to

disclosure of privileged mental health records during pre-trial discovery. The other two

categories, the Court said, are not barred absolutely, but may be available to the criminal

defendant, if the defendant makes the requisite showing of need.8

       With regard to the disclosure of privileged information at trial, although the issue was

not presented by the facts in Goldsmith, we “distinguish[ed] 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” and “recognize[d] that the

defendant’s constitutional rights at trial may outweigh the victim’s right to assert a privilege.”

337 Md. at 129, 651 A.2d at 874 (emphasis in original). Without further analysis, we noted

that the particular constitutional rights at issue are the rights to confrontation and compulsory

process.9



       8
        We discuss in Section II, infra, the standard for determining when the defendant has
made a sufficient showing of need. As we shall explain, the burden on the defendant is
higher for privileged information as compared to merely confidential information.
       9
         For a discussion on these and other constitutional rights potentially implicated in this
context, as well as a thorough discussion of the conflict between a criminal defendant’s trial
rights and a victim/witness’s right to assert a privilege, see generally Clifford S. Fishman,
Defense Access to a Prosecution Witness’s Psychotherapy or Counseling Records, 86 Or. L.
Rev. 1 (2007).

                                                11
       In distinguishing a defendant’s limited right to pre-trial discovery from the

defendant’s use of privileged information at trial, we also reasoned that the trial judge would

be in a better position to protect the interests of both parties (the defendant and the

victim/witness) when evaluating a trial subpoena as opposed to a pre-trial discovery request.

“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.” Goldsmith, 337 Md. at 131, 651 A.2d at 875. Similarly, because at that point the

trial judge knows that the case is actually going to trial, “the trial judge will be in a better

position to determine what the contested issues are and evaluate the relevancy of the

information the defense is seeking.” Goldsmith, 337 Md. at 131-32, 651 A.2d at 876. We

also noted that in contrast to a pre-trial subpoena under Md. Rule 4-264, which is only for

documents or other tangible evidence, “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 . . . , 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.” Goldsmith, 337

Md. at 131, 651 A.2d at 875. Accordingly, we concluded that under some circumstances a

criminal defendant’s constitutional rights will trump a victim’s right to assert a privilege

during the defendant’s trial. See Goldsmith, 337 Md. at 133-34, 651 A.2d at 876-77.

                                      Jaffee v. Redmond

       Petitioner contends that Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135 L. Ed.



                                               12
2d 337 (1996), decided one year after Goldsmith, casts doubt on this Court’s analysis in

Goldsmith.10 Jaffee involved a civil lawsuit against a police officer by the survivors of a man

shot and killed by the police officer. 518 U.S. at 4, 116 S. Ct. at 1925, 135 L. Ed. 2d at 341.

Upon learning that the officer had participated in numerous counseling sessions with a

licensed clinical social worker, the family members sought access to the social worker’s

records of those sessions for use in cross-examination. Jaffee, 518 U.S. at 5, 116 S. Ct. at

1926, 135 L. Ed. 2d at 342. The police officer and the social worker refused to produce

those documents, or answer questions about them in depositions and trial, on the basis that

they were protected by a psychotherapist-patient privilege. Id. The trial judge rejected the

notion that the counseling records were privileged, and therefore instructed the jury that they

could “presume that the contents of the notes would have been favorable to [the family

members].” Jaffee, 518 U.S. at 5-6, 116 S. Ct. at 1926, 135 L. Ed. 2d at 342. The United

States Court of Appeals for the Seventh Circuit reversed, holding that a psychotherapist-

patient privilege protected the confidential communications between the police officer and

the social worker, unless, in the interests of justice, the need for disclosure “outweighs that

patient’s privacy interests.” Jaffee, 518 U.S. at 6-7, 116 S. Ct. at 1926, 135 L. Ed. 2d at 342-

43.

       The United States Supreme Court affirmed, recognizing for the first time a



       10
           We note that, to date, the Supreme Court has not considered the precise issue of this
case, i.e., whether a criminal defendant’s constitutional rights can outweigh a victim’s right
to assert a privilege.

                                              13
“psychotherapist-patient privilege” that extends to a patient’s confidential communications

made to both licensed psychiatrists/psychologists and licensed social workers “in the course

of psychotherapy.” Jaffee, 518 U.S. at 15, 116 S. Ct. at 1931, 135 L. Ed. 2d at 348.11 The

Supreme Court rejected, however, the application of a balancing test, which, as proposed by

the Seventh Circuit, would weigh the need for the evidence against the protection of the

privilege. Jaffee, 518 U.S. at 17-18, 116 S. Ct. at 1932, 135 L. Ed. 2d at 349-50 (“Making

the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative

importance of the patient’s interest in privacy and the evidentiary need for disclosure would

eviscerate the effectiveness of the privilege.”). Thus, explaining and relying on the societal

benefits of the privilege,12 the Supreme Court held that the psychotherapist-patient privilege


       11
         In determining whether to recognize a psychotherapist-patient privilege under the
federal rules of evidence, the question before the Supreme Court in Jaffee was “whether a
privilege protecting confidential communications between a psychotherapist and her patient
‘promotes sufficiently important interests to outweigh the need for probative evidence[.]’”
The Supreme Court concluded that “[b]oth ‘reason and experience’ persuade us that it does.”
518 U.S. at 9-10, 116 S. Ct. at 1928, 135 L. Ed. 2d at 344 (citations omitted).
       12
            The Supreme Court explained that:

       Like the spousal and attorney-client privileges, the psychotherapist-patient
       privilege is ‘rooted in the imperative need for confidence and trust.’ Ibid.
       Treatment by a physician for physical ailments can often proceed successfully
       on the basis of a physical examination, objective information supplied by the
       patient, and the results of diagnostic tests. Effective psychotherapy, by
       contrast, depends upon an atmosphere of confidence and trust in which the
       patient is willing to make a frank and complete disclosure of facts, emotions,
       memories, and fears. Because of the sensitive nature of the problems for
       which individuals consult psychotherapists, disclosure of confidential
       communications made during counseling sessions may cause embarrassment
                                                                               (continued...)

                                              14
was an absolute bar to disclosure in that case. Jaffee, 518 U.S. at 17, 116 S. Ct. at 1932, 135

L. Ed. 2d at 349. Importantly, however, the majority opinion noted in closing that “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.” Jaffee, 518 U.S. at 18 n.19, 116 S. Ct. at 1932 n.19, 135 L. Ed. 2d at 349

n.19.

        We disagree with Petitioner that Jaffee is inconsistent with Goldsmith. First, Jaffee

is a civil case; the Supreme Court was not faced with the significant constitutional rights at

play in a criminal trial.13 Second, we find Footnote 19 instructive, as it specifically leaves

the door open for situations where the privilege could yield to some greater interest. In

arguing that Jaffee is inconsistent with Goldsmith, Petitioner asserts that “[n]otably, the

[Supreme] Court did not include the circumstance present here—it did not suggest that a

criminal defendant’s constitutional rights of confrontation or compulsory process would

merit abrogation of the privilege.” The exclusion of this situation in the Court’s analysis


(...continued)
         or disgrace. For this reason, the mere possibility of disclosure may impede
         development of the confidential relationship necessary for successful
         treatment.

518 U.S. at 10, 116 S. Ct. at 1928, 135 L. Ed. 2d at 344-45 (footnote omitted). As we shall
explain, we do not disagree with this explanation of the societal benefits of the
psychotherapist-patient privilege.
        13
          Indeed, since Jaffee several federal district courts have reached this very conclusion.
See, e.g., Bassine v. Hill, 450 F. Supp. 2d 1182, 1185 (D. Or. 2006) (distinguishing Jaffee
as “a civil case with no confrontation clause or due process considerations implicated”).

                                               15
does not suggest that the Supreme Court meant to foreclose that possibility (or any other

possible scenario where a privilege might yield to some greater interest). Certainly, the issue

of a criminal defendant’s constitutional rights was not relevant to or at issue in that civil case

and, therefore, the Supreme Court had no occasion to consider it. For the same reason, we

also conclude that the fact that the Supreme Court rejected the use of a balancing test in the

context of that case does not mean that a balancing test may never be appropriate. Moreover,

the Supreme Court made it very clear that “[a] rule that authorizes the recognition of new

privileges on a case-by-case basis makes it appropriate to define the details of new privileges

in a like manner.” Jaffee, 518 U.S. at 18, 116 S. Ct. at 1932, 135 L. Ed. 2d at 349. The

Jaffee majority further explained, “[b]ecause this is the first case in which we have

recognized a psychotherapist privilege, it is neither necessary nor feasible to delineate its full

contours in a way that would ‘govern all conceivable future questions in this area.’” Id.

(citation omitted).

       Although in the dissenting opinion Justice Scalia cautioned that “[f]or the rule

proposed [by the Jaffee majority], the victim is more likely to be some individual who is

prevented from proving a valid claim–or (worse still) prevented from establishing a valid

defense[,]” Jaffee, 518 U.S. at 19, 116 S. Ct. at 1932-33, 135 L. Ed. 2d at 350 (Scalia, J.,

dissenting), it appears that the lower federal courts are split as to whether a criminal

defendant’s right to present a “valid defense” under the Sixth Amendment will trump the

psychotherapist-patient privilege. See, e.g., United States v. Shrader, 716 F. Supp. 2d 464,



                                               16
471-72 (S.D. W. Va. 2010) (noting that “[s]ince Jaffee, courts have differed on whether the

Sixth Amendment can trump the psychotherapist-patient privilege” but “find[ing] that the

psychotherapist-patient privilege is not subordinate to the Sixth Amendment rights of

[d]efendant” in that case); United States v. Mazzola, 217 F.R.D. 84, 88 (D. Mass. 2003)

(“Unlike the circumstance at issue in Jaffee, this case is a criminal prosecution involving the

medical records of a key government witness. The evidentiary benefit of allowing access to

such medical records to defense counsel in order to effectively prepare and cross examine

[the witness] is great.”); United States v. Hansen, 955 F. Supp. 1225, 1226 (D. Mont. 1997)

(holding that in the context of a criminal case, the 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”).

       Moreover, the Supreme Court’s holding in Jaffee established a testimonial privilege

under the federal rules of evidence based on “reason and experience.” Jaffee, 518 U.S. at 10,

116 S. Ct. at 1928, 135 L. Ed. 2d at 344. By contrast, as the Supreme Court noted, all of our

sister states have codified “some form of psychotherapist privilege” by statute. Jaffee, 518

U.S. at 12, 116 S. Ct. at 1929, 135 L. Ed. 2d at 346. Of those that have reached the issue, the

majority of state courts (and at least one legislature)14 agree that a victim’s privilege may be


       14
        See State v. Neiderbach, 837 N.W.2d 180, 194 (Iowa 2013) (discussing Iowa Code
Ann. § 622.10, amended in 2011, providing for an in camera review of privileged
information in a criminal trial “[u]pon a showing of a reasonable probability that the
                                                                           (continued...)

                                              17
subordinate to a criminal defendant’s constitutional rights at trial.15 See State v. Slimskey,

779 A.2d 723 (Conn. 2001); Burns v. State, 968 A.2d 1012 (Del. 2009); State v. Peseti, 65

P.3d 119 (Hawai’i 2003); State v. Neiderbach, 837 N.W.2d 180 (Iowa 2013); Com. v. Dwyer,

448 Mass. 122 (2006); Com. v. Barroso, 122 S.W.3d 554 (Ky. 2003); People v. Stanaway,

521 N.W.2d 557 (Mich. 1994); State v. Hummel, 483 N.W.2d 68 (Minn. 1992); State v. King,

34 A.3d 655 (N.H. 2011); State v. L.J.P., 637 A.2d 532 (N.J. Super. Ct. App. Div. 1994);

State v. Blake, 63 P.3d 56 (Utah 2002); State v. Green, 646 N.W.2d 298 (Wisc. 2002). But

see People v. Turner, 109 P.3d 639 (Colo. 2005); State v. Famiglietti, 817 So.2d 901 (Fla.

App. 2002); In re Subpoena to Crisis Connection, Inc., 949 N.E.2d 789 (Ind. 2011); Com.

v. Wilson, 602 A.2d 1290 (Pa. 1992).

       Although we disagree with Petitioner that Jaffee obligates this Court to hold that the

psychotherapist-patient privilege is an absolute bar to disclosure, we certainly do not disagree

with the Supreme Court’s evaluation of the societal value of the psychotherapist-patient

privilege. See Jaffee, 518 U.S. at 10-11, 116 S. Ct. at 1928-29, 135 L. Ed. 2d at 344-45


(...continued)
privileged records sought may likely contain exculpatory information that is not available
from any other source”).
       15
         We do not suggest that all states approach this conflict of rights the same way. As
we noted in Goldsmith, some states require the privilege holder to waive the privilege once
the defendant makes the requisite showing; if he or she fails to waive the privilege for the
purpose of conducting an in camera review, then the witness’s testimony is stricken at trial.
See Goldsmith, 337 Md. at 134 n.9, 651 A.2d at 877 n.9 (citing cases in Connecticut,
Nebraska, and Michigan). In addition, some states also allow for pre-trial discovery of the
privileged records once a criminal defendant has made the requisite preliminary showing of
need. See, e.g., Com. v. Barroso, 122 S.W.3d 554, 561-62 (Ky. 2003).

                                              18
(“The psychotherapist privilege serves the public interest by facilitating the provision of

appropriate treatment for individuals suffering the effects of a mental or emotional problem.

The mental health of our citizenry, no less than its physical health, is a public good of

transcendent importance.”). Indeed, it is because of the importance of the privilege that we

iterated a balancing test in Goldsmith, and held that defendant must meet a heavy burden to

access privileged information, which we discuss next. Accordingly, we hold that a victim’s

right to assert a privilege in his or her mental health records may yield to the criminal

defendant’s constitutional rights at trial.

       II. When is the defendant entitled to a review of the privileged records?

       Just as the victim does not have an absolute privilege against disclosure of

psychotherapy records, nor does a defendant have an absolute right to obtain those records

for use at trial. Our stated purpose in Goldsmith was “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.” 337 Md. at 121, 651 A.2d

at 870. To achieve this goal, we held that a defendant must meet a minimum threshold to be

entitled to an in camera review of the evidence. See Goldsmith, 337 Md. at 132, 651 A.2d

at 876. We reiterate that a balancing test followed by an in camera review is the appropriate

method to protect both the defendant’s constitutional rights and the victim’s privacy rights

in his or her mental health records.




                                              19
                             Preliminary Showing (“Proffer”)

       Before a victim’s privilege will bend to the defendant’s need, a defendant must make

a preliminary showing, which in turn must meet the threshold established in Goldsmith. If

the defendant is able to make a sufficient proffer, then the trial judge is required to conduct

an in camera review of the privileged records to determine whether the records actually

contain exculpatory material.

       As previously discussed, the Goldsmith court outlined three scenarios: (1) pre-trial

discovery of privileged information; (2) pre-trial discovery of merely confidential (rather than

privileged) information; and (3) disclosure of privileged information at trial. Goldsmith dealt

conclusively with the first scenario–holding that a victim’s privilege in psychotherapy

records is an absolute bar to a criminal defendant’s pre-trial discovery request for those

documents. With regard to the other two scenarios, Goldsmith set out a standard for

obtaining review of the requested information. Although the information sought in this case

was privileged, we point out for purposes of clarity that to obtain access to confidential

information, not subject to a statutory or common law privilege, Goldsmith provides that a

defendant must “show a likelihood of obtaining relevant information.” 337 Md. at 128, 651

A.2d at 874. This test has its genesis in Zaal v. State, 326 Md. 54, 602 A.2d 1247 (1992),

which dealt with a criminal defendant’s subpoena to obtain a minor victim’s educational

records (which are confidential but not privileged).

       With regard to the disclosure of privileged records at trial, however, the Goldsmith



                                              20
court stated in no uncertain terms 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 for a proper defense.”

337 Md. at 133-34, 651 A.2d at 877 (footnote omitted). Moreover, “the required showing

must be more than the fact that the records ‘may contain evidence useful for impeachment

on cross-examination.’” Goldsmith, 337 Md. at 133, 651 A.2d at 876 (citing People v.

Stanaway, 521 N.W.2d 557, 576 (Mich. 1994)). At the hearing on Goldsmith’s request for

the privileged mental health records, defense counsel proffered that “[w]here the facts are

that you have an adult bringing charges that go back over ten years . . . there [was] 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.” Goldsmith, 337 Md. at 118, 651 A.2d at

869. That proffer, which we dubbed a “speculative assertion that the records might be

relevant for impeachment[,]” did not cut it. Goldsmith, 337 Md. at 135, 651 A.2d at 877.

       The Court of Special Appeals addressed this issue in a subsequent case, Fisher v.

State, 128 Md. App. 79, 736 A.2d 1125 (1999). In Fisher, three defendants were convicted

of second-degree murder, child abuse, and conspiracy to commit child abuse related to

defendants’ treatment of two minor children, one of whom had died as a result of abuse and

neglect. 128 Md. App. at 87-88, 736 A.2d at 1129-30. Leading up to trial, the defendants

sought access to the psychotherapy records of the still living child, which the trial court

denied. Fisher, 128 Md. App. at 114-17, 736 A.2d at 1148-50. On appeal, the Court of



                                              21
Special Appeals affirmed, concluding that defense counsel’s proffer, namely the assertion

that “[w]e have no way of knowing, without having access to those records, whether there

is exculpatory material or not,” “does not do it.” Fisher, 128 Md. App. at 128, 736 A.2d at

1151. Relying on this Court’s opinion in Goldsmith and its own earlier opinion in Reynolds

v. State, 98 Md. App. 348, 633 A.2d 455 (1993), the intermediate appellate court explained,

“there is a threshold that must be crossed before it is even appropriate for the trial judge to

review such records in camera[,] . . . [and] it is the defendant who bears that burden of

showing the necessity for a review. . . . Absent such a showing, not even the judge himself

should review the privileged material[.]” Fisher, 128 Md. App. at 124-25, 736 A.2d at 1149

(citations and quotations to Reynolds omitted).

       In Reynolds, which was decided prior to Goldsmith, the Court of Special Appeals

considered precisely when a trial judge should conduct an in camera review of privileged

records.16 There, the court stated “[t]he trial judge . . . should not make an in camera review

of each and every document that contains privileged information. The patient’s claim of

privilege shall be honored unless the need for inspection has been established.” Reynolds,

98 Md. App. at 369, 633A.2d at 464. To show the “need for inspection” (i.e., to cross the



       16
          In that case, the defendant was charged and convicted of sexual abuse of his minor
daughter. The defendant made a pretrial request to review the daughter’s mental health
records, which the trial judge denied. Reynolds, 98 Md. App. at 361, 633 A.2d at 461.
Although the appellate court reversed and remanded the case for a new trial on a separate
issue, the court offered guidance to the parties and the trial court should the privileged mental
health records issue arise during the new trial. Reynolds, 98 Md. App. at 364, 633 A.2d at
461.

                                               22
threshold), the intermediate appellate court continued, “[t]he burden is on the defendant to

persuade the trial judge that there is a substantial possibility that . . . although privileged, the

records contain information that might influence the determination of guilt.” Id. We note

that the Court of Special Appeals in Fisher cited both the Reynolds iteration of the threshold

as well as the standard we enunciated in Goldsmith, holding that defense counsel’s proffer

failed either way. See Fisher, 128 Md. App. at 128, 736 A.2d at 1151. Although a

reasonable mind would conclude that “information that might influence the determination

of guilt” (Reynolds) is practically equivalent to “exculpatory information necessary for a

proper defense” (Goldsmith), we take this opportunity to clarify that Maryland courts should

utilize the Goldsmith standard in analyzing a defendant’s proffer for access to privileged

mental health records.17


       17
          For a list of the various standards used by our sister states, see Fishman, supra note
9, at 39-41, stating:

       [C]ourts have used a variety of terms to articulate the appropriate standard.
       These formulations vary in what the defendant must seek to show, and how
       persuasively the defendant must show it, in order to trigger the in camera
       review by the court.

       How is one to rank, in difficulty of proof, “a reasonable ground to believe,” “a
       reasonable probability,” “a reasonable belief,” “a reasonable likelihood,” “a
       good-faith belief, grounded on some demonstrable fact,” and “reasonable
       certainty”? How is one to compare “would likely impair his right to impeach
       the witness,” “material information necessary to [the] defense,” “information
       . . . relevant and material to the issue before the court,” “evidence favorable
       to the accused and material to guilt or punishment, including impeachment
       evidence,” “exculpatory information necessary for a proper defense,”
       “exculpatory evidence which is relevant and material to the issue of the
                                                                                 (continued...)

                                                23
       In neither Goldsmith nor Fisher did the defendant present a sufficient proffer. In

Goldsmith, defense counsel asserted that “there [was] 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.” Goldsmith, 337 Md. at 118, 651 A.2d at 869. Similarly, in Fisher,

defense counsel stated “[w]e have no way of knowing, without having access to those

records, whether there is exculpatory material or not.” Fisher, 128 Md. App. at 128, 736

A.2d at 1151. In the words of the Court of Special Appeals, these proffers “do[] not do it.”

Id.

       In the instant case, defense counsel proffered that: “I’d like to see the records, one,

to know what is this young man’s mental health diagnosis. Is he, is he bipolar? Is he

paranoid schizophrenic? Is he delusional? Does he have hallucinations . . . . if he’s

delusional, and if [he] has hallucinations, I believe . . . that’s exculpatory for [Respondent’s]

case.” The trial judge concluded that this “fishing expedition” 18 was not enough to pierce

the victim’s privilege. In reversing, the Court of Special Appeals held that the suggestion

regarding the apparent need to know the victim’s propensity for veracity was enough to at


(...continued)
         defendant’s guilt,” i.e., “material information necessary to the defense,”
         “exculpatory evidence . . . which would be favorable to [the] defense” (is there
         any other kind of “exculpatory evidence”?), and “necessary to a determination
         of guilt or innocence”? (Footnotes omitted.)


       18
         Defense counsel even conceded that this was a fishing expedition, stating to the trial
judge: “if you wish to call it a fishing expedition, it may be because I have no idea what these
records may contain.”

                                               24
least warrant an in camera review.

       We disagree. A “fishing expedition,” without more, does not satisfy the Goldsmith

standard. The mere generalized suggestion “that it would be appropriate to know of [J.C.’s]

propensity for veracity” is not enough to overcome the victim’s privilege in his mental health

records. As stated in Goldsmith, a “speculative assertion that the records might be relevant

for impeachment” will not cut it. 337 Md. at 135, 651 A.2d at 877. Moreover, under the

intermediate appellate court’s rationale in this case, it is arguable that any defendant would

be able to pierce the victim’s privilege, because it would always be “appropriate to know [the

victim’s] propensity for veracity.” We stated as much in Goldsmith: “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.” 337 Md. at 133, 651 A.2d at 876

(emphasis in original).

       We recognize how unlikely it may be that a defendant or defense counsel will know

in advance what information is in a patient’s privileged mental health or psychotherapy

records. Nonetheless, in order to gain access to any information in those records, the

defendant may (and must) be able to point to some fact outside those records that makes it

reasonably likely that the records contain exculpatory information.19 We look to our sister


       19
          Petitioner urges this Court to require a more formal hearing, including the
application of the Rules of Evidence, where the defendant must present “credible evidence”
to show a likelihood that the records sought contain exculpatory evidence. We decline the
                                                                              (continued...)

                                              25
states for examples of facts that could20 reveal a likelihood that the privileged records contain

exculpatory evidence. One such example is evidence of prior inconsistent statements. In

State v. Peseti, the victim’s sister testified that the victim had on one occasion “admitted that

the incident ‘didn’t happen.’” 65 P.3d 119, 129. Similarly, in Brooks v. State, 33 So. 3d

1262, 1269 (Ala. Crim. App. 2007), other records produced by the State during discovery

included an inconsistent statement by the victim. Another example is strange behavior by

the victim surrounding the counseling sessions, such as Burns v. State, 968 A.2d 1012 (Del.

2009), where the victim destroyed notes about alleged abuses after an interview with her

psychiatrist. People v. Stanaway, 521 N.W.2d 557 (Mich. 1994), a case cited by this Court

in Goldsmith, also provides a useful example of a defendant pointing to actual facts to

support a proffer that the mental health records likely contained exculpatory evidence. In

that case, the defense’s theory was “that the claimant is a troubled, maladjusted child whose

past trauma has caused her to make a false accusation.” In support of a request to review the

claimant’s mental health records, the defendant pointed to prior abuse of claimant by her

biological father and factual support for sexually aggressive behavior by the victim.




(...continued)
invitation. In our view, the Goldsmith standard is enough to protect the victim’s privacy
interests and right to assert a privilege, and creates a sufficient burden on defendant, such that
we see no reason to require the defendant’s proffer to adhere to the Rules of Evidence.
       20
          We purposefully use the conditional here because the nature of this situation
necessarily requires a fact-specific inquiry. For that reason, moreover, the evaluation of the
sufficiency of a defendant’s proffer is a matter left, in the first instance, to the sound
discretion of the trial judge.

                                               26
Although the trial court denied the defendant’s request, the Supreme Court of Michigan held,

based on defendant’s proffer, that in camera review “may have been proper” and remanded

for further proceedings, including to further develop the record. 521 N.W.2d at 576-77.

       Respondent in this case offered no such factual predicate to show a likelihood that the

victim’s psychotherapy records contained exculpatory information. On the contrary, defense

counsel merely proffered that “if he’s delusional, and if [he] has hallucinations, I believe .

. . that’s exculpatory for [Respondent’s] case.” In effect, all defense counsel proposed were

hypotheticals–in other words, too many “if’s.” The Court of Special Appeals concluded that

the “suggest[ion] that it would be appropriate to know of [J.C.’s] propensity for veracity. .

. . [was] sufficient, at the very least, to call for an in camera review of the records to

determine their relevance, vis a vis [Respondent’s] constitutional rights, before ruling on

[National Pike’s motion].” Although we do not disagree that it would be “appropriate to

know of [J.C.’s] propensity for veracity,” that alone is not enough to outweigh a victim’s

right to assert the privilege in the victim’s mental health records. See Goldsmith, 337 Md.

at 128 n.5, 651 A.2d at 874 n.5 (“Merely stating ‘suppose’ the victim did this or said that is

not a proffer sufficient to establish a need for the records.”). As we have repeated, we must

weigh the defendant’s need for the evidence with the victim’s privacy right in privileged

records.21 Based on this record, Respondent’s proffer did not meet the required threshold and



       21
         We cannot emphasize enough that this determination must be made on a case-by-
case basis. Moreover, there may be other factors that are appropriate for the trial judge to
consider, such as whether the requested information is available from another source.

                                             27
he is therefore not entitled to review J.C.’s counseling records for evidence regarding J.C.’s

propensity for veracity. Accordingly, the Court of Special Appeals’s conclusion was in error

and there was no abuse of discretion on the part of the trial judge in refusing to conduct an

in camera review of the records.

                                                  JUDGMENT OF THE COURT OF
                                                  SPECIAL APPEALS REVERSED.
                                                  CASE REMANDED TO THE COURT
                                                  OF SPECIAL APPEALS W ITH
                                                  DIRECTIONS TO AFFIRM THE
                                                  JUDGMENT OF THE CIRCUIT
                                                  COURT FOR BALTIMORE CITY.
                                                  RESPONDENT TO PAY COSTS IN
                                                  THIS COURT AND IN THE COURT
                                                  OF SPECIAL APPEALS.




                                             28
