(concurring). Although I agree with the result in both Stanaway and Caruso, I write separately because I disagree with the majority’s rationale. In these cases we deal with the extremely difficult problem of formulating a lawful and usable approach to balancing a defendant’s due process right to a fair trial against resistance to discovery based on claims of privilege.
In my judgment, the test for in camera review is a plausible showing of need and materiality. The test for disclosure and use is whether there is a reasonable probability that material and necessary information would affect the factfinder’s determination of guilt or innocence. The issues are (1) the nature of the privilege asserted, (2) the test for in camera review, (3) the test for determining when constitutional materiality requires discovery or use of protected information, and (4) the remedy for nondisclosure. The majority (1) creates too rigid a barrier to a defendant’s request for in camera review, (2) treats all "privileges” as functionally equivalent, (3) confuses the standard for in camera review with the test for disclosure, and (4) assumes that the remedy appropriate to resistance to discovery of all information protected by an absolute privilege is striking the witness’ testimony.
The majority’s rationale is based on two dubious grounds, one that unnecessarily limits a defen*701dant’s right to in camera review, and a second that limits the viability of all privileges. There are two types of privileges — (1) conditional or qualified privileges and (2) absolute privileges. Statutes protecting confidential communications are construed to protect the communications from extrajudicial disclosure. Absolute privileges are those that expressly protect all disclosure, in court as well as out of court. Conditional or qualified privileges, which do not expressly bar in court disclosures, do not create an exception to judicial control under the Michigan Rules of Evidence.1 The majority’s implicit but erroneous assumption that all the statutes at issue bar in-court disclosure leads to its creation of too high a threshold for in camera review,2 which, in my opinion, should be available on a showing of plausible need and materiality. At the same time, the majority creates too low a threshold for invading those few privileges that must be construed to be absolute. The theoretical internal inconsistency of this position produces this schizophrenic result: while all privileges yield on the same terms to in camera review, in camera review will hardly ever be available. The majority’s approach thus achieves the remarkable feat of both underappreciating and overvaluing privileges in a single effort.
Moreover, the majority’s failure to distinguish *702between those privileges that do not bar disclosure in court and those that do, leads to the erroneous conclusion that where a defendant makes the requisite showing of materiality for in camera review, the holder of an absolute privilege may continue to refuse to submit the protected information, resulting in the holder’s testimony being struck. When privileges can be appropriately narrowed to avoid such clashes, and a sufficient showing overrides a privilege of confidentiality, the remedy is an order to the holder of the privileged information, failing which the consequence may be contempt.3 Only when the privilege is absolute, and its purpose will be destroyed by invasion, will disclosure be dependent on waiver by the privilege holder.
The first step in analysis when a due process right to discovery is asserted and a privilege is invoked, is to examine the basis for the defendant’s request. Where the defendant makes a plausible showing of materiality and favorability to his case, further consideration is in order. Passing the initial materiality test, a determination whether the privilege is absolute or conditional is necessary to assess whether further deliberation may be called for before in camera review is warranted. Where the statute establishing the privilege fairly permits a construction that in camera disclosure can be required as a screening device, in camera examination is appropriate. Even where the privilege invoked is absolute, if it cannot be said that in camera review would destroy the ends sought *703through the privileged communication, such review may still be proper. However, where the privilege cannot be narrowed, and in camera review would itself destroy its purpose, such continued scrutiny is inappropriate and may not be conducted unless the privilege holder yields, failing which the prosecutor must accept the burden of upholding the privilege.
Achieving in camera review, however, does not end the inquiry. A decision on disclosure to the defendant still awaits. At this stage, the test for disclosure is whether the protected material is both necessary and constitutionally material, as developed more fully below. This standard does not vary with the nature of the privilege.
The psychologist-patient privilege involved in People v Caruso is an absolute privilege protecting private communications. Although Caruso did not make an initially sufficient showing of plausible materiality, on the remand ordered by the majority,4 the court should consider how allegedly truncated counseling, stemming from prior sexual abuse, is plausibly material to the claim of fabrication. If such a showing is made, the trial court must determine whether in camera review would itself destroy the privilege. I concur in the result in People v Stanaway regarding the defendant’s desire for in camera review of the absolutely privileged sexual assault counselor-victim records. The social worker-client and juvenile diversion records sought by defendant Stanaway do not possess the same absolute character as the other privileges at issue in these cases; however, because I agree that the defendant’s generalized assertions have failed *704to make a plausible showing of materiality, I also concur in the majority’s result denying in camera review of these records.
i
A
Contemporary case law of this Court has construed "privileges” broadly to uphold the right of a defendant in a criminal case to prevent in-court disclosure of relevant evidence. See, e.g., People v Howe, 445 Mich 923 (1994); Howe v Detroit Free Press, 440 Mich 203; 487 NW2d 374 (1992); People v Hamacher, 432 Mich 157; 438 NW2d 43 (1989); People v Vermeulen, 432 Mich 32; 438 NW2d 36 (1989). In these cases, however, the failure to engage in a discrete analysis that construes privileges as narrowly as possible in recognition of their impediment to the truth-seeking objective produces a manipulation of the standard for in camera review that jeopardizes the right of a defendant in a criminal case to a fair trial.
The majority today requires that, in order for a court to conduct an in camera review of any privileged records, a defendant must "establish a reasonable probability that the privileged records are likely to contain material information necessary to his defense . . . .” Ante at 649. My first point of departure from the majority’s rationale is that this initial materiality requirement erects a higher initial barrier to in camera review than that articulated by the United States Supreme Court.
In Pennsylvania v Ritchie, 480 US 39, 58, n 15; 107 S Ct 989; 94 L Ed 2d 40 (1987), the Court rejected the government’s resistance to in camera review because Ritchie had not established a "particularized” basis for his claim. The Court required *705only a plausible showing of how the evidence at issue would be both material and favorable to the defense to secure in camera review under a statute creating a conditional privilege. Id., citing United States v Valenzuela-Bernal, 458 US 858, 867; 102 S Ct 3440; 73 L Ed 2d 1193 (1982); see also Exline v Gunter, 985 F2d 487 (CA 10, 1993) (a denial of in camera review constituted a violation of due process, even where the state court found that the defendant failed to show a "particularized need” for the records sought).5 I would adopt the Ritchie standard of materiality for the further review of all privileges, requiring a plausible showing of materiality and favorability in order to subject the records in the present cases to further consideration. At this initial stage of review, I see no reason to distinguish between absolute and conditional privileges.
Valenzuela-Bernal, supra, provides useful instruction on the plausible materiality standard. In that case, the Court sought to determine the requisite showing in order to demonstrate a violation of a defendant’s right to compulsory process by the deportation of possible defense witnesses before affording defense counsel an opportunity to interview the deportees. The Court rejected the suggestion that the testimony of the witnesses need only be shown to be of "conceivable benefit” to the defense because such a standard was limited only by the imagination of defense counsel or the trial judge. Id. at 866. The Court held that the defen*706dant "must at least make some plausible showing of how [the deportees’] testimony would have been both material and favorable to his defense.” Id. at 867. Expanding on this requirement, the Court turned to "cases in what might loosely be called the area of constitutionally guaranteed access to evidence . . . .” Id.6 While noting that a defendant’s right of access to evidence was generally measured by the prejudicial effect of denial of such access, the Court admitted that the specificity of materiality required should be relaxed, but not wholly dispensed with, where a defendant has had no opportunity to determine what favorable information the witness, or the evidence, might possess. In that case, the defendant must show the events to which the evidence might relate, and the relevance of those events to the crime charged. This approach suggests that defendants seeking discovery of privileged information must make an initial showing of plausible materiality and favorability by demonstrating what events the information might relate to and the relevance of those events to the defendant’s theory of defense "in ways not merely cumulative to the testimony of available witnesses.” Id. at 873.7 The majority’s high initial burden on the defendant fails to account for the fact, acknowledged by the United States Supreme Court, that neither the defendant nor the court has yet had an opportunity to review the records in question at this initial stage. This handicap *707dictates a lower threshold for initial review than the ultimate proof required for disclosure.
[A] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege. [United States v Zolin, 491 US 554, 572; 109 S Ct 2619; 105 L Ed 2d 469 (1989).]
The detail asserted may assist the court in evaluating how the privileged material might be relevant to the defense,8 but it need not meet a standard of probable necessity. As observed in another context, but equally apposite here:
[A] trial judge cannot accurately evaluate the litigant’s showing of necessity without knowing something of the content of the information sought. There is no judicial algebra by which a court can determine how badly a litigant needs "X.”[9]
B
Under the plausible materiality and favorability standard, defendant Stanaway has failed to articulate a sufficient basis for discovery of the social worker-client and juvenile diversion records. Stan-away can only justify his discovery request by a hope to unearth some statements inconsistent with the victim’s prior testimony. This generalized aspi*708ration provides no reasonable justification for further in camera review. As noted in Ritchie, supra at 58, n 15, a defendant "of course, may not require the trial court to search through the [requested files] without first establishing a basis for his claim that it contains material evidence.” Because Stanaway articulated no different basis for his request for discovery of the psychologist-patient records than he did for those protected by qualified privileges, it is apparent that discovery of this evidence is also unavailable.
Because Caruso has not been tried, I agree with the majority that a showing of plausible necessity might yet be made. However, the defendant’s claim in Caruso that the listing of a psychologist as an expert witness might permit access to other privileged records on the basis of a good-faith belief that the records may reveal another explanation for the symptoms does not set forth a plausible basis for in camera review. There is no showing of relevancy that is not merely cumulative with respect to the testimony of the expert witness. The opinion of the psychologist/expert witness may be offered only with respect to the behavior traits of the victim. People v Beckley, 434 Mich 691; 456 NW2d 391 (1990). The expert witness’ records will be available, thus affording the defendant the basis for full exploration of the expert’s opinion. Nor can a plausibly sufficient justification for disclosure of the privileged records be grounded on the claims that the complainant was abused by her father, has not received proper treatment and has a warped sense of right or wrong. These claims are directed at a collateral act. Their relevance to fabrication of this incident is supported only by conclusory statements. The defendant asserts before this Court that the relevance of the requested information is to rebut the *709inference that the youthful victim would have knowledge sufficient to describe the alleged acts by the defendant unless they actually occurred. These assertions are also insufficient to warrant in camera review. In order to find plausible relevancy, the defendant must articulate some similarity between the possible abuse by the father and the charges of sexual contact in the present case or otherwise demonstrate the necessary relevancy.10 See, e.g., State v Oliver, 158 Ariz 22; 760 P2d 1071 (1988), Commonwealth v Rathburn, 26 Mass App 699; 532 NE2d 691 (1988).11
ii
The United States Supreme Court has disclaimed any intent to constitutionalize the discovery process. Weatherford v Bursey, 429 US 545; 97 S Ct 837; 51 L Ed 2d 30 (1977). Moreover, "[privileges are not all equally important; they vary with the privacy interests they protect and the policies they promote.” Saltzburg, Privileges and professionals: Lawyers and psychiatrists, 66 Va L R 597, 622 (1980), quoted in 1 McCormick, Evidence (4th ed), § 77, p 290, n 5. Lacking clear guidance from the United States Supreme Court, the majority has collapsed all state privileges, irrespective of their relative importance, qualified as well as un*710qualified, and governmental as well as purely private, to possible violation under the same method of review.
All the privileges at issue in the instant cases are statutorily protected by language that evinces a respect for the privileged communications. However, only the privileges afforded communications with sexual assault counselors12 (at issue in Stanaway), and psychologists13 (at issue in Caruso), specifically express an intent to bar the use of records of such communications from court proceedings.14 Because expansive construction of privileges interdicts the court’s primary truth-finding function, privileges must be interpreted as being consistent with that purpose whenever. possible. Thus, my second point of departure from the majority is that I disagree that all the statutes at issue here create privileges that expressly dictate that the informa*711tion be barred from use in judicial proceedings. Neither the social worker-client privilege, MCL 339.1610; MSA 18.425(1610), nor the privilege for records kept pursuant to the juvenile diversion program, MCL 722.828-722.829; MSA 25.243(58)-25.243(59), contain such an expression of legislative intent. These statutes create qualified privileges to protect confidential communications,15 and do not erect an absolute bar to the discovery of privileged information. Howe v Detroit Free Press, 440 Mich 203, 233-234; 487 NW2d 374 (1992) (opinion of Boyle, J.). While I agree with the majority that the trial court must weigh the legislative purpose in creating qualified privileges in the context of its particular evidentiary value to the accused, thus honoring confidentiality while preserving relevant evidence, the same method of analysis cannot be employed where the Legislature has expressly erected an absolute bar to in-court disclosure.
The statutory privileges extended to communications with sexual assault counselors and psychologists evince the highest societal regard,16 both for the relationships in which the communications *712arise and for the critical importance the confidentiality of such communications have in the successful achievement of the ultimate goal of those relationships.17 The question is whether these intended absolute privileges18 may be vindicated or when and how they must be qualified to accommodate a defendant’s constitutional right to due process.19
*713I do not doubt that the United States Supreme Court might find absolute privileges unconstitutional as applied. See Michigan v Lucas, 500 US 145; 111 S Ct 1743; 114 L Ed 2d 205 (1991). "[E]xceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”20 However, given the scope of the cloak of privacy created by the Legislature, the protection afforded to the privacy of crime victims by our state constitution, Const 1963, art 1, § 24,21 and the fact that we are sailing in constitutionally uncharted waters, a measured response to the question when in camera review and disclosure is required is appropriate.
in
Given the lack of guidance from the Supreme Court with respect to the initial materiality standard and the ultimate issue of disclosure and use of privileged information,22 some discussion is in order regarding the mode of analysis to be used in the further proceedings in Caruso. For the sake of *714illustration, I include a discussion regarding the privileges at issue, but already disposed of, in Stanaway.
There is no authority from the United States Supreme Court that holds that absolute statutory privileges protecting private relationships are unconstitutional on their face. The Court has never dealt squarely with the validity of a statutorily mandated, societal privilege that expressly bars introduction of privileged material into judicial proceedings. In Pennsylvania v Ritchie, supra, the Court expressly refused to articulate an opinion regarding the result of a direct clash between a defendant’s pretrial discovery claim to records of a government agency and a specific statutory bar to the desired access. The defendant’s request for exculpatory material was opposed in Ritchie by a statute that permitted disclosure of confidential information to a court in appropriate circumstances. The Court construed the statute narrowly to hold that "[g]iven that the Pennsylvania Legislature contemplated some use of [Children and Youth Services] records [the records being sought for discovery] in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions.” 480 US 57-58.23 (Emphasis in the original.)
The majority acknowledges this limitation on Ritchie, but implicitly concludes24 that any privi*715lege must potentially yield to a sufficiently compelling discovery claim, basing its holding on the Court’s high regard for a defendant’s constitutional rights and a survey of the jurisprudence of other states. Ante at 677-678. Although the rights of accused persons are so fundamental a priority of the American system of justice that we can safely predict that the United States Supreme Court will not permit substantial limitations of these core protections, we should not anticipate that, as a corollary, the Court will treat all privileges alike.
In addition to Ritchie, other United States Supreme Court opinions relevant to an evaluation of absolute privileges fail to provide clear guidance. In Roviaro v United States, 353 US 53; 77 S Ct 623; 1 L Ed 2d 639 (1957), the Court determined that the common-law informer’s privilege25 had to give way where it wás determined that the defendant had demonstrated a vital need for access to the informer’s identity. The Court noted that the scope of the privilege was limited by its underlying purpose, in this case the furtherance and protection of the public interest in effective law enforcement. Id. at 59-60. The advancement of that interest paled when compared against the defendant’s right to prepare his defense. Thus, under the circumstances of the case, the privilege yielded to the defendant’s paramount right.
In United States v Nixon, 418 US 683; 94 S Ct 3090; 41 L Ed 2d 1039 (1974), the Court found that the president’s generalized claim of absolute executive privilege, made in an attempt to bar in camera review of records of conversations between the president and his close advisors, had to yield to *716the special prosecutor’s demonstrated, specific need for evidence in a criminal trial. While the Court acknowledged the constitutional underpinnings of executive privilege, it found that the president’s claim exceeded the scope of that privilege. Id. at 706-707.26 The Court did not hold that a privilege could never be maintained against the fundamental due process right to the production of evidence at a criminal trial, but, rather, found fault in the broad, generalized privilege being asserted. The Court quoted with approval the proposition that " 'the public . . . has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege . . . .” Id. at 709, quoting Branzburg v Hayes, 408 US 665, 674; 92 S Ct 2646; 33 L Ed 2d 626 (1972). Emphasizing the modest quantity of, and restrictive criteria for, legitimate privileges, the Court nevertheless cited the attorney-client and priest-penitent privileges as examples of valid prohibitions against forced disclosure. Nixon, supra at 709-710.27 Acknowledging the important nature of the privilege asserted by the president, the Court instructed that the information sought should be presumptively privileged and that the special prosecutor could only defeat such assertion by demonstrating that the material was " 'essential to the justice of the [pending criminal] case.’ ” Id. at 713, quoting United States v Burr, 25 F Cas 187, 192 (No. 14,694) (CCD Va, 1807).
*717Finally, restrictions on a defendant’s opportunity to cross-examine a witness because of a statutory privilege were questioned in Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974). The Court found that a state statute barring admission of a witness’ juvenile record in criminal proceedings impermissibly denied the defendant his right of confrontation under the facts of the case. The witness had provided the prosecution with testimony inculpating the defendant in the crime. The defendant sought to use the witness’ juvenile record and the fact that he was on probation at the time of his identification of the defendant to show that the witness may have been under undue police pressure at the time of identification and to call into question the truthfulness of his answers during cross-examination. Id. at 311-314. The Court framed the question as one of the "adequacy” of the scope of the permitted cross-examination, and again embarked on a balancing test of the state’s interest in protecting the anonymity of juvenile offenders in the interest of furthering the rehabilitative goals of the juvenile corrections system against the right of the defendant to effective cross-examination. Id. at 318-319. Focusing on the specific case before it, the Court found that "[w]hatever temporary embarrassment might result to [the witness] dr his family by disclosure of his juvenile record — if the prosecution insisted on using him to make its case — is outweighed by the petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.” Id. at 319.
IV
From the background of precedent discussed above, drawing guidance to aid in evaluation of *718discovery requests for information protected by privileges that successfully pass the initial materiality test is difficult. As noted, for purposes of illustration it will be assumed that the discovery requests in both the present cases have withstood the first materiality challenge. Implicit in such guidance is an assumption that the United States Supreme Court would uphold absolute statutory privileges protecting private communications as being constitutional on their face and an admission that they may be unconstitutional as applied. The Supreme Court has left this question open.28
If a privilege is conditional, there is no need for further consideration before in camera review. The defendant in such a case has made a plausible showing of materiality and favorability, and the considerations at in camera review, discussed below, await. In Stanaway, had the challenge to the social worker-client and juvenile diversion records privileges met the plausibility standard, the trial court properly would have ordered the records submitted for in camera review.
Where there is a clear indication that a privilege was intended to block the introduction of the information protected into judicial proceedings, however, I would hold that the privilege is an absolute bar to the discovery of the privileged material by a defendant in a criminal proceeding if, under the facts of the particular case, defeat of the privilege would preclude the achievement of the goal sought through the privileged communication. Discovery of the privileged information in this case is only possible through waiver of the *719privilege by its holder. If maintenance of the privilege is of such an imperative quality, and no waiver is forthcoming, the prosecutor must bear the burden of the privilege, either by being barred from calling the privilege holder as a witness or dismissing the charges against the defendant.29
Analysis of the effect of violation of the absolute privilege on the ends sought through the communication should be initiated before any in camera review. It thus serves as an overriding hurdle to further in camera inquiry. When the preliminary showing of the requisite materiality of the evidence sought has been made, and the privilege has been asserted, the prosecutor, representing the interests of the privilege holder, and the defendant should present their respective arguments regarding the effect disclosure would have on the goals of the privilege.30 While in no way seeking to limit the breadth of the arguments regarding the maintenance of the absolute privilege, relevant inquiry might include consideration of the particular ends that are expected to be achieved through the privileged communication, the reason for the initiation of the communication, and alternative means for accomplishing the ends sought.31
*720The' validity of privileges against the introduction of relevant evidence, in order to protect "weighty and legitimate competing interests,” has been recognized by the United States Supreme Court. Nixon, supra at 709. What has not been clearly expressed is the particular privileges that sufficiently protect these interests to withstand challenge. Legislatures, through statutes and constitutional directives, are in a better position to make the societal value judgments necessary to determine if a privilege should be presumptively absolute.32 However, the difficulty in resolution, and ultimate clash of the dictates of an absolute privilege and the truth-seeking goal at trial, Weisberg, Defendant v Witness: Measuring confrontation and compulsory process rights against statutory communications privileges, 30 Stan L R 935, *721938 (1978), counsel against creation of more than a very few, clearly articulated and soundly reasoned absolute privileges. Howe, supra (opinion of Boyle, J.). With this caveat, I leave to that branch of government the burden of determining what privileges should be considered absolute. By acknowledging the Legislature’s duty in this regard, I do not preclude the possible absolute character of those privileges originating at common law. Privileged communications, 98 Harv LR 1450, 1456-1458 (1985) (attorney-client and spousal privileges originated at common law, but were not absolute in application).
These observations regarding the Legislature’s duty do not absolve courts of their responsibility for interpretation and application of privileges. In United States v Nixon, supra, the Court considered the injury that defeat of the asserted privilege for presidential communications would have on the goal of the privilege to encourage frank and honest discussions between the president and his advisers. The Court found that the president’s executive privilege had its origins in Article II of the United States Constitution. Id. at 705-706. While acknowledging that the "interest in preserving confidentiality is weighty indeed and entitled to great respect,” the Court stated, "we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.” Id. at 712 (citation omitted). Similarly, in Davis v Alaska, supra, the Court considered the possible injury to the goal of the privilege afforded by statute to juvenile records that would result from disclosure of those records through cross-examination of the witness, but characterized such injury as merely a "temporary *722embarrassment” to the witness or his family, not on par with the defendant’s right of confrontation. Id. at 319.
Where an absolute privilege is clearly intended by statute, I would allow the court to weigh the anticipated injury in that case to the goal of the privileged communications under consideration, similar to the Court’s analysis in Nixon and Davis. This forces the tribunal to come to grips with the importance of the privilege, not just in the abstract, but in the context of the facts of the particular case. Thus, in further proceedings regarding the psychiatrist-patient privilege in Caruso, if a showing of plausible materiality for discovery of material that is expressly exempted from in court disclosure is made, further analysis is in order. If the ends of the absolute privilege would be destroyed by in camera review, the court has no authority to invade it and is precluded from further inquiry unless the privilege holder yields. Similar analysis would apply to discovery of the records protected by the sexual assault counselor privilege in Stanaway, had the defendant been able to pass the initial materiality test.
As I have noted above, a determination whether violation of a statutorily absolute privilege in a particular case would preclude achievement of the ends sought through the communication dictates á specific factual analysis. Such analysis was not done in the trial courts in the present cases, and this Court has insufficient information to legitimately make such a determination on the basis of the record before it. In this connection, it bears repeating that appellate courts can review these questions only on the basis of an adequate record. Thus I am unable at this juncture to predict the probable injury from disclosure of the records protected by the sexual assault counselor privilege in Stanaway and the psychologist privilege in *723Caruso. For the sake of further discussion, however, I assume that the ends of the privileged communications would not be precluded by possible disclosure and move on to considerations for in camera review.
Assuming that defendant Caruso makes a showing on remand of plausible materiality for discovery of the records protected by the psychologist-patient privilege, under my test the trial court should make a preliminary determination regarding the gravity of the injury. If the injury is grave and the holder will not yield, the prosecutor will bear the consequences.33
v
The final issue regarding disclosure of privileged information to the defendant who has made a successful showing of the need for in camera review is the trial court’s determination of the information that should be disclosed. That process encompasses again weighing the defendant’s right to the information against privileges that are now acknowledged to be susceptible to breach, but the balancing takes a different focus. At this final stage of review, the policy base for the privilege at issue should still be respected,34 and the information disclosed to the defendant only upon a sufficient constitutional showing of need.
A
When the focus shifts to the question of a work*724able framework for evidentiary rulings on disclosure of privileged information, we again turn to the limited sources available for guidance.35 The United States Supreme Court thus far has expressly characterized the right of the defendant in due process terms, suggesting that as against a claim of privilege, material that "probably would have changed the outcome of his trial,” must be disclosed. Ritchie, supra at 58. Because it is the right to a fair trial that is implicated, trial courts must make an a priori determination that without use of the protected information, confidence in the reliability of the outcome of the trial would be undermined. United States v Bagley, 473 US 667; 105 S Ct 3375; 87 L Ed 2d 481 (1985).
Illustration of the requisite materiality of privileged information is provided by Roviaro v United States, supra. The informer’s privilege at issue in that case was premised on the furtherance of effective law enforcement. Id. at 59. By allowing the government to assert that an informer’s identity was privileged, the government’s task in obtaining information inculpating the defendant was eased.36 While the Court did not question the legiti*725macy of the government’s interest in that case, it found that the privilege had to yield when the information protected by the privilege was "relevant and helpful to the defense of the accused, or . . . essential to a fair determination of a cause . . . Id. at 60-61. While the Court articulated a confusing "relevant and helpful” or "essential” standard of materiality in Roviaro, a closer look at the facts shows that the information sought — the informer’s identity — was of vital importance to the defense. See United States v Valenzuela-Bernal, supra at 870-871. The informer was the only party participating with the defendant in the drug transactions for which the defendant had been accused, and the only witness who could possibly contradict the testimony presented by the government.
A determination whether the privilege must yield depends on the significance of the privileged information in the particular circumstances of the case, that is, its probative force. Thus, while disclosure of the informant’s identity in Roviaro was of vital importance because he was the only witness to the transaction charged, informant identity is denied where the informant does not actively participate in the transaction that generates the charge, or his information would be merely cumulative. United States v Mendoza-Salgado, 964 F2d 993 (CA 10, 1992). Evidence is material only if there is a reasonable probability that if it is disclosed to the defense, the result of the proceeding will be different. United States v Parker, 836 F2d 1080, 1083 (CA 8, 1987) quoting Bagley, supra at 682.
*726Because there is no generalized constitutional right to discovery, the test for constitutional relevance must be higher than a requirement that the evidence would be merely helpful to the defense. The existence of the privilege, qualified or absolute, indicates that the information encompassed by it is entitled to special protection. A court may therefore decline to disclose such evidence, where its potential benefit to the defendant is available from other sources. This requirement dictates that the information must be necessary to, and not merely supplementary of, a particular mode of impeachment or to defendant’s theory of defense, that is, it must be unavailable from any alternative source. Thus, as the majority correctly notes, a defendant is not deprived of effective cross-examination if the material withheld, like prior inconsistent statements, is merely cumulative of the traditional lines of impeachment. The defendant is not precluded from such inquiries by a privilege, but only precluded from discovery of one source of such inconsistencies.
Davis v Alaska, supra, while examined as a Confrontation Clause violation affecting testimony at trial, is instructive regarding the requisite standard of necessity. The privilege rule at issue in that case was designed primarily, or at least incidentally, to benefit the state rather than to protect a private communication. In addition, the information protected was subject to disclosure under limited circumstances. Finally, the bar constructed by the juvenile records privilege deprived the defense of the only opportunity to show the witness’ bias and ulterior motive for testifying against the defendant. Id. at 316-318; see also Olden v Kentucky, 488 US 227; 109 S Ct 480; 102 L Ed 2d 513 (1988). The Court in Davis affirmed that revealing a witness’ motive for testifying is included within *727the protected right of cross-examination. As McCormick notes in discussing the case:
In the first instance, it is probable that the defendant’s ability to challenge claims of privilege as impairing his "right to present a defense” will to some extent be dependent upon the criticality to that defense of the matter protected by the privilege. In Davis, the privileged matter in effect represented a significant and irreplaceable means of impeaching the chief prosecution witness. By contrast, where the privileged matter desired is of significantly lesser probative force or simply cumulative, its denial to the defendant has been held not to violate the constitutional guarantees. [McCormick, Evidence (3d ed), § 74.2, p 179.]
Thus, a case for the necessity of disclosure of privileged information is not made out if the information sought is merely cumulative of evidence otherwise available to the defendant.
It thus appears that the test of constitutional relevancy for disclosure purposes is that the evidence must be material in the sense that it would make a difference in the outcome37 and necessary, in the sense that it is not merely cumulative of other nonprivileged evidence that would serve the same purpose, a formulation that is roughly akin to the majority’s test for in camera review.
Several other sources support the conclusion that the majority’s test for in camera review is an appropriate standard for disclosure and use of material protected by a privilege. First, on close inspection, every case from the United States Su*728preme Court on its facts indicates a necessity for the protected information. See Ritchie, Roviaro, Nixon, and Davis, supra. Second, the work product privilege formally recognized in the federal civil procedure rules requires that the party seeking disclosure must show that without undue hardship he cannot obtain "the substantial equivalent of the materials by other means.” FR Civ P 26(b)(3). Although a defendant’s right to due process in a criminal trial obviously weighs more heavily in the balancing process than in a civil case, the centrality of the attorney-client privilege is such that the adoption of a necessity test as a middle road between open discovery and an absolute privilege is some evidence of the limiting principle the Supreme Court might endorse in resolving the tension between competing rights when other privileges are challenged. Third, the rejected standards for invocation of and exceptions to the informers privilege originally proposed in the Federal Rules of Evidence in pertinent part provide:
If the judge [after an in camera review] finds that there is a reasonable probability that the informer can give the testimony, [necessary to a fair determination of the issue of guilt or innocence in a criminal case] and the government elects not to disclose his identity, the judge on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate .... [2 Weinstein & Berger, Evidence, Proposed Supreme Court Standard 510(c)(2) — Identity of Informer, pp 510-1 to 510-2.]
Although not ultimately adopted, the proposed standard encompasses the advisory committee’s recommendation that disclosure should be available on a showing of reasonable probability that privileged information is necessary to a fair determination of guilt or innocence.
*729Finally, other states enacting standards directing when a privilege can be overcome provide for admission where (1) the information is relevant to an essential issue in the case, (2) there are no available alternative means to obtain the substantial equivalent of the information, and (3) the need for the information outweighs the interest against disclosure, or the value of the material as it bears on the issue of guilt or innocence outweighs the privilege against disclosure.38 See, e.g., Ky R Evid 506 (counselor-client privilege), NJ R Evid 508 (newsperson’s privilege), quoted in 2 Weinstein & Berger, ¶ 501, pp 501-120 to 501-124 (1994 Supp).
The only state my research has located that specifically addresses the standard for disclosure of material protected by a counselor-client privilege, including a sexual assault counselor, provides that otherwise privileged communications may be disclosed:
"(2) if the judge finds:
"(A) That the substance of the communication is relevant to an essential issue in the case;
"(B) That there are no available alternate means to obtain the substantial equivalent of the communication and;
"(C) That the need for the information outweighs the interest protected by the privilege. The court may receive evidence in camera to make findings under this rule.” [Ky R Evid 506(d)(2), quoted in 2 Weinstein & Berger, If 501, p 501-124 (1994 Supp).]_
*730These sources uniformly endorse a principle of materiality and necessity for trial judges to apply in making the disclosure decision that is consistent with the majority’s test for in camera review. On a finding that there is no available alternate means "to obtain the substantial equivalent” of the protected information, the judge must order disclosure of evidence relevant to a substantial issue in the case when there is a reasonable probability that the protected information will affect the factfinder’s determination of guilt or innocence.
B
Applying these principles to the issue of disclosure in the present cases, defendant Stanaway has shown no basis for allowing him access to the privileged information. The defendant made no more than a generalized request for review of the complainant’s sexual assault counselor’s records to potentially find useful impeachment information. This falls far short of a showing that discovery of the privileged records is either necessary or material to test the complainant’s credibility on cross-examination. The defendant has simply failed to demonstrate that effective cross-examination is unavailable because of the privilege bar. As noted by the majority, "statements made to a counselor are not the only avenue . . . available for exploration regarding the complainant’s credibility.” Ante at 682, n 42.
In defendant Caruso’s case, the showing made to this point is likewise insufficient. As we have noted, the need for the absolutely protected record was partially based upon a belief that the complainant had. written sexually suggestive notes to her mother’s fiancé. Conflicting testimony from several witnesses has already been presented at a *731pretrial hearing concerning this note. Moreover, it has not been suggested that the defendant has not been aiforded informal discovery making available all the material in the prosecutor’s possession. Thus, this basis for disclosure calls for only cumulative material. However, defendant also asserts that the eight-year-old victim’s knowledge of sexual activity is necessary to examine the complainant regarding its theory that the incident in question was fabricated and that there is some connection between a failure of prior counseling, previous sexual abuse by her father, and a theory of fabrication. If Caruso is able to make the additional showing of relevancy I have previously described, the trial court should reevaluate these claims. If the trial judge determines at the intermediate stage of review that the privilege can be accommodated, in camera review may require disclosure39 on the basis of the materiality to and necessity for the requested records in order to conduct an eifective cross-examination. It must be remembered in this regard that defendant has not only the usual means of cross-examination available to explore the witness’ knowledge, but can additionally explore at that time the alleged sexually explicit nature of the notes described above.
I have written separately regarding the standard for in camera review, and disclosure and use, of information protected by privilege because I disagree with the majority’s initial standard for in camera review and because of the majority’s failure to meaningfully distinguish between that stan*732dard and the standard for disclosure and use. More importantly, I have written separately because I identify so strongly with the position of a trial court judge who is directed to administer a ruling without guidance in its application.
The approach I have suggested protects absolutely privileged private communications. It limits the availability of in camera review in respect to absolute privileges, and applies a standard that permits the balancing of societal interests against the defendant’s due process interests and disclosure. It is also consistent with the limitations of statutory relevance we have previously found constitutional. People v Arenda, 416 Mich 1; 330 NW2d 814 (1982); People v Hackett, 421 Mich 338; 365 NW2d 120 (1984). Lacking clear direction from the United States Supreme Court, I offer these suggestions, which are a necessarily limited vision of the direction of that jurisprudence, mindful of the frontline responsibility of the trial judiciary to harmonize legislative purpose with the fair ascertainment of truth that is the basic assurance of due process. In the end, there is no surer guide to the resolution of the issues presented here than the experience of trial court judges, as they attempt to strike the delicate balance between upholding the interest protected by a privilege and assuring the integrity of the constitutional guarantee of a fair trial.
Riley, J., concurred with Boyle, J. Levin, J.(separate opinion). I have signed Justice Brickley’s opinion, but would permit a lawyer for the accused to participate in an in camera examination for the reasons stated by the Supreme Judicial Court of Massachusetts in Com*733monwealth v Stockhammer, 409 Mass 867, 881-884; 570 NE2d 992 (1991):*
The United States Supreme Court has held that, where a criminal defendant desires access to privileged records of the confidential communications of the complaining witness, the interests of the defendant and the State in a fair trial are fully protected by an in camera review of those records by the trial judge. See Pennsylvania v Ritchie, 480 US 39, 59-61 [107 S Ct 989; 94 L Ed 2d 40] (1987). This holding does not necessarily answer the question before us, however, because, in the past, "on similar facts, we have reached different results under the State Constitution from those that were reached by the Supreme Court of the United States under the Federal Constitution.” Commonwealth v Upton, 394 Mass 363, 372 [476 NE2d 548] (1985), and cases cited. Thus, in Commonwealth v Clancy, 402 Mass 664 [524 NE2d 395] (1988), we rejected the defendant’s argument — predicated solely on Federal constitutional principles — that he was entitled to examine .the medical records of the chief prosecution witness. At the same time, we reserved the question whether the result would be the same under the Massachusetts Declaration of Rights. See id. at 670. See also Commonwealth v Jones, 404 Mass 339, 340-344 [535 NE2d 221] (1989) (rejecting argument that Federal Constitution requires more than in camera review of requested dss records, and expressly declining to address unraised State law question).
The Federal standard requiring only an in camera review by the trial judge of privileged records requested, by the defendant rests on the assumptions that trial judges can temporarily and effectively assume the role of advocate when examining such records; and that the interests of the State and complainant in the confidentiality of the records cannot adequately be protected in any other way. Neither assumption withstands close scrutiny._
*734As to the first assumption, the United States Supreme Court has said that " 'it [is] extremely difficult for even the most able and experienced trial judge under the pressures of conducting a trial to pick out all of the [information] that would be useful in impeaching a witness.’ . . . Nor is it realistic to assume that the trial court’s judgment as to the utility of material for impeachment . . . would exhaust the possibilities. In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.” (Citation omitted.) Dennis v United States, 384 US 855, 874-875 [86 S Ct 1840; 16 L Ed 2d 973] (1966). We have expressed a similar concern: "The danger lurking in the practice of ... in camera review [of privileged documents] by the trial judge is a confusion between the roles of trial judge and defense counsel. The judge is not necessarily in the best position to know what is necessary to the defense.” Commonwealth v Clancy, supra at 670. See Commonwealth v Liebman, 388 Mass 483, 489 [446 NE2d 714] (1983) ("[W]hen a judge undertakes to decide if [evidence] benefits the defendant’s case he is 'assuming vicariously and uncomfortably the role of counsel’ ”).
Regarding the second assumption, we are not convinced that the interests of the State and the complaining witness in preserving the confidentiality of communications to psychotherapists and social workers can only be protected by an in camera review procedure. Trial judges have broad discretion to control the proceedings before them. There is no reason why they cannot take steps to insure that breaches of confidentiality • attending discovery are limited only to those absolutely and unavoidably necessary to the preparation and presentation of the defendant’s defense. For example, judges could allow counsel access to privileged records only in their capacity as officers of the court. Admission of or reference to any such information at trial could be conditioned on a determination (made after an in camera hearing) that the *735information counsel seeks to use is not available from any other source. Cf. Commonwealth v Two Juveniles, 397 Mass 261, 269 [491 NE2d 234] (1986); Commonwealth v Jones, supra at 345 (Lynch, J., dissenting). Protective orders (enforced by the threat of sanctions) requiring counsel and other necessary participants in the trial not to disclose such information could be entered. See Commonwealth v Amral, 407 Mass 511, 526-527 [554 NE2d 1189 (1990) (Liacos, C.J. [concurring]). Although these procedures would result in counsel for the defendant and the Commonwealth, rather than just the judge, viewing privileged records, if careful precautions in the order of those described above are taken, such breaches of confidentiality need not be any more intrusive or harmful than those attending in camera review of records by the judge alone.
In addition to rejecting the assumptions that support the Federal standard, we note that § 20B of G.L. c. 233, and § 135 of G.L. c. 112, are not statements of absolute privilege, unlike certain other statutory testimonial privileges such as G.L. c. 233, § 20A (priest/penitent), and G.L. c. 233, § 20 J (sexual assault counselor/victim). See Commonwealth v Jones, supra at 343. Both sections contain exceptions limiting their scope. As such, the privileges at issue here derive from a "less firmly based legislative concern . . . for the inviolability of the communication being protected.” Commonwealth v Two Juveniles, supra at 266.
Balanced against these qualified privileges are important State constitutional rights of the defendant. Because we have said that, in appropriate circumstances, even absolute statutory privileges (nonconstitutionally based) must yield to a defendant’s constitutional right to use privileged communications in his defense, see id., we are not persuaded that allowing counsel access to the treatment records at issue in this case would do great violence to the less firmly based policies represented by §§ 20B and 135. In these circumstances, those policies must give way to the defen*736dant’s need to examine the complainant’s treatment records.
Accordingly, we conclude that, under art 12 of the Massachusetts Declaration of Rights, counsel for the defendant is entitled to review the records of the complainant’s treatment at the New York Hospital and with the Greenwich, Connecticut, social worker to search for evidence of bias, prejudice, or motive to lie. On remand, the judge shall determine the circumstances under which counsel for the defendant and the Commonwealth shall review the records. The judge then shall conduct an in camera hearing concerning the admissibility of any information in the records that counsel may wish to use at trial. In his discretion, the judge also shall enter any orders that are deemed appropriate to ensure that the information contained in the records will not be disclosed beyond the defendant’s need to prepare and present his defense.
"Privilege is governed by the common law, except as modified by statute or court rule.” MBE 501.
The majority’s test for in camera review requires that the evidence sought be material, meaning more than merely favorable or relevant to the defense. Implicit in this standard is recognition of our state’s rape shield statute, MCL 750.520j(l); MSA 28.788(10X1), which is a policy determination that certain logically relevant evidence is legally irrelevant. To the extent that a particularized request appears to seek information for a generally irrelevant purpose, that is, evidence of a rape victim’s prior sexual conduct with others or sexual reputation as character impeachment, in camera inspection should be denied unless the defendant can show that it is not collateral and otherwise so material that denial would deprive him of a fair trial.
The consequence of failing to comply may thus be contempt. I do suggest that the trial court may appropriately use other means to encourage compliance with its order, such as requesting waiver or striking all or portions of the testimony. See n 29 and accompanying text. My point is only that if the privilege is properly construed as qualified or conditional, the policy behind the privilege is protected by in camera review and the holder must yield on the appropriate showing.
Should remand result in an in camera review, the trial court should make a separate sealed record to be retained in the event of appeal to facilitate review of the in camera decision. See FR Crim P 16(d).
It was at the in camera review stage that the Court imposed a higher standard of materiality in Ritchie. At that point, the Court suggested that reversal of Ritchie’s conviction should be ordered only “if there is a reasonable probability” (defined as "a probability sufficient to undermine confidence in the outcome”) that, had the evidence been disclosed, the result would have been different. Ritchie, supra at 57. This standard is taken from United States v Bagley, 473 US 667; 105 S Ct 3375; 87 L Ed 2d 481 (1985), involving the prosecution’s duty to disclose exculpatory evidence.
The plausible materiality standard adopted in Ritchie is thus clearly not limited to the type of privilege at issue in that case, but is more broadly applicable to a defendant’s right to evidence where he has no means by which to determine the favorable character of the evidence sought with great specificity.
While the Court in Valenzuela-Bernal, supra at 871, n 8, suggests that even a lower standard of materiality may be in order when a defendant has no knowledge of the contents of the evidence in question, the adoption of the plausible materiality standard in Ritchie counsels against such action in the present setting.
Although the obligation to disclose exculpatory material does not depend on the presence of a specific request, we note that the degree of specificity of [the defendant] Ritchie’s request may have a bearing on the trial court’s assessment on remand of the materiality of the nondisclosure. [Ritchie, supra at 58, n 15, citing Bagley, supra at 682-683.]
Hardin, Executive privilege in the federal courts, 71 Yale L J 879, 893-894 (1962).
My dissatisfaction with Caruso’s showing to date stems from the absence of a logical nexus between the alleged past abuse and the possibility of fabrication. Taken to its logical conclusion, the proposition would support a claim that records containing information of a trauma-producing sexual incident, must be disclosed whenever there is an allegation that the trauma is unresolved.
Caruso also tries to support his discovery request on the basis that evidence was presented at pretrial hearing relating to the victim’s alleged sexually explicit note to someone other than the defendant. However, testimony on this issue will be available at trial to provide a basis for inquiry regarding the victim’s sexual awareness. This justification for discovery of the privileged records is also flawed because it seeks information that is cumulative.
MCL 600.2157a(2); MSA 27A.2157(1)(2) provides:
Except as provided by section 11 of the child protection law, Act No. 238 of the Public Acts of 1975, being section 722.631 of the Michigan Compiled Laws, a confidential communication, or any report, working paper, or statement contained in a report or working paper, given or made in connection with a consultation between a victim and a sexual assault or domestic violence counselor, shall not be admissible as evidence in any civil or criminal proceeding without the prior written consent of the victim. [Emphasis added.]
MCL 330.1750(2); MSA 14.800(750)(2), which states the pertinent scope of the psychologist and psychiatrist privilege, provides:
Privileged communications shall not be disclosed in civil, criminal, legislative, or administrative cases or proceedings, or in proceedings preliminary to such cases or proceedings, unless the patient has waived the privilege, except in the circumstances set forth in this section. [Emphasis added.]
Further distinction between the sexual assault counselor-victim and psychologist-patient privileges is possible, on the basis of the language of the statutes, but such distinction draws too fine a line. Both statutes bar admission of the privileged material in civil or criminal proceedings absent a waiver.
The statute concerning social worker-client communications provides both that there not be compelled disclosure of communications with clients and that the relevant communication is "confidential.” Confidentiality concerns the extrajudicial disclosure of information, not its disclosure in judicial proceedings. Howe v Detroit Free Press, 440 Mich 203, 229; 487 NW2d 374 (1992) (opinion of Boyle, J.), citing 23 Wright & Graham, Federal Practice & Procedure, § 5437, p 892, n 15.
The relevant statute regarding the juvenile diversion records contemplates that the records may be revealed by court order "to persons having a legitimate interest.” MCL 722.828(1); MSA 25.243(58)(1). Even though such legitimate interest may be limited to making decisions regarding diversion of a minor, MCL 722.829(1); MSA 25.243(59)(1), the allowance for some use of the records by a court and the absence of an express preclusion from use of the records in judicial proceedings causes me to find that the privilege provided by this statute is not absolute. Pennsylvania v Ritchie, supra at 57-58.
While the statutes articulating the scope of the sexual assault counselor-victim and psychologist-patient privileges allow for com*712pelled waiver in limited situations, the express evidentiary bar in criminal or civil proceedings, absent voluntary waiver, provides a definitive indication of an intent that the prohibition in these situations be absolute.
Analysis of the bill creating the sexual assault counselor privilege notes that
[v]ictims of sexual assault or domestic assault are often gravely in need of counseling to cope with the trauma of their experiences. The assurance of the confidentiality of all communications between a counselor and a client is vital to effective therapy. Those victims of abuse or assault who receive their counseling from members of the clergy or from licensed professionals such as psychiatrists, psychologists, or social workers have that assurance .... [House Legislative Analysis, HB 4609, November 16, 1983.]
The specter of disclosure of records of these privileged communications, even to a trial judge for in camera review, threatens the basic tenet of confidentiality upon which these relationships .are founded. This intrusion should not be underestimated. Slovenko, Psychiatry and a second look at the medical privilege, 6 Wayne LR 175, 185 (1960). The process also creates the possibility of greater exposure of the privileged communications, dependent upon the decision of the trial judge. While this potential damage to the relationship engendered by a privilege must be considered, however, it must also be recognized that review by a judge in chambers is significantly less invasive of that relationship than ultimate disclosure to a defendant. Cf. Zolin, supra at 568 (''[Disclosure of allegedly privileged materials to the district court for purposes of determining the merits of a claim of privilege does not have the legal effect of terminating the privilege”).
I limit my analysis, as does the majority, to the defendant’s due process right to a fair trial. Ante at 649, n 1. The right of confrontation has been found to be limited to a right at trial to unfettered cross-examination, not "a constitutionally compelled rule of pretrial discovery.” Pennsylvania v Ritchie, supra at 52. But see id. at 61-62 (Blackmun, concurring in part and concurring in the judgment) ("[T]here might well be a confrontation violation if, as here, a defendant is denied pretrial access to information that would make possible *713effective cross-examination of a crucial prosecution witness.” Emphasis added.) See also Kentucky v Stincer, 482 US 730, 738, n 9; 107 S Ct 2658; 96 L Ed 2d 631 (1987). The application of the right of compulsory process to the current problem remains unsettled, but has been found to be sufficiently protected by a due process consideration. Ritchie, supra at 56.
United States v Nixon, 418 US 683, 710; 94 S Ct 3090; 41 L Ed 2d 1039 (1974).
Const 1963, art 1, § 24 provides, in relevant part:
(1) Crime victims, as defined by law, shall have the following rights, as provided by law:
The right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.
The jurisprudence of our sister states has tended to take an all or nothing position, ante at 670-677, and therefore also fails to provide much constructive assistance.
The statutory exclusion in Ritchie severely limits its usefulness in determining the proper scope of an absolute privilege. The case is instructive, however, in its express caution against application of its holding to absolute privileges.
I do not fault the majority for acceding to the temptation to simplify the trial court’s duty at the in camera stage to one of mere verification. Ante at 679, n 40. However, where such simplification is at the expense of important and compelling considerations that can only be given sufficient consideration by the trial court through review of the privileged information, the cost exacted in the name of administrative efficiency is too high.
The informer’s privilege is "the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Roviaro at 59.
The opinion suggests that the scope of executive privilege may be limited to the protection of military or diplomatic secrets. Id. at 710-711.
It is important to note that Nixon concerned the claim of a defendant’s privilege, rather than a claimant’s assertion of privilege against a defendant’s due process right. Nixon is important for our purposes in acknowledging the validity of privileges, asserted within their proper scope, and the Court’s continued attempt to balance the protection provided by a privilege against a legitimately demonstrated need for the protected information.
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. [Ritchie at 57, n 14.]
A third, less severe remedy may be satisfactory in some cases in which the witness’ privilege does not relate to testimony concerning a substantive element of the defendant’s case. In such instance, the witness’ testimony need not be completely barred, and only the portion related to the privileged information struck. Weisberg, Defendant v Witness: Measuring confrontation and compulsory process rights against statutory communications privileges, 30 Stan L R 935, 982 (1978).
Weisberg, n 29 supra at 986-987. While Weisberg would include the privilege holder and the party to whom the privileged communication was directed in this meeting, a preferable approach is to at least initially allow the prosecutor to represent the privilege holder’s interests. Forcing the privilege holder to argue the importance of the privileged communication might well unintentionally visit upon that party the very same injury that would result from disclosure of the privileged material.
Even where a privilege is statutorily absolute, discovery of privi*720leged information may not always preclude achievement of the goal sought through the communication. In a given case, the relationship developed between a patient and counselor may be strong enough to withstand limited disclosure of past communications, or the relationship may not yet have developed to a point of confidentiality that would be endangered by disclosure. Where a patient is engaged in alternate forms of counseling, disclosure of information from one counselor may not preclude achievement of the goal of the patient’s treatment through another. On the other hand, where resolution of a patient’s emotional or psychological problem is only being pursued through treatment by a single counselor with whom the patient has built a relationship of trust, engendered by the privileged nature of their communication, disclosure of such communications may preclude further progress in the patient’s treatment. These examples serve only as illustrations, in a patient-counselor setting, of the myriad of possible scenarios that may be present in a particular case, and are in no way exhaustive of the situations or relationships that may allow for, or counsel against, disclosure of absolutely privileged information.
In theory at least, courts are not so well-equipped as legislatures either to determine the validity of the value judgments involved in creating particular privileges or to assess "empirically . . . the general harm that overriding a privilege may cause privilege holders.” [White, Evidentiary privileges and the defendant’s constitutional right to introduce evidence, 80 J Crim L & Criminology 377, 425, quoting Weisberg, n 29 supra at 971. Additional citation omitted.]
Further useful guidance may be provided to the trial court in considering Caruso’s materiality claim by Veilleux, anno: Admissibility of evidence that juvenile prosecuting witness in sex offense case had prior sexual experience for purposes of showing alternative-source of child’s ability to describe sex acts, 83 ALR4th 685.
The privilege may be respected by excision of material on grounds of relevancy or admissibility, Nixon, supra at 715.
The refusal to order disclosure has been reviewed under an abuse of discretion standard, United States v Moore, 954 F2d 379, 381 (CA 6, 1992); United States v Jenkins, 4 F3d 1338, 1341 (CA 6, 1993).
The need to conduct effective cross-examination is one of three principles that one commentator has suggested for appropriate analysis of discovery requests for privileged information. White, n 32 supra. In addition to the cross-examination principle, Professor White would examine the privilege at issue to determine if it is designed in significant part to assist the government in performing one of its essential functions, such as law enforcement, see Roviaro v United States, supra (informants privilege); or was capable of even-handed application, see Washington v Texas, 388 US 14; 87 S Ct 1920; 18 L Ed 2d 1019 (1967) (a state statute that barred testimony of a coparticipant in a crime when offered by defendants as exculpatory evidence, but allowed as evidence for the prosecution, denied the defendant his right to compulsory process). These principles may be useful to determine when a privilege has tipped the fair balance at trial in favor of the government and make it appropriate to assign to the *725prosecution the burden of disproving the materiality and need for the privileged information requested. Because the only principle at issue in the present cases, that of effective cross-examination, is considered in the necessity prong of the disclosure evaluation, further development of the applicability of these principles at this time is unwarranted.
Compare one commentator’s suggestion that the materiality standard for private privileges is whether the evidence is sufficiently probative to probably create a reasonable doubt regarding the truth of a witness’ testimony if offered to impeach or probably create a reasonable doubt regarding a defendant’s guilt if offered on the merits of the defense. Weisberg, n 29 supra at 959-964.
While this final standard might appear to beg the core question we have attempted to answer today, it may also acknowledge the possibility of some limited privilege whose importance transcends the determination of guilt or innocence (such as strategic military secrets), allow for the accommodation of the defendant’s interests in a manner outside the conventional realm of discovery, or encompass the discretionary issue whether the prejudicial effect of the evidence outweighs its probative valúe. These explanations, at least to some degree, may be subsumed by the intermediate review of absolute privileges I have described.
The disclosure decision does not contemplate the eye of the advocate, but where questions arise in the process in which the assistance of counsel would be helpful, it is within the discretion of the trial court to seek their assistance, Nixon, supra at 715, n 21, subject to appropriate directive that unless disclosure is ordered, no in camera information is to be revealed to anyone, including the defendant. Id. at 716.
Similarly, see Zaal v State, 326 Md 54; 602 A2d 1247 (1992).