concurring in judgment only:
I write separately in this case because I disagree with the majority's analysis of three of the issues in the opinion. First, the majority calls it the "better practice" to conduct child competency proceedings outside of the presence of the jury, but then inconsistently *1086considers whether there was prejudice. I would simply find it is error to conduct competency proceedings in front of the jury, but in this case the error was harmless. Second, I disagree that defense counsel invited error by asking a prosecution witness an "open-ended" question on cross-examination. After finding invited error, the majority nevertheless addresses plain error. I would apply the plain error standard to determine reversal is not required because the error was neither invited nor preserved. Finally, I do not agree that this case presents an issue of implied waiver. Rather, the primary issue raised by the defense is that due process rights trump the privileges associated with a victim's mental health records. Unlike the majority, I would directly address this issue, but I ultimately arrive at the same result as the majority.
I. Competency Proceeding
The majority holds that "there is no per se rule against conducting child competency proceedings in front of the jury, but by far the better practice is to excuse the jury [during competency proceedings]." Maj. op. at 1080. The majority then goes on to hold that because prejudice did not occur as a result of conducting the competency hearing in front of the jury, Wittrein was "not prejudiced to a degree requiring reversal of his convictions." Maj. op. at 1081.
By stating that it is merely "better practice" to hold competency proceedings outside of the presence of the jury, the majority seems to suggest that conducting competency proceedings in front of the jury is not error. However, by then proceeding to discuss whether Wittrein was prejudiced as a result of the trial court's decision to allow the jury to hear the competency proceeding, the majority seemingly indicates that it was error, but did not rise to the level of reversible error. To the extent that the majority is stating that conducting competency proceedings in front of the jury constitutes error, but that such error was harmless in this case, I agree.
C.R.E. 104(a) states "preliminary questions concerning the qualification of a person to be a witness ... shall be determined by the court...." Subsection (c) states that hearings on preliminary matters "shall" be conducted outside the presence of the jury "when the interests of justice require." Although this court has not previously discussed whether "the interests of justice require" child competency proceedings to be conducted outside the presence of the jury, it is well established that the competency of a child witness is a preliminary matter addressed to the trial court's discretion. See, e.g., Harris v. People, 174 Colo. 483, 490, 484 P.2d 1223, 1226 (1971); Wesner v. People, 126 Colo. 400, 403, 250 P.2d 124, 126 (1952).
Accordingly, as with other preliminary matters, child competency hearings are properly conducted by the trial court outside the presence of the jury. See Vasquez v. People, 173 P.3d 1099, 1105 (Colo.2007) (forfeiture of confrontation rights is a "preliminary question going to the admissibility of evidence" and should therefore be conducted outside the presence of the jury); People v. Reynolds, 195 Colo. 386, 389, 578 P.2d 647, 649 (1978) (preliminary question of admissibility of privileged information properly determined outside the presence of jury). Therefore, the trial court's decision to hold the competency hearing in the jury's presence was error. However, I agree with the majority that Wittrein did not suffer prejudice as a result of the trial court's decision to hold the competency hearing in front of the jury, and Wittrein is therefore not entitled to a new trial on these grounds.
II. Expert Testimony
The majority holds that Dr. Stern's testimony on cross-examination constituted improper opinion testimony that the child vie-tim in this case was telling the truth on a specific occasion. Maj. op. at 1081-82. However, they find that the error was invited by defense counsel's questioning. Maj. op. at 1082. In contrast to the majority, I would not find that defense counsel's questioning constituted invited error.
The invited error doctrine is narrow and applies only to errors in trial strategy, not errors that result from oversight. People v. Zapata, 779 P.2d 1307, 1309 (Colo.1989). Here, defense counsel's strategy in cross-*1087examination of Dr. Stern was to elicit an alternative, non-inculpatory explanation for hyper-reporting. In fact, Dr. Stern actually provided a specific answer that was responsive to defense counsel's question. In response to the question of whether an elevated seale for hyper-reporting "could be a measure of someone who is interested in portraying themselves as a victim," Dr. Stern stated, "I think in general that's true." However, she continued, adding, "It's hard for me to imagine that an eight-year-old child would be able to put together such a plan." The first sentence of Dr. Stern's answer was responsive to defense counsel's question, and, in fact, completely answered the question asked-that is, that one possible reason for hyper-reporting other than sexual victimization could be a desire to be seen as a victim. However, Dr. Stern's additional statement that she did not believe that an eight-year-old child would hyper-report in order to be seen as a victim volunteered more than was asked, and nothing even remotely suggests defense counsel intended to elicit such a response.
The question posed to Dr. Stern was open-ended and poorly framed for use in cross-examination. It could have been asked in a way that would not have allowed for Dr. Stern's expansive answer. However, I do not believe that it is correct to suggest that it was defense counsel's trial strategy to ask such a question. Instead, a poorly phrased question is better seen as error resulting from oversight. Therefore, I believe the invited error doctrine is inapplicable here.
After concluding that Dr. Stern's testimony was invited error, the majority goes on to apply a plain error test to determine if the error was so egregious as to require reversal. Maj. op. at 1082. If an error is invited, a reviewing court need not address plain error. See People v. Stewart, 55 P.3d 107, 120 (Colo.2002); Zapata, 779 P.2d at 1309 (deciding not to address the merits of a plain error argument raised by a criminal defendant where defendant's theory of the case jury instruction was found to be invited error). Accordingly, if the majority views defense counsel's question as invited error, it is unnecessary to address plain error.
Because I would not find that defense counsel's questioning of Dr. Stern was invited error, I would simply apply a plain error analysis to determine if reversal is required. In this case, assuming that Dr. Stern's testimony constituted error, I do not believe it "so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." People v. Eppens, 979 P.2d 14, 18 (Colo.1999). Accordingly, I agree with the majority in that Wittrein's conviction should not be reversed on these grounds, but I reach that conclusion without finding that defense counsel committed invited error.
IH. Medical Records
The majority focuses on whether there was an implied waiver as to the Aurora Mental Health ("AMH") records. Id. Quoting People v. Sisneros, 55 P.3d 797 (Colo.2002), the majority states that, to determine whether there was an implied waiver, the "proper inquiry is whether the victim has injected her physical or mental condition into the case as the basis of the claim or affirmative defense." Maj. op. at 1088. However, here, the victim did not even testify about her mental condition. Further, although both the People and Wittrein agree that KH.'s mother expressly waived all privileges related to the Children's Hospital records, neither the waiver nor any cireumstances about the waiver appear in the record. Thus, there is no basis from which to argue an implied waiver of the AMH records. Nonetheless, the majority discusses implied waiver and largely ignores the issue raised in this appeal.
Wittrein's primary argument regarding the AMH records is that his constitutional right to due process of law requires the trial court to conduct an in camera inspection of the AMH documents. In contrast to the majority, I would directly address the due process issue, but conclude that Wittrein has not made a sufficient showing to be entitled to an in camera review of the AMH records.
Generally, the due process clause grants defendants a right to disclosure of evidence that is material or favorable to the defense. However, unlike other evidentiary rules, privilege statutes shield potentially relevant *1088material from disclosure. Accordingly, in order to determine whether the due process clause requires disclosure of otherwise privileged information, courts must balance the policy considerations supporting statutory privileges against a defendant's due process rights.
In Dill v. People, this court was confronted with a situation similar to the present case. 927 P.2d 1315 (Colo.1996). There, a child reported sexual abuse and was taken to a psychologist to evaluate the child's report of the abuse. Id. at 1316. The meeting was tape-recorded, and the psychologist prepared a report based on the meeting. Id. The child subsequently continued therapeutic counseling with the psychologist. Id. at 1317. The tape-recording of the initial meeting and the report were made available to the prosecution and the defense, and the defense sought discovery of the psychologist's notes regarding the on-going therapy. Id.
In finding that the due process clause did not require an in camera review of the psychologist's notes, this court observed that the defendant did not show need for the records beyond a desire to engage in a "fishing expedition." Id. at 1824 (distinguishing Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), which held that the due process clause required an in camera inspection of state child abuse records). Thus, we left open the possibility that where a showing is made that access to privileged records is necessary, due process may require such access.
Accordingly, without eliminating the possibility that there may be times when the due process clause requires that the trial court conduct an in camera review of privileged records to determine whether they contain information that must be disclosed to the defense, in the absence of a particularized showing that the records contain exeulpatory information not otherwise available to the defendant, in camera review is not required. Here, Wittrein did not make such a showing. Therefore, although the determination of whether privileged information must be reviewed in camera should be addressed on due process grounds, I reach the same ultimate result as the majority.
I am authorized to state that Justice BENDER joins in this concurrence.