Gale v. State

792 P.2d 570, 1990 Wyo. LEXIS 48, 1990 WL 54920

• Court: Wyoming Supreme Court
• Decided: May 2, 1990
• Docket: 87-192
• Status: Published

Opinions

GOLDEN, Justice.

The primary questions presented in this case concern the rights of an accused in a sexual abuse case to compel a victim’s psychological examination; to compel the state’s furnishing summaries of expected expert witness testimony; to discover favorable evidence; and to obtain dismissal of the charges because of the state’s failure to preserve evidence.

Appellant Richard Kane Gale, D.D.S. (Gale), appeals his jury trial convictions on three counts of taking immodest, immoral, or indecent liberties with a child in violation of W.S. 14-3-105 (June 1983 Repl.). Gale presents numerous issues premising error upon his inability to obtain various types of evidence for trial preparation; his issues include:

A. Whether the trial court erred in denying Dr. Gale’s motion for psychiatric evaluation.

B. Whether the trial court erred when it denied Dr. Gale’s motion for discovery of summaries of the substance of the expected trial testimony of the prosecution’s expert witness.

C. Whether (sic) trial court erred in failing to order disclosure of the psychological and/or psychiatric records of the R children.

D. Whether the trial court erred in failing to disclose the social services files.

E. Whether the trial court erred in denying the motion (sic) disclosure of the tape recordings.

F. Whether the trial court erred in denying the motion for disclosure of school records.

G. Whether the trial court erred in denying the motion to dismiss or in the alternative suppress testimony of the R family.

H. Whether the trial court erred in denying the Motion to Dismiss or in the Alternative Suppress Testimony for failure to preserve evidence.

We affirm.

FACTS

Gale was accused of entering the R family home on the evening of August 30, 1986 and sexually molesting three of the female R children in their rooms. A criminal complaint and warrant were issued on December 11, 1986. Gale was arrested the same day and charged with three counts of taking indecent liberties with a minor in violation of W.S. 14-3-105 (June 1983 Repl.). An information was filed on February 6, 1987.

Underlying this case is the bizarre atmosphere of sexual abuse and neglect that prevailed in the family home of GR and LR in 1986, and possibly before that time. In 1986, the R family included the parents GR and LR, five girls, ages three, three, seven, ten, seventeen, and a boy age eleven. On October 31, 1986, the Wyoming Division of Public Assistance and Social Services (D-PASS) received information that GR was sexually abusing the seven year-old child. The initial information led to a November 17, 1986, D-PASS interview of the seven year-old in which she indicated that GR had sexually abused her; in that interview, she also stated that her dentist had come into her bedroom one night and performed oral sex upon her. D-PASS used this information as the basis for two ongoing investigations into the conduct of GR and Gale, the family dentist, during the ensuing weeks. D-PASS conducted additional interviews and discussions with the ten year-old child, the seventeen year-old child, and LR, which resulted in a criminal charge being filed against GR on October 28, 1986, alleging that he sexually assaulted the seven year-old child. GR received a preliminary hearing but was not bound over for trial.

At the same time the state was proceeding against GR on criminal charges, it also had a petition pending in juvenile court concerning the well-being of the R children. This record does not contain transcripts or recordings of any hearings which took place as a result of that juvenile petition. It does appear, however, that the R children were taken from GR and LR sometime in late 1986 and placed in foster homes. Gale also alleges that GR was under a court order not to have unsupervised contact with his children while the juvenile petition was pending and that, based on conversations which Gale’s original defense counsel, a Terry Preuit, had with former Campbell County Prosecuting Attorney, Robert Rose, III, GR may have violated that order and been tried for contempt. These allegations are speculative, at least in terms of the information available in the record presented to this court.

The Campbell County Attorney decided not to reprosecute GR or bring charges against LR; instead, on January 16, 1987, LR entered into a “Juvenile Court Admission Agreement” in which the state agreed to grant her immunity from prosecution for child abuse or neglect in connection with the alleged acts committed by her husband. The stated purpose of this agreement was to allow LR "the opportunity to obtain help and to keep her family together if possible and further to facilitate the protection of the R children through the processes of the juvenile court.” Under the agreement, LR admitted she had suspicions and actual knowledge that some of her children complained about sexual misconduct by GR and Gale. LR also agreed to interview with the state and truthfully relate her knowledge of contact between Gale and her children. She also agreed to testify truthfully about that subject if requested to do so by the state. The agreement obligated the state to grant immunity to both LR and GR concerning the incidents that allegedly oc-eurred in the R home and further stated that “[t]he state further warrants that it presently has no plans for alternative prosecution of [GR] in any other forum or for any other offense.” The agreement also provided that “[t]his promise of immunity applies whether evidence of the crime or crimes comes from [LR] or any other source.”

The parties to this appeal assert that a similar written agreement was reached between the state and GR. This agreement is said to have contained an admission by GR that he had repeated sexual contact with the seventeen year-old child, that he punished his son excessively, and that he endangered his family through alcoholism. The agreement, like LR’s, is said to have granted GR immunity from prosecution on the charge that had been initially filed against him and further immunity from prosecution for any previous sexual misconduct or abuse he committed towards his children in the family home. In return, GR apparently agreed to interview and/or testify truthfully concerning his knowledge of Gale’s alleged contact with the R children. This is supported in the record by testimony from the Campbell County prosecutor who made the decision not to refile the charge initially filed against GR in lieu of an agreement from GR that contained an admission of his past sexual misbehavior with his children and his promise to help the state prosecute Gale. The actual agreement between GR and the state, however, does not appear in the record on appeal. After these agreements were completed, the state pursued a ease against Gale.

Gale had an extensive three-day preliminary hearing on January 30-31, 1987, and February 2, 1987. At this hearing, the state presented testimony from the three R daughters who implicated Gale. Gale’s counsel was given an extensive opportunity to cross-examine them. Over 100 pages of the 600-page transcript from that hearing contain Gale’s counsel’s cross-examination of the eldest R daughter. The state also called LR and an expert witness, Dr. William Heinecke of Northern Wyoming Mental Health Center. Gale’s counsel examined the male R child and a number of witnesses who gave testimony about the R children and the R family. Gale’s counsel also examined the officer who compiled the police reports on GR and Gale. After listening to all of this testimony, the county court made a finding of probable cause and bound Gale over for trial.

On April 6, 1987, Gale filed numerous motions for discovery. Among these motions were: (1) a motion to compel three of the female children to undergo psychiatric evaluations to determine whether their mental condition could affect their credibility as prosecution witnesses; (2) an extensive general discovery motion which sought, among other things, summaries of the proposed testimony of prosecution expert witnesses; (3) a motion to compel disclosure of psychiatric records on three of the female children; (4) a motion for the disclosure of all Campbell County D-PASS records pertaining to the R family; (5) a motion for disclosure of any public or private school records on four of the R children; (6) and a motion for disclosure of any tape recording or transcript of any hearing regarding GR and LR’s agreement with the state -not to have contact with their children. Gale supported these motions with the affidavit of his own private investigator, which concluded that some of these records needed to be screened to gain an understanding of the dynamics of the R family and how those dynamics might play into the charges against Gale. He also attached police records, a written statement of the eldest R daughter, a written statement of one of the R children’s friends, LR’s juvenile court agreement, and other juvenile court documents. He filed requisite subpoenas duces tecum in support of these motions on April 22, 1987. Gale also filed motions to dismiss or suppress victim testimony because the state failed to preserve the initial interviews of the victims on audio or video tape; and to dismiss or suppress the testimony of the R family. D-PASS filed an objection and motion to quash in response to the subpoena duces tecum seeking D-PASS records on April 22, 1987. The state filed opposition to Gale’s motions to compel the child witnesses to undergo psychiatric examinations, for disclosure of tape recordings or transcripts of any juvenile court hearings, for disclosure of a summary of proposed testimony of prosecution expert witnesses, to dismiss for failure to preserve evidence, and to dismiss or suppress the testimony of the R family.

The trial court filed a decision letter on May 18, 1987, explaining its actions and findings concerning Gale's motions. Gale’s motion for psychiatric examinations of the victims was denied based on the trial court’s decision that the potential harassment of such examinations would not be justified by the information they might yield. The trial court similarly denied Gale’s motion for summaries of proposed testimony from prosecution expert witnesses on the grounds that Gale had no right to such summaries under the Wyoming Rules of Criminal Procedure. Further, the trial court explained that it reviewed, in camera, the documents produced under Gale’s subpoenas duces tecum for psychiatric records, D-PASS records, and school records. After completing this review, the trial court stated that it was applying the principles set forth in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), and found that none of the documents produced under the subpoenas duc-es tecum contained any information that was constitutionally material to Gale’s case. The trial court did not review any of the psychiatric records requested by Gale’s subpoena because none were produced; the trial court did agree to conduct an in camera review of such materials should any surface before trial. Gale’s motion for tapes or transcripts of the juvenile court hearings was denied on the basis that those records were to remain confidential under Wyoming statute. Gale’s motion to dismiss for failure to preserve evidence was denied based on the holding in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 n. 8 (1984). The trial court denied Gale’s motion to dismiss or suppress the testimony of the R family, finding the agreement between the state and LR to have been legal and entered into after the initial allegations against Gale were first made. A series of orders denying the motions as explained in the decision letter were filed on June 1, 1987.

A jury trial took place on May 18-21, 1987. The state presented evidence to support its theory that Gale had come into the R family home on the evening of August 30, 1986, and sexually molested three of the R daughters. Countering the defense’s theory, the state argued that the trial testimony did not bear out* the idea that the R family had conspired to place blame on Gale and away from GR. The state also called an expert witness who engaged in a general discussion of the characteristics one might expect to see in a sexual addict or professional abuser and the characteristics that might be manifested by a child sexual assault victim. Viewing the trial as a credibility contest between Gale and the R family, Gale’s counsel argued that the testimony of LR and the R children was rehearsed and untrue and that they had psychologically “transferred” the sexual abuse their father had visited upon them to an unsuspecting Gale who was only a family friend. At trial, both Gale and his wife testified that Gale was at home during the evening of the alleged incidents, and did not visit the R home that night or the next day. Gale’s counsel called its own expert witness, who answered questions about the testimony given by the state’s expert witness, about Gale’s scores on various personality tests, and about the effect abuse and neglect might have on a child’s ability to recall specific events. The jury returned a guilty verdict on all three counts against Gale.

After a June 29, 1987, sentencing hearing, the court sentenced Gale to three terms in the state penitentiary of two to five years, those sentences to run concurrently. This appeal followed.

I.

Gale’s Motion For Independent Psychological Examinations of the Minor Victims

Gale’s first issue charges that the trial court somehow denied Gale a fair trial by refusing to compel the minor victims to be examined by Gale’s psychologist. Gale sought these examinations to provide his expert witness with a clinical basis for attacking the credibility and veracity of the R children as complainant witnesses and possibly to provide additional evidence to allow him to cross-examine the prosecution expert witness. We are uncertain as to how a trial court could actually compel a witness to undergo a psychological examination were one deemed to be appropriate, and these parties do not discuss that aspect of this issue. We also note that this issue does not involve any challenge to the competency of the complainant witnesses in this case. Cf. Easterday v. State, 254 Ind. 13, 256 N.E.2d 901, 905-06 (1970). Our discussion on this issue is limited to resolving Gale’s assertion of a right to have these victims examined and is not intended to express any view on the potential problem of witness compliance or competency.

There is no specific legal authority allowing a defendant to compel a witness in a criminal trial to undergo an independent psychological examination at a defendant’s request. In the civil arena, W.R.C.P. 35(a) provides for a mental examination of a party when the mental condition of that party is in issue in the case. Assuming an application of this rule to criminal cases, it does not confer authority to compel an examination of a victim who is a witness but not a party. See State v. Liddell, 211 Mont. 180, 685 P.2d 918, 924 (1984). Gale must also acquiesce to the legal proposition that he does not have a general state or federal constitutional right to conduct wide-ranging criminal discovery in the state’s files. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30, 42 (1977) (citing Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 2212, 37 L.Ed.2d 82, 87 (1973)) (no federal due process right to general discovery in a criminal case); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218-19 (1963) (prosecution has an affirmative duty to turn over exculpatory material to the defense); and Hubbard v. State, 618 P.2d 553, 554-55 (Wyo.1980) (no state due process right to general discovery in a criminal case). See also W.R.Cr.P. 18. These precedents leave Gale with the argument that a Wyoming trial court has inherent “due process” discretion to order a complainant witness to undergo a psychological examination by a defendant’s psychologist and that failing to do so in this case amounted to an abuse of that inherent discretion.

To support his initial argument that this court should recognize an inherent trial court discretion to compel sexual assault victim/witnesses to submit to a psychological examination, Gale relies primarily on the California Supreme Court’s holding in Ballard v. Superior Court of San Diego County, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416 (1966), which has since been revisited and clarified by that court in People v. Russel, 69 Cal.2d 187, 70 Cal.Rptr. 210, 443 P.2d 794 (1968). In Ballard, the California court held that there may be sexual assault trials in which psychological expert testimony might be admissible to attack the credibility of uncorroborated testimony given by a complainant witness. Ballard, 49 Cal.Rptr. at 313, 410 P.2d at 849. Using this conclusion the California court held:

We therefore believe that the trial judge should be authorized to order the prosecutrix to submit to psychiatric examination if the circumstances indicate a necessity for an examination. Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness’ mental or emotional condition upon her veracity. Thus, in rejecting the polar extremes of an absolute requirement that the prosecutrix submit to a psychiatric examination, we have accepted a middle ground, placing the matter in the discretion of the trial judge.

Id. (emphasis added). See also O’Neale, Court Ordered Psychiatric Examination of a Rape Victim in a Criminal Rape Prosecution — or How Many Times Must a Woman Be Raped? 18 Santa Clara L.Rev. 119, 123-26 (1978). Russel echoed this reasoning and solidified the California court’s conclusion that a charge of sexual assault in which the complainant witness’ testimony is uncorroborated might warrant using expert psychological or psychiatric testimony to challenge the credibility or veracity of that witness, thereby necessitating a compelled examination. The Russel court then went on to discuss the way in which trial court discretion should be exercised regarding the admission of expert testimony at trial for those purposes. Russel, 70 Cal.Rptr. at 216-17, 443 P.2d at 800-01.¹ Cf. State ex rel. Holmes v. Lanford, 764 S.W.2d 593, 594 (Tex.App.1989) (trial court does not have inherent authority to order independent psychological evaluation of four-year old sexual assault victim to challenge victim’s competency), and numerous eases cited in Annotation, Necessity or Permissibility of Mental Examination to Determine Competency or Credibility of Complainant In Sexual Offense Prosecution, 45 A.L.R.4th 310 (1986).

We cannot adopt the Ballard-Russel rationale because doing so, under the facts of this case, would directly contradict recent case law from this court. See Zabel v. State, 765 P.2d 357 (Wyo.1988). There, this court held unanimously that it is plain error in a sexual assault case for the trial court to allow an expert witness to comment directly on the credibility or veracity of a complainant witness. Determining credibility is the sole province of the jury, and we will not allow expert witness comment or testimony on the direct effect which an alleged emotional disturbance might have on a complainant witness’ ability to tell the truth at trial. Id. at 362 (citing Lessard v. State, 719 P.2d 227, 233 (Wyo.1986)). See also W.R.E. 702; People v. Visgar, 120 Ill.App.3d 584, 75 Ill.Dec. 784, 791, 457 N.E.2d 1343, 1350 (1983); State v. Walker, 506 A.2d 1143, 1148 (Me.1986); State v. Saldana, 324 N.W.2d 227, 231 (Minn.1982); People v. Souvenir, 83 Misc.2d 1038, 373 N.Y.S.2d 824, 827 (1975).

Here, there is no doubt that Gale’s primary purpose for seeking compelled psychological or psychiatric examinations of the minor victims was to form a foundation for expert psychological testimony on the effect the victims’ emotional and psychological health might have on their ability to tell the truth. That is the continuous theme under which he has pursued his motion to compel psychiatric examination from the day he filed his initial motion through this appeal. This is illustrated in Gale’s appellate brief on this issue, which expressly states:

Dr. Gale filed a pre-trial motion seeking an order directing that [the three minor victims] submit to a psychiatric examination for the purpose of determining whether their mental or emotional condition effected [sic] the credibility of their allegations against Dr. Gale. The motion first argued that there was a significant question regarding the affect [sic] of the children’s emotional and mental condition upon their veracity which was of such a nature as to establish a sufficiently compelling need for a psychological evaluation. Second, a psychological examination was essential to enable the defense to investigate, prepare to confront and cross-examine the prosecution expert witness.

(emphasis added). Obviously, this argument is fashioned exactly around the rationale used by the California Supreme Court in Ballard and Russel. Semantic arguments concerning the “way” the defense might try to use this type of expert testimony at trial to attack the credibility of a victim/witness do not change this court’s unanimous rejection of the use of expert testimony to invade the function of a jury. Zabel, 765 P.2d at 363. We do not imply that this type of evidence would not be admissible for other acceptable purposes, for example to explain some peculiar behavior of the victim to the jury. See Griego v. State, 761 P.2d 973 (Wyo.1988); Lessard, 719 P.2d at 233; Scadden v. State, 732 P.2d 1036, 1046 (Wyo.1987). That use of expert testimony, however, is not the basis for allowing compelled psychological examinations explained in Ballard and upon which Gale now relies. Since the Baliard-Russel rationale does not comport with the unanimous decision of this court in Zabel, we must reject it as a rule of law for Wyoming. Gale was not entitled to have the trial court order these minor victims to undergo psychological examinations to provide a foundation for his expert witness to challenge their credibility or veracity on the stand.

The only remaining reason Gale presents as justification for compelling psychological examinations is that he might have been able to use the results of such examinations to help him prepare for cross-examination of the state’s expert witness. He cannot cite Ballard, Russel, or any cases that rely on those cases as authority for that proposition. Those cases are premised upon the idea that the examination provides the defense expert with a clinical basis to testify directly as to the credibility of the complainant witnesses. Russel, 70 Cal.Rptr. at 216-17, 443 P.2d at 800-01; Ballard, 49 Cal.Rptr. at 310-12, 410 P.2d at 846-48.

The other information and evidence available to Gale to prepare for cross-examination of the state’s expert witness were substantial. That body of material included conferring with his own expert witness who testified at the trial concerning the results of numerous personality tests given to Gale, reviewing the pre-1984 D-PASS files and juvenile court records in his possession, reviewing the Gillette police records on the R family from 1980 through 1987 in his possession, tape recordings of over three hours of interviews with the R children conducted by Gale’s original defense counsel, timely notice of who the state’s expert witnesses might be, and an unbridled opportunity to interview various persons who might be called as witnesses in the case. Gale had an opportunity to cross-examine the expert witness called by the state at the three-day preliminary hearing. At trial, the state called an expert witness, but the transcript shows that he was never asked to give a direct clinical opinion on the condition of the R children. After that testimony, Gale’s counsel conducted an extensive cross-examination of the state expert witness. Considering the evidence available to Gale for the preparation of his defense, the trial court properly denied his request for psychiatric examinations of the R children on that basis.

II.

Gale’s Motion for Summaries of Expected State Expert Witness Testimony

Gale begins this argument by again admitting he has no general federal or state constitutional right to discovery in a criminal case and that no statute or rule of this court entitles him to discovery. We agree with his analysis to that point. See Weatherford, 429 U.S. at 559-60, 97 S.Ct. at 845-46, 51 L.Ed.2d at 42; Hubbard, 618 P.2d at 554-55. See also W.R.Cr.P. 18(c) (defendant has a right to the statement of a state witness after testimony is given). Instead, he relies on the idea that a trial court possesses some degree of inherent due process authority to grant a specific discovery request in a criminal case to insure fairness. Gale builds on this general conclusion by referencing American Bar Association Standards for Criminal Justice, by citing a federal case involving civil discovery, and by citing this court’s holdings in Gee v. State, 662 P.2d 103, 104-05 (Wyo.1983), and Chapman v. State, 638 P.2d 1280, 1284 (Wyo.1982) for the proposition that

when a prosecution utilizes scientific or quasi-scientific methods which may impact upon the assessment of credibility at trial, it is important to insure that the defense has adequate pretrial opportunity to prepare to confront the evidence at trial. This may require pretrial discovery that goes beyond the generally applicable rules of procedure.

We do not necessarily disagree with Gale that the trial court does have a certain degree of due process discretion to grant exceptional criminal discovery requests to insure fairness. However, his assertion that under the facts of this case the trial court abused that type of discretion by denying him summaries of prospective testimony from state expert witnesses lacks authority. The American Bar Association Standards and the federal civil discovery case referenced by Gale are inapposite in this fact situation and of no consequence. As for Gee and Chapman, while those cases might stand for the above proposition when the case involves enhancing witness testimony through hypnosis, that specific application of due process does not automatically extend every discovery request by a criminal defendant beyond the bounds of W.R.Cr.P. 18.

The issue here is whether Gale received a fair trial. Under this issue Gale has to prove that by denying his motion for the summaries of potential state expert witness testimony, the trial court rendered this trial unfair and abused its discretion. In Martin v. State, 720 P.2d 894, 897 (Wyo.1986), this court defined judicial discretion as “a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.” Under this standard, Gale’s challenge must be considered in light of evidence in the record indicating: (1) Gale was notified that the state would call certain expert witnesses at trial and that Gale has not alleged he was denied the opportunity to interview those individuals; (2) Gale was allowed to cross-examine extensively the state’s expert witness at trial; and (3) Gale also offered substantial testimony of his own expert witness in rebuttal. Against this backdrop, we have difficulty understanding Gale’s claim that he was denied a fair trial in this regard or how the trial court abused its discretion when it denied Gale’s motion to compel the production of summaries of the testimony potential state expert witnesses might give at trial. Applying the Martin definition of abuse of discretion, we conclude Gale has shown no abuse of discretion under this issue.

III.

Gale’s Motions to Obtain Psychiatric Records, D-PASS Records, School Records, and Juvenile Court Transcripts or Records

The trial court denied Gale’s various discovery motions for disclosure of statutorily privileged information based on the holding in Ritchie. There, the United States Supreme Court granted- certiorari to review the Pennsylvania Supreme Court’s vacating of Ritchie’s convictions for rape, involuntary deviate sexual intercourse, incest, and corruption of a minor, all charges that were brought on behalf of Ritchie’s thirteen year-old daughter. Id., 480 U.S. at 43, 107 S.Ct. at 994, 94 L.Ed.2d at 48. Before his trial, Ritchie served a Pennsylvania social service agency (CYS) with a subpoena seeking access to records concerning his daughter. CYS apparently acknowledged that the records existed but refused to produce them. There was no indication that the prosecution had access to or knowledge of the contents of the records at any time. Id., 480 U.S. at 44, 107 S.Ct. at 995, 94 L.Ed.2d at 49 n. 4. Ritchie scheduled a sanctions hearing at which the trial court heard Ritchie’s arguments that the records might contain the names of persons who might be favorable witnesses for him at trial. Ritchie also made a specific request for a medical report he believed to have been compiled by CYS in 1978. The trial court acknowledged not having reviewed the entire CYS file and accepted CYS’ assertion that no 1978 medical report existed. It then denied Ritchie’s motion for sanctions. Id., 480 U.S. at 44, 107 S.Ct. at 995, 94 L.Ed.2d at 49 n. 3. At trial, the prosecution’s main witness was Ritchie’s daughter and Ritchie was allowed to conduct an extensive cross-examination. The jury then convicted Ritchie on all counts, and he received a three to ten year prison sentence. Id., 480 U.S. at 45, 107 S.Ct. at 995, 94 L.Ed.2d at 49.

In his appeal to the Pennsylvania Superi- or Court, an intermediate appellate court, Ritchie argued that his sixth amendment rights under the confrontation clause were violated when the trial court denied his motion for sanctions on CYS’ refusal to honor the subpoena. That appellate court vacated Ritchie’s conviction, holding that although Ritchie did not have an unlimited right to full disclosure of any statutorily privileged information in the CYS file, he did have a right to have the trial court conduct an in camera examination of any privileged records so that the victim’s statements could be released. The full record was then to be released to Ritchie’s lawyer so that he could use it to argue relevancy of those statements. Counsel for both the prosecution and the defense could then argue harmless error and relevancy, respectively, and the trial court could determine whether denying the information to Ritchie was prejudicial or not. Id.

On appeal to the Supreme Court of Pennsylvania, that court agreed to vacate Rit-chie’s conviction and remand, concluding that Ritchie’s lawyer was entitled to search the entire record for useful evidence. The Pennsylvania Supreme Court relied on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (criminal defendant had sixth amendment confrontation clause right to question witness concerning juvenile criminal record notwithstanding state statute making such records inadmissible) to hold that denying Ritchie’s lawyer access to the file denied him his sixth amendment right to confront his accusers because his counsel was not allowed to look at the entire file in an effort to locate evidence for the defense and because the trial court’s review would not fulfill that end. Ritchie, 480 U.S. at 46, 107 S.Ct. at 995-96, 94 L.Ed.2d at 50.

On certiorari, the United States Supreme Court discussed the balance between the need to safeguard the privacy of privileged information and a criminal defendant’s rights under the confrontation clause. It also reviewed that subject in the context of its holding in Davis and concluded that the Pennsylvania Supreme Court’s interpretation of the holding in Davis was too broad. The Court explained that while its decision in Davis did protect a defendant’s trial-right to substantive cross-examination of prosecution witnesses, it did not “transform the confrontation clause into a constitutionally-compelled rule of pre-trial discovery.” Ritchie, 480 U.S. at 52, 107 S.Ct. at 999, 94 L.Ed.2d at 54. On that basis, a plurality of the Court held that Ritchie’s confrontation clause right to cross-examine the prosecutrix had been preserved by the trial court’s actions. Id., 480 U.S. at 53, 107 S.Ct. at 1000, 94 L.Ed.2d at 54.

Next, the Court discussed the implications which the trial court’s actions might have in terms of the sixth amendment compulsory process clause and eventually opted to address Ritchie’s claim within the context of more carefully defined due process precedents concerning fundamental fairness in criminal trials.² The opinion first emphasized that under the sixth amendment due process clause the “government has the obligation to turn over [to the defense] evidence in its possession that is both favorable to the accused and material to guilt or punishment.” Id., 480 U.S. at 57, 107 S.Ct. at 1001, 94 L.Ed.2d at 57. (emphasis added) (citing Brady, 373 U.S. at 87, 83 S.Ct. at 1196, 10 L.Ed.2d at 218). The Court also acknowledged the qualified statutory policy of the Commonwealth of Pennsylvania in keeping this type of information confidential unless its release was compelled by court order. Ritchie, 408 U.S. at 57, 107 S.Ct. at 1002, 94 L.Ed.2d at 56.³ Next, the Court recognized that under the applicable Pennsylvania statute, and in certain circumstances, such records might contain constitutionally material information vital to the defense. The Court then drew upon the standard for constitutional materiality it had previously articulated in United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985)⁴, and stated:

It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, supra, [373 U.S.] at 87, 83 S.Ct. at 1194. Although courts have used different terminologies to define “materiality,” a majority of this Court has agreed, “[ejvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine the confidence in the outcome.” United States v. Bagley, supra, 473 U.S. at 682, 105 S.Ct. at 3375 (opinion of BLACKMUN, J.); see id., at 685, 105 S.Ct. at 3375, 87 L.Ed.2d at 481 (opinion of WHITE, J.).

Ritchie, 480 U.S. at 57, 107 S.Ct. at 1001-02, 94 L.Ed.2d at 57. Cf. Aguilar v. State, 764 P.2d 684, 688-89 (Wyo.1988); W.R. Cr.P. 49(a); W.R.A.P. 7.04 (harmless error standard in Wyoming). Using this standard, the Court affirmed the decision of the Pennsylvania Supreme Court to remand the case for further proceedings and held that:

Ritchie is entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by CYS contain no such information or if nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction.

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

The remaining task facing the Court was to apply the constitutional materiality standard it had just adopted in a way that guaranteed a defendant’s rights to a fair trial without radically altering traditional constitutional limits on criminal discovery. The Court began this discussion by noting that a defendant has never had a general constitutional right to conduct his own unsupervised search in the state’s files to argue relevancy. Id., 480 U.S. at 59, 107 S.Ct. at 1003, 94 L.Ed.2d at 58 (citing Bagley, 473 U.S. at 682, 105 S.Ct. at 3383, 87 L.Ed.2d at 494; and Weatherford, 429 U.S. at 559, 97 S.Ct. at 846, 51 L.Ed.2d at 42. Cf. Hubbard, 618 P.2d at 554-55. The Court also described that in a typical case settled practice was for the defendant to make a general request to the prosecution for exculpatory evidence and then the state would decide what information must be disclosed. Ritchie, 480 U.S. at 59, 107 S.Ct. at 1003, 94 L.Ed.2d at 58-59 (citing Brady). Considering these things in conjunction with the requirements of due process, the Court struck the necessary compromise by holding that a defendant would not be allowed to have his attorney look through the privileged records, but defense counsel would be allowed to have the trial court conduct an in camera review for information constitutionally material to the defense. The Court characterized this as a balance between the competing interests and reiterated that a .trial court’s duty to disclose such information was ongoing, requiring the trial court to release privileged information whenever it becomes constitutionally material to the proceedings. Id.

This in camera review for constitutionally material evidence was the standard under which the trial court addressed Gale’s subpoenas for various records in which the state asserted a privilege. The trial court conducted this review focusing on privileged materials at issue, on the defendant’s ability to gather such evidence from other sources, and on how the privileged evidence may relate to the defendant’s theory of the case. This approach is consistent with Ritchie; we adopt it for Wyoming and will employ it to review the trial court’s actions in this case. See State v. Cusik, 219 N.J.Super. 452, 530 A.2d 806, 813 (1987).

A. Psychiatric Records

Gale begins his argument for disclosure of psychiatric records by asserting he has a right to examine any records of psychological counseling or treatment experienced by the R children. The state responds that before we can address the propriety of Gale’s argument we must determine if the record contains any evidence of these documents such that this issue is properly preserved for appeal. This requires us to review the record concerning Gale’s requests for such information.

Two of Gale’s requests for pretrial discovery concerned speculation by his counsel that some records of psychological counseling or treatment of the R children existed which might lead to the discovery of exculpatory evidence or witnesses for the defense. Gale’s counsel filed a motion to compel the state to produce psychological records on April 6, 1987, and similarly had a subpoena duces tecum issued to Dr. Heinecke of Northern Wyoming Mental Health Center on April 24, 1987. The trial court held a motions hearing on the same day during which Gale’s attorney admitted his request for psychological records was speculative. Gale’s counsel was also given an opportunity to cross-examine Heinecke at this motions hearing but did not question him about the existence of any psychiatric records concerning the R children. There was minimal evidence that Heinecke took some notes during his treatment of the R children, but Gale’s counsel did not pursue that point in the motions hearing or in subsequent pleadings.

At the motions hearing, the trial court addressed the subpoena duces tecum issued to Heinecke and concluded that because any examinations or treatment Heinecke might have conducted with the R children were pursuant to the earlier juvenile court proceedings, their availability to the defense would be decided under Gale’s motion for release of the juvenile court records. The issue is discussed in this appeal below. In its decision letter on the issues raised in Gale’s motions hearing, the trial court stated:

In discussing the disclosure of psychiatric records sought by the defendant’s motion, there has not been shown to exist any such psychiatric examinations or records to this Court up to this time [May 15, 1987]. I will simply repeat what I have said earlier, that under the due process clause this court recognizes that the State has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment, but there is no general constitutional right to discovery in a criminal case and the Brady case did not create one. Pennsylvania v. Rit-chie, supra. In any event, should it be brought to the Court’s attention that there are psychiatric records of the minor complainants in this case, the court will consider them in camera as it has the other confidential information sought by defendant to determine their materiality.

(emphasis added.)

Gale has never put forth any additional evidence showing that such records exist, let alone establish some basis for a claim that such records might contain information constitutionally material to his defense. See Ritchie, 480 U.S. at 58, 107 S.Ct. at 1002, 94 L.Ed.2d at 58 n. 15. Further, Gale has the burden to provide us with a record supporting further review of this issue. Edwards v. Edwards, 732 P.2d 1068, 1070 (Wyo.1987) (citing Nicholls v. Nicholls, 721 P.2d 1103, 1105 (Wyo.1986); and State v. Dieringer, 708 P.2d 1, 12 (Wyo.1985)). The district court did all that it could do. It gave Gale an open invitation to present evidence establishing the existence of psychological records not a part of the juvenile court file and information within such records that might be constitutionally material to his defense. Gale never took advantage of the district court’s offer; consequently, he has not fulfilled his burden to present this court with a record that would afford him appellate review on this issue.

B. D-PASS Files

Gale moved for disclosure of all D-PASS files involving the R family. His motivation for that disclosure was that D-PASS caseworker notes of interviews with R family members might contain references to the allegations'against him that could be useful in constructing his defense. Pursuant to the analysis set out in Ritchie the trial court reviewed the D-PASS records in camera. After this review it sealed the D-PASS records and made them a part of the record now before us on appeal. Based on its review of these records the trial court found no material or relevant evidence concerning the charges against Gale and denied his request that they be disclosed to him.

D-PASS records are statutorily privileged materials under W.S. 14-3-214 (July 1986 Repl.), which provides in pertinent part:

(a) All records concerning reports and investigations of child abuse or neglect are confidential except as provided by W.S. 14-3-201 through 14-3-215.

(b) Applications for access to records concerning child abuse or neglect contained in the state agency or local child protective agency shall be made in the manner and form prescribed by the state agency. Upon appropriate application, the state agency shall give access to any of the following persons or agencies for purposes directly related with the administration of W.S. 14-3-201 through 14-23-215:

(i) A local child protective agency;

(ii) A law enforcement agency, guardian ad litem, child protection team or the attorney representing the subject of the report;

(iii) A physician or surgeon who is treating an abused or neglected child, the child’s family or a child he reasonably suspects may have been abused or neglected;

(iv) A person legally authorized to place a child in protective temporary custody when information in the report or record is required to determine whether to place the child in protective custody;

(v) A person responsible for the welfare of the child;

(vi) A court or grand jury upon a showing that access to the records is necessary for the determination of an issue, in which case access shall be limited to in camera inspection unless the court finds public disclosure is necessary; and

(vii) Court personnel who are investigating reported incidents of child abuse or neglect.

(emphasis added). The D-PASS records in question are only those files created after sometime in 1984. A predecessor Campbell County attorney had earlier provided Gale’s counsel with pre-1984 D-PASS files. The record does not explain why those privileged files were prematurely released.

Gale challenges the trial court’s actions under this issue in essentially two ways: (1) he argues that nondisclosure of the post-1984 D-PASS records denied him his constitutional rights to a fair trial under the due process guarantee, as well as effective assistance of counsel, right to confrontation, and compulsory process;⁵ and (2) he argues that the trial court erred when it applied the constitutional materiality standard for reviewing the privileged records set out in Ritchie.

We have already decided Gale’s general constitutional challenges by adopting the United States Supreme Court's reasoning in Ritchie. His right to confrontation was satisfied when he was allowed to conduct extensive cross-examination of the prosecution witnesses against him. Ritchie, 480 U.S. at 52-53, 107 S.Ct. at 999-1000, 94 L.Ed.2d at 54-55 (explaining Davis, 415 U.S. at 318-20, 94 S.Ct. at 1110-12, 39 L.Ed.2d at 354-56). See also Story v. State, 721 P.2d 1020, 1034 (Wyo.1986) (this court’s recognition and explanation of the holding in Davis). Like the United States Supreme Court, we will address his challenge concerning the compulsory process clause under our overall analysis of the fairness of this trial as a matter of due process. Ritchie, 480 U.S. at 56, 107 S.Ct. at 1001, 94 L.Ed.2d at 57. Gale’s assertion that the trial court somehow denied him effective assistance of counsel by refusing to disclose all of the D-PASS records is make-weight. Gale’s counsel did all that he could do when he moved for disclosure of the records and argued for their disclosure at the motions hearing. The trial court denied those disclosure requests based on controlling United States Supreme Court precedent. The only general constitutional issue presented is whether, in doing so, the trial court compromised Gale’s due process right to a fair trial when it applied the holding from Ritchie. Hence, our discussion of the trial court’s application of Ritchie is dispositive for both of Gale’s challenges under this issue.

Gale argues that the in camera procedure mandated by the holding in Ritchie should not have been applied to his request for D-PASS files because the language of W.S. 14 — 3—214(b)(iii), set out above, provides for release of such files to law enforcement agencies under certain specific circumstances. Gale also claims the record shows that D-PASS employees actively aided law enforcement personnel in investigating the case against him. He then combines these points, concluding that because information in the D-PASS files was “directly available” to the state it should have been deemed to be in its possession. That presumption, he urges, should be the basis for- releasing the D-PASS files to Gale’s counsel to insure fundamental fairness and due process.

We agree with the state that Gale’s novel reasoning rests precariously upon several of his own assumptions, which do not -find support in this record. He first assumes that the state must have had the post-1984 D-PASS records in its files because D-PASS was obligated by statute to investigate the charges at issue. See W.S. 14-3-204. Whether those interviews were reported or not, the record does not indicate that the state obtained copies of them for use in constructing a case against Gale. Gale has pointed to no record evidence indicating that the state actually had those reports. Further, the statute specifically provides that a law enforcement agency wishing to obtain D-PASS records in this situation must apply for them and obtain them pursuant to agency disclosure rules. The record does not contain any evidence of such an application by the prosecution in this case.

Gale’s argument also seems to be premised on an assumption that, because he did not receive any post-1984 D-PASS files from the county attorney, the prosecution in this case must have decided not to comply with its Brady obligation to disclose to the defense any exculpatory material it actually possessed. Ritchie, 480 U.S. at 57, 107 S.Ct. at 1001, 94 L.Ed.2d at 57. See also Wilde v. State, 706 P.2d 251, 255 (Wyo.1985). We decline to make that assumption, lacking some evidence in the record to the contrary. The determination of whether evidentiary items are subject to disclosure under Brady belongs to the prosecution. Weatherford, 429 U.S. at 560, 97 S.Ct. at 845, 51 L.Ed.2d at 42; Hubbard, 618 P.2d at 554-55. If the defense has a basis for requesting evidence it believes the prosecution has, but is not divulging, then application for disclosure of that evidence can be made to the prosecution and, if necessary, to the trial court. United States v. Agurs, 427 U.S. 97, 106-07, 96 S.Ct. 2392, 2398-99, 49 L.Ed.2d 342, 351 (1976); Jones v. State, 568 P.2d 837, 848 (Wyo.1977). This record shows that the prosecution had a thorough understanding of its obligations under Brady and repeatedly acknowledged them in open court and in its pleadings.

Gale’s argument that the Ritchie standard for constitutional materiality should not be applied under this issue also lacks merit. He claims applying that standard is unfair because it is an appellate standard that “is necessarily backward looking and therefore is framed in terms of whether the evidence would change the result.” This argument ignores the parallel that exists between the prosecution’s obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment and the trial court’s obligation to review privileged information for evidence that might be constitutionally material to the defendant’s case. Ritchie, 480 U.S. at 56, 107 S.Ct. at 1001, 94 L.Ed.2d at 56-57 (citing Bagley, 473 U.S. at 672, 105 S.Ct. at 3378, 87 L.Ed.2d at 487; Agurs, 427 U.S. at 111, 96 S.Ct. at 2401, 49 L.Ed.2d at 354; and Brady, 373 U.S. at 87, 83 S.Ct. at 1196, 10 L.Ed.2d at 218); see also Wilde, 706 P.2d at 255. Gale cites no authority supporting his criticism of the constitutional materiality standard as being devised to be used only in hindsight. Cf. Bagley, 473 U.S. at 683, 105 S.Ct. at 3384, 87 L.Ed.2d at 494-95. Rather, like the standard applied to the prosecution in Brady, it appears to have been intended to focus the trial court’s attention on an in camera search for privileged information that could change the outcome of a defendant’s trial. Gale seems eager to apply this type of standard to the prosecution once he assumes they have not met their obligations under Brady, but he does not want the trial court to apply it to him when it reviews privileged information he speculates might be pivotal in his defense. He cannot have it both ways.

The Ritchie materiality standard provides a workable balance between the state’s interest in the confidentiality of certain information and a defendant’s potential need for such information in some situations, and it controls in this situation. Ritchie, 480 U.S. at 60-61, 107 S.Ct. at 1003-04, 94 L.Ed.2d at 59-60, cited in Cusik, 219 N.J.Super. 452, 530 A.2d 806, 813 (1987). See also People v. Reber, 177 Cal.App.3d 523, 223 Cal.Rptr. 139, 147 (1986). We also note that Gale had in his possession copies of a fairly extensive set of pre-1984 D-PASS reports along with Gillette police department reports on the R family for 1986 and 1987 and had ample opportunity at trial to focus the jury’s attention on the social problems that were a day-to-day reality in the R family home from at least 1980 forward. Applying the Ritchie standard, and after our own review of the D-PASS records and considering the evidence that was available to Gale before trial, we agree with the trial court that the D-PASS records contain no evidence that is or was constitutionally material to the outcome of this case. That conclusion requires us to affirm on this issue.

C. School Records

Our review of the trial court’s decision not to disclose the school records parallels the analysis we used to review its decision on the D-PASS records. The school records of the R children are statutorily privileged under W.S. 16-4-203(d)(viii) (Cum.Supp.1987):⁶

(d) The custodian shall deny the right of inspection of the following .records, unless otherwise provided by law:

(viii) School district records containing information relating to the biography, family, physiology, religion, academic achievement and physical or mental' ability of the person except to the person in interest or to the officials duly elected and appointed to supervise him.

See also 20 U.S.C. § 1232g(b) (1982) (school records in schools receiving federal funding are confidential but may be released pursuant to court order).

Gale requested disclosure of the school records based on the theory that grade fluctuations and attendance records might be relevant to the relationship between the R children and their father. The school records were produced at the motions hearing pursuant to Gale’s subpoenas duces tecum to the various schools the R children had attended. The trial court reviewed them in camera, the same way it reviewed the D-PASS records, and concluded that there was no information in the school records that was constitutionally material to Gale’s defense.

Gale makes the same legal arguments for disclosure of the school records that he made above concerning the D-PASS files. As before, he has made no showing that the prosecution ever actually possessed these records. On the other hand, Gale has made no complaint that he was hindered in his ability to learn more about the R family by having his investigator interview people in the community who knew the R children and their parents. Considering all of these circumstances, we again apply the constitutionally material standard from Ritchie in review of the trial court’s ruling against disclosure of the school records. That review reveals no evidence that is or was constitutionally material to Gale’s defense. See Reber, 223 Cal.Rptr. at 147; and Cusik, 530 A.2d at 813. Therefore, we affirm the trial court’s conclusion that they did not contain evidence material to Gale’s defense.

D. Juvenile Court Transcripts, Recordings, or Records

In this issue, Gale premises error upon his inability to obtain transcripts or recordings of any juvenile court hearings concerning GR’s contact with the R children once he had been accused of abusing and sexually molesting them. Gale wanted to review this information, if it existed, to gather more evidence in support of his theory that GR intimidated or coerced LR and the R children into implicating Gale to shift blame from himself. Gale has never put forth evidence actually establishing the existence of such transcripts or recordings or showing that the prosecution used them in this case. Rather, his basis for believing that such records exist, and are material to his defense, centers around hearsay statements made by his original defense counsel, Terry Preuit, that former Campbell County Attorney, Robert Rose, had at least considered trying to hold GR in contempt of court for having unsupervised visits with the R children in violation of a juvenile court order allowing only supervised visits.

Gale filed his motion for disclosure of any juvenile court transcripts or records on April 6, 1987. Attached to that motion were a number of exhibits including a copy of the November 18, 1986 juvenile petition filed on behalf of the R children, LR’s January 16, 1987 juvenile court agreement, a number of police files which chronicled investigations of the R family and the R children from mid-1980 through December 1986, and statements of several of the R children and their friends. It is not clear how Gale obtained these records.

At the April 24, 1987 motions hearing, Gale called Rose as a witness and examined him during a telephone conference call. Gale’s counsel questioned Rose at length about the events leading up to GR and LR’s juvenile court agreements. Curiously, he did not ask Rose about any attempt or consideration to seek a contempt citation against GR for violating the alleged juvenile court order prohibiting unsupervised visitation or for any violations of the juvenile court agreement GR is said to have signed. Gale did not call his former defense counsel, Preuit, or any other witnesses to bolster his suspicion that transcripts, recordings, or records of such a hearing actually existed.

The trial court denied Gale’s motion for disclosure of any Juvenile Court transcripts or records, noting that the holding in Davis did not provide Gale with carte blanche authority to examine privileged juvenile court records in a search for information helpful to his case. See also Ritchie, 480 U.S. at 59, 107 S.Ct. at 1003, 94 L.Ed.2d at 58-59 (citing Bagley, 473 U.S. at 675-76, 105 S.Ct. at 3379-80, 87 L.Ed.2d at 489-90; and Weatherford, 429 U.S. at 559, 97 S.Ct. at 846, 51 L.Ed.2d 30. Cf. Hubbard, 618 P.2d at 554-55). The trial court did not explain whether the prosecution was ever shown to have possessed the alleged juvenile court transcripts, recordings, or records and did not say whether it had reviewed any such information in camera.

This issue is similar to the issue above dealing with independent psychological records in that even the sealed portion of the record before this court does not contain the information that Gale wanted disclosed. Consequently, we are left with a few scraps of testimony from Rose’s deposition to try and determine whether these records did exist, whether the state ever possessed them for use in this trial, and if so, whether the trial court unfairly denied Gale access to them.

When Gale filed his motion for disclosure, he had an obligation to the trial court to establish a basis for his claim that the privileged information he sought contained evidence constitutionally material to his defense. Ritchie, 480 U.S. at 58, 107 S.Ct. at 1002, 94 L.Ed.2d at 58 n. 15. We also reiterate that Gale, as appellant, has the obligation to provide this court with enough record evidence to allow review of this issue. Edwards, 732 P.2d at 1070 (citing Nicholls, 721 P.2d at 1105; and Dieringer, 708 P.2d at 12). Gale has not only failed to establish a basis that any juvenile court transcripts, recordings, or records contain evidence constitutionally material to his defense, he has not put forth minimal evidence establishing that such records exist.

We hold that the appellate record is insufficient to support Gale’s challenge concerning any alleged juvenile court transcripts, recordings, or records.

IV.

Gale’s Motion to Dismiss or Suppress Testimony of the R Family

Gale presents two arguments under this issue. First, he challenges the effect which the GR and LR’s juvenile court agreements had on the testimony of the entire R family as violative of his rights to due process. Second, he challenges the substance of the agreements between GR and LR and the state as viola-tive of his rights to due process. We address Gale’s sub-issues in reverse order.

In his challenge to the substance of the juvenile court agreements, Gale identifies the appropriate standard of due process review as set out in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1961). In Rochin, the Court held that the prosecution violated federal due process when it obtained evidence by “conduct that shocks the conscience.” Id., 342 U.S. at 172, 72 S.Ct. at 209, 96 L.Ed. at 190. See also Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Gale also refers us to federal case law discussing the propriety of prosecutorial agreements to obtain evidence. See, e.g., United States v. Waterman, 732 F.2d 1527 (8th Cir.1984); Williamson v. United States, 311 F.2d 441 (5th Cir.1962); United States v. Baresh, 595 F.Supp. 1132 (S.D.Texas 1984). As observed by the trial judge in his decision letter, these cases all involve contingency arrangements in which the prosecution conditions its offer to seek sentence reduction or immunity for the defendant upon the defendant’s ability to produce evidence leading to the arrest or indictment of another specific individual in criminal activity. Waterman, 732 F.2d at 1529 n. 1, 1530; Williamson, 311 F.2d at 442-45 (illegal contingent fee agreement); Baresh, 595 F.Supp. at 1134.

These arguments and citations do not apply to the specific facts of this case. The agreement between LR and the state is not a contingency agreement. That is, it does not condition the grant of immunity given to LR, and apparently to GR, upon their ability to produce evidence that resulted in the arrest, indictment, or conviction of Gale. LR’s agreement specifically recited that she would receive immunity from prosecution so long as she testified truthfully concerning her knowledge of Gale’s involvement with her children; in terms of her testimony, this is nothing more than her affirmance of the obligation she would be under if the state subpoenaed her as a trial witness. The record is unclear on the exact terms of GR’s juvenile court agreement, but Gale admits it did not contain any contingency provisions. This type of agreement between the prosecution and the parents of admittedly abused children is not one that shocks the conscience of this court. Gale fails to cite any precedent for the idea that this type of agreement is somehow per se illegal; and he also fails to refute or distinguish more recent federal case law upholding prosecutorial contingent arrangements and suggesting that the jury, not an appellate court, should determine the credibility of witnesses who are party to prosecution agreements. See United States v. Cervantes-Pacheco, 826 F.2d 310, 312-16 (5th Cir.1987) and cases cited therein.

Gale’s challenge to the overall effect of the juvenile court agreements as violative of his rights to due process is couched in his argument that this court should invoke an “inherent supervisory power to ensure fair conduct from the prosecution in furnishing evidence to the courts.” Since we held above that the agreements themselves were not violative of due process it is hard to understand how Gale’s speculation as to their effect leads to the conclusion that their existence alone denied him due process. While Gale has set out his theories of how the juvenile court agreements were incentive for R family members to lie, he offers no record evidence in support of those theories or any assertion that his extensive opportunity at trial to cross-examine those witnesses on credibility was undermined. Bald assertions do not take the place of record evidence from which real inferences can be drawn. Cf. Greenwood v. Wierdsma, 741 P.2d 1079, 1086 (Wyo.1987) (conclusory affidavits in summary judgment proceedings have little or no effect). This court will not substitute itself for the jury simply because Gale wanted certain witnesses to testify in another way; his argument on this issue lacks merit. Newton v. State, 698 P.2d 1149, 1151 (Wyo.1985).

V.

Gale’s Motion to Dismiss for Failure to Preserve Evidence

This issue involves Gale’s assertion that the initial police interviews with the victims must have contained information that would potentially aid him in his defense. Gale does not argue that he was denied access to the interviewer’s notes or that the trial court denied him the right to cross-examine any of the state’s witnesses whose testimony could be traced to the initial victim interviews; he also forgoes any suggestion that the police or the state acted in bad faith concerning the content of the interviews. Instead, Gale argues that the lack of such recordings somehow deprived him of his best opportunity to judge what the victim’s precise allegations and explanations for their allegations were when they were first uttered. Gale says this deprivation violates the holding in Trombetta, which he asserts stands for the legal proposition that the police have an affirmative constitutional duty to gather and preserve evidence, as well as the recognized duty to disclose exculpatory evidence. See Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218.

We disagree with Gale’s interpretation of the law on this issue. This court held that the state does not have a constitutional duty to manufacture evidence in addition to its duty under Brady to disclose exculpatory evidence in its possession. We also specifically held that a deputy’s apparent negligence in not properly tape recording a conversation between the defendant and the deputy did not violate the defendant’s rights to due process of law. Wilde, 706 P.2d at 255 (citing Trombetta, 467 U.S. at 488-91, 104 S.Ct. at 2529-30, 81 L.Ed.2d at 421-24). Here, the trial court’s ruling paralleled our conclusions in Wilde.

Gale’s assertion would expose the state to the risk of automatic dismissal for failure to tape record every initial interview it conducts with a minor victim alleging sexual assault. The state has a duty to preserve evidence only if the disputed evidence is shown to have been constitutionally material because it possessed known exculpatory value and if the defendant could not obtain comparable evidence using other reasonable means. Wilde, 706 P.2d at 255 (citing Trombetta, 467 U.S. at 479-80, 104 S.Ct. at 2529, 81 L.Ed.2d at 416-17). Wilde and Trombetta plainly limit the state’s duties to preserve and disclose evidence to those duties explained in Brady.

We also note the United States Supreme Court’s recent opinion in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In Youngblood, the defendant was charged with kidnapping and sexually assaulting a minor. When the victim reported the crime, a physician used a “sexual assault kit” to take samples from the victim that might later be used as evidence at trial. The police took these samples and the victim’s clothing, but they did not refrigerate the clothing. Later, when the state criminologist tried to compare samples from the kit with stains he found on the clothing, the failure to refrigerate the clothing made the comparison impossible. Evidence from such a comparison could have exonerated the defendant who was convicted. The state appellate court reversed the conviction focusing on the potential which the lost evidence had for exoneration and the Court granted the state’s petition for certiorari. In its opinion, the Court discussed the constitutional standards for the obligation the police have to preserve evidence and then held that “unless a criminal defendant can show bad faith on the part of the police, [negligent] failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Youngblood, 488 U.S. at -, 109 S.Ct. at 337, 102 L.Ed.2d at 289.

Gale had access to the interviewer’s notes and an extensive opportunity to cross-examine the interviewer and the victims; he has never alleged police bad faith. Due process was satisfied in this regard.

Affirmed on all issues.

THOMAS, J., files a specially concurring opinion in which CARDINE, C.J., joins. URBIGKIT, J., files a dissenting opinion.

1 . The rationale used by the Ballard and Russel courts in the mid-1960’s has been the subject of some strong criticism since it was established. The California legislature passed a statute in 1980 legislatively overriding the reasoning set forth in Ballard. See California Penal Code § 1112 (West 1985). A number of state appellate courts have openly refused to adopt the holdings in Ballard and Russel because they perceive the cases to be based upon the sexist assumption that the uncorroborated testimony of a sexual assault victim is necessarily less believable and must be confirmed by psychiatric examination, or more simply stated, "most sexual assault victims must be crazy.” See, e.g., State v. R.W., 104 N.J. 14, 514 A.2d 1287, 1291 (1986); and State v. Looney, 294 N.C. 1, 240 S.E.2d 612, 622 (1978). The Wyoming legislature has specifically disavowed any requirement that a sexual assault victim's testimony must be corroborated for sufficient evidence to exist to sustain a sexual assault conviction. W.S. 6-4-312 (1977); Heinrich v. State, 638 P.2d 641, 646 (Wyo.1981).

2 . In Ritchie the Court stated:

This Court has never squarely held that the Compulsory Process Clause guarantees the right to discover the identity of a witness, or to require the Government to produce exculpatory evidence. Instead the Court traditionally has evaluated claims such as those raised by Ritchie under the broader protections of the Due Process Clause of the Fourteenth Amendment. Because the applicability of the Sixth Amendment to this type of case is unsettled, and because our Fourteenth Amendment precedents addressing the fundamental fairness of trials establish a clear framework for review, we adopt a due process analysis for purposes of this case. Although we conclude that compulsory process provides no greater protections in this area than those afforded by due process, we need not decide today whether and how the guarantees of the Compulsory Process Clause differ from those of the Fourteenth Amendment. It is enough to conclude that on these facts, Ritchie’s claims more properly are considered by reference to due process.

Ritchie, 480 U.S. at 56, 107 S.Ct. at 1001, 94 L.Ed.2d at 56-57. (citations omitted).

3 . Note the Court's statement in footnote 14 that it was not expressing any opinion concerning the balance it might strike when the state statute creating the privilege would not allow for a court ordered disclosure. Ritchie, 480 U.S. at 57, 107 S.Ct. at 1002, 94 L.Ed.2d at 56 n. 14. This is a significant factual distinction which has created different results when the statute involved creates an "absolute" privilege. Cf. People v. Foggy, 121 Ill.2d 337, 118 Ill.Dec. 18, 22, 521 N.E.2d 86, 90 (1988); Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120, 129 (1987).

4 . In Bagley, the Court discussed three scenarios that can exist when the prosecution’s obligations under Brady come into play. It then articulated the constitutional standard of materiality to be applied in those three situations. The Court explained that the defendant might not make any request for Brady material, or that the defendant might make a “general” or a "specific” request for material it believed to be in the prosecution’s possession. After explaining these three situations the Court stated:

The Court has relied on and reformulated the Agurs standard for the materiality of undisclosed evidence in two subsequent cases arising outside the Brady context. In neither case did the Court's discussion of the Agurs standard distinguish among the three situations described in Agurs. In United States v. Valenzuela-Bernal, 458 U.S. 858, 874, 102 S.Ct. 3440, 3450, 73 L.Ed.2d 1193 (1982), the Court held that due process is violated when testimony is made unavailable to the defense by Government deportation of witnesses "only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact.” And in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court held that a new trial must be granted when evidence is not introduced because of the incompetence of counsel only if "there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2052, 80 L.Ed.2d 674. The Strickland Court defined a "reasonable probability" as "a probability sufficient to undermine the confidence in the outcome.” Ibid.

We find the Strickland formulation of the Agurs test for materiality sufficiently flexible to cover the "no request,” "general request,” and "specific request” cases of prosecutorial failure to disclose evidence favorable to the accused: The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability" is a probability sufficient to undermine confidence in the outcome.

Id., 473 U.S. at 681-82, 105 S.Ct. at 3383, 87 L.Ed.2d at 493-94. (emphasis added).

5 . See U.S. Const, amend. VI and XIV; and Wyo. Const, art. 1, §§ 6 and 10.

6 . Codified as amended at W.S. 16-4-203 (Cum. Supp.1988).