ANN WALSH BRADLEY, J.
¶ 1. The petitioner, State of Wisconsin, seeks review of a published court of appeals decision reversing Joseph Rizzo's conviction for multiple counts of sexual assault and remanding his case for a new trial.1 The State argues that the court of appeals incorrectly concluded that its expert's testi[418]*418mony constituted Jensen2 evidence, that is, evidence that an alleged victim exhibited behaviors consistent with those commonly observed in sexual assault victims. In addition, the State asserts that the court of appeals erred in determining that a new trial was the appropriate remedy and in concluding that the circuit court improperly denied Rizzo access to the treatment records of the complainant, D.F.
¶ 2. We agree with the court of appeals that the State introduced Jensen evidence. However, we conclude that the proper remedy under the facts of this case is a remand for the circuit court to determine whether Rizzo was entitled to a pretrial psychological examination of D.F. under State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993). Only if the circuit court determines on remand that the defendant was entitled to a psychological examination is a new trial necessary. In addition, we determine that the court of appeals erred in concluding that the circuit court improperly denied Rizzo access to D.F.'s psychological treatment records. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court. On remand, Rizzo's conviction will stand subject to the court's determination under Maday.
I — I
¶ 3. In June 1997, D.F. reported to police that Rizzo had sexual contact with her on several occasions beginning in 1995 and continuing through April or May 1996. She received treatment from Dr. Linda Marinac-cio Pucci, a clinical psychologist, in 1996 after the [419]*419assaults began. The initial treatment lasted about four months, but D.F. returned to Dr. Pucci in the summer of 1997 for additional therapy.
¶ 4. Before trial, Rizzo moved the circuit court to order that D.F. submit to a pretrial psychological examination. He also filed a motion requesting that the circuit court conduct an in camera review of Dr. Pucci's "files, assessments, reports, notes, memoranda, and other records."
¶ 5. In response to Rizzo's motions, the State provided a report prepared by Dr. Pucci, summarizing her knowledge of the case and her treatment of D.F. At a hearing on the motions, the State agreed that the circuit court could conduct an in camera review of D.F.'s treatment records. After conducting the in camera review, the court concluded that Rizzo was not entitled to the treatment records because Dr. Pucci's report fully summarized the contents of the records.
¶ 6. At a subsequent hearing, Rizzo's attorney summarized his position on the requested psychological examination of D.F.:
[DEFENSE COUNSEL]: As far as the request for independent psychological, our position is with respect to that, that the State is intending to elicit expert testimony from Miss Pucci or Dr. Pucci concerning the issues that would be relevant to an independent fact finder's evaluation of whether a [sic] not a person is a victim of a sexual assault. Then we believe that the predicate is laid based on the Maday criteria for the Court to order the alleged victim make herself available for independent psychiatric evaluation.
(Emphasis added.) In response, the State represented that it had initially intended to elicit Jensen evidence from Dr. Pucci. However, the State explained, after [420]*420reviewing the case law, it decided not to use Dr. Pucci for Jensen evidence. The prosecutor stated:
I will withdraw questions of Dr. Pucci in the area of Jensen type of evidence .... I am going to represent now, and will not intend on direct examination, subject to the defense opening the door based on cross-examination, elicit expert Jensen type testimony from Dr. Pucci.... If I do think it is necessary to elicit some Jensen testimony, I will call another expert and certainly put the Court and defense on notice with a curriculum vitae attached.
Based on the State's representations, the circuit court concluded that Rizzo was not entitled to the requested psychological examination of D.F.
¶ 7. At trial, Dr. Pucci gave extensive factual testimony with regard to her knowledge and treatment of D.F. Following this testimony, Dr. Pucci responded to the prosecutor's questions as to why "someone would, in this position" not immediately report a sexual assault. She testified that often people are reluctant to report sexual assaults because of threats by the assailant, embarrassment, or a fear that no one will believe them. Rizzo objected to this evidence and renewed his request for D.F.'s treatment records. The court overruled Rizzo's objection to the evidence and denied his request for the records. The jury found Rizzo guilty, and he appealed.
¶ 8. The court of appeals determined that the State had reneged on its pretrial representation that it would not present Jensen evidence, thus precluding a "level playing field" under Maday. The court's decision in Maday requires that given certain prerequisites, a defendant must have the opportunity to show a "compelling need" for the complainant to submit to a pretrial psychological examination. See 179 Wis. 2d at 360. The court of appeals also determined that the circuit court [421]*421should have granted Rizzo access to D.F.'s treatment records. Concluding that Rizzo was denied his rights to due process and a fair trial, the court reversed Rizzo's conviction and remanded his case for a new trial.
II
¶ 9. This case presents several issues. We must first address a threshold question of whether Dr. Pucci gave Jensen testimony as an expert within the scope of Maday. Because we conclude that she did after the State represented she would not, we must also determine whether the court of appeals correctly concluded that a new trial was the proper remedy. Finally, we must decide whether the court of appeals correctly determined that Rizzo was improperly denied access to D.F.'s treatment records. In addressing the questions before us, we begin with a discussion of the two cases that form the backdrop for the issues in this case, Jensen and Maday.
III
¶ 10. In State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988), this court considered the admissibility of expert testimony that a child sexual assault complainant's behavior was consistent with the behaviors of sexual assault victims. The complainant in Jensen delayed in reporting an alleged sexual assault to several family members and told others nothing at all. 147 Wis. 2d at 243-44. The first person she told about the alleged assault was her school guidance counselor, who met with her because she had been "acting out" in class, writing a lot of notes to boys, wearing tight clothes, and had pinched a boy's buttocks. Id. at 244.
¶ 11. At trial, the counselor testified as an expert on the behavior of sexually abused children. Jensen, [422]*422147 Wis. 2d at 245. He explained that the complainant's acting out behaviors were consistent with the behavior of children who were victims of sexual abuse. Id. at 246-47. The counselor also explained that, in his experience, some children who are sexual assault victims do not tell anyone about it for a long period of time. Id. at 247.
¶ 12. The defendant in Jensen argued that the circuit court erred in admitting the counselor's comparison of the complainant's acting out behavior with the behaviors of sexual assault victims generally. 147 Wis. 2d at 248-49. In upholding the circuit court's determination, this court concluded that "[b]ecause a complainant's behavior frequently may not conform to commonly held expectations of how a victim reacts to sexual assault, courts admit expert opinion testimony to help juries avoid making decisions based on misconceptions of victim behavior." Id. at 252. Some of the complainant's behavior was similar to the normal behavior of adolescents. Id. at 246. Nevertheless, the court determined, "an expert opinion is useful for disabusing the jury of common misconceptions about the behavior of sexual assault victims." Id. at 251 (citing State v. Robinson, 146 Wis. 2d 315, 333, 431 N.W.2d 165 (1988)).3
¶ 13. Subsequently, in Maday, the court of appeals addressed the question of whether and under [423]*423what circumstances a defendant is entitled to a pretrial psychological examination of a complainant when the State seeks to offer Jensen evidence. The State in Maday sought to introduce Jensen testimony from five experts who had personally interviewed two complainants. Maday, 179 Wis. 2d at 350, 355. The circuit court rejected the defendant's request that the complainants submit to psychological examinations. Id. at 350.
¶ 14. The court of appeals reversed, reasoning as follows:
The state has put the behavior of the two victims into issue when it proposed to present, in its case-in-chief, testimony from five experts that the victims' behaviors were consistent with the behaviors of other victims of sexual abuse. Fundamental fairness requires that Maday he given the opportunity to present relevant evidence to counter this evidence from the state. In order to obtain that evidence, Maday must be given the opportunity to discover the psychological condition of the victims.
Maday, 179 Wis. 2d at 357. Rejecting the State's argument that a defendant could sufficiently rebut the State's Jensen testimony through the responsive mechanisms of cross-examination and testimony by nonexamining experts, the court explained that "[a] defendant who is prevented from presenting testimony from an examining expert when the state is able to present such testimony is deprived of a level playing field." Id.
¶ 15. However, recognizing the need to balance the defendant's right to present relevant evidence with the privacy interests of the victim, the court of appeals in Maday declined to determine that a defendant is entitled to a pretrial psychological examination in every case where the State intends to introduce Jensen evi[424]*424dence. Rather, the court concluded, the defendant must present the circuit court with "evidence that he or she has a compelling need or reason" for the examination. Maday, 179 Wis. 2d at 360.
¶ 16. The court identified seven factors for circuit courts to consider in determining whether to grant the defendant's request: (1) the nature of the examination requested and the intrusiveness inherent in that examination; (2) the victim's age; (3) the resulting physical or emotional effects of the examination on the victim; (4) the probative value of the examination to the issue before the court; (5) the remoteness in time of the examination to the alleged criminal act; (6) the evidence already available for the defendant's use; and (7) whether, based on . the testimony of the defendant's named expert, a personal interview with the victim is essential before the expert can form an opinion, to a reasonable degree of psychological or psychiatric certainty, that the victim's behaviors are consistent with the behaviors of other victims of sexual abuse. Maday, 179 Wis. 2d at 360 (citing State v. Delaney, 417 S.E.2d 903, 907 (W. Va. 1992)). The court of appeals remanded for the circuit court to make a determination in light of these factors. Id. at 362.
rv
¶ 17. We begin our analysis of Rizzo's case by determining whether Dr. Pucci gave Jensen testimony as an expert within the scope of Maday. If Dr. Pucci's testimony was not Jensen evidence, then Rizzo would not have been entitled to a determination under Maday. In addition, not all State witnesses in sexual assault trials who give Jensen evidence will trigger a determination under Maday. If Dr. Pucci was not the type of [425]*425expert that triggers Maday's protections, then Rizzo would not have been entitled to a Maday determination.
¶ 18. The determination of whether Dr. Pucci gave Jensen testimony as an expert within the scope of Maday requires that we apply legal standards to the facts of Rizzo's case. Whether a given set of facts meets a particular legal standard is a question of law for our independent review. State v. Brandt, 226 Wis. 2d 610, 618, 594 N.W.2d 759 (1999).
A. Dr. Pucci's Testimony as Jensen Evidence
¶ 19. The court of appeals concluded that Dr. Pucci's testimony was "tantamount to" Jensen evidence. The State asserts that Dr. Pucci's testimony was not Jensen evidence because she did not offer an opinion that D.E's behavior was "consistent with" the behavior of persons known to be sexual assault victims.
¶ 20. Dr. Pucci's testimony upon direct examination contained a detailed description of her interactions with and treatment of D.F. This included her factual testimony that D.F. had reported a sexual assault to her and that the bulk of D.F.'s 1997 treatment was in response to the sexual assault. As Dr. Pucci's factual testimony concluded, the prosecutor engaged her in the following exchange:
Q Did you ever discuss with [D.F.] in the course[ ] of your treatment why she delayed this report for over a year?
A Yes. We talked about why she finally did report it, and she talked about not wanting to report it when I saw her in 1996 because she and her [426]*426family didn't want to press charges; and that changed throughout the course of time, and by 1997 she did want to report it... .
Q Dr. Pucci, do you have an opinion as to a reasonable degree of psychological certainty why someone would not report a crime like this under these circumstances?
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: It's overruled. The witness may answer.
A Could you repeat the question?
Q Do you have an opinion to a reasonable degree of psychological certainty why someone would, in this position, would not immediately report a crime like this?
A Often people are reluctant to report this kind of crime because of threats the offender or the abuser makes to them about it, either directly telling them not to tell or threatening them if they do tell. Often people are embarrassed. They may be afraid they are not going to be believed. Sometimes they have some positive feelings about the abuser and may not want to get that person into trouble. Those tend to be the most common reasons.
¶ 21. We agree with the court of appeals that Dr. Pucci's testimony made the requisite comparison between D.F.'s behavior and the common behaviors of sexual assault victims. In arguing that it did not, the State is asking this court to hold that Dr. Pucci's [427]*427testimony would have been Jensen evidence only if she had used magic words such as "D.F.'s behaviors are consistent with that of persons known to be sexual assault victims." We decline to adopt such a mechanistic approach. Instead, we determine that a jury would interpret the prosecutor's questions along with Dr. Pucci's answer to provide the comparison that is the essence of Jensen evidence.4
¶ 22. The phrasing of the prosecutor's questions and the substance of Dr. Pucci's answer combined to send a clear message to the jury that D.F.'s behaviors were consistent with those of known sexual assault victims. The factual portion of Dr. Pucci's testimony established that she knew D.F. to be a sexual assault victim. The prosecutor then solicited her expert opinion as to what someone would do "under these circumstances" and "in this position." This made it apparent to the jury that a direct comparison was to be drawn between D.F. and others in her circumstances or position, which, according to the factual testimony of Dr. Pucci, were the circumstances or position of a sexual assault victim.5
[428]*428¶ 23. In addition, upon redirect examination, Dr. Pucci gave further testimony that reinforced for the jury that she was equating D.F.'s behaviors with those commonly observed in known sexual assault victims:
Q Dr. Pucci, what was your recollection of the reason [D.F.] did not want to report this in 1996?
A She did not want to press charges against Mr. Rizzo, and she just wanted him to leave them alone and just wanted him to go away and not hurt anyone again.
Q Did she ever discuss with you anything in regard
to concerns about whether or not she would be believed? Was that ever discussed that you recall or not?
A She told me that he, that Mr Rizzo, had told her that if she told anyone she would not be believed.
Q 1997. Dr. Pucci, I'm framing that question in terms of your contact with her in 1997. Did she indicate at that time whether that was something she had internalized as a reason she didn't want to report, or was she discussing that with you as one of the many things that was said?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
A My impression is that she had internalized it.
The reasons that Dr. Pucci gave in explaining why D.F. did not report the sexual assault are strikingly similar [429]*429to the reasons she gave earlier in her testimony explaining why sexual assault victims generally delay reporting. This similarity would also lead a jury to make the comparison that is the essence of Jensen evidence.
B. Whether Dr. Pucci Was an Expert within the Scope of Maday
¶ 24. The State also argues that Mayday is inapplicable because it did not "hire" Dr. Pucci as an expert. The State's argument is based primarily on its reading of State v. David J.K., 190 Wis. 2d 726, 528 N.W.2d 434 (Ct. App. 1994). It emphasizes the court of appeals determination in David J.K. that "the psychological examination of the complainant authorized in Maday is strictly limited to situations in which the prosecution retains experts in anticipation of trial in order to present Jensen evidence." Id. at 735 (emphasis added). According to the State, it did not "retain" Dr. Pucci as an expert; rather, she was D.E's treating therapist. Because Dr. Pucci was D.F.'s treating therapist, the State contends, it was merely taking "the facts and the witness as it found them." In essence, the State's position is that it is shielded from Maday because it was D.F. who "retained" Dr. Pucci, not the State.
¶ 25. We disagree with the State's characterization of Dr. Pucci as falling outside the intended scope of Maday. By reading too much into David J.K. and interpreting the concept of "retain" in an overly restrictive manner, the State's position overlooks the core rationale underlying Maday.
¶ 26. The core rationale in Maday was one of basic fairness. If one side is to introduce testimony by a psychological expert who has examined the victim, the [430]*430other side must also be able to request such an opportunity in order to level the playing field. Maday, 179 Wis. 2d at 357. A jury will generally give the opinion of a psychological expert who has examined a party greater weight than the opinion of an expert who has not. The State's position suggests that the key fact in Maday was that its experts were the prototypical "hired guns." However, in Maday, the key fact was that the psychological experts had personally interviewed and examined the complainant.
¶ 27. Moreover, the court of appeals in David J.K. did not focus on the distinction between "hired gun" experts and other experts. Instead, in determining that Maday did not apply, the court in David J.K. contrasted the reason the defendant before it was seeking pretrial psychological examinations with the reason the defendant in Maday sought an examination. David J.K, 190 Wis. 2d at 734. In Maday, the defendant sought a psychological examination in order to rebut the State's Jensen evidence. See id. (citing Maday, 179 Wis. 2d at 352 & n.3). In David J.K, the defendant sought psychological examinations in order to challenge the two victims' competency along with their credibility. Id. The court in David J.K. concluded that the defendant "failed to make any showing that the victims lacked mental competency to testify," and therefore, was not entitled to examinations. Id.
¶ 28. We read the court of appeals statement in David J.K. that a Maday determination is limited to situations where the State "retains experts in anticipation of trial in order to present Jensen evidence" as a reiteration of its holding in Maday. Maday sets forth the correct standard in detail:
[431]*431When the state manifests an intent during its case-in-chief to present testimony of one or more experts, who have personally examined a victim of an alleged sexual assault, and will testify that the victim's behavior is consistent with the behaviors of other victims of sexual assault, a defendant may request a psychological examination of the victim.
179 Wis. 2d at 359-60 (emphasis added).
¶ 29. In State v. Schaller, 199 Wis. 2d 23, 544 N.W.2d 247 (Ct. App. 1995), the court of appeals attempted to distinguish between a State psychological expert who has "personally examined" a complainant within the meaning of Maday and one who has not. The court explained that Maday involved experts who had conducted "psychological examinations" or "psychological interviews" with a complainant. Id. at 34. In upholding the circuit court's denial of the defendant's request for a pretrial psychological examination, the court in Schaller noted that the State's experts did not testify that they had "examined" the complainant. Id. Similarly, in State v. Mainiero, 189 Wis. 2d 80, 91, 525 N.W.2d 304 (Ct. App. 1994), the court of appeals referred to a Maday expert as one who has "personally interviewed" the complainant.
¶ 30. We agree with the court of appeals' determination in Schaller that the fact that a Jensen witness has had previous "professional interaction" with the complainant does not hy itself trigger Maday. Given the facts before us, however, we must clarify the distinction between an expert that may trigger Maday and an expert who has only minimal "professional interaction" with a complainant as contemplated in Schaller.
[432]*432¶ 31. Although the court in Schaller emphasized that none of the State's experts testified that they had conducted a psychological examination of the complainant, it also noted, somewhat ambiguously, that the State's psychological expert had met with the complainant on one occasion to "evaluat[e] . . . her present functioning and .. . her past experiences." 199 Wis. 2d at 34. While we do not purport to set forth a bright line rule that will prove definitive in every case, the distinction between a psychological expert that triggers Ma-day and one that does not will depend in part on the extent and nature of the contact between the expert and the complainant.
¶ 32. We must not lose sight of the fundamental fairness principle that drives the Maday decision. If the State is to introduce Jensen evidence through a psychological expert who has become familiar with the complainant through ongoing treatment, or through an intensive interview or examination focused on the alleged sexual assault, the defendant must have the opportunity to show a need to meet that evidence through a psychological expert of its own. As the Maday court explained in support of its holding, "a definitive opinion requires an extensive interview plus review of material on the victim's life and behaviors." 179 Wis. 2d at 357.
¶ 33. With these principles in mind, we conclude that it would strain logic and ignore fairness to determine that a psychological expert such as Dr. Pucci does not trigger Maday. Dr. Pucci was not just any professional who briefly encountered D.F. after a reported sexual assault. Dr. Pucci was a clinical psychologist who [433]*433had an extensive, ongoing relationship with D.F. She interviewed, examined, and diagnosed D.F. Moreover, Dr. Pucci testified that the bulk of her treatment of D.F. in 1997 was directed at the sexual assault. In short, the extent and nature of Dr. Pucci's contacts with D.F. bring her within the ambit of Maday.
¶ 34. In addition, we agree with Rizzo and the court of appeals that the State "retained" Dr. Pucci in the sense meant by David J.K. Although there is no assertion by Rizzo that Dr. Pucci received a specific witness fee, the State admitted that it "paid three times" for Dr. Pucci's flights, hotel, rental cars, and meals in order to bring her from Tennessee, where she had relocated since treating D.F.
¶ 35. More to the point, however, we determine that even if the State had not compensated or reimbursed Dr. Pucci, she would still have been a Maday expert. A determination of whether the State "retains" an expert for purposes oí Maday cannot stand or fall on whether or how it has compensated its expert. Such a determination would thwart the fundamental principle underlying Maday and would allow the State to subvert Maday by, for example, obtaining an expert willing to volunteer her time. For the same reasons, we conclude that an expert's status as the complainant's treating therapist does not preclude that expert from being "retained" by the State for purposes of Maday.
¶ 36. In sum, given the nature of Dr. Pucci's interactions with D.F., she was an expert within the scope of Maday. Her testimony contained Jensen evidence because she made a comparison between D.F.'s behavior and the behaviors of sexual assault victims generally.
[434]*434¶ 37. It is important to emphasize that our decision does not tie the State's hands in presenting expert witnesses in sexual assault trials. It does not require that a defendant receive a determination under Maday whenever the State calls a complainant's treating psychologist as a witness. Here, the State would have been free to elicit factual and opinion testimony from Dr. Pucci without triggering Maday if it had called a different witness in order to introduce Jensen evidence. Indeed, before trial, this is precisely the course the State represented that it would follow if it determined that Jensen evidence was necessary.
¶ 38. In addition, Maday's own balancing test prevents a defendant from receiving a pretrial psychological examination in every case where the State wishes to call a psychological expert who has examined the victim to give Jensen testimony. A conclusion that a defendant is entitled to a Maday determination is not equivalent to a conclusion that the defendant is entitled to a psychological examination. For that, the defendant must show a "compelling need" for the examination under Maday.
¶ 39. We are mindful of the need to protect the privacy interests of sexual assault victims and to ensure that they are not re-victimized by the intrusiveness of a defense psychological examination unless necessary to preserve the competing constitutional rights of the defendant. Sexual assault complainants should not be caught needlessly between their privacy interests and the vigorous prosecution of the alleged perpetrators. However, as we have indicated, it is only when the State seeks to admit Jensen evidence through a Maday expert that a complainant will face the possibility of a defense [435]*435psychological examination. In many cases, the experts involved will not fall within the confines of Maday.
¶ 40. Likewise, we stress that the very purpose of the Maday test is to account for the privacy interests of the victim in the face of the defendant's competing constitutional rights. See 179 Wis. 2d at 359-60. The factors under Maday represent substantial hurdles that a defendant seeking a psychological examination must clear. They ensure that the privacy interests of victims are properly protected, and they preclude defense psychological examinations that amount to nothing more than fishing expeditions. These factors, together with the obstacles that the defendant faces in asserting that the State's witness is an expert within the meaning of Maday, constitute a carefully crafted system of procedural and substantive safeguards that ensure the protection of the victim's privacy interests.6
V
¶ 41. Because the State introduced Jensen evidence through an expert within the scope of Maday after Rizzo was denied a pretrial psychological examination based on the State's representation that this evidence would not be offered, we must determine the [436]*436remedy due Rizzo. The court of appeals concluded that Rizzo was deprived of his rights to due process and a fair trial and, accordingly, that the appropriate remedy was a new trial. Whether an individual is denied a constitutional right is a question of law for this court's independent review. State v. Cummings, 199 Wis. 2d 721, 748, 546 N.W.2d 406 (1996). Similarly, the determination of the proper remedy in the face of a constitutional violation is a question for our independent review. See State v. Anderson, 165 Wis. 2d 441, 447, 477 N.W.2d 277 (1991).
¶ 42. The State suggests two possible remedies. First, the State asserts that this court can and should apply the factors in Maday and determine as a matter of law that Rizzo failed to show he was entitled to a pretrial psychological examination. In the alternative, the State asks that we remand for the circuit court to apply the Maday factors. In addition, the State contends, even if the circuit court determines Rizzo was entitled to a psychological examination under Maday, the disallowance of the examination is subject to a harmless error analysis. We agree with the State that a remand for a Maday determination is in order, but we reject the State's assertion that Rizzo's case is subject to a harmless error analysis.
¶ 43. Normally, the determination of whether the defendant has presented evidence demonstrating a compelling need for a pretrial psychological examination is a matter for the circuit court's discretionary determination. See Schaller, 199 Wis. 2d at 33-34. Here, the court never exercised its discretion by applying Maday because the State represented that it would not offer Jensen evidence through Dr. Pucci. Consequently, Rizzo did not have an adequate opportunity to develop [437]*437arguments or evidence to show he had a compelling need for a psychological examination under Maday. Accordingly, we do not attempt to apply Maday on the present record in order to determine whether Rizzo failed to make the required showing.
¶ 44. At the same time, however, neither Rizzo nor the court of appeals has adequately explained why a new trial is necessarily the remedy. When the State introduced its Jensen evidence through Dr. Pucci, it was Rizzo's right to a pretrial determination under Maday that was violated. Only if Rizzo should have been granted his request for a pretrial psychological examination did the State's introduction of Jensen evidence violate his rights to due process and a fair trial. Because, as we have already noted, the circuit court never had the opportunity to exercise its discretion in applying the Maday factors, we do not know whether Rizzo would have been able to survive a determination under Maday. Therefore, we remand for the circuit court to apply Maday.
¶ 45. We reject, however, the State's invitation to apply a harmless error analysis. The test for harmless error is whether there is a reasonable possibility that the error contributed to the conviction. State v. Jackson, 216 Wis. 2d 646, 668, 575 N.W.2d 475 (1998); State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). A reasonable possibility is a possibility sufficient to undermine our confidence in the outcome. State v. Grant, 139 Wis. 2d 45, 51, 406 N.W.2d 744 (1987).
¶ 46. The State explains that the harmless error analysis would proceed as follows: "if Rizzo's expert, after examining D.F., does not offer an opinion that, had it been admitted at trial, would have affected the result [438]*438of the trial, then any error in not allowing the examination and thereby excluding the expert's testimony was harmless." We determine that the harmless error test need not be applied here as the State asserts.
¶ 47. Although the test for "compelling need" under Maday is undoubtedly different than the test for harmless error, a determination that the psychological examination was necessary to level the playing field seems inconsistent with a determination that the absence of such an examination was harmless error. A decision by the circuit court that a defendant is entitled to a pretrial psychological examination of the victim is tantamount to a determination that fundamental fairness requires that the defendant be given the opportunity to present relevant evidence to counter the State's Jensen evidence. Maday, 179 Wis. 2d at 357. Accordingly, we do not apply a harmless error analysis. Instead, we direct that if the circuit court determines that Rizzo was entitled to a pretrial psychological examination, then he should receive a new trial.
VI
¶ 48. Finally, we must determine whether Rizzo was improperly denied access to D.F.'s treatment records. Before trial, the circuit court conducted an in camera review of the records in accordance with State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). The State agreed that Rizzo had made the preliminary showing of materiality necessary for an in camera review. The court compared the records to Dr. Pucci's summary report and concluded that Rizzo was not entitled to the records:
Well, the Court has had the opportunity to review the psychological file, and what I did first was go over [439]*439the summary and see what the summary said; and then I began to page through the doctor's file .... Well, very frankly, if you go through this entire file and you go through it essentially line by line, you won't find anything different than what you find in her summary. ... [T]here is really no information that' is contained in this file that you don't know about already that would be exculpatory in any way or even lead to anything that is exculpatory ....
Subsequently at trial, after Dr. Pucci gave her Jensen testimony, Rizzo again raised the issue of access to the treatment records, arguing that he needed them to effectively cross-examine her. The circuit court denied Rizzo's request, concluding "[t]here has been no showing that would satisfy the Court that would be appropriate."
¶ 49. We review under the clearly erroneous standard the findings of fact made by the circuit court. Shiffra, 175 Wis. 2d at 605. However, we independently apply any constitutional principles involved to the facts as found. Mainiero, 189 Wis. 2d at 88.
¶ 50. Rizzo does not contend that the circuit court made clearly erroneous fact findings. Instead, he asserts that Dr. Pucci's testimony "opened the door" to cross-examination as to the source of her additional, unanticipated testimony. He relies on the court of appeals' conclusion that Dr. Pucci's Jensen testimony went "beyond the scope of her summary report." In addition, he argues that the records were essential to impeach her and attack her credibility. He concludes that without the records, he was deprived of his constitutional right to present a defense. We disagree.
¶ 51. Before trial, the circuit court found that there was nothing relevant in D.F.'s treatment records [440]*440that was not also in Dr. Pucci's summary report. Although Dr. Pucci ventured beyond the scope of her summary report at trial in that the report did not say she would give Jensen testimony, it does not automatically follow that Rizzo was entitled to D.F.'s treatment records. Because Dr. Pucci's factual testimony was anticipated, her Jensen testimony did not change the scope of relevant information in D.F.'s treatment records. The argument that Rizzo could somehow impeach Dr. Pucci's expert knowledge of the common behaviors of sexual assault victims by accessing the treatment records of one of her patients is not persuasive.
¶ 52. Rizzo also argues that he needed D.F.'s treatment records to cross-examine Dr. Pucci because it was unclear whether a statement in quotation marks in Dr. Pucci's summary report was attributable to Dr. Pucci or to D.F.'s parents. The statement said that D.F. was "lying, and manipulative, and good at diverting attention." Dr. Pucci testified that these were not the parents' exact words, but rather her interpretation of what they had said. She explained that she placed them in quotation marks to signify that she was quoting another source, an intake form.
¶ 53. Rizzo's position appears to be that he was entitled to cross-examine Dr. Pucci using the treatment records because if the records would have revealed the source of the quote as D.F.'s parents, this would have undermined Dr. Pucci's credibility. We do not adopt Rizzo's position because it would eviscerate the procedure for in camera review set forth in Shiffra, which protects a victim's confidential records. In effect, Rizzo's position would provide that the defendant must receive full access to the victim's treatment records in every [441]*441case in order to effectively cross-examine an expert who treated the victim. That is in stark contrast to the in camera procedure under Shiffra, which specifically balanced the victim's interest in confidentiality against the constitutional rights of the defendant. See 175 Wis. 2d at 609-10.
¶ 54. In short, Dr. Pucci's Jensen testimony did not undermine the basis for the circuit court's original decision denying Rizzo access to D.F.'s treatment records. Furthermore, under Shiffra, a defendant is not entitled to the records of a victim's treating therapist simply to impeach the therapist's credibility. Therefore, we determine that when the circuit court denied Rizzo's renewed request for the records, it correctly reaffirmed its pretrial decision.7
VII
¶ 55. In sum, we conclude that the State introduced Jensen testimony through an expert within the scope of Maday after representing to the circuit court that it would not do so. Consequently, Rizzo was deprived of his right to a pretrial determination under Maday. We determine that the proper remedy under the facts of this case is a remand for the circuit court to determine whether Rizzo was entitled to a pretrial psychological examination of D.F. Only if the court determines on remand that Rizzo was entitled to a psychological examination is a new trial necessary. In [442]*442addition, we determine that the court of appeals erred in concluding that Rizzo was improperly denied access to D.F.'s treatment records. Accordingly, we reverse the court of appeals and remand for the circuit court to make a determination under Maday.
By the Court. — The decision of the court of appeals is reversed and the cause remanded to the circuit court.