00-1392 State v. Green

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“The court concluded that Green had failed to offer any factual showing that the counseling records could contain information that would show N.W.’s inability to perceive events, remember or testify. …

“In light of the strong public policy favoring protection of the counseling records, however, we conclude that a slightly higher standard is required before the court must conduct an in camera review of privileged counseling records. For this reason, we conclude, consistent with other state standards, that a defendant must show a ‘reasonable likelihood’ that the records will be necessary to a determination of guilt or innocence. …

“In particular, a defendant must set forth a fact-specific evidentiary showing, describing as precisely as possible the information sought from the records and how it is relevant to and supports his or her particular defense…. Further, a defendant must undertake a reasonable investigation into the victim’s background and counseling through other means first before the records will be made available. From this investigation, the defendant, when seeking an in camera review, must then make a sufficient evidentiary showing that is not based on mere speculation or conjecture as to what information is in the records. In addition, the evidence sought from the records must not be merely cumulative to evidence already available to the defendant. A defendant must show more than a mere possibility that the records will contain evidence that may be helpful or useful to the defense. …

“We conclude that, under either the Shiffra standard or the slightly heightened standard set forth in this opinion, any showing by Green at the circuit court was insufficient to compel the court to conduct an in camera review of N.W.’s records. We therefore affirm the court of appeals’ conclusion.”

Further, even though the prosecutor may have questioned a witness in the hall during a break in the trial concerning the date on which defendant had confessed the assault to the witness, that did not violate the court’s sequestration order.

Affirmed.

Court of Appeals, Bablitch, J.

Attorneys:

For Appellant: Nicolas G. Griswold, Muskego

For Respondent: Daniel J. O’Brien, James E. Doyle, Madison