02-1718 State v. Robertson

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“A defendant requesting confidential records during postconviction discovery should be required to meet the preliminary Shiffra-Green burden. As with pretrial requests for confidential records, applying the Shiffra-Green [State v. Shiffra, 175 Wis. 2d 600 (Ct. App. 1993) and State v. Green, 2002 WI 68]test to the posttrial setting strikes the appropriate balance between the interests of the defendant and the State. It affords the defendant an opportunity to have a judge, an independent overseer, review the records while still protecting the privacy of the alleged victim. Then, if the defendant has shown an entitlement to an in camera review based upon the first four factors of the newly discovered evidence test, the trial court should apply the [State v.]O’Brien [ 223 Wis. 2d 303 (1999)] ‘consequential evidence’ test to determine whether the material it reviews during its in camera inspection should be disclosed to the defendant. We have every confidence in the trial courts to make a proper determination as to whether the disclosure of the information is necessary based on the competing interests involved in such cases. …

“The information in the records concerning E.B’s psychiatric treatment and the nature of the psychotic features presented by her depression could explain her behavior in a way that was not possible to do during trial. Robertson could not offer any reason for why E.B. ‘freaked out’ and ran from the van, thereby leaving only one plausible explanation for E.B.’s behavior-that she had just been forced into sexual intercourse. Providing an explanation could in turn rebut or weaken the commonsense explanation offered by the State and thus could affect E.B.’s credibility and lend credence to Robertson’s defense of consent.”

Judgment affirmed; order reversed and cause remanded with directions.

Recommended for publication in the official reports.

Dist II, Fond du Lac County, Weinke, J., Brown, J.

Attorneys:

For Appellant: Jefren E. Olsen, Madison

For Respondent: Marguerite M. Moeller, Madison; Thomas L. Storm, Fond du Lac