Although the decision is contrary to the precedents of the Wisconsin Supreme Court, attorneys representing clients in state court should still be familiar with it for use as persuasive authority, and to preserve the issue for potential federal habeas corpus review.
Wisconsin courts have struggled with application of Pennsylvania v. Ritchie, 480 U.S. 39 (1987), for many years.
Like Judge Adelman, the Wisconsin Court of Appeals has recognized the difficulty of applying the materiality standard prior to trial. State v. Shiffra, 175 Wis.2d 600, 607, 499 N.W.2d 719 (Ct.App.1993).
Recently, the Wisconsin Supreme Court has taken up the issue, in State v. Green, 2002 WI 68, 253 Wis.2d 356, 646 N.W.2d 298, and discussed the Shiffra case in detail.
At one point, the court stated, The Shiffra court appropriately rejected the materiality standard set forth in Pennsylvania v. Ritchie, … as difficult to apply before trial. Green, 253 Wis.2d at 379.
However, the court found problems with Shiffras analysis, as well, observing that it set forth two inconsistent standards. Id. at 373. At one point, the Shiffra court concluded that the defendant must, make a preliminary showing that the sought-after evidence is relevant and may be helpful to the defense or is necessary to a fair determination of guilt or innocence. Shiffra, at 608.
However, in a later part of the opinion the court stated the test as may be necessary to a fair determination of guilt or innocence. Id., at 610.
Reviewing subsequent cases, the Supreme Court found that the court of appeals has consistently applied the latter of the two standards. Green, at 374.
Resolving the conflict, the court stated the following standard: the preliminary showing for an in camera review requires a defendant to set forth, in good faith, a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative to other evidence available to the defendant. We conclude that the information will be necessary to a determination of guilt or innocence if it tends to create a reasonable doubt that might not otherwise exist. Id. at 381 (cites omitted).
Thus, Wisconsin courts have also found the materiality requirement may be inappropriate at the trial level. However, they have set a higher standard just to receive an in camera review of confidential records than Judge Adelman set for disclosure of those records after such a review found the records favorable to the defendant.
As such, this case should be used in state courts as well as federal, as a potential means for obtaining federal habeas relief.
– David Ziemer
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David Ziemer can be reached by email.