Evidence — mental health records — in camera review

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Wisconsin Supreme Court

Criminal

Evidence — mental health records — in camera review

This is a review of an unpublished opinion of the court of appeals that affirmed in part and reversed in part an order of the circuit court. Three issues are presented for review:

First, should State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), be overruled because its holding rests on an erroneous premise that Pennsylvania v. Ritchie, 480 U.S. 39 (1987) mandates the pretrial in camera review of privately-held, privileged records?  A majority of the court would not overrule Shiffra.  Chief Justice Abrahamson, Justice Bradley, Justice Crooks, and Justice Ziegler conclude that Shiffra should not be overruled, observing that this court has reaffirmed or applied Shiffra in a number of cases.  Justice Roggensack concludes that Shiffra should not be applied to mental health records that are privately held and privileged.

Second, if Shiffra is not overruled, has the defendant met his burden under State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, to make an initial showing of materiality entitling him to an in camera review of the privately-held records?  A majority of the court concludes that he has met the requisite burden to make an initial showing of materiality.  Chief Justice Abrahamson, Justice Bradley, and Justice Crooks conclude that the defendant has satisfied his burden under Green.  Justice Roggensack and Justice Ziegler conclude that the defendant has not satisfied his burden.  Third, if Shiffra is not overruled, may the circuit court require production of the privately-held, privileged mental health records in this case for in camera review when the 17-year-old privilege-holder refuses to consent to their release?  Chief Justice Abrahamson and Justice Bradley agree with Judge Brown’s dissent in the present case at the court of appeals that the circuit court may require production of the records for an in camera review and that Shiffra does not necessarily require the suppression of the privilege-holder’s testimony if she refuses to release her records.3  They would affirm the circuit court’s determination in this case, which has already balanced the competing interests, concluding that suppression of the privilege-holder’s testimony is neither required nor appropriate as a sanction here.4  Justice Crooks and Justice Ziegler conclude that the court may not require production, but their rationales differ.  Justice Crooks concludes that the privilege-holder may not testify without voluntarily producing the records under Shiffra.  He is concerned about the defendant’s ability to present a meaningful defense.  Justice Ziegler concludes that the privilege-holder may testify because the defendant has not satisfied his burden under Green.  Justice Roggensack concludes that the court cannot require production of the privately-held, privileged mental health records, and therefore that the privilege-holder may testify.  Thus, under varying rationales, Chief Justice Abrahamson, Justice Bradley, Justice Roggensack, and Justice Ziegler agree that in this case, the privilege-holder may testify and need not produce the records.

Affirmed as Modified.

2011AP2864-CRAC State v. Johnson

Per Curiam.

Attorneys: For Appellant: Moeller, Marguerite M., Madison; Repischak, Robert S., Racine; For Respondent: Meyer, Stephen J., Madison; Richards, Mark D., Racine; Hart, Michael F., Milwaukee; Powell, Craig S., Milwaukee; Misfeldt, Geoffrey R., Milwaukee